High Water Mark Test for Establishing Aboriginal Title to be Reviewed by the SCC
The Supreme Court of Canada is set to revisit the test for Aboriginal title when it hears an appeal from the British Columbia Court of Appeal’s decision in William v. British Columbia this November. This appeal will be of particular significance to parties engaged in resource development, as it stands to affect the strength of claims to Aboriginal title over traditional territory, as well as claims to the right to fish and hunt in a given area. The trial judgment and the Court of Appeal took a restrictive view of the test for establishing Aboriginal title where proof of such title is based on a limited presence in a broad territory.
The SCC hearing will mark the culmination of litigation between the Tsilhqot’in First Nation (the “First Nation”) and the province spanning over more than two decades. The litigation involves claims for Aboriginal rights (to hunt and trap) and Aboriginal title in the First Nation’s traditional territory.
The trial before Vickers J. began in November 2002 and lasted 339 days over 5 years. Vickers J.’s 458-page decision addressed (among other things) the scope of Aboriginal title (if any) to lands in the First Nation’s traditional territory, as well as the First Nation’s right to hunt and trap and to capture wild horses throughout the traditional territory.
Vickers J. did not grant a declaration of Aboriginal title over the entire traditional territory. He also declined to grant a declaration of Aboriginal title over part or parts of the traditional territory because the First Nation had made an “all or nothing” claim. Given the way the case had been argued, he was of the view that it would have been prejudicial to the province to make a finding of Aboriginal title over a portion rather than the whole of the traditional territory. However, he held that the First Nation could make future, more specific claims to Aboriginal title over parts of the traditional territory.
Vickers J. held that the First Nation had Aboriginal rights to trap and hunt and to capture horses in the traditional territory.
Groberman J.A., writing for the BCCA, came to the same conclusions as the trial judge, applying the Supreme Court of Canada’s decisions in Delgamuukw v. British Columbia and R. v. Marshall; R. v. Bernard. Notably, the BCCA held that Aboriginal title can only be established through proof of exclusive occupation of the land by the Aboriginal group at the time the Crown asserted sovereignty over the land. In addition, the Aboriginal group must show that the land was of central significance to its culture.
The BCCA held that a broad territorial claim will rarely satisfy the test for Aboriginal title. Aboriginal title must be established on a site-specific basis by pointing to particular occupancy (such as a village site) or intensive use (such as farming) of the land. The BCCA upheld the trial judge’s decision regarding Aboriginal rights and affirmed the First Nation’s right to hunt and trap and to capture horses in its traditional territory.
For a more detailed analysis of the decisions below, see Thomas Isaac and Stephanie Axmann’s article here.
This decision will be of significance to parties engaged in resource development who need to overcome claims to Aboriginal title, or to engage in consultation with stakeholders about Aboriginal rights. For a more on this case and other 2012 BCCA decisions affecting Aboriginal rights and the resource sector, see: Mining in the Courts, Year in Review, Vol. III – March 2013.
Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet'in First Nations Government and on behalf of all other members of the Tsilhqot'in Nation v. Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region, et al.
SCC Docket No. 34986
Date of Hearing: November 7, 2013
Aboriginal title traditional territory Tsilhqot'in First Nation