Thursday, 8 March 2012

Justice for the Tsihlqot'in is taking a very, very long time




In a previous post I suggested establishing time limits for judicial decisions as a potential justice system reform.

The introduction of time limits would recognize that unwarranted delay in issuing a decision is potentially as corrosive of public respect for the justice system as is delay in getting to trial.  

Of course, legal disputes come in all different shapes and sizes.  But clients have come to court for a decision and should not have to put their lives on hold while they wait for an answer.  In addition, some cases raise questions of general importance, where a delay in delivering the decision may actually contribute to economic and political uncertainty.

That brings me to the case known as Tsilhqot’in Nation v. British Columbia.

This case, which has its origins in a lawsuit filed as long ago as 1990, is a claim by the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation for aboriginal title to their traditional territory in the Cariboo-Chilcotin region of British Columbia.  

The Xeni Gwetin are known for the wild horses who roam in their traditional territory in the Nemiah Valley.  The Tsilhlqot’in, a larger tribal grouping that includes the Xeni and other First Nations, are probably best known for their sustained and vigorous opposition to the Prosperity Mine development west of Williams Lake.

The trial of this case occupied 339 days between November 18, 2002 and April 11, 2007.  It was a long trial because claims for aboriginal title require a detailed examination of the historic and contemporary use and occupation of claimed territory - and in this case the area under claim is many thousands of hectares.  

Reasons for judgment were issued by Justice David Vickers on November 20, 2007.  The reasons are literally a book - 1382 paragraphs occupying 473 pages - and they contain not only an exhaustive analysis of the evidence, but an extensive discussion of the law.  

In the end, the judge dismissed the case because, in his view, the way the case had been pleaded by the plaintiffs precluded a finding of aboriginal title.  But he went on to conclude that if the case had been differently pleaded, he would have made a finding of aboriginal title over extensive portions of the claim area.

This case is profoundly important.  It is obviously important to the Xeni and Tsilhquot’in, who have been fighting this case for over a generation.  

More generally, the case raises two critically important questions which affect land and resource development across the whole province:

 How “big” is aboriginal title?  

There is a continuing disagreement about whether, in the most general sense, aboriginal title extends over the whole of a First Nation’s traditional territory (this is sometimes called the “mountaintop to mountaintop” theory), or only the most intensively occupied parts of that territory, such as their villages (the “postage stamp” theory).  

This question is much debated in the legal community.  It’s hard to believe that a question like this could remain unresolved after all these years, but the fact is that every time it looks like there is some clarity, clever lawyers find ambiguity in the way a judicial conclusion has been expressed, and so the issue remains alive.

In overly simple terms, the resolution of this issue could lead to a conclusion that substantially all of British Columbia is subject to aboriginal title, or alternatively that aboriginal title will mainly be found in and around Indian reserves.  

Justice Vickers took what some would characterize as the more expansive view of aboriginal title.  Not quite “mountaintop to mountaintop” perhaps, but something close to it. 

Can the province legislate on aboriginal title lands?

Justice Vickers held that the Forest Act of British Columbia did not apply to aboriginal title lands.  In his view, the federal government has exclusive legislative authority over aboriginal title land because of its authority over “Indians and lands reserved for the Indians” under section 91 of the 1867 constitution.  

This proposition is also highly contested.  In practical terms, if Justice Vickers’ approach prevails on both points, large areas of British Columbia would become federal enclaves.  This would have enormous consequences for forestry, mining, energy development, and agriculture, all of which depend on provincial leases, permits and licences.  If those tenures are all invalid, it will take some creative ingenuity to figure out how to maintain our economy (and sustain provincial government revenues), to put it mildly.

The trial decision was appealed on all issues.

The appeal did not proceed immediately for several reasons.  There were discussions about legal funding and there were also some attempts to resolve the issues.  But eventually the case was heard by the BC Court of Appeal. 

The appeal was argued over 6 days in November 2010.  Sixteen months ago.  Judgement has yet to be delivered.

As I have tried to explain, the stakes are high.  No matter what the outcome, the case is probably headed to the Supreme Court of Canada.  The trial judge dismissed the case on the basis of what many would call a legal technicality.  Overturning that technicality and accepting the rest of his decision would have a real and immediate impact on land and resource use in BC.

It must be acknowledged that this is a quite extraordinary case in terms of the volume of evidence and argument that the Court of Appeal has to read and interpret.  So no one could plausibly complain if the court took several months to reach a decision (The trial judge took seven months.).  And it’s also true, regrettably, that this case has taken so long already, that a further delay seems unsurprisingly inevitable.  That’s the corrosive effect of delay.  Sooner or later, we adjust to it.  But that doesn’t excuse it.

Even allowing for all of that, it has to be said, and someone has to say it, that sixteen months is too long for the Court to deliver its judgement in this case.  It’s too long for the Tsihlqot’in to wait.  And it’s too long for all British Columbians to have the certainty they deserve on these profoundly important questions.

1 comment:

  1. I have been wondering when we would see the judgement. I also assume the judgement will be appealed to the Supreme Court of Canada.

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