Although this is rather length, I have underlined a couple comments relevent to interests in the RoF.

(Blakes Cassels Graydon LLP 3 July 2012)

B.C. Court Requires Site-Specific Proof for Aboriginal Title

Caroline Findlay, Roy Millen and Oded Mizrahi

The British Columbia Court of Appeal (the Court) recently released its long-awaited decision in William v. British Columbia (also known as the Tsilhqot’in Nation case), which has significant implications for proving aboriginal title and rights in British Columbia. A key issue in dispute between Canada, British Columbia (together, the defendants) and Chief Roger William (on behalf of the Tsilhqot’in Nation, the plaintiff) revolved around the degree of land occupation required to demonstrate aboriginal title, that is, how extensive and how intense that occupation must be.

In its reasons, the Court emphasized that aboriginal title must be demonstrated on a site-specific basis and cannot be claimed on a broad territorial basis. While this narrows the scope of aboriginal title, the Court also stressed that aboriginal title can be combined with specific aboriginal rights to give First Nations use of broader land and resource areas to protect their cultural security and continuity.

The Tsilhqot’in Nation has already indicated an intention to seek leave to appeal from the Supreme Court of Canada (the SCC). Given the significance of this case for aboriginal rights and title claims, we anticipate that the SCC will hear the appeal. Any final SCC decision may not be delivered before 2014.

This bulletin summarizes the key aspects of the Court’s decision and its potential implications for businesses operating, investing or otherwise interested in aboriginal territory.

Background
The case was initially brought by Chief Roger William of the Xeni Gwet’in First Nation, on its behalf and on behalf of the members of the Tsilhqot’in Nation (of which the Xeni Gwet’in is a part) in response to proposed logging that British Columbia had authorized. The logging was to occur within a portion of the “Claim Area”: 4,380 square kilometres that the Tsilhqot’in claim as part of their traditional territory in the Cariboo-Chilcotin region of British Columbia. William sought declarations that: the Tsilhqot’in Nation holds aboriginal title to the Claim Area; the Xeni Gwet’in had aboriginal rights to hunt and trap in the Claim Area; and such aboriginal title and rights had been infringed by the forestry permits.

The trial took 339 trial days between 2002 and 2007, resulting in a 458-page trial decision. In the trial decision, Justice Vickers dismissed the claim for a declaration of aboriginal title without prejudice to the Tsilhqot’in’s ability to make new claims of aboriginal title within the Claim Area. Justice Vickers held that he could not make a final declaration of aboriginal title because the case had been brought as an “all or nothing claim” and there was insufficient evidence of aboriginal title over the whole Claim Area. Nonetheless, given the volume of evidence and the impracticality of redoing the trial, he took the unusual step of issuing a non-binding “opinion” that the Tsilhqot’in had demonstrated aboriginal title over approximately 40% of the Claim Area.

The judge also held that the Tsilhqot’in have aboriginal rights to hunt and trap, 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. Finally, the judge declared that the forestry activities in the Claim Area unjustifiably infringed Tsilhqot’in aboriginal rights. For more information on the trial decision, see our Blakes Bulletin: The Tsilhqot’in Nation Decision on Aboriginal Title and Right.

William, Canada and British Columbia each appealed aspects of the trial decision.

Aboriginal Title
The Court considered two key issues regarding aboriginal title: whether the claim was “all or nothing” and whether aboriginal title is territorial or site-specific in nature.

All or Nothing Claim
The Court held that the plaintiff’s claim was sufficiently drafted to allow the trial judge to find, if he had wanted to, that aboriginal title had been proven in respect of only part of the Claim Area (in other words, William did not need to prove aboriginal title to the entire Claim Area). Flexibility in granting a declaration is particularly important in an aboriginal title claim because the boundaries of some First Nations traditional territory were not static, especially for semi-nomadic peoples such as the Tsilhqot’in. However, despite this finding on the pleadings, the Court did not uphold the opinion on aboriginal title.

Territorial vs. Site-Specific
The trial judge accepted the plaintiff’s “territorial theory” of aboriginal title, whereby the necessary degree of occupation could be established by showing that the Tsilhqot’in moved throughout the territory. Because the Tsilhqot’in were semi-nomadic, William argued that aboriginal title was proven by the existence of village sites occupied for parts of each year in addition to hunting grounds, cultivated fields and fishing sites. The Court overturned the trial decision, and held that aboriginal title must be demonstrated on a site-specific basis – meaning a “definite tract of land actually occupied by the Tsilhqot’in” at the time of sovereignty. The Court noted that, with a few exceptions, there are no sites that were habitually occupied by the Tsilhqot’in. The Court rejected territorial claims “as 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.” It appears that the Court wanted to ensure that aboriginal title would not create an unworkable barrier to resource development.

The Court noted that it is “not convinced that the relationship of the Tsilhqot’in people to the land requires recognition of title on a territorial basis; it does, however, require the Court to affirm the existence of Aboriginal rights that respect the Tsilhqot’in perspective on its own culture and values.” In rejecting the plaintiff’s assertion that the site-specific argument represents a “postage-stamp” approach that would only protect small and unconnected patches of land, the Court held that title is not the only tool available to provide cultural security to the Tsilhqot’in. Rather, various aboriginal rights protect cultural security and safeguard the ability of First Nations to continue to engage in traditional lifestyles:

“Aboriginal title, while forming part of the picture, is not the only – or even necessarily the dominant – part. 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 result for semi-nomadic First Nations like the Tsilhqot’in is not a patchwork of unconnected “postage stamp” areas of title, but rather a network of specific sites over which title can be proven, connected by broad areas in which various identifiable Aboriginal rights can be exercised. This is entirely consistent with their traditional culture and with the objectives of s. 35.”

The Court acknowledged that there are specific sites within the Claim Area that may be significant for the Tsilhqot’in and concluded that the Tsilhqot’in are free to pursue new aboriginal title claims to these specific tracts of land.

Aboriginal Rights
The Court upheld the trial judge’s findings that the Tsilhqot’in people have an aboriginal right to hunt and trap birds and animals throughout the Claim Area for certain purposes (including securing animals for work, transportation, food and clothing) as well as for spiritual, ceremonial and cultural uses. This right includes the right to capture and use horses for transportation and work and to trade in skins and pelts taken from the Claim Area as a means of securing a moderate livelihood. The Court noted that while aboriginal rights must be based on traditional practices, customs or traditions that pre-dated European contact, the fact that horses had at some point been introduced to North America by Europeans did not prevent the capture and use of horses from being an aboriginal right. Further, there was no indication that the Tsilhqot’in learned to capture or use horses from Europeans.

British Columbia appealed the trial judge’s conclusion that logging would interfere with aboriginal rights to hunt and trap, arguing that he did not apply the appropriate burden of proof on the plaintiff to show infringement of such rights. The Court rejected this argument, holding aboriginal rights are infringed if government action interferes with the rights “in more than an insignificant or trivial way.” This was consistent with the Court’s ruling that “Aboriginal rights short of title are the primary means by which the traditional cultures and activities of First Nations (and particularly those that are nomadic or semi-nomadic) are protected”.

The trial judge held that forestry activities proposed for the Claim Area would result in a loss of habitat and reduce the number of species and their abundance. Since the weighing of evidence in reaching this conclusion was a matter for the trial judge, and declaratory relief is discretionary, the Court refused to interfere with the trial judge’s decision that this was an infringement. Despite this, the Court cautioned that the trial judge’s “high-level” approach to infringement is unlikely to be an appropriate template for future cases and should not be seen as authority for the view that any industrial activity that affects species diversity or abundance of wildlife will necessarily be harmful to an aboriginal right to hunt or trap. Lastly, on the rights analysis, the Court concluded that the trial judge was right to find that this infringement was not justifiable because British Columbia did not establish that there was a valid governmental objective for logging in the Claim Area.

Holder of Aboriginal Rights
British Columbia argued on appeal that the Xeni Gwet’in (as an Indian Band), rather than the Tsilhqot’in Nation, should be viewed as the aboriginal rights holder since it has a well-defined membership and a clear political structure. This ensures that individuals entitled to exercise aboriginal rights are identified and allows government to engage in proper consultation concerning those rights. By contrast, the Tsilhqot’in Nation has no governing or decision-making body and no established power structure by which it can designate people who are authorized to speak on behalf of the collective. The duty to consult is difficult to fulfill in such circumstances.

The Court agreed with the trial judge that the proper rights holder is a matter to be determined primarily from the aboriginal perspective. The evidence at trial established that the holders of aboriginal rights within the Claim Area have traditionally defined themselves as the collective of all the Tsilhqot’in, with the Xeni Gwet’in as the custodian and party that administers and protects such rights on behalf of the Nation. As such, the Tsilhqot’in Nation is the proper rights holder. The Court expressed sympathy for the practical problems faced by the Crown, holding that it will “be necessary for First Nations, governments and the courts to wrestle with the problem of who properly represents rights holders in particular cases.”

Implications
The trial decision contained a long commentary on reconciliation, encouraging the parties to work together to reach a mutually satisfactory solution that balances aboriginal rights and the interests of broader society. The Court continued this theme, commenting on the difficulties faced by First Nations and governments in attempting to settle cases like this, particularly when the law remains uncertain and subject to ongoing incremental change. This difficulty is also faced by businesses seeking to develop, finance or purchase projects in aboriginal territory, which must weigh the potential impact of aboriginal claims on the viability of the project.

This decision validates the negotiation of modern treaties and agreements, such as the Tsilhqot’in Framework Agreement signed by the Tsilhqot’in Nation and the Province in 2009 following the trial, as a viable tool for resolving outstanding aboriginal claims in British Columbia. However, in light of delays at many treaty negotiation tables, the uncertainty of aboriginal title claims may not be resolved in the near future through treaty-making. Localized agreements concerning narrower issues are more likely to be concluded.

This case dealt very briefly with the duty to consult and accommodate. In short, the Court noted that it was not necessary to evaluate the consultations in this case given the fact that the trial judge’s ruling as to an infringement of proven rights was upheld. In our view, the Court’s analysis will not significantly alter the current approach by the Crown or businesses relating to the duty to consult. The resonating theme in this judgment of the need to negotiate reconciliation in a context that fully respects the aboriginal perspective to cultural security and continuity aligns with the principles of the current duty to consult case law.

Finally, this decision dramatically narrows the scope of aboriginal title by requiring site-specific proof rather than validating broad-based territorial claims. The implication is that significantly smaller tracts of land are likely subject to aboriginal title claims given the high threshold First Nations must meet to prove aboriginal title. This reduction in the scope of aboriginal title is balanced by the Court’s emphasis on the use of aboriginal rights to protect aboriginal culture where aboriginal title cannot be proven.