The British Columbia Court Of Appeal Rejects The Territorial Theory Of Aboriginal Title And Dismisses The Appeal By The Tsilhqot'in Nation

On June 27, 2012 The British Columbia Court Of Appeal Issued Its Highly Anticipated Decision In The Case William V. British Columbia.1 In A Unanimous Decision, The Court Affirmed Many Of The Trial Judge's Holdings Regarding The Claims To Aboriginal Rights And Title Brought By The Tsilhqot'in Nation And The Xeni Gwet'in First Nations Government. However, The Most Important Issue On Which The Court Of Appeal And The Trial Judge Disagreed Related To The Type Of Occupancy Necessary To Sustain A Claim To Aboriginal Title: The Court Rejected The "Territorial Theory" And Held That Aboriginal Title Can Only Be Proven By Evidence Of Intensive Physical Occupation Of Specific Sites.

FACTS

This appeal concerns Aboriginal rights and Aboriginal title claims brought on behalf of the Xeni Gwet'in First Nations Government (Xeni Gwet'in) and the Tsilhqot'in Nation (Tsilhqot'in) in an area comprising approximately 4,380 km 2 in the Chilcotin region of the west central interior of British Columbia ("Claim Area"). The Xeni Gwet'in is a band under the Indian Act, formerly known as the Nemiah Valley Indian Band, which, along with five other First Nations, makes up part of the Tsilhqot'in Nation. The Tsilhqot'in considers their traditional territory to include a vast tract of the west central interior of British Columbia. The Claim Area comprises two areas: Tachelach'ed (the Brittany Triangle) and the "Trapline Territory", excluding the reserves forming part thereof. It comprises only about five percent of what the Tsilhqot'in regard as their traditional territory and is mostly made up of undeveloped land with over forty per cent being provincial park land.2

It was proposed forestry activities and the granting of cutting permits in the Claim Area that instigated the litigation. The case, which originally began in 1989, underwent several amendments and different iterations. When the action proceeded to trial in 2002, the plaintiff sought, among others, a declaration that the Tsilhqot'in Nation has Aboriginal title to the Claim Area and a declaration that the Xeni Gwet'in has Aboriginal rights to hunt and trap in the Claim Area as well as declarations of infringement of those rights by British Columbia and corresponding relief and damages.3

THE TRIAL JUDGE'S DECISION

On November 20, 2007 Justice Vickers of the British Columbia Supreme Court rendered his decision after a trial that lasted 339 court days over the period of five years.4 Justice Vickers ruled that the Tsilhqot'in Nation, as the proper rights holder, has Aboriginal rights to trap and hunt birds and animals for specified purposes 5, to trade in skins and pelts taken from the Claim Area "as a means of securing a moderate livelihood"6 as well as to capture and use horses 7. He also held that forestry activities in the Claim Area unjustifiably infringed those rights.8 However, Justice Vickers dismissed the claim to Aboriginal title, though he did so without prejudice to the plaintiff's ability to bring a new claim for title to smaller tracts of land within the Claim Area. He concluded that he could not issue a declaration of title to those areas because the case was pleaded as an "all or nothing claim", namely that either title is established over all of the Claim...