Wednesday, 27 June 2012
The BC Court of Appeal has dismissed the Tsilhqot'in aboriginal title claim
The Tsilhqot’in’s appeal was dismissed by the Court of Appeal in reasons for judgement delivered this morning.
It looks as though the Court did not agree with the trial judge that there was a fatal pleadings defect, but dealt with the claim of aboriginal title on the merits. In essence, they accept the Supreme Court of Canada’s analysis in a case called Marshall and Bernard that aboriginal title only exists on lands that have been intensively occupied. The Court of Appeal says that aboriginal title can only be established on a site specific basis to definite tracts of land. This is a version of something that has been characterized as the “postage stamp” theory of aboriginal title and is much criticized by the aboriginal bar. The Court of Appeal goes to some trouble to refute this critique. Set out below are some passages that I think will be widely quoted.
The Court also holds that the Tsilhqot'in have established aboriginal rights (1) to capture and use wild horses, and (2) to earn a moderate livelihood from hunting and trapping.
Since the claim of aboriginal title failed on the evidence, the jurisdictional issue – that is, the question whether the province's Forest Act applies over aboriginal title lands – is not dealt with (or at least, I haven’t found it yet in my first run through the 81 page reasons for judgement).
The Court holds that its decision does not preclude the Tsilhqot’in from commencing another action, in which a claim to aboriginal title is advanced on a "specific tract of land" basis, rather than a more global "territorial" basis.
The issues in this case, are, as I have said before, profoundly important not only to the parties, but to our understanding of the true extent of aboriginal title in British Columbia. One would have to expect that this case will now to the Supreme Court of Canada.
An extract from the judgement of Groberman, J. for the Court:
 The Tsilhqot’in did not cultivate or enclose fields. While they did hunt and fish in many parts of the Claim Area, there are only a few sites (primarily fishing sites) that can be said to be specifically delineated in the evidence. Only a few locations were referred to which may have been used intensively. As the defendants contend, the evidence and findings suggest that hunting, trapping and fishing occurred at many places in the Claim Area, more or less on an opportunistic basis. Gathering activities also appear to have been widespread, although the findings of fact suggest that some localized spots may exist where natural plants were harvested and, to a limited extent, managed.
 As I see it, the claim can only be described as being a “territorial” one rather than a site-specific claim to title. The fact that the territory being claimed, large as it is, is a fraction of the total area alleged to be the traditional territory of the Tsilhqot’in does not prevent the claim from being characterized in this way.
 Indeed, the plaintiff’s often repeated statement that the Tsilhqot’in did not lead a “postage stamp” existence underlines the territorial nature of the claim – with a few exceptions, there are no definite tracts of land that were habitually occupied by the Tsilhqot’in at and around 1846.
 I also agree with the defendants that a territorial claim for Aboriginal title does not meet the tests in Delgamuukw and in Marshall; Bernard. Further, as I will attempt to explain, I do not see a broad territorial claim as fitting within the purposes behind s. 35 of the Constitution Act, 1982 or the rationale for the common law’s recognition of Aboriginal title. Finally, I see broad territorial claims to title 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.
 As I read Delgamuukw, Aboriginal title cannot generally be proven on a territorial basis, even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory. I acknowledge that Delgamuukw did not fully address the quality of occupancy that was necessary to support a title claim, apart from indicating that the occupancy must have been exclusive. That said, several passages in Delgamuukw strongly suggest that an intensive presence at a particular site was what the Court had in mind.
 In particular, I note that the examples of title lands given at para. 149 of Delgamuukw are well-defined, intensively used areas. The reference to hunting, fishing and other resource extraction activities is coupled with a specific description of the lands so used as “definite” tracts of land. I agree with British Columbia’s assertion that what was contemplated were specific sites on which hunting, fishing, or resource extraction activities took place on a regular and intensive basis. Examples might include salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.
 The Court’s specific references to the difficulty that nomadic peoples might face in proving title is also telling. While, as the Court pointed out in Marshall; Bernard, there is no reason that semi-nomadic or nomadic groups would be disqualified from proving title, their traditional use of land will often have included large regions in which they did not have an adequate regular presence to support a title claim. That is not to say, of course, that such groups will be unable to prove title to specific sites within their traditional territories.
 Finally, with respect to Delgamuukw, I note Lamer C.J.C.’s comments at paras. 150 and 151 dealing with the need for a group to demonstrate that a piece of land was of central significance to their distinctive culture. He considered this to be a “crucial” part of the test for Aboriginal title, but found that it was unnecessary to treat it as a specific element of the proof of title, because any land that met the other criteria for Aboriginal title would, of necessity, be of central significance to the culture. That position is a sensible one if the occupation needed to found a claim for title is site-specific; it is not, however, if undifferentiated land within a large territory is to be included in a title claim.
 Marshall; Bernard, as I read it, is even stronger in showing that Aboriginal title must be demonstrated on a site-specific rather than territorial basis. The majority expressly dealt with the question of whether hunting or fishing or the taking of other resources from land could found a title claim. At para. 58, it agreed that such activities could, where they were sufficiently regular and exclusive, be a basis for title. It also cautioned, however, that more typically, such activities will found only claims to specific Aboriginal rights.
 The majority’s equation of sufficient occupancy for Aboriginal title with the common law requirements to show title by virtue of possession is also important. It supports the views that title must be claimed on a site-specific basis, and that a certain regularity and intensity of presence is needed before it will count as “occupancy”.