Canada: The British Columbia Court Of Appeal Rejects The Territorial Theory Of Aboriginal Title And Dismisses The Appeal By The Tsilhqot'in Nation

Last Updated: September 21 2012
Article by Carolina Manganelli

On June 27, 2012 The British Columbia Court Of Appeal Issued Its Highly Anticipated Decision In The Case William V. British Columbia.1 In A Unanimous Decision, The Court Affirmed Many Of The Trial Judge's Holdings Regarding The Claims To Aboriginal Rights And Title Brought By The Tsilhqot'in Nation And The Xeni Gwet'in First Nations Government. However, The Most Important Issue On Which The Court Of Appeal And The Trial Judge Disagreed Related To The Type Of Occupancy Necessary To Sustain A Claim To Aboriginal Title: The Court Rejected The "Territorial Theory" And Held That Aboriginal Title Can Only Be Proven By Evidence Of Intensive Physical Occupation Of Specific Sites.

FACTS

This appeal concerns Aboriginal rights and Aboriginal title claims brought on behalf of the Xeni Gwet'in First Nations Government (Xeni Gwet'in) and the Tsilhqot'in Nation (Tsilhqot'in) in an area comprising approximately 4,380 km 2 in the Chilcotin region of the west central interior of British Columbia ("Claim Area"). The Xeni Gwet'in is a band under the Indian Act, formerly known as the Nemiah Valley Indian Band, which, along with five other First Nations, makes up part of the Tsilhqot'in Nation. The Tsilhqot'in considers their traditional territory to include a vast tract of the west central interior of British Columbia. The Claim Area comprises two areas: Tachelach'ed (the Brittany Triangle) and the "Trapline Territory", excluding the reserves forming part thereof. It comprises only about five percent of what the Tsilhqot'in regard as their traditional territory and is mostly made up of undeveloped land with over forty per cent being provincial park land.2

It was proposed forestry activities and the granting of cutting permits in the Claim Area that instigated the litigation. The case, which originally began in 1989, underwent several amendments and different iterations. When the action proceeded to trial in 2002, the plaintiff sought, among others, a declaration that the Tsilhqot'in Nation has Aboriginal title to the Claim Area and a declaration that the Xeni Gwet'in has Aboriginal rights to hunt and trap in the Claim Area as well as declarations of infringement of those rights by British Columbia and corresponding relief and damages.3

THE TRIAL JUDGE'S DECISION

On November 20, 2007 Justice Vickers of the British Columbia Supreme Court rendered his decision after a trial that lasted 339 court days over the period of five years.4 Justice Vickers ruled that the Tsilhqot'in Nation, as the proper rights holder, has Aboriginal rights to trap and hunt birds and animals for specified purposes 5, to trade in skins and pelts taken from the Claim Area "as a means of securing a moderate livelihood"6 as well as to capture and use horses 7. He also held that forestry activities in the Claim Area unjustifiably infringed those rights.8 However, Justice Vickers dismissed the claim to Aboriginal title, though he did so without prejudice to the plaintiff's ability to bring a new claim for title to smaller tracts of land within the Claim Area. He concluded that he could not issue a declaration of title to those areas because the case was pleaded as an "all or nothing claim", namely that either title is established over all of the Claim Area or title cannot be established at all. However, Justice Vickers issued an opinion that there was sufficient evidence to establish Aboriginal title to certain parts of the Claim Area.9

THE COURT OF APPEAL'S DECISION

All three parties appealed various parts of the decision of the trial judge. The most important issues under appeal and the most significant parts of the Court of Appeal's decision concern the Aboriginal title claim, in particular whether it was an "all or nothing" claim and the extent of occupation necessary to establish title as well as the issue of the proper holders of Aboriginal rights.

ABORIGINAL TITLE

Justice Vickers concluded that the Aboriginal title claim brought by the plaintiff was an "all or nothing" claim, which obliged him to render a decision over the whole Claim Area and prevented him from rendering a declaration over smaller parts of the Claim Area. The Court of Appeal, however, disagreed with him, holding that the real issue is whether the parties are prejudiced by the way in which a case proceeds and that it is open to a court to grant a declaration that is less sweeping than the ones sought by a plaintiff. 10 The Court reached this conclusion based on the decision of the Supreme Court of Canada in the Lax Kw'alaams case.11 The lack of evidence of prejudice to the defendants and the presence of a "basket clause" allowed the Court to conclude that it was open to the trial judge to issue a declaration of title to only certain parts of the Claim Area.12 The Court was also swayed by the plaintiff's reminder of the special nature of Aboriginal rights and title claims and the need for flexibility in such cases.13 The way that the case was pleaded, therefore, did not prohibit a declaration over smaller portions of the Claim Area.

However, the major point on which the Court disagreed with Justice Vickers' decision related to the proper theory and necessary proof for Aboriginal title. The Court defined the parties' competing theories as the "territorial theory" as espoused by the plaintiff, whereby a group's presence and movement throughout a general area is sufficient to prove Aboriginal title 14, as opposed to the "site-specific" theory as put forth by the defendants, whereby Aboriginal title can only be established over smaller tracts of land based on intensive, exclusive and regular or continuous occupation of particular sites.15 The Court concluded that Justice Vickers erroneously accepted and adopted the plaintiff's territorial theory when rendering his decision as well as his opinion.

The Court determined that the site-specific theory of Aboriginal title is the correct one for three reasons: First, the Court held that the test for Aboriginal title set out in Delgamuukw 16 and Marshall;Bernard 17 is based on the site-specific theory.18 Therefore, Aboriginal title can only be established on definite tracts of land with boundaries that can be reasonably defined. 19 Furthermore, the Court held that the territorial theory of title has no place when one considers the purpose behind s.35 of the Constitution Act, 1982 and the rationale for the common law's recognition of Aboriginal title, which, according to the Court, is to preserve an Aboriginal group's culture and allow its members to pursue a traditional lifestyle.20 According to the Court, other tools, such as Aboriginal rights, are available to serve this role without the necessity of Aboriginal title on a broad territorial basis.21 Finally, the territorial theory of Aboriginal title does not, according to the Court, serve the goal of reconciliation of Aboriginal and non-Aboriginal aspirations and unnecessarily limits Crown sovereignty.22

The Court, therefore, held that Justice Vickers was correct in dismissing the claim to Aboriginal title. Furthermore, the Court held that it was not open to Justice Vickers to issue a declaration of title in regards to a more limited territory because that would, likewise, have been premised on the plaintiff's erroneous "territorial theory" of title. Finally, it was also not open to Justice Vickers to render a declaration of title based on the correct "site-specific" theory because it was not put forth by the plaintiff in support of the larger claim to the whole Claim Area. As a result, the Court concluded that the plaintiff may bring a new claim to Aboriginal title based on the correct theory as this would be an entirely new and different claim not covered by the doctrine of res judicata. 23

ABORIGINAL RIGHTS

The Court upheld all of Justice Vickers' conclusions regarding the claims to Aboriginal rights other than title. Furthermore, the Court also dismissed British Columbia's appeal on the issue of infringement and justification and upheld Justice Vickers' conclusion that the proposed forestry activities infringed these rights and did not meet the required justification analysis.

PROPER RIGHTS HOLDER

Another highly contentious issue is the question of which group or collective is the proper holder of Aboriginal rights. It is well established that Aboriginal rights are collective and not individual rights. However, it is not always clear, and there is often debate regarding, which collective is the holder of such rights. The issue arose in this case at the trial level, wherein the plaintiff originally claimed Aboriginal rights on behalf of the Xeni Gwet'in and Aboriginal title on behalf of the Tsilhqot'in Nation before amending the claim into one on behalf only of the Tsilhqot'in Nation. Justice Vickers ultimately held that the proper holder of Aboriginal rights in this case is the Tsilhqot'in Nation.

On appeal, British Columbia reiterated its argument that the Xeni Gwet'in is the proper rights holder. In particular, it argued that the larger Nation has no governing or decision-making body that can designate authorized spokespersons, as opposed to the Xeni Gwet'in, which is a recognized Indian Act band with a clear political structure. As a result, it is preferable on a real and practical level for the Xeni Gwet'in to be the rights holder. The province argued that this would allow it to properly identify individuals who are entitled to exercise Aboriginal rights as well as to allow it and other governments to engage in proper consultation.24 Furthermore, British Columbia argued that the jurisprudence on Aboriginal rights requires that the present-day rights holders be the modern counterpart to the collective that traditionally exercised decision-making power. In the case at hand, decision-making was held by Justice Vickers to occur at the localized level of the family or encampment groupings, more akin to a band, and not at the level of the Tsilhqot'in Nation.

The Court expressed "considerable sympathy" for British Columbia's position and the real practical challenges that it, and other governments, face on this issue. In particular, the Court appears to be sensitive to how this issue can be a practical barrier to consultation and negotiation, which are the preferred routes to reconciliation. Ultimately, however, the Court gave greater weight to the importance of the Aboriginal perspective on this issue. In this case, the Aboriginal perspective and the evidence established that the holder of Aboriginal rights within the Claim Area, both traditionally as well as in the present, is the Tsilhqot'in Nation.

DISCUSSION

The most important part of the Court's decision, and which caused much anticipation, related to the title claim. This case was the first case involving a claim to Aboriginal title since the Supreme Court of Canada decision in Marshall;Bernard25 in 2005. Moreover, the Xeni Gwet'in and the Tsilhqot'in came close to establishing Aboriginal title before the trial judge. However, absent a new trial or a successful appeal to the Supreme Court of Canada, the Court of Appeal closed that window of opportunity for the Xeni Gwet'in and the Tsilhqot'in Nation in regards to the Claim Area as well as any smaller parts thereof. In doing so, the Court iterated a theory of occupation necessary to establish Aboriginal title that, if upheld by the Supreme Court of Canada in a possible appeal or followed in other jurisdictions, seriously limits the ability of Aboriginal groups to establish title. Nomadic or semi-nomadic groups, especially, will find it difficult, if not impossible, to demonstrate the level of occupation required by the site-specific theory. Furthermore, the Court's decision means that where title may be proven, it will be limited to small tracts of land.

The Court's decision regarding the proper holders of Aboriginal rights, including title, provides less certainty going forward. It was open to the Court to prefer British Columbia's argument and conclude that the proper holder of Aboriginal rights, at least in this case, is the band (First Nation) and not the nation as a whole. Such a conclusion would facilitate Aboriginal relations between the Xeni Gwet'in as well as the Tsilhqot'in and the various levels of government, as it would provide the latter with clear organizations and spokespersons with whom to consult and negotiate, for example. Despite this important consideration, the Court gave more weight to the Aboriginal perspective on this issue. If this decision is followed, it will be difficult for governments or other actors to argue for such practical considerations and it will be necessary to pose the question and ask what the Aboriginal perspective requires in each case.

There are many other interesting aspects in the Court's decision, including the appropriate rights analysis, infringement and justification of Aboriginal rights and the right to trade, among others. A thorough read of the entire decision is highly recommended.

The Xeni Gwet'in intends to appeal this decision to the Supreme Court of Canada.26 However, no applications have been filed as at the time of publication of this bulletin.

Footnotes

1 2012 BCCA 285 (CanLII) http://www.canlii.org/en/bc/bcca/doc/2012/ 2012bcca285/2012bcca285.html (hereinafter "Roger William BCCA").

2 Ibid. at paragraphs 4-9.

3 Ibid. at paragraph 37.

4 Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 (CanLII) at paragraph 97, http://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc1700/2007bc sc1700.html (hereinafter "Roger William BCSC").

5 Ibid. at paragraph 1041.

6 Ibid. at paragraph 1041.

7 Ibid. see "executive summary".

8 Roger William BCCA, supra note 1 at paragraph 94.

9 Roger William BCSC, supra note 4 at paragraph 959-960.

10 Roger William BCCA, supra note 1 at paragraph 114.

11 Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535. See also our summary and discussion of this decision: "The Supreme Court Confirms that Not All Aboriginal Practices are Protected by section 35 of the Constitution Act, 1982".

12 Roger William BCCA, supra note 1 at paragraph 107 and 116-117.

13 Ibid. at paragraph 118.

14 Ibid. at paragraphs 122, 206 and 214.

15 Ibid. see paragraphs 123, 125 and 211.

16 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

17 R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43.

18 Roger William BCCA, supra note 1 at paragraph 219.

19 Ibid. at paragraph 230.

20 Ibid. at paragraph 219 and 231.

21 Ibid. at paragraphs 231-237.

22 Ibid. at paragraph 219, 239.

23 Ibid. at paragraphs 129-131.

24 Ibid. at paragraphs 138-141.

25 Supra, note 1 7.

26 See press release dated June 27, 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions