The Supreme Court of Canada is set to revisit the test for
Aboriginal title when it hears an appeal from the British Columbia
Court of Appeal's decision in William v. British Columbia this
November. This appeal will be of particular significance to parties
engaged in resource development, as it stands to affect the
strength of claims to Aboriginal title over traditional territory,
as well as claims to the right to fish and hunt in a given area.
The trial judgment and the Court of Appeal took a restrictive view
of the test for establishing Aboriginal title where proof of such
title is based on a limited presence in a broad territory.
The SCC hearing will mark the culmination of litigation between
the Tsilhqot'in First Nation (the "First Nation") and
the province spanning over more than two decades. The litigation
involves claims for Aboriginal rights (to hunt and trap) and
Aboriginal title in the First Nation's traditional
The trial before Vickers J. began in November 2002 and lasted
339 days over 5 years. Vickers J.'s 458-page decision addressed (among other
things) the scope of Aboriginal title (if any) to lands in the
First Nation's traditional territory, as well as the First
Nation's right to hunt and trap and to capture wild horses
throughout the traditional territory.
Vickers J. did not grant a declaration of Aboriginal title over
the entire traditional territory. He also declined to grant a
declaration of Aboriginal title over part or parts of the
traditional territory because the First Nation had made an
"all or nothing" claim. Given the way the case had been
argued, he was of the view that it would have been prejudicial to
the province to make a finding of Aboriginal title over a portion
rather than the whole of the traditional territory. However, he
held that the First Nation could make future, more specific claims
to Aboriginal title over parts of the traditional territory.
Vickers J. held that the First Nation had Aboriginal rights to
trap and hunt and to capture horses in the traditional
Groberman J.A., writing for the BCCA, came to
the same conclusions as the trial judge, applying the Supreme Court
of Canada's decisions in Delgamuukw v. British Columbia and R.
v. Marshall; R. v. Bernard. Notably, the BCCA held that Aboriginal
title can only be established through proof of exclusive occupation
of the land by the Aboriginal group at the time the Crown asserted
sovereignty over the land. In addition, the Aboriginal group must
show that the land was of central significance to its culture.
The BCCA held that a broad territorial claim will rarely satisfy
the test for Aboriginal title. Aboriginal title must be established
on a site-specific basis by pointing to particular occupancy (such
as a village site) or intensive use (such as farming) of the land.
The BCCA upheld the trial judge's decision regarding Aboriginal
rights and affirmed the First Nation's right to hunt and trap
and to capture horses in its traditional territory.
For a more detailed analysis of the decisions below, see Thomas
Isaac and Stephanie Axmann's article
This decision will be of significance to parties engaged in
resource development who need to overcome claims to Aboriginal
title, or to engage in consultation with stakeholders about
Aboriginal rights. For a more on this case and other 2012 BCCA
decisions affecting Aboriginal rights and the resource sector, see:
Mining in the Courts, Year in Review, Vol. III
– March 2013.
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