William v. British Columbia, 2012 BCCA 285

Introduction

On June 27, 2012, the British Columbia Court of Appeal (BCCA) released its decision in William v. British Columbia,1 on appeal from Tsilhqot'in Nation v. British Columbia,2 a November 20, 2007 decision of the British Columbia Supreme Court (BCSC).

The BCCA considered the appeals of the Tsilhqot'in First Nation (Tsilhqot'in) of the west central interior of British Columbia. The Plaintiff, Roger William, was the former chief of the Xeni Gwet'in First Nations Government, which, along with four other bands, is an Indian band of the Tsilhqot'in Nation. The litigation concerned claims for Aboriginal rights and title in two areas known as Tachelach'ed and the Trapline Territory (Claim Area). Although the BCCA's analysis of the case differed from the BCSC, it upheld the lower court's order in its entirety. The BCCA dismissed the Plaintiff's claim for Aboriginal title over the Claim Area, but affirmed that the Tsilhoqot'in enjoyed Aboriginal rights throughout the Claim Area.

This decision is an important contribution to the understanding of the law of Aboriginal title in British Columbia and in Canada by applying the principles set out by the Supreme Court of Canada (SCC) in earlier cases. The decision also affirms that the framework for establishing Aboriginal title is on the basis of site-specific claims and evidence of exclusive occupation and intensive use of such sites, rather than on the basis of broad, territorial claims. This directly contradicts the earlier findings of the BCSC.

Background

This case stemmed from decisions of the Provincial Crown to grant a forest licence under the Forest Act3 in 1983 and cutting permit in 1989 to Carrier Lumber Ltd. to log in the Trapline Territory. The Nemiah Valley Indian Band (now known as the Xeni Gwet'in First Nations Government) (Band) commenced an action in 1989 to prohibit logging activities in the Trapline Territory. In 1998, the Band added claims for Aboriginal title to the Trapline Territory on behalf of the Tsilhqot'in and commenced a second action in response to proposed logging in Tachelach'ed.

BCSC DECISION

In 1999, Mr. Justice Vickers of the BCSC consolidated the Band's two actions and made an order substituting the Tsilhqot'in for the Band as Plaintiff. The trial was a commenced in November 2002 and lasted 339 days over 5 years. The issues considered by the BCSC at trial included whether:

(a) the Tsilhqot'in held Aboriginal title to all or part of the Claim Area;

(b) the Tsilhqoti'in held Aboriginal rights to hunt, trap and trade in furs and pelts throughout all or part of the Claim Area;

(c) the Forest Act applied to Aboriginal title lands; and

(d) the issuing of forest licences and other forest development authorizations unjustifiably infringed Aboriginal rights in the Claim Area.

Mr. Justice Vickers dismissed the Plaintiff's claims for Aboriginal title, relying on the test for establishing Aboriginal title set out by the SCC in Delgamuukw v. B.C.,4requiring proof of exclusive occupation of the claimed lands at the time of the assertion of Crown sovereignty. Citing the SCC's decision in R. v. Marshall; R. v. Bernard,5 he held that Aboriginal title is not co-extensive with an Aboriginal group's traditional territory and that occasional entry and use of land is insufficient to found a claim to title.

Although the trial judge found that there was sufficient evidence of occupation by the Tsilhqot'in to support a claim for Aboriginal title in certain parts of the Claim Area, he declined to grant a declaration of Aboriginal title on the basis that the Plaintiff's pleadings made an "all or nothing claim" over the entire Claim Area. He held that it would be prejudicial to the defendants to make a declaration of Aboriginal title in respect of only parts of the Claim Area and stated that his decision was without prejudice to the Tsilhqotin's ability to make future claims to Aboriginal title within the Claim Area.

Despite declining to make a declaration of Aboriginal title, the trial judge held that the Tsilhqot'in had Aboriginal rights to trap and hunt for specified purposes and to trade in skins and pelts taken from the Claim Area "as a means of securing a moderate livelihood", and to capture and use horses for work and transportation purposes. He further declared that the proposed forestry activities in the Claim Area unjustifiably infringed Tsilhqot'in Aboriginal rights.

ISSUES ON APPEAL

The Plaintiff raised the argument on appeal that in declining to make a declaration of Aboriginal title over the Claim Area, the BCSC erred by failing to find that the Tsilhqot'in exclusively occupied the entire Claim Area at the date of assertion of Crown sovereignty. In the alternative, the Plaintiff argued that the BCSC erred in treating the title claim as an "all or nothing claim" and in declining to make a declaration of Aboriginal title in respect of only parts of the Claim Area.

The Attorney General of Canada (AGC) argued that the BCSC erred in dismissing the Aboriginal title claim without prejudice to the Plaintiffs' ability to pursue geographically...