A road to resolution? Tsilhqot'in Nation v. British Columbia.

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Roger William was until recently chief of the Xeni Gwet'in First Nation, one of six bands comprising the Tsilhqot'in Nation, whose traditional territory is in the high, remote Chilcotin plateau of west central British Columbia, between the Coast Mountains and the Fraser River. His land claims action, brought on behalf of all the Tsilhqot'in Nations, will likely prove to be one of the most significant Aboriginal cases in BC history. In November 2007 Mr. Justice Vickers of the BC Supreme Court issued a prodigious and thorough, but ultimately problematic decision, or rather, opinion, (of which more later) after 339 days of hearing evidence over four years.

The judgment raises serious doubts about British Columbia's ability to regulate use of its Crown lands, or rather, immense areas that, given His Honour's view, may not be Crown lands. Justice Vickers' overriding theme is to plead for negotiation over further litigation as a means to reconciliation. Recent developments leave uncertain the government's response as well as the ultimate result.

Aboriginal rights and title

The action asserted both Aboriginal title and rights. Aboriginal rights prevail over ordinary law by virtue of the protection given by s. 35 of the Constitution Act, 1982, though they can be infringed with justification (R. v. Sparrow, 1990). Unlike much of Canada, little of BC is covered by historic land cession treaties, and despite a few modern agreements to settle "comprehensive claims," most of the province still remains subject to claims of Aboriginal title, a species of Aboriginal rights. The result is enormous uncertainty about the ability to regulate and develop land, together with lack of clarity on the part of First Nations as to the scope of their rights, with interminable negotiation and recurrent litigation.

Aboriginal title exists where the group asserting it can establish continuous and exclusive occupation of its area from before the assertion of British sovereignty. In this case, following precedent, this date was taken to be 1846, when the Treaty of Washington (a.k.a. the Oregon Treaty) recognized British sovereignty west of the Rockies.

In the leading case, the Supreme Court has held that Aboriginal title gives "the right to exclusive use and occupation ... for a variety of purposes, which need not be ... integral to distinctive Aboriginal cultures," but the uses must be consistent with the cultural element--no strip mining unless title is surrendered (Delgamuukw v. BC, 1997). But Aboriginal title to specific tracts of land has never yet been found by Canadian courts to exist, and the geographic scope of title lands remains a topic of debate: Is title confined to areas of relatively permanent occupation--settlements, fishing stations, and the like--or does it cover the entire area over which the group traditionally ranged, or something between? A finding of Aboriginal title would confer a significant degree of control over use of the lands in question, though the precise practical result of such a finding remains so far in the academic realm.

An Aboriginal right to engage in an activity hunting, fishing--may exist though no Aboriginal title can be claimed. The test is whether the modern activity for which the right is claimed has continuity with a pre-European-contact custom integral and of central significance to the group's distinctive culture (R. v. Van der Peet, 1996). Contact generally precedes sovereignty; the date for establishing rights is thus earlier than for title. In this case, the Court fixed on 1793, the date of Alexander Mackenzie's journey "from Canada, by land" to Bella Coola on the BC coast though Mackenzie's route was well north of Tsilhqot'in territory (although the judgment acknowledges that Mackenzie did not actually contact the Tsilhqot' in because his route was well north of Tsilhqot'in territory).

The claim

The action was prompted by proposals to log on Tsilhqot'in traditional lands. Forestry was of little economic benefit to the First Nations, offered few if any jobs, and interfered with hunting and trapping. Chief William's action sought declarations of Aboriginal title over a vast area, and certain Aboriginal rights over an even larger area that included the title area. The rights claimed were to hunt and trap for survival and for spiritual, ceremonial and cultural uses, including the right to capture horses (a large herd of which runs wild in the title-claimed area), and to trade in pelts for a moderate livelihood (echoing the Supreme Court's 1999 Marshall decision on Mi'kmaq eel-fishing rights on the east coast). Damages for infringement of Aboriginal title by loss of timber and imposition of the provincial forestry regime were also claimed.

The area of Aboriginal title claim, the "Claim Area," consisted of the "Brittany Triangle" and the "Trapline Territory" (an area within a particular trapline licence). The Brittany Triangle comprises some 1418 square kilometres (547 square miles), while the Trapline Territory overlaps 414 square kilometres of the Brittany Triangle, and extends well beyond it by an amount the precise area of which is not disclosed in the judgment. The area over which Aboriginal rights were asserted, sometimes referred to as the "larger" or "greater" Claim Area, comprises, according to one estimate, just under 4400 square kilometres.

Aboriginal rights declared

It is the title claim that is of intense interest in this case; the rights claim warrants but brief mention here. Aboriginal rights to hunt and trap (which had been admitted), to trade in pelts and to capture horses (the last by, respectfully, somewhat strained reasoning) were granted. The rights are those of the Tsilhqot'in, not merely the Xeni Gwet'in. In the absence of "information to allow a proper assessment of the impact on the wildlife in the area," "forestry activities are an unjustified infringement of Tsilhqot'in Aboriginal rights in the Claim Area." The province's consultation on the subject was inadequate, as it had not addressed Aboriginal rights (for ah explication of this topic see my "Aboriginal Consultation and Accommodation," LawNow 32:2, November/December 2007, p. 21). In any case, the litigation in itself had brought logging in the area to a halt. None of these findings is momentous; it is the findings of Aboriginal title and their effects that are of major significance.

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Aboriginal title dismissed--or not

Chief William initially asserted Aboriginal title to the entire Claim Area but not to "portions thereof," but argued late in the trial that tracts of the area could also qualify for title declarations. BC and Canada (an added co-defendant) claimed prejudice on the ground they had not elicited evidence by cross-examination relevant to the "portions" claim. Justice Vickers concluded that the plaintiff's "all or nothing" case could not be reframed, and declined to grant a declaration of Aboriginal title. He accordingly dismissed the damages claim, which was grounded in title, but "without prejudice to the right to renew these claims specific to Tsilhqot'in Aboriginal title land," thus foreshadowing the "new claim"; see below.

In a most unusual departure from judicial practice, His Honour went on to offer "opinions ... not binding on the parties," on "potential Tsilhqot'in Aboriginal title inside and outside the Claim Area" (my emphasis--though title outside the Claim Area had not been asserted or, presumably, argued, Justice Vickers says he is "not precluded from expressing a view"). This was based on "a consideration of the entire evidentiary record" (though not, of course, the further evidence the defendants said was needed). His Honour's perhaps Utopian hope was that by offering his views he would impel the parties to reconciliation by negotiation: "Because the Court is engaged in the broader process of reconciliation, I have departed from the usual practice ..." But is it? Much of subsequent kudos and criticism reflect at bottom differing views on the proper role of the court in such a case.

The Supreme Court, some commentators have it, has retrenched on the scope of Aboriginal title, emphasizing intensity of use (R. v. Marshall; R. v. Bernard, 2005). A "generous view" is to be taken of Aboriginal practice, but "[t]he Court's task" is to "translate that practice ... into a modern legal right." Thus, "whether nomadic and semi-nomadic people can ever claim title to Aboriginal land" turns on whether, on the evidence, "a degree of physical occupation or use equivalent to common law title has been made out."

Recalling the Marshall/Bernard edict that Aboriginal title does not flow "from occasional entry and use," Justice Vickers considered the "semi-nomadic" life of the 400 or so Tsilhqot'in of 1846 as revealed by oral history and documentary and expert evidence. He found village sites, cultivated fields, and regular use of trails to support a finding of Aboriginal title in six described areas, "mostly within the Claim Area but not entirely." On the other hand, he was "unable to find regular use in the entire ... Claim Area," so that the declaration sought could not be granted. Plaintiff's counsel estimated the area to comprise roughly 2000 of the 4400 square kilometres claimed--a middle ground between the Crown's "impoverished ... 'postage stamp' approach" and Chief William's full Claim Area. One sympathetic commentator has described Justice Vickers' judgment as "entrench[ing] a robust view of Aboriginal title" (Jay Nelson, New Light on the Path, PBLI), which may acknowledge a somewhat elastic application of the Marshall/Bernard standard of "regular occupancy or use of definite tracts" but not "occasional entry and use."

The Judge's anguish is evident from repeated emphasis of the role he wishes for his judgment: "While the court cannot make a formal declaration of Tsilhqot'in Aboriginal title, I trust that expressing the foregoing opinion will assist the parties to achieve a fair and lasting resolution of the issues, which must be found to achieve a reconciliation of all interests," and "... it would be tragic if reconciliation with Tsilhqot'in people were postponed through seemingly endless appeals"--a forlorn hope; all parties filed appeals on December 14, 2007. Whether "endless," remains to be seen.

To what effect?

It appears to be settled law that the ultimate title to provincial land, even if burdened with Aboriginal title, is that of the provincial Crown (Guerin v. Canada, 1984). Justice Vickers is not entirely clear on whether the land he finds subject to Aboriginal title is "Crown land", but finds in any case that the province lacks the beneficial interest to permit its regulation by BC's Forest Act, the timber not being "Crown timber." Further, the province can grant only what it has, so private interests, including fee simple title, continue to be burdened with Tsilhqot'in title.

Jurisdiction over "Indians, and lands reserved for the Indians" is federal under s. 91(24) of the Constitution Act, 1867. This "protects a 'core' of Indianness from provincial intrusion," which core "encompasses aboriginal rights" (the most significant of which is title), under the constitutional doctrine of interjurisdictional immunity (Delgamuukw). The application of this controversial and arcane doctrine, the nuances and judicial peregrinations of which, since its 1914 origins in Privy Council companies law, are beyond the scope of this article, will be central to appeals of Justice Vickers' judgment if they proceed. Despite the symmetry suggested by "interjurisdictional," it in fact provides the senior government with an exclusivity not available to provinces, rendering otherwise valid provincial legislation such as BC's Forest Act inapplicable where it intrudes into the federal realm of Indian lands. The doctrine has been argued to conflict with the modern tendency to flexibility and "co-operative federalism," but was recently reaffirmed in the Aboriginal sphere by the Supreme Court (R. v. Morris, 2006).

Applying this doctrine, Justice Vickers finds "the provisions of the Forest Act that provide for the acquisition, sale and removal of timber" do not apply to Aboriginal title land. He acknowledges, "I am aware of the serious implications this conclusion will have on British Columbia" (having earlier noted, "... the sum total of Aboriginal title claims [in BC] has been said to exceed 100% of the provincial land mass"). But it is high time for resolution: Justice Vickers quotes Professor Kent McNeil of Osgoode Hall Law School, "... the province has skated on thin constitutional ice for over a century [and] has been violating Aboriginal title ... ever since it joined Canada in 1871."

All of this is, of course, non-binding--obiter dicta in legal jargon. But does it, if correct, reduce British Columbia to the status of a federal territory so far as regulation of its lands and forests is concerned? Such a result, apart from its obvious unacceptability, would revive the theory that Indian lands are "enclaves" of exclusive federal jurisdiction, firmly rejected by the Supreme Court in 1973 (Cardinal v. Alberta). Morris notwithstanding, the Court has, pragmatically, said, "... constitutional doctrine must facilitate, not undermine what this Court has called 'co-operative federalism'" (Canadian Western Bank v. Alberta, 2007).

A new claim--epilogue or prologue?

The answer may lie in a new action started on June 5, 2008 by Roger William--another surprise in this astonishing chronicle, since the appeals of Justice Vickers' judgment are barely underway. Mr. William--no longer Chief--now asks that the Tsilhqot'in be declared to have Aboriginal title to the area within his original Claim Area over which Justice Vickers found title in his non-binding opinion. He thereby abandons both Justice Vickers' finding of title outside the area, and his own previous claim to the entire Claim Area. He adds, "or portions thereof," to deal with the omission in his previous claim. What Mr. William, critically, does not ask is that provincial law be held inapplicable to the area claimed. Apart from title, and damages for prior activity, he merely wants, in a word, the logging stopped--a return to the practical motive for his complaint. This new claim does not suggest he will argue, nor indeed does it present the opportunity for a court to find, what was of such constitutional concern. Granting all of the relief Mr. William seeks would not preclude the province regulating Aboriginal title lands, so long as it took care not to infringe rights unjustifiably. This new position may well present a claim that can be negotiated, and may displace what might otherwise have required the attention of the Supreme Court of Canada.

Ironically, it may be that more litigation in fact signals an opportunity for precisely the resolution that eluded Justice Vickers' remarkable but seemingly doomed effort to achieve just that. Curiouser and curiouser!

Notes

(1.) Edmond Creek, Tsilhqox Tu Tl'az to the Tsilhqot'in, which figures marginally in this judgment, was named after my father C. H. Edmond, who explored the area in the early years of the last century.

John Edmond is an Ottawa lawyer with an interest in public law.

By way of disclosure, I was counsel for the Attorney General of BC at an early stage of his action.