The B.C. Court of Appeal has upheld aspects of the William Case — an aboriginal title case involving a large portion of Nemiah Valley.
“While I would analyze certain aspects of this case differently than did the trial judge, I would uphold his order in its entirety, and would dismiss all three appeals,” concluded Justice Groberman in his reasons for judgement released this morning.
In November 2007, after 15 years before the courts, Justice David Vickers found that Tsilhqot’in chief Roger William had proven aboriginal title to a vast part of the area.
Vickers had dismissed William’s claim for a declaration that the Tsilhqot’in have existing aboriginal title to areas of land known as the Brittany Triangle and the Trapline Territory. He also dismissed William’s claims for damage from B.C.
He declared, however, that the Tsilhqot’in people have an aboriginal right to hunt and trap birds and animals in the claim area and have an aboriginal right to trade from that area. He also declared that forestry activities, such as logging, had unjustifiably infringed on aboriginal rights in the claim area.
That trial lasted for 339 days and cost nearly $30 million for all parties.
In December 2007, all three parties — the provincial government, federal government, and William — filed appeal notices.
This week’s decision by the B.C. Court of Appeal included the following conclusions:
• The plaintiff is correct in his assertion that the claim for aboriginal title was not an “all or nothing claim” to the claim area.
• The plaintiff’s claim was a “territorial” one rather than a claim to a definite tract of land that was actually occupied by the Tsilhqot’in at the time of assertion of sovereignty.
• The “territorial” basis for the claim did not form a viable foundation for a title claim. Accordingly, the claim for title was not made out.
• This case was not about aboriginal title to definite tracts of land within the claim area. Given the state of the law and the nature of this test case, the plaintiff cannot be faulted for failing to include site-specific claims in this litigation. Accordingly, the dismissal of the aboriginal title claim cannot prejudice future claims by the Tsilhqot’in to title to specific areas within the claim area on the basis that they constitute definite tracts of land which were actually occupied by the Tsilhqot’in at the time Crown sovereignty was asserted.
•The judge made no error in allowing the plaintiff to claim aboriginal rights on behalf of the Tsilhqot’in rather than on behalf of the Xeni Gwet’in.
• The judge made no error in finding that aboriginal rights resided with the Tsilhqot’in Nation rather than the Xeni Gwet’in First Nations Government.
• The judge made no error in finding a Tsilhqot’in right to capture and use wild horses in the claim area.
• The judge made no error in allowing the plaintiff to assert that Tsilhqot’in hunting and trapping rights extended to the earning of a moderate livelihood, nor did he err in finding those rights to have been proven.
• The judge did not hold that the Tsilhqot’in have a right to a harvestable surplus of all wildlife species in the claim area. Rather, he found that they have hunting and trapping rights in the Claim Area, and that the Crown had, in its management of forestry in the claim area, infringed those rights.
• The judge, in considering whether there had been a prima facie infringement of the Aboriginal rights of the Tsilhqot’in, properly placed the burden of proof on the plaintiff. He did not, as alleged by British Columbia, “reverse the burden of proof.”
• The judge did not hold that the Crown must accept aboriginal rights claims as valid in order to properly engage in consultation. Rather, his reasons should be interpreted as requiring such claims to be treated seriously in accordance with the Supreme Court of Canada’s ruling in Haida Nation.
“The case should not be seen as authority for the proposition that any industrial activity that affects the diversity of species or abundance of wildlife will necessarily be inimical to an Aboriginal right to hunt or trap,” Groberman said in his reasons for judgement. “Each case must be analyzed in terms of the nature and scope of the aboriginal right and of the conduct that allegedly infringes it.”
The Tsilhqot’in National Government has responded to the decision, applauding the B.C. Court of Appeal for affirming aboriginal rights.
“We are pleased that the Court of Appeal upheld the Lake Justice Vickers’ findings with regards to the recognition of our aboriginal rights and the unjust infringement by B.C.’s forestry regime,” said Xeni Gwet’in Chief Marilyn Baptiste. “However, the court’s regressive attitude on the meaning of aboriginal title creates uncertainty for all Canadians.”
