A road to resolution? Tsilhqot'in Nation v. British Columbia.

AuthorEdmond, John B.H.
PositionFeature Report on Advances in Aboriginal Law

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Roger William was until recently chief of the Xeni Gwet'in First Nation, one of six bands comprising the Tsilhqot'in Nation, whose traditional territory is in the high, remote Chilcotin plateau of west central British Columbia, between the Coast Mountains and the Fraser River. His land claims action, brought on behalf of all the Tsilhqot'in Nations, will likely prove to be one of the most significant Aboriginal cases in BC history. In November 2007 Mr. Justice Vickers of the BC Supreme Court issued a prodigious and thorough, but ultimately problematic decision, or rather, opinion, (of which more later) after 339 days of hearing evidence over four years.

The judgment raises serious doubts about British Columbia's ability to regulate use of its Crown lands, or rather, immense areas that, given His Honour's view, may not be Crown lands. Justice Vickers' overriding theme is to plead for negotiation over further litigation as a means to reconciliation. Recent developments leave uncertain the government's response as well as the ultimate result.

Aboriginal rights and title

The action asserted both Aboriginal title and rights. Aboriginal rights prevail over ordinary law by virtue of the protection given by s. 35 of the Constitution Act, 1982, though they can be infringed with justification (R. v. Sparrow, 1990). Unlike much of Canada, little of BC is covered by historic land cession treaties, and despite a few modern agreements to settle "comprehensive claims," most of the province still remains subject to claims of Aboriginal title, a species of Aboriginal rights. The result is enormous uncertainty about the ability to regulate and develop land, together with lack of clarity on the part of First Nations as to the scope of their rights, with interminable negotiation and recurrent litigation.

Aboriginal title exists where the group asserting it can establish continuous and exclusive occupation of its area from before the assertion of British sovereignty. In this case, following precedent, this date was taken to be 1846, when the Treaty of Washington (a.k.a. the Oregon Treaty) recognized British sovereignty west of the Rockies.

In the leading case, the Supreme Court has held that Aboriginal title gives "the right to exclusive use and occupation ... for a variety of purposes, which need not be ... integral to distinctive Aboriginal cultures," but the uses must be consistent with the cultural element--no strip mining unless title is surrendered (Delgamuukw v. BC, 1997). But Aboriginal title to specific tracts of land has never yet been found by Canadian courts to exist, and the geographic scope of title lands remains a topic of debate: Is title confined to areas of relatively permanent occupation--settlements, fishing stations, and the like--or does it cover the entire area over which the group traditionally ranged, or something between? A finding of Aboriginal title would confer a significant degree of control over use of the lands in question, though the precise practical result of such a finding remains so far in the academic realm.

An Aboriginal right to engage in an activity hunting, fishing--may exist though no Aboriginal title can be claimed. The...

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