BC Court of Appeal Issues Landmark Ruling on Aboriginal Title

The British Columbia Court of Appeal delivered its reasons for judgment in William v. British Columbia, 2012 BCCA 285, involving a claim for Aboriginal rights and title made on behalf of the Xeni Gwet'in First Nations Government and the Tsilhqot'in Nation on June 27, 2012. The Court of Appeal unanimously held that the Tsilhqot'in have the claimed Aboriginal rights to hunt and trap throughout the entire claim area but Aboriginal title cannot be claimed on a territorial basis, but can only be established in relation to specific sites that were physically occupied by the claimant community at the date of sovereignty. The Court of Appeal emphasized the importance of recognizing other forms of Aboriginal rights as a means of safeguarding the unique cultures of Aboriginal groups and allowing their members to pursue a traditional lifestyle.

The Tsilhqot'in Nation's claim related to 438,000 hectares of land in the Chilcotin region of British Columbia. The trial of this action lasted 339 days between 2002 and 2007. During the course of the proceeding, the plaintiff obtained an order requiring British Columbia and Canada to pay costs in advance and in any event of the cause. In November 2007, Justice David Vickers of the Supreme Court of British Columbia held that the Tsilhqot'in had established their Aboriginal rights throughout the claim area and that he was of the opinion that the Tsilhqot'in had established Aboriginal title to a portion of the claim area. Justice Vickers declined to grant a declaration of Aboriginal title based on a preliminary issue in which he decided that the pleadings did not allow him to find that Aboriginal title existed in a portion of the claim area because the pleadings had been “all or nothing,” thereby precluding the Court from making a declaration that Aboriginal title existed in only certain portions of the claim area. The trial judge said that if he was wrong on the preliminary issue, then his opinion that Aboriginal title existed would be binding on the parties. The trial judge also found that the Tsilhqot'in Nation held certain Aboriginal rights in the claim area, and that these rights were unjustifiably infringed by provincial forestry legislation.

The Tsilhqot'in, British Columbia, and Canada all filed appeals of the trial judge's Order, which were heard together in November 2010. After reserving judgment for over 19 months, the Court of Appeal dismissed all appeals.

The most significant part of the judgment related to the claim for Aboriginal title. The Court of Appeal agreed with the Tsilhqot'in and found that the trial judge erred with respect to the preliminary issue. The Court of Appeal stated the claim was not “all or nothing” and the Court could find Aboriginal title was proven in respect of only part of the claim area. However, the Court of Appeal held that Aboriginal title cannot be claimed on a territorial basis but, following the decisions of the Supreme Court of Canada in Delgamuukw (1997) and Marshall; Bernard (2005), Aboriginal title can only be established in relation to specific tracts of land that were regularly and intensively used by the claimant community. Where traditional use and occupation of a tract of land was less intensive or regular, recognition of Aboriginal rights other than title may be sufficient, and more commensurate with the goal of “reconciliation” between the Crown and Aboriginal peoples. The Court of Appeal accepted the defendant Crowns' characterization of the plaintiff's claim as being a “territorial” one, and that the trial judge erred in his analysis of the Aboriginal title issue by adopting such an approach. The Court did not doubt that there were specific sites within the claim area that could be candidates for a declaration of Aboriginal title. In the result, the Court of Appeal upheld the dismissal of the Aboriginal title claim, but rejected the arguments advanced by Canada that the trial judge's finding should have been “with prejudice.” The British Columbia Court of Appeal stated that claims could be brought for Aboriginal title within the claim area in future litigation.

The Court of Appeal accepted all of the arguments advanced by the Tsilhqot'in with respect to Aboriginal rights and held that the trial judge made no errors in his findings relating to Aboriginal rights and whether those rights had been unjustifiably infringed. The findings of fact made by the trial judge could not be disturbed at this stage, and the trial judge acted within his discretion by making the declarations. The Court of Appeal noted that the nature of the declaratory order made by the trial judge should not be the norm in future Aboriginal rights cases, but the unique circumstances of this “test case” justified such an approach.

The plaintiff was represented by David Rosenberg, QC, and Paul Rosenberg of Rosenberg & Rosenberg and Jay Nelson, Jack Woodward, QC, and Pat Hutchings of Woodward & Company LLP.

The Province of British Columbia was represented by Patrick Foy, QC, and Kenneth Tyler of Borden Ladner Gervais LLP with the support of a joint team of lawyers from BLG and the British Columbia Ministry of Justice.

The Attorney General of Canada was represented by Brian McLaughlin and Jennifer Chow of the Department of Justice.

Keith Lowes represented the intervenors BC Wildlife Federation and BC Seafood Alliance.

Christopher Devlin, John Gailus and Tim Thielmann of Devlin Gailus represented the intervenor Treaty 8 First Nations.

Louise Mandell, QC, and Cheryl Sharvit of Mandell Pinder LLP and Ardith Walkem of Walkem and Associates represented the intervenors Chief Dan Wilson and Chief Ronnie Jules.

Arthur Pape, Richard Salter, Jean Teillet and Jill Copeland of Pape Salter Teillet represented the intervenor First Nations Summit.