The Tsilhqot'in case: the recognition and affirmation of aboriginal title in Canada.

• Author: Rosenberg, David M.

INTRODUCTION

On 26 June 2014, the Supreme Court of Canada made a declaration of Aboriginal title over approximately 2,000 square kilometres of land in favour of the Tsilhqot'in Nation. (1) The ground-breaking decision, written by the Chief Justice on behalf of a unanimous Court, gave shape to what had previously been a theoretical construct: Aboriginal title. It was the first time that Aboriginal title had been recognized and affirmed by the Court as a fact. In Tsilhqot'in Nation v British Columbia, (2) the Court found that Aboriginal title was territorial in nature and, in doing so, overturned the Court of Appeal and rejected the test that would have confined Aboriginal title to smaller specific sites like fishing rocks or buffalo jumps. (3)

The Tsilhqot'in case began as a defensive action brought by the Tsilhqot'in to defend their land and their way of life from the threat and devastation of industrial clear-cut logging. (4) In order to accomplish that task, Chief Roger William pursued representative actions seeking interim injunctive relief and declarations of Aboriginal rights and title to approximately 4,380 square kilometers of land in central British Columbia (the Claim Area). (5) The actions (which included claims for hunting and trapping rights and Aboriginal title) were consolidated, sent to trial, (6) appealed to the British Columbia Court of Appeal, (7) and further appealed to the Supreme Court of Canada. (8) The Tsilhqot'in succeeded at trial and on first appeal in obtaining a declaration that they had hunting and trapping rights (including the right to earn a moderate livelihood from the exercise of those rights) over the entire area that they claimed. (9) The Supreme Court of Canada, relying on the findings of fact of the trial judge, declared that the Tsilhqot'in had Aboriginal title to a portion of the claimed territory, which comprised approximately 40% of the area claimed at trial. This area over which the Supreme Court of Canada declared title was largely the same area that the trial judge opined was Aboriginal title land. (10) For reasons later found to be in error, the trial judge declined to grant a declaration of title. (11)

FACTUAL BACKGROUND

Prior to contact, the Tsilhqot'in were hunters and trappers and practiced a seasonal round. (12) The anthropologists describe this seasonal round as the way in which the Tsilhqot'in would use the resources in their territory in a regular and organized manner to allow for their survival. (13)

The Tsilhqot'in defended their territory vigorously. Their pre-contact history of warring with neighbouring First Nations was legendary, (14) and this practice continued long after contact. (15) The ferocity and vigilance with which the Tsilhqot'in protected their territory was a focus at trial. (16)

The date of first contact is important in Aboriginal rights cases, as it is the critical date First Nations must use to define and establish the claimed Aboriginal right. (17) In this part of British Columbia, that date has been determined to be 1793, the date that Alexander Mackenzie journeyed near the Claim Area, (18) although it is an open question as to whether he actually made contact with the Tsilhqot'in. (19) The trial judge, Justice David Vickers, noted that 1793 was the same year in which Captain George Vancouver completed his survey of the coast of what is now British Columbia. (20) The first written record of actual contact between a European and the Tsilhqot'in is 1808, when Simon Fraser appeared in Tsilhqot'in territory by way of the river now bearing his name. At that time he was met by a group of Tsilhqot'in who came on horseback to meet him. (21)

Tsilhqot'in territory is remote and inhospitable. (22) It is only in relatively recent times that people other than Tsilhqot'in have settled in this territory. (23) The operative date in British Columbia for establishing proof of Aboriginal title is 1846, (24) so it is quite fortuitous from an evidentiary point of view that in November 1845, a Jesuit priest named Father Giovanni Nobili ventured into Tsilhqot'in territory. (25) He recorded the observations he made when meeting groups of Tsilhqot'in people. (26) They were living in subterranean homes called kigli holes. (27) He described their social organization and some of their traditional practices. (28)

THE CHILCOTIN WAR OF 1864 AND THE TSILHQOT'IN DEFENCE OF TERRITORY

Prior to first contact with the Europeans and continuing well into the 20th century, the Tsilhqot'in assiduously defended their territory. Those who entered upon Tsilhqot'in land did so with their permission or were met with fierce opposition, which at times had tragic consequences. (29)

A prime example is what occurred when the gold rush came to British Columbia in the 1860s. Alfred Waddington, a politician, author, and businessman, (30) championed the construction of a road from the head of Bute Inlet through Tsilhqot'in territory into the gold fields at Barkerville. (31) In 1862, a smallpox epidemic had ravaged many First Nations in British Columbia, including the Tsilhqot'in. (32) That was the same year Waddington began lobbying for the construction of a wagon road through Tsilhqot'in territory. As the trial decision reads, "[i]n 1862 Alfred Waddington and the Commissioner of Lands and Works for British Columbia reached an agreement permitting Waddington to build a road ... through Tsilhqot'in territory" (33) and the construction was under way in 1864 when the road builders came to Tsilhqot'in territory. (34) They entered without the permission of the Tsilhqot'in. There were reported hostilities, and one of the workers threatened the Tsilhqot'in with another round of smallpox. (35) Following this and other triggering events, the Tsilhqot'in drew a line in the sand.

The revered Tsilhqot'in warrior Klatsassin headed a war party that killed the road crew that was building the wagon road through Tsilhqot'in territory. (36) Klatsassin and his followers then successfully drove every non-Tsilhqot'in person from Tsilhqot'in territory. (37) This was the only occasion in British Columbia history where an Aboriginal Nation succeeded, however briefly, in killing or driving out every non-Aboriginal person from their territory. (38)

Whatever the triggering event for the start of the Chilcotin War, whether it was a pre-emptive strike against germ warfare or a stand against physical invasion, one of the underlying causes was the defence of Tsilhqot'in territory. (39) In effect, the Tsilhqot'in succeeded, if only temporarily.

In August 1864, Klatsassin and some of the other Tsilhqot'in warriors went into the Crown's camp, where they were arrested and then tried for murder by Chief Justice Begbie. (40) The Tsilhqot'in people have always asserted that Klatsassin did not surrender; rather, he attended a peace conference relying on what we would now call "diplomatic immunity" and was falsely arrested by the Crown. (41) Klatsassin and the warriors were convicted and hanged at Quesnellemouth. Klatsassin's last words were reported to have been "[w]e meant war, not murder". (42)

The Attorney General for British Columbia subsequently apologized to the Tsilhqot'in people for the wrongs done to them during the Chilcotin War of 1864. (43) In 1999, the Province unveiled a commemorative plaque "to honour those who lost their lives in defence of the territory and the traditional way of life of the Tsilhqot'in and to express the inconsolable grief that has been collectively experienced at the injustice the Tsilhqot'in perceive was done to their chiefs." (44)

On 26 October 2014, exactly 150 years after the hanging of Klatsassin and his fellow warriors, the Premier of British Columbia publicly acknowledged the great injustice that was done to Klatsassin and the Tsilhqot'in people. (45)

THE DECISION TO COMMENCE LITIGATION

The Tsilhqot'in did not really want to go to court in this case. It was their course of last resort. The Chilcotin forest district where they lived had been systematically clear-cut all around them. The only forest area that remained intact within the Xeni Gwet'in region of Tsilhqot'in territory was the portion of the Claim Area comprising the Brittany Triangle (Tachelach'ed) and the Nemiah Trapline. (46) As people who traditionally hunted and trapped, an intact forest was of central importance to the Tsilhqot'in.

In 1983 Carrier Lumber was granted a licence to carry out industrial logging within the Tsilhqot'in territory. (47) In order to access timber in the Brittany Triangle (Tachelach'ed), it was necessary for logging trucks to cross a bridge that had fallen into disrepair. It was the only access point across the Tsilhqox River (which defined the western boundary of the Claim Area). (48) Tsilhqot'in Chiefs and Elders set up a blockade at that bridge at Henry's Crossing to prevent repairs and thereby halt the planned logging. (49) The blockade led to a meeting at 108 Mile House between the Chiefs of the Tsilhqot'in, Premier Harcourt, and certain Ministers. (50) At that meeting, the Premier promised that logging would not go ahead without the' consent of the Xeni Gwet'in. (51) In spite of that promise, licences were subsequently issued that would have led to logging within the Claim Area if the litigation had not proceeded. (52)

The litigation commenced by the Tsilhqot'in was a defensive action brought to preserve their land and their culture. Strategically, the choice to litigate was the choice to survive.

The litigation did proceed, and it ended 25 years after the first Writ of Summons was issued when on 26 June 2014 the Supreme Court of Canada, in a unanimous decision written by the Chief Justice, declared that the Tsilhqot'in had Aboriginal title. (53)

KEY POSITIONS TAKEN BY THE TSILHQOT'IN IN THE SUPREME COURT OF CANADA

Three appeals from the trial decision were heard together by the British Columbia Court of Appeal. (54) In dismissing the Crown appeals, the Court confirmed that...