Tsilhqot'in Nation v BC: reconfiguring aboriginal title in the name of reconciliation.

• Author: Macintosh, Constance

1. INTRODUCTION

   Canada, British Columbia, and the Tsilhqot'in First Nation have been in intermittent conflict since the early years of contact, with grievances over territory going back to the Chilcotin War of the 1860s. (1) Over the last 15 years, their conflict has been expressed, in part, through litigation. (2) Indeed, the three parties are currently awaiting the outcome of an appeal that was heard by the Supreme Court of Canada on November 7, 2013. (3) This particular lawsuit raises issues about Aboriginal title and Aboriginal rights. It has brought both the nature of, and the test for, Aboriginal title into question. Whereas the trial judge concluded that Aboriginal title could be proven based on territorial occupation and was factually made out over large tracts of the Tsilhqot'in's traditional territory, the British Columbia Court of Appeal found title could only exist on a site-specific basis and was thus restricted to areas such as village sites. The case also asks, directly, whether provincial forestry legislation is constitutionally applicable to Aboriginal title lands. (4) At this point, over 30 parties, including Amnesty International, the Assembly of First Nations, and several attorneys general, have been granted intervener status. (5)

   When events that directly precipitated the current litigation occurred during the mid to late 1980s, Aboriginal and treaty rights had been recently recognized as having constitutional status. (6) As a result, the consequences and obligations arising from Aboriginal and treaty rights being "recognized and affirmed" under subsection 35(1) were arguably not clear. (7) (Indeed, the Crown took the position through the 1980s that section 35 had no substantive legal effect because the provision was merely a preamble.) (8) At the same time, it was abundantly clear that the Tsilhqot'in, like other Indigenous peoples across the country, were at something of a breaking point in their relationship with the Canadian state, and that the status quo was unsustainable on multiple grounds. As Justice Vickers noted in his description of the context behind the litigation:

   Tsilhqot'in people were frustrated and angry. What they considered "their wood" was leaving the community without any economic benefit to Tsilhqot'in people. Over 40 families were on the Xeni Gwet'in housing wait list. The wait for housing was upwards to 25 years on Tsilhqot'in Reserves. There was also high unemployment. Forestry provided very few jobs for Tsilhqot'in people and the profits from harvesting the wood did not flow to their communities. (9) At this time, like others before, Indigenous frustration and anger with the Canadian state was palpable and playing out in different ways across the country. (10) As the Spicer Commission reported in 1991:

   There is an anger, a rage, building in aboriginal communities that will not tolerate much longer the historic paternalism, the bureaucratic evasion and the widespread lack of respect for their concerns. Failure to deal promptly with the needs and aspirations of aboriginal peoples will breed strife that could polarize opinion and make solutions more difficult to achieve. (11) Many communities, including the Tsilhqot'in, were pursuing multiple routes in their efforts to bring about substantial changes to the existing economic, political, and legal order. Some engaged in blockades to assert authority or rights over lands and resource use, or pursued other direct actions. Some of these actions turned tragically violent, notably the standoff between the Mohawks of Kanesatake and the Surete du Quebec at Oka in 1990, and the standoff between the Chippewas of Kettle and Stony Point First Nation and the Ontario Provincial Police at Ipperwash in 1995. These community actions reflected outstanding grievances, often with long histories. For example, the Mohawk dispute, like the Tsilhqot'in dispute, began to simmer during the first decades of contact, and so had a pedigree going back over 200 years. (12)

   Communities were also trying to use the instruments of the Canadian legal system by invoking the promise of subsection 35(1) of the Constitution Act, 1982, that Aboriginal and treaty rights are recognized and affirmed. (13) And indeed, solace and the potential for a renewed and rightful relationship blossomed through some of the early writings of the Supreme Court of Canada with regards to the meaning and consequences of the constitutionalization of Aboriginal and treaty rights. The Supreme Court of Canada both recognized the wrongful nature of past state practices, where "over the years the rights of the Indians were often honoured in the breach", (14) and signalled that as a country we were potentially at that sought-after turning point because "s. 35(1) is a solemn commitment that must be given meaningful content", (15) which included enabling "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown." (16)

   Through much of the 1990s, Supreme Court of Canada jurisprudence primarily lent insight into how subsection 35(1) enabled this reconciliation by mandating governmental restraint when Aboriginal rights were present. For example, section 35's promise was found to require the shielding of Aboriginal and treaty rights against some regulatory regimes, (17) monitoring Crown actions for minimal impairment, (18) and honouring a right of priority to Indigenous peoples over other noncommercial users of the same resource. (19) Notably, the Court also recognized that Aboriginal peoples may hold sui generis land rights which brought with them rights of use and occupation, (20) and therefore decision-making or governance rights. (21) When section 35's language was cast onto different types of fact situations and political-legal matrices in the 2000s, the Court revisited its founding jurisprudence. (22) It clarified that section 35's promise imposed procedural obligations on the Crown to meaningfully consult with, and potentially accommodate, Aboriginal peoples whenever the Crown knows or ought to know that its contemplated actions could adversely impact upon known or claimed Aboriginal or treaty rights. (23)

   Along the way, the jurisprudence became marked by a growing insistence that section 35's reconciliation mandate could only be partially furthered through judicial orders, and that much of the heavy work could only be substantively realized through political processes. That is, by the state engaging with Aboriginal peoples regarding their interests and likely legal entitlements, and by the parties approaching those interests and entitlements in good faith, fairly, and honourably. (24) I have described this understanding of reconciliation elsewhere as being "a dynamic process, demanding the establishing of relationships that, like all relationships, must both be founded in mutual respect and be renewed if they are to flourish." (25)

   Reams of provincial and federal legislation have been modified to incorporate aspects of the Supreme Court of Canadas directions from the section 35 jurisprudence, and hunting exemptions and consultation protocols have become virtually routine. Treaty negotiation tables to address claimed but unaddressed land and governance rights now abound. Some of the changes to the "status quo" that have occurred are substantial, and have resulted in some meaningful and respectful engagements and agreements between state actors and Indigenous communities. (26) But all is not well. There have always been concerns about the adequacy of the Supreme Courts interpretation of section 35 to actually bring about the anticolonial political and legal order that many Indigenous peoples ultimately seek. (27) These concerns are in part about the commensurability of what the parties--the courts, the Crown, and Aboriginal peoples--understand reconciliation to mean and require. (28) There are also tensions between these three parties regarding the nature and limits of their rightful roles, powers, and responsibilities in enabling reconciliation.

   In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judges decision, but offered different reasons in support of its conclusions. After identifying how some aspects of the decision of the British Columbia Court of Appeal align with the Supreme Court of Canada jurisprudence on section 35 and reconciliation, I then consider other aspects that illustrate an increasingly impoverished judicial interpretation of how reconciliation may articulate with Aboriginal title, where it appears that reconciliation is being cast as requiring a pre-emptive diminution of Aboriginal-title rights. (29) The Court of Appeal also suggests a role for the courts that may be overreaching. Through this analysis, I show why the Court of Appeal's proposed jurisprudential shifts have the potential to undermine any faith that Indigenous peoples may have in the judiciary enabling an honourable reconciliation between the Crown's de facto sovereignty and their rights. These conclusions, coupled with Canada's behaviour, paint a stark picture.

2. CANADA: UNDERMINING THE POTENTIAL FOR A RELATIONSHIP OF TRUST

   As discussed below, in its dealings with the Tsilhqot'in, Canada does not appear to be paying much heed to various directions from the Supreme Court of Canada concerning the obligations and expectations that emerge from section 35 and the doctrine of reconciliation. The...