Tsilhqot’in Nation v. British Columbia: B.C. Court of Appeal Will Re-examine Aboriginal Land Rights

In February 2009, the British Columbia Court of Appeal lifted a stay of proceedings on Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700 [Tsilhqot’in Nation], meaning that the momentous claim to Aboriginal title over a large area in the interior of British Columbia will proceed to the province’s Court of Appeal.  In 2007, Justice Vickers of the British Columbia Superior Court held that, despite satisfying the test for aboriginal title for a portion of the claim area, the Tsilhqot’in people’s claim had to fail as they did not prove aboriginal title for the entire claim area – essentially a default in pleadings.  However, Vickers encouraged both parties – the Tsilhqot’in Nation and the province – to resolve the claim outside the contentious environment of the courtroom.  Despite the efforts of the Tsilhqot’in Nation to stay the appeal in favour of alternatives to litigation, no settlement has been reached, and the matter is scheduled to proceed to the Court of Appeal for resolution.

While included in the scope of the existing aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982, aboriginal land rights claims have a unique history and have developed their own line of jurisprudence.  Over the centuries, the source and content of aboriginal title have evolved from an ambiguous right recognized in the Royal Proclamation of 1763 to a right characterized as a sui generis property right distinct from any form of property right ordinarily recognized at common law.

The concept of aboriginal title was first delineated in the 1887 Supreme Court of Canada case of St Catherine’s Milling v Lumber Co v The Queen, (1887) 13 SCR 577, where the Aboriginal land rights were described as “a personal and usufructuary right, dependent upon the good will of the Sovereign” that was derived from the Royal Proclamation itself.  The concept remained undeveloped until the latter half of the twentieth century when it was revived in Calder v British Columbia, [1973] SCR 313 [Calder].  Calder rejected the Royal Proclamation as the source of Aboriginal title, endorsing a more historical basis based on Aboriginal traditions.  However, the court split on whether or not Aboriginal land claims had been extinguished and thus did little to elucidate the content and method of proving Aboriginal title.  This was the state of the matter until 1997 when Delgamuukw v British Columbia, [1997] 3 SCR 1010 [Delgamuukw], established, in more detail than ever before, what aboriginal title means, how it can be proven, and how it can be extinguished or infringed.  Delgamuukw held that the source of Aboriginal title is the occupation of land prior to Crown assertion of sovereignty over what is now Canada, and thus that exclusive occupation at the time of Crown sovereignty must be proven in order to establish an Aboriginal title claim.  In addition, the content of Aboriginal title was established as a sui generis right that is unique from other property rights in its source, inalienability, communal nature, and most importantly, its inherent limit, the concept that lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of claim to aboriginal title.

Despite establishing the test for proving an Aboriginal title claim and clarifying (to some extent) the content of such a title, Delgamuukw did not resolve the Aboriginal title claim at issue in the case.  Although cases that followed (R v Marshall; R v Bernard[2005] 2 SCR 220) employed the test from Delgamuukw, to this point none has been resolved in favour of the claimant.  As a result, Aboriginal title has never been found in Canada.

This is what makes the Tsilhqot’in Nation case so noteworthy.  The significance of the case for aboriginal rights cannot be overstated, with Professor Kent McNeil stating that

“there can be little doubt that Tsilhqot’in Nation v. British Columbia is the most significant Aboriginal title case to be decided in Canada since Delgamuukw v. British Columbia.”

The claim in Tsilhqot’in Nation stems from a dispute reaching back to the 1980s regarding forestry activities in the claim area. At that time, the claimants had initially sought injunctions on the activity and gradually expanded their claim to encompass an Aboriginal title claim.  The test for establishing Aboriginal title from Delgamuukw – exclusive occupation at the time of Crown sovereignty – obviously leads to evidentiary difficulties.  In Tsilhqot’in Nation, however, the claimants led extensive evidence regarding historical occupation, drawing from both historical documents and Tsilhqot’in oral histories.  In addition, the claim was framed as an Aboriginal title claim rather than a defence in a criminal proceeding as it was in R v Marshall; R v Bernard.

As held by Justice Vickers, the test from Delgamuukw was satisfied, thus Aboriginal title was proven for a portion of the claim area.  However, since the test could not be satisfied for the entire claim area, the entire claim was rejected, despite the claimants’ efforts to amend their statement of claim.  In his lengthy judgment, Justice Vickers recognized the inappropriateness of the litigation setting for resolving Aboriginal land claims.  It may be on this basis that he chose to find a defect in the claimant’s pleadings rather than awarding them title.  Similarly, he may have anticipated an appeal and felt that a trial level court was not in a position to make a determination of such magnitude for Aboriginal relations and Canadian politics generally.

In any case, the Aboriginal title claim that seemed to be in the best position to succeed since the Delgamuukw test had been established was dismissed at trial.  When the case proceeds to the Court of Appeal, and potentially to the Supreme Court of Canada, it will represent a landmark decision regardless of what is decided.  Whether the appellate courts decide to recognize the first successful Aboriginal title claim in Canadian history, or reject it, this case will be valuable in allowing courts to further delineate the land rights of Aboriginals.  Given Justice Vickers’ comments that the judiciary has been put in the unenviable position of remedying past governments’ failure to abide by their constitutional obligations, the case may be used to create a stronger bargaining position for Aboriginal groups in British Columbia and throughout Canada.

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