On June 27, 2012, the British Columbia Court of Appeal (BCCA) released its decision in William v. British Columbia,1 on appeal from Tsilhqot'in Nation v. British Columbia,2 a November 20, 2007 decision of the British Columbia Supreme Court (BCSC).
The BCCA considered the appeals of the Tsilhqot'in First Nation (Tsilhqot'in) of the west central interior of British Columbia. The Plaintiff, Roger William, was the former chief of the Xeni Gwet'in First Nations Government, which, along with four other bands, is an Indian band of the Tsilhqot'in Nation. The litigation concerned claims for Aboriginal rights and title in two areas known as Tachelach'ed and the Trapline Territory (Claim Area). Although the BCCA's analysis of the case differed from the BCSC, it upheld the lower court's order in its entirety. The BCCA dismissed the Plaintiff's claim for Aboriginal title over the Claim Area, but affirmed that the Tsilhoqot'in enjoyed Aboriginal rights throughout the Claim Area.
This decision is an important contribution to the understanding of the law of Aboriginal title in British Columbia and in Canada by applying the principles set out by the Supreme Court of Canada (SCC) in earlier cases. The decision also affirms that the framework for establishing Aboriginal title is on the basis of site-specific claims and evidence of exclusive occupation and intensive use of such sites, rather than on the basis of broad, territorial claims. This directly contradicts the earlier findings of the BCSC.
This case stemmed from decisions of the Provincial Crown to grant a forest licence under the Forest Act3 in 1983 and cutting permit in 1989 to Carrier Lumber Ltd. to log in the Trapline Territory. The Nemiah Valley Indian Band (now known as the Xeni Gwet'in First Nations Government) (Band) commenced an action in 1989 to prohibit logging activities in the Trapline Territory. In 1998, the Band added claims for Aboriginal title to the Trapline Territory on behalf of the Tsilhqot'in and commenced a second action in response to proposed logging in Tachelach'ed.
In 1999, Mr. Justice Vickers of the BCSC consolidated the Band's two actions and made an order substituting the Tsilhqot'in for the Band as Plaintiff. The trial was a commenced in November 2002 and lasted 339 days over 5 years. The issues considered by the BCSC at trial included whether:
(a) the Tsilhqot'in held Aboriginal title to all or part of the Claim Area;
(b) the Tsilhqoti'in held Aboriginal rights to hunt, trap and trade in furs and pelts throughout all or part of the Claim Area;
(c) the Forest Act applied to Aboriginal title lands; and
(d) the issuing of forest licences and other forest development authorizations unjustifiably infringed Aboriginal rights in the Claim Area.
Mr. Justice Vickers dismissed the Plaintiff's claims for Aboriginal title, relying on the test for establishing Aboriginal title set out by the SCC in Delgamuukw v. B.C.,4requiring proof of exclusive occupation of the claimed lands at the time of the assertion of Crown sovereignty. Citing the SCC's decision in R. v. Marshall; R. v. Bernard,5 he held that Aboriginal title is not co-extensive with an Aboriginal group's traditional territory and that occasional entry and use of land is insufficient to found a claim to title.
Although the trial judge found that there was sufficient evidence of occupation by the Tsilhqot'in to support a claim for Aboriginal title in certain parts of the Claim Area, he declined to grant a declaration of Aboriginal title on the basis that the Plaintiff's pleadings made an "all or nothing claim" over the entire Claim Area. He held that it would be prejudicial to the defendants to make a declaration of Aboriginal title in respect of only parts of the Claim Area and stated that his decision was without prejudice to the Tsilhqotin's ability to make future claims to Aboriginal title within the Claim Area.
Despite declining to make a declaration of Aboriginal title, the trial judge held that the Tsilhqot'in had Aboriginal rights to trap and hunt for specified purposes and to trade in skins and pelts taken from the Claim Area "as a means of securing a moderate livelihood", and to capture and use horses for work and transportation purposes. He further declared that the proposed forestry activities in the Claim Area unjustifiably infringed Tsilhqot'in Aboriginal rights.
ISSUES ON APPEAL
The Plaintiff raised the argument on appeal that in declining to make a declaration of Aboriginal title over the Claim Area, the BCSC erred by failing to find that the Tsilhqot'in exclusively occupied the entire Claim Area at the date of assertion of Crown sovereignty. In the alternative, the Plaintiff argued that the BCSC erred in treating the title claim as an "all or nothing claim" and in declining to make a declaration of Aboriginal title in respect of only parts of the Claim Area.
The Attorney General of Canada (AGC) argued that the BCSC erred in dismissing the Aboriginal title claim without prejudice to the Plaintiffs' ability to pursue geographically smaller title claims within the Claim Area, on the basis of cause of action estoppel. British Columbia also raised several arguments concerning Aboriginal rights, among them that the BCSC erred by:
(a) identifying the Tsilhqot'in as the holder of Aboriginal rights rather than the Band;
(b) applying an incorrect burden of proof on the issue of infringement of Aboriginal rights and requiring the Province to demonstrate that the logging activities would not interfere with Aboriginal rights, rather than placing the onus on the Plaintiff to demonstrate interference;
(c) finding that the Province's consultation with the Tsilhqot'in was insufficient and requiring the Province to acknowledge Tsilhqot'in Aboriginal rights as a prerequisite to proper consultation; and
(d) declaring an Aboriginal right to a harvestable surplus of all wildlife species, and considering whether the Tsilhqot'in had a right to trade for a "moderate livelihood" through hunting and trapping and a right to capture horses, as these claims were not pleaded specifically and further, were not made out by the evidence.
Writing for the BCCA, Mr. Justice Groberman, dismissed the Plaintiff's claims for Aboriginal title, finding that a "territorial claim" of Aboriginal title is not a viable foundation for a title of claim. Rather, the correct formulation for a title claim is over a definitive tract of lands consistent with the SCC's decisions in Delgamuukw and Marshall Bernard. However, the BCCA also agreed that its decision was without prejudice to the Tsilhqot'in to raise future claims for Aboriginal title in respect of specific lands. The BCCA also affirmed the decision of the BCSC with respect to the Aboriginal rights of the Tsilhqot'in.
Proper Rights Holder
As a preliminary matter, the BCCA considered whether, as a matter of law, the Tsilhqot'in was properly described as the rights holder rather than the Band. The BCCA held that it would be fatal to claims of groups such as the Tsilhqot'in if it were a pre-requisite for a claimant to have a definite governing or decision-making body. The BCCA noted that Aboriginal rights may not always be allocated according to band lines under the Indian Act6and the proper rights holder is a matter to be determined primarily from the viewpoint of the Aboriginal collective.
The BCCA held that it was clear that the holders of Aboriginal rights in the Claim Area traditionally defined themselves as the collective of all Tsilhqot'in people, and that the Tsilhqot'in was the proper rights holder. The BCCA recognized that there are practical difficulties of assigning rights to a body lacking a proper representative, or where there are competing bodies asserting such authority, however these difficulties cannot preclude recognition of Aboriginal rights that are otherwise proven.
Principles of Aboriginal Title
In considering whether Aboriginal title was made out on the present facts, the BCCA considered the SCC's findings in Delgamuukw that evidence of traditional use of land will not necessarily found claims to Aboriginal title even if it establishes an Aboriginal right. Rather, there are more stringent evidentiary criteria for the establishment of Aboriginal title:
(i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.7
The SCC in Delgamuukw also held that it was crucial for an Aboriginal group to demonstrate that a piece of land was of central significance to their distinctive culture. Further, Delgamuukw strongly suggested that an intensive presence at a particular site was required to establish Aboriginal title.
The BCCA also considered Marshall; Bernard, in which the SCC concluded that in order to establish Aboriginal title, the claimant must demonstrate possession similar to that associated with title at common law, and exclusive possession in the sense of the Aboriginal group's intention and capacity to control the lands. Possession is typically established by showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources. The requirement of physical occupation must be generously interpreted, taking into account both the Aboriginal perspective and the perspective of the common law. Continuity demonstrating the Aboriginal group's descent from pre-sovereignty and the Aboriginal right into a modern common law right is also required.
The BCCA commented that in instances where traditional use and occupation of land was less intensive, a finding of Aboriginal rights less than title may nevertheless be sufficient to preserve an Aboriginal group's traditional activities, lifestyle and culture. The BCCA stated that in those instances, "recognition of those other rights may be more commensurate with the reconciliation of Aboriginal rights with Crown sovereignty than would a broader recognition of Aboriginal title".8
The BCCA rejected the notion that a territorial claim for Aboriginal title, such as the claim put forth by the Plaintiff, will generally satisfy the test for Aboriginal title. Based on Delgamuukw, "Aboriginal title cannot generally be proven on a territorial basis, even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory".9 The BCCA stated that broad, territorial claims did not seem to fit within the purposes behind s. 35 of the Constitution Act, 1982 or the rationale for the common law's recognition of Aboriginal title. Such claims were, in fact, "antithetical to the goal of reconciliation, which demands that, so far as possible, the traditional rights of First Nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians, Aboriginal and non-Aboriginal."10
The BCCA held that Aboriginal title cannot be proven based on a limited presence in a broad territory. Rather, it must be proven on a site-specific basis. Such a site may be defined by a particular occupancy of the land (such as village sites, or enclosed or cultivated fields), or on the basis that definite tracts of land were the subject of intensive use (specific hunting, fishing, gathering, or spiritual sites). The BCCA stated that in all cases, "Aboriginal title can only be proven over a definite tract of land the boundaries of which are reasonably capable of definition."11 The limitation on Aboriginal title to definite tracts of land is "fully in keeping with the purpose of s. 35 of the Constitution Act, 1982 and the rationale for common law recognition of Aboriginal rights and title."12
Findings regarding Aboriginal Title
The BCCA held that the claim for Aboriginal title was a "territorial" claim rather than a claim to a definite tract of land. The "territorial" basis for the claim did not form a viable foundation for a title claim. Accordingly, the claim for title was not made out.
The BCCA held that the Plaintiff's claim was sufficiently pleaded to have allowed the BCSC to declare Aboriginal title in only part of the Claim Area. Relying on the SCC's decision in Lax Kw'alaams Indian Band v. Canada (A.G.), 2011 SCC 56, which was released after the hearing of the appeal, the BCCA held that the BCSC would have been entitled to declare a lesser territorial entitlement than that claimed by the Plaintiff. At trial, the Plaintiff's theory of "occupation" was that the Tsilhqot'in moved through the territory in patterns and made attempts to repel others from the land. Since the BCSC adopted the territorial theory of the Plaintiff, it would have been permissible for the BCSC to grant a declaration of Aboriginal title in respect of a smaller territory. However, it would have been prejudicial to the defendants for the BCSC to consider site-specific title claims based on a different theory than that advanced by the Plaintiff.
While the BCCA did not agree with the BCSC's analysis on this basis, the BCCA upheld the BCSC's ruling, as the Plaintiff's claim was not sustainable. The BCCA concluded that there was no evidence of regular presence on or intensive occupation of specific tracts of land in the Claim Area and declined to make a declaration of Aboriginal title in respect of the Claim Area or any specific sites within the Claim Area.
The BCCA was of the view, however, that the Tsilhqot'in's culture and traditions could still be fully respected without recognizing Aboriginal title over the Claim Area. The BCCA stated that the Plaintiff's opposition to the so-called "postage stamp" approach to Aboriginal title incorrectly ignored the "importance of Aboriginal rights other than title in protecting traditional culture and lifestyles"13, and the fact that "title is not the only tool available to provide cultural security to the Tsilhqot'in".14 The BCCA further stated:
Canadian law provides a robust framework for recognition of Aboriginal rights. The cultural security and continuity of First Nations can be preserved by recognizing their title to particular "definite tracts of land", and by acknowledging that they hold other Aboriginal rights in much more extensive territories.
The BCCA emphasized the need to reach a "practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians".15 An overbroad recognition of Aboriginal title would not be conducive to these goals. The BCCA further stated that "the reconciliation of Aboriginal rights with Crown sovereignty should minimize the damage to either of those principles."
Despite its decision, the BCCA held that the Tsilhqot'in should be entitled to pursue title claims in the future on a without prejudice basis, and dismissed the AGC's argument for cause of action estoppel. The BCCA recognized that this litigation was not structured to identify specific sites as candidates for Aboriginal title and that it would not have been realistic to expect the Plaintiff to have been compelled to bring other, site-specific claims within the same litigation, based on different facts.
The BCCA upheld the decision of the BCSC regarding Aboriginal rights and affirmed the Tsilhqot'in's Aboriginal rights to hunt and trap birds and animals in the Claim Area for various purposes, including the right to capture and use horses for transportation and work, as well as an Aboriginal right to trade in skins and pelts to secure a moderate livelihood. The BCSC further upheld the conclusion of the BCSC that forestry activities in the Claim Area, including logging and silvicultural practices, unjustifiably infringed the Tsilhqot'in's Aboriginal rights.
The BCCA applied the framework for analysis for infringement of a proven Aboriginal rights set out in Van der Peet,16 Sparrow,17 Gladstone18 and recently in Lax Kw'alaams.19 The first step in the analysis is characterizing the Aboriginal right at issue. The court must then determine whether the claimant has demonstrated a prima facie infringement of the right by showing that government action has interfered with these rights in more than an insignificant or trivial way. The BCCA noted the SCC's comments in R. v. Morris,20 in which the majority held that a prima facie infringement requires a "meaningful diminution" of a treaty right, including anything but an "insignificant interference with that right".
The BCCA held that the BCSC correctly applied the analysis in concluding that the Tsilhqot'in's Aboriginal rights had been infringed. The BCCA held that the BCSC did not err in finding a prima facie infringement, given that the forestry activities would have a serious detrimental effect on wildlife population and diversity, which in turn would affect the hunting and trapping rights of the Tsilhqot'in in the Claim Area. Even though there was very little logging that actually took place in the Claim Areas as the litigation halted most activities, this did not preclude a finding that the Aboriginal rights of the Tsilhqot'in were infringed. The BCCA held that the Plaintiff did not have to wait until the traditional territory of the Tsilhqot'in was negatively impacted before seeking a declaration. The very acts of planning and authorizing logging infringed the Aboriginal rights of the Tsilhqot'in, since the planning and authorization were incompatible with those rights. The BCCA cautioned, however, that this case should not be seen as an authority for the proposition that any industrial activity that affects the diversity of species or abundance of wildlife will necessarily be inimical to an Aboriginal right to hunt or trap. Each case must be analyzed in terms of the nature and scope of the Aboriginal right and of the conduct that allegedly infringes it.
The BCCA concluded that the judge understood and applied the Sparrow test for prima facie infringement of Aboriginal rights. The test is satisfied when government action interferes with a proven Aboriginal right in more than a trivial way. In this case, government policy and high-level planning, combined with the specific forest tenures, permits and licences granted by British Columbia, led the trial judge to the conclusion that there would be an inevitable detrimental effect on habitat and wildlife populations in the Claim Area, and that this would interfere with proven Tsilhqot'in Aboriginal rights to hunt and trap.
The final issue is whether the trial judge erred in finding that the prima facie infringement of Aboriginal rights was not justified. The test for justification of a prima facie infringement was set out in Sparrow, quoting Gladstone, with a two-part test: First, the government must demonstrate that it was acting pursuant to a valid legislative objective. Second, the government must demonstrate that its actions are consistent with the fiduciary duty of the government towards aboriginal peoples.
The question is whether the objective of the legislative scheme that authorizes the action is compelling and substantial. Therefore, where it is alleged that a legislative provision infringes Aboriginal rights, the subject of justification must be the legislative provision. However, for governmental conduct other than legislation, the question becomes one of whether the governmental objective underlying the infringement is a justifiable one.
The BCCA agreed with the trial judge that there was no valid governmental objective for logging in the Claim Area. The BCCA noted that economic activities, including forestry could in appropriate circumstances, constitute valid legislative objectives. There was no evidence that logging was economically viable, and that the impact was disproportionate, and second, there was no compelling evidence that it was necessary to log the Claim Area to deter the spread of the mountain pine beetle.
The BCCA stated that in the circumstances it was not necessary to engage in any detailed analysis of whether the impugned governmental conduct was consistent with fiduciary obligations or with the honour of the Crown.
The BCCA discussed whether there must be an acknowledgement of Aboriginal rights in order for infringements of such rights to be properly justified. The BCSC found that although the Province had engaged in consultation with the Tsilhqot'in regarding the forestry activities, the Provinces did not acknowledge the Aboriginal rights of the Tsilhqot'in in the process. The BCSC held that the Province did not justify the infringement of such rights. The Province argued on appeal that the BCSC was in error to suggest that the Crown must acknowledge unproven Aboriginal rights:
It is clear the Crown need not accept the validity of asserted, but unproven, claims to Aboriginal rights as a prerequisite to meaningful consultation. Indeed, it is the uncertainty surrounding such rights that forms the basis for the duty to consult that was established in Haida Nation. Read in context, however, I do not think that the judge meant that the Crown is required to accept the validity of unproven rights claims as a condition precedent to meaningful consultation. Rather, as the plaintiff argues, all that is required is that the Crown treat the claim seriously by making a preliminary evaluation of its strength, and entering into consultations commensurate with that evaluation.
Therefore, the Province's failure was not accepting validity of the Aboriginal rights claims prior to consultation, but rather failing to gather important information before choosing its course of conduct.
The BCCA held that given that the governmental objective did not justify the Crown's authorization of forestry development in the Claim Area, it was not necessary to evaluate the judge's conclusion that the government's position in consultations was inconsistent with the honour of the Crown.
The BCCA considered whether the Forest Act applies to lands subject to Aboriginal title. The BCSC had concluded that the act did not apply to forests on Aboriginal title lands, and further, that the doctrine of interjurisdictional immunity prevented provincial legislation from regulating resource use on Aboriginal title lands, as it fell within federal jurisdiction. The BCCA, however, stated that it was unnecessary to make a determination on this issue given its conclusion that the claim to Aboriginal title was not made out.
1 2012 BCCA 285 (William).
2 2007 BCSC 1700 (Tsilhqot'in).
3 now R.S.B.C. 1996, c. 157.
4  3 S.C.R. 1010 (Delgamuukw).
5 2005 SCC 43,  2 S.C.R. 220 (Marshall; Bernard).
6 citing Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (A.G.), 2012 BCCA 193.
7 Delgamuukw, at para. 143.
8 lliam, at para. 173.
9 lliam at para. 220.
10 liam, at para. 219.
11 liam, at para. 230.
12 liam, at para. 231.
13 liam, at para. 234.
14 liam, at para. 235.
15 liam, at para. 239.
16 v. Van der Peet, 2 S.C.R. 507 (Van der Peet).
17 v. Sparrow,  1 S.C.R. 1075 (Sparrow).
18 v. Gladstone,  2 S.C.R. 723 (Gladstone).
19 Kw'alaams Indian Band v. Canada (A.G.), (2011 SCC) 56 (Lax Kw'alaams)
20 v. Morris (2006 SCC) 59 (Morris).
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.