What do a bottle of ginger beer and aboriginal title have in common?

In 2014, the Supreme Court of Canada issued its landmark ruling in the Tsilhqot’in case.  At the very least, the decision is profoundly important as marking the first time in the history of Canada that an appellate court found an area of Crown land to be subject to aboriginal title.  However, the decision immediately gave rise to a debate. How broadly should it be read?  Is it just a decision about 1700 or so square kilometres of land in the remote Chilcotin region of British Columbia?  Or does it signal that much - perhaps most - of British Columbia is subject to aboriginal title?  Does it, in other words, transform our understanding of who really owns the lands and resources of BC?

These two readings reflect different perspectives about indigenous rights.  One takes a narrow view of aboriginal law in the long-held belief that this is needed to preserve the Crown’s ownership and control of public lands.  Another perspective is that Tsihlqot’in represents a watershed moment in the history of our province, a time to acknowledge that indigenous ownership of traditional lands persists, that it has never been extinguished, and that it is prevalent throughout the province.  Those holding the latter perspective argue that Tsilhqot’in should require us to replace the policy of denial which has been a lynchpin of land policy in British Columbia since 1871 with a policy that takes recognition as its starting point.

Some guidance in choosing among these perspectives can be gleaned from an unusual source. A case that started in a cafe in Paisley, Scotland in the summer of 1928, when a widow named Mrs. Donoghue found a snail in her half-finished bottle of ginger beer. The sight made her ill. She sued. What happened to her case changed the course of legal history.

According to English law at the time (and for that matter Scots law, which applied to the case) Mrs. Donoghue might have had a claim against the owner of the cafe if she had purchased the bottle of ginger beer.  But she would have had no claim against the bottler.  The reason is that there was no direct contractual relationship between her and the manufacturer and the law required the existence of a contractual relationship before a claim of negligence could be brought.  The case made its way to the House of Lords, the highest appellate court in the United Kingdom.  In 1932 the court decided (by a vote of 3 to 2) that Mrs. Donoghue could sue the manufacturer for negligence even in the absence of a contractual relationship.

The leading judgment in the case we now know as Donoghue v Stevenson was delivered by Lord Atkin.  Many words have been written in an attempt to explain what Lord Atkin decided.  Some have argued that the point of the case is as narrow as this: manufacturers of ginger beer have a legally enforceable duty not to make bottles of ginger beer containing the decomposed remains of dead snails.

Read less absurdly, the case is authority for the proposition that there is a distinct tort of negligence which can arise without a contractual relationship and imposes a duty upon manufacturers to consumers as the intended users of their product.

But the case is far more important and broad-ranging than that.  This is because Lord Atkin grounded his ruling in an expression of a general principle which has had an enormous impact upon the development of the common law.  It’s called the neighbour principle, and it was expressed by Lord Atkin in the following words:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This principle, studied by generations of law students, has supported the expansion of the common law far beyond the realm of what we now call product liability.  It is used to ground liability in car crash cases, professional malpractice and much more.  Its reach has not expanded infinitely, but it has been and continues to be an enormously influential principle in the common law.

Tsillhqot’in is meant to have the same impact as Donoghue v. Stevenson.  It is not intended to be read simply as an application of the developing law of aboriginal title to one claim by one First Nation in one small area of British Columbia.  Rather, in setting forth the requirements for proof of aboriginal title, in applying them to the circumstances of a semi-nomadic indigenous people in a way that plainly interprets the evidence of traditional use and occupancy generously, and in making it clear that aboriginal title confers rights that are tantamount to fee simple, real ownership, and not just a right to be consulted, the Supreme Court established a legal framework which, applied reasonably, rather than narrowly, necessarily means that aboriginal title is pervasive in British Columbia.  Yes, elements of the framework had been established in prior cases.  But these cases did not prevent lawyers from arguing that while Aboriginal title might exist in theory, it did not exist in any actual place.  That changed with Tsilhqot’in.

This argument does not find its footing in a single, dominant passage from the decision, but rather from the reasons read as a whole, because the case deals with a series of issues, all of which are important.  Two excerpts, however, give some sense of what the Court is trying to do.

[32] In my view, the concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title.  This said, the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.  Sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established.

And in paragraph 50, summarizing its analysis of the elements required to prove aboriginal title, the Court concludes:

Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty. 

With these passages in mind, the the question that arises is this: given that a semi-nomadic group such as the Tsilhqot’in were able to establish aboriginal title over some 1700 square kilometres, can there be any doubt that the province’s more than 200 First Nations have title over significant portions of their traditional territories?

Aboriginal title may not exist everywhere.  Conflicts over traditional use that amount to what are called overlapping claims are not easily resolved. The implications of aboriginal title for private lands remain unclear.  But to read Tsilhqot’in as having established nothing more than a finding of aboriginal title in one narrowly defined situation is to make the same mistake as those who, all those years ago, argued that Donoghue v. Stevenson was just a case that established a cause of action by cafe patrons for the harm caused by the discovery of snails in bottles of ginger beer.