The upcoming Supreme Court of Canada case on Aboriginal Title

The Supreme Court of Canada decided yesterday to hear the appeal from the decision of the British Columbia Court of Appeal in the case of William v British Columbia

Why is this an important case for Aboriginal title in Canada?  The substance of this appeal is likely to focus on a big question with a big impact on Aboriginal/non-Aboriginal relations: will Canadian law recognize Aboriginal title as substantial territories, or will it subscribe to the “postage-stamp theory” only recognize land rights over small, isolated patches of land?

Here’s a bit of background to explain this debate, and why it’s important.

What is Aboriginal Title?

Aboriginal title, or “Indian title” in older terminology, is a concept in common law that recognizes the land rights of the indigenous peoples of Canada.  As the Supreme Court said in the landmark case of Calder v British Columbia, “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.  This is what Indian title means . . . .”

Aboriginal title is an old concept whose legal application dates back to early British colonialism in Canada.  The Royal Proclamation of 1763 promised that the right of Aboriginal people to live on and use their lands would be respected, and that no lands would be settled by colonists except where those lands had been sold to the Crown, at a public meeting of the Aboriginal community.  These agreements for Aboriginal communities to share their lands with the Crown are known as treaties.

Most land in Canada is covered by treaties, whether historic or modern.

However, in certain parts of Canada, the colonial government simply decided to treat Aboriginal people as if they did not exist, declaring that the land was terra nullius, or lands occupied by no one, in the same way that Antarctica was treated upon its discovery. This is most notably true of almost all of British Columbia. The Crown confined First Nations to reserves, and declared that it owned all of the natural resources of British Columbia, and that the First Nations had no right to any of the decision-making about those resources, and no right to any revenues arising out of those resources.

What is Aboriginal title litigation?

In 1997, the Supreme Court of Canada, in the historic case of Delgamuukw v British Columbia, established a way for Aboriginal communities, such as those in BC, whose land rights had simply been treated as if they didn’t exist, to get a court to recognize their title.

The Delgamuukw case established that a court will recognize Aboriginal title where the Aboriginal community can show that it had exclusive occupation of a territory at the time of the assertion of British sovereignty (paras. 143-159). Where a community can show this, it has a present-day right of exclusive possession of that territory.

The same case also established that the Crown may “justifiably infringe” Aboriginal title. The Court gave a long list of potentially justifiable purposes for Crown infringement, such as forestry, mining, economic development, and the settlement of foreign populations (para. 165).

The 2005 Supreme Court case of R v Marshall; R v Bernard elaborated on the meaning of exclusive occupation: “Exclusive occupation means ‘the intention and capacity to retain exclusive control’, and is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent.” (para. 57) The Court seemed to say that what kind of exclusive control might be sufficient for proving title depended on the kind of land in question.

How has Aboriginal title litigation gone?

Proving Aboriginal title in court is a long and arduous process, involving lots of historical evidence. The Tsilhqot’in Nation in BC has gone the farthest along in this process. After a trial that lasted five years (2002-2007), the BC Supreme Court (a trial level court) found that a procedural problem prevented it from making a declaration of Aboriginal title for the Tsilhqot’in Nation. But the judge also found that the evidence supported the existence of Aboriginal title over a large swath of territory. The judge made hundreds of pages of detailed factual findings, which he said he hoped would assist the parties in negotiating the recognition of title for the Tsilhqot’in (para. 961).

These negotiations did not reach an agreement. The decision was appealed, and decided in the William v British Columbia case.

The BC Court of Appeal took a restrictive (or as the First Nations litigants described it, a “postage stamp”) view of the concept of Aboriginal title. In particular, it the Court said at para. 221:

I note that the examples of title lands given [in] Delgamuukw are well-defined, intensively used areas. The reference to hunting, fishing and other resource extraction activities is coupled with a specific description of the lands so used as “definite” tracts of land. I agree with British Columbia’s assertion that what was contemplated were specific sites on which hunting, fishing, or resource extraction activities took place on a regular and intensive basis. Examples might include salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.

There is a vast difference between this site-specific characterization of Aboriginal Title found in the Appellate decision, and the territory-wide characterization employed by the trial judge in the same case. Unsurprisingly, the Tsilhqot’in sought leave to appeal the Appellate decision to the highest court: the Supreme Court of Canada. That leave was granted.

What does the Supreme Court’s decision to “grant leave” mean?
The Supreme Court has decided that it will hear this appeal. It will give a chance for the Court to consider these different views of Aboriginal title in Canada. Whatever it decides will probably have a big impact on Aboriginal rights in Canada for years to come.

The way Aboriginal title is conceived will have an effect on how Aboriginal title claims are treated in court. It could also affect the dynamics of the negotiations for modern day treaties. Since the Crown has a duty to consult a First Nation in decisions where their claimed rights are affected, this case could also affect the way this duty is thought of.

We will continue to monitor this case as it proceeds to the Supreme Court, and provide updates on our blog.