William v. British Columbia et al., (2014) 459 N.R. 287 (SCC)

JudgeMcLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
CourtSupreme Court (Canada)
Case DateNovember 07, 2013
JurisdictionCanada (Federal)
Citations(2014), 459 N.R. 287 (SCC);2014 SCC 44;[2014] 2 SCR 257;[2014] 2 SCR 256;374 DLR (4th) 1;[2014] 7 WWR 633;[2014] SCJ No 44 (QL)

William v. B.C. (2014), 459 N.R. 287 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.R. TBEd. JN.021

Roger William, on his own behalf, on behalf of all other members of the Xeni Gwet'in First Nations Government and on behalf of all other members of the Tsilhqot'in Nation (appellant) v. Her Majesty the Queen in Right of the Province of British Columbia, Regional Manager of the Cariboo Forest Region and Attorney General of Canada (respondents) and Attorney General of Quebec, Attorney General of Manitoba, Attorney General for Saskatchewan, Attorney General of Alberta, Te'mexw Treaty Association, Business Council of British Columbia, Council of Forest Industries, Coast Forest Products Association, Mining Association of British Columbia, Association for Mineral Exploration British Columbia, Assembly of First Nations, Gitanyow Hereditary Chiefs of Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu, Haizimsque, Watakhayetsxw, Luuxhon and Wii'litswx, on their own behalf and on behalf of all Gitanyow, Hul'qumi'num Treaty Group, Council of the Haida Nation, Office of the Wet'suwet'en Chiefs, Indigenous Bar Association in Canada, First Nations Summit, Tsawout First Nation, Tsartlip First Nation, Snuneymuxw First Nation, Kwakiutl First Nation, Coalition of Union of British Columbia Indian Chiefs, Okanagan Nation Alliance, Shuswap Nation Tribal Council and their member communities, Okanagan, Adams Lake, Neskonlith and Splatsin Indian Bands, Amnesty International, Canadian Friends Service Committee, Gitxaala Nation, Chilko Resorts and Community Association and Council of Canadians (interveners)

(34986; 2014 SCC 44; 2014 CSC 44)

Indexed As: William v. British Columbia et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

June 26, 2014.

Summary:

The Xeni Gwet'in First Nation was part of the Tsilhqot'in Nation (the plaintiff). This litigation involved aboriginal title and aboriginal rights in two areas (collectively, the claim area) in the west central interior of British Columbia that the plaintiff considered its traditional territory: Tachelach'ed (the "Brittany Triangle") and the "Trapline Territory". In response to proposed logging in the claim area, the plaintiff brought an action against British Columbia, Canada and others, seeking (a) a declaration that the Tsilhqot'in Nation had aboriginal title to the claim area; (b) a declaration that the Xeni Gwet'in had aboriginal rights to hunt and trap in the claim area; (c) a declaration that British Columbia did not have jurisdiction to authorize forestry activities within the claim area; (d) declarations that British Columbia's authorization of forestry activities within the claim area unjustifiably infringed the aboriginal title of the Tsilhqot'in Nation and the aboriginal rights of the Xeni Gwet'in; (e) injunctive relief restraining British Columbia from authorizing forestry activities in the claim area in the future; (f) damages for unjustifiable infringement of the aboriginal title of the Tsilhqot'in Nation and Aboriginal rights of the Xeni Gwet'in; and (g) damages for breach of fiduciary duty.

The British Columbia Supreme Court, in a decision with neutral citation 2007 BCSC 1700, (a) dismissed the plaintiff's claims for declarations of aboriginal title without prejudice to the Tsilhqot'in's ability to make new claims to aboriginal title within the claim area; (b) dismissed the plaintiff's claims for damages without prejudice to the Tsilhqot'in's right to make new damages claims in respect of aboriginal title land; (c) declared that the Tsilhqot'in Nation had aboriginal rights to trap and hunt birds and animals for specified purposes, and to trade in skins and pelts taken from the claim area "as a means of securing a moderate livelihood", as well as to capture and use horses; and (d) declared that forestry activities in the claim area unjustifiably infringed Tsilhqot'in aboriginal rights. The plaintiff and Canada appealed regarding aboriginal title. British Columbia appealed regarding a number of issues surrounding aboriginal rights claims.

The British Columbia Court of Appeal, in a decision reported at (2012), 324 B.C.A.C. 214; 551 W.A.C. 214, dismissed the appeals. The plaintiff appealed regarding aboriginal title.

The Supreme Court of Canada allowed the appeal. The court granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in. The court further declared that British Columbia had breached its duty to consult owed to the Tsilhqot'in through its land use planning and forestry authorizations.

Editor's Note: There are a number of reported decisions related to this litigation which are accessible at www.mlb.nb.ca by searching under "William v. British Columbia et al."

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - [See Constitutional Law - Topic 2511 and Constitutional Law - Topic 3504 ].

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the provincial legislature's constitutional power to legislate with respect to forests on aboriginal title land - Forestry on aboriginal title land possessed a "double aspect" constitutionally as it fell under both the provincial power over forestry and the federal power over "Indians" - The doctrine of interjurisdictional immunity was directed to ensuring that the two levels of government were able to operate without interference in their core areas of exclusive jurisdiction - That goal was not implicated here because the guarantee of aboriginal rights in s. 35 of the Constitution Act, 1982 operated as a limit on both federal and provincial jurisdiction - Application of interjurisdictional immunity would create serious practical difficulties - Therefore, it should not be applied in cases where lands were held under aboriginal title - Rather, the s. 35 "Sparrow" approach applied - This resulted in a balance that preserved the aboriginal right while permitting effective regulation of forests - See paragraphs 131 to 152.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the provincial legislature's constitutional power to legislate with respect to forests on aboriginal title land - Forestry on aboriginal title land possessed a "double aspect" constitutionally as it fell under both the provincial power over forestry and the federal power over "Indians" - As there was no assertion that the Forest Act conflicted with valid federal legislation regarding "Indians", the doctrine of paramountcy did not apply here - See paragraphs 128 to 130.

Constitutional Law - Topic 6360

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Provincial laws of general application - [See Constitutional Law - Topic 2511 , Constitutional Law - Topic 3504 and first Indians, Inuit and Métis - Topic 5406 ].

Constitutional Law - Topic 7055

Provincial jurisdiction (s. 92) - Nonrenewable natural resources, forest resources, electrical energy (s. 92A) - Forest resources - [See Constitutional Law - Topic 2511 , Constitutional Law - Topic 3504 and first Indians, Inuit and Métis - Topic 5406 ].

Forests and Forest Products - Topic 2439

Forest regulation - Licensing - Effect of aboriginal title claim - [See third Indians, Inuit and Métis - Topic 3 and second Indians, Inuit and Métis - Topic 5406 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the remedies available where rights conferred by aboriginal title were breached and the duties applicable over time, prior to establishment of aboriginal title and after title had been established - See paragraphs 89 to 92.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the duties owed by the Crown at the time of the government action here - Prior to the declaration of aboriginal title, British Columbia had a duty to consult and accommodate the claimed Tsilhqot'in interest - As the Tsilhqot'in had a strong prima facie case, the duty to consult fell at the high end of the spectrum - With the declaration of aboriginal title, the Tsilhqot'in had the right to determine, subject to the inherent limits of group title, the uses to which the land was put and to enjoy its economic fruits - This was not merely a right of first refusal - It was a right to proactively use and manage the land - See paragraphs 93 and 94.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, held that the Crown had breached its duty to consult with the Tsilhqot'in by issuing licences that permitted third parties to conduct forestry activity and construct related infrastructure on the land in 1983 and onwards, before title was declared - Further, the duty to consult was breached when Crown officials engaged in the planning process for the removal of timber - Governments and individuals proposing to use or exploit land, whether before or after a declaration of aboriginal title, could avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested aboriginal group - See paragraphs 95 to 97.

Indians, Inuit and Métis - Topic 5406

Lands - General - Application of provincial laws - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed whether provincial laws of general application applied to land held under aboriginal title - The provincial power to regulate land held under aboriginal title was constitutionally limited in two ways - First, s. 35 of the Constitution Act, 1982 required any abridgment of the rights flowing from aboriginal title to be backed by a compelling and substantial objective and to be consistent with the Crown's fiduciary relationship with title holders - Second, a province's power to regulate land under aboriginal title might, in some situations, be limited by the federal power over "Indians, and Lands reserved for the Indians" - Subject to those constitutional restraints, provincial laws of general application applied to land held under aboriginal title - See paragraphs 101 to 106.

Indians, Inuit and Métis - Topic 5406

Lands - General - Application of provincial laws - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed whether the provincial Forest Act, on its face, applied to aboriginal title land - This was a matter of statutory interpretation - The court concluded that the legislature intended the Forest Act to apply to land under claims for aboriginal title up to the time title was conferred by agreement or court order - Once aboriginal title was confirmed, the lands were "vested" in the aboriginal group and were no longer Crown lands - Here, this meant that, now that title had been established, the timber on the lands in question no longer fell within the definition of "Crown timber" and the Forest Act no longer applied - See paragraphs 107 to 116.

Indians, Inuit and Métis - Topic 5561

Lands - Land claims - General - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada discussed the jurisprudential backdrop regarding aboriginal land title, setting out a number of propositions that touched on the issues that arose in this case - See paragraphs 10 to 18.

Indians, Inuit and Métis - Topic 5563

Lands - Land claims - Claim for ownership - Procedure - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada discussed how to approach pleadings in aboriginal land claims cases - See paragraphs 19 to 23.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Claim for ownership - Requirements for - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, in granting a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, set out the test for establishing aboriginal title - The three requirements for aboriginal title were "sufficient pre-sovereignty occupation; continuous occupation (where present occupation is relied on); and exclusive historic occupation" - See paragraphs 24 to 32 and 50.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Claim for ownership - Requirements for - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, in granting a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, stated that the three requirements for aboriginal title were "sufficient pre-sovereignty occupation; continuous occupation (where present occupation is relied on); and exclusive historic occupation" - Regarding sufficiency of occupation, what was required was a culturally sensitive approach based on the dual perspectives of the aboriginal group in question, including its laws, practices, size, technological ability and the character of the land claimed, and the common law notion of possession as a basis for title - The culturally sensitive approach suggested that regular use of territories for hunting, fishing, trapping and foraging was "sufficient" use to ground aboriginal title, provided that such use evinced an intention to hold or possess the land in a manner comparable to what would be required to establish title at common law - See paragraphs 33 to 44.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Claim for ownership - Requirements for - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, in granting a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, stated that the three requirements for aboriginal title were "sufficient pre-sovereignty occupation; continuous occupation (where present occupation is relied on); and exclusive historic occupation" - Regarding continuity of occupation, the concept of continuity did not require evidence of an unbroken chain of continuity between current practice, customs and traditions and those that existed prior to contact - Continuity simply meant that, for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation had to be rooted in pre-sovereignty times - See paragraphs 45 and 46.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Claim for ownership - Requirements for - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, in granting a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, stated that the three requirements for aboriginal title were "sufficient pre-sovereignty occupation; continuous occupation (where present occupation is relied on); and exclusive historic occupation" - Regarding the exclusivity of occupation, the court stated that regular use of the land without exclusivity might give rise to usufructory aboriginal rights, but, for aboriginal title, the use had to have been exclusive - Exclusivity was to be understood in the sense of intention and capacity to control the land - This had to be approached from both the common law and aboriginal perspectives and had to take into account the context and characteristics of the aboriginal society - See paragraphs 47 to 49.

Indians, Inuit and Métis - Topic 5564

Lands - Land claims - Claim for ownership - Requirements for - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in - The trial judge was correct in his assessment that the Tsilhqot'in occupation of the land at issue was both sufficient and exclusive at the time of sovereignty to fulfill the requirements for aboriginal title - There was ample direct evidence of occupation at sovereignty, which was additionally buttressed by evidence of more recent continuous occupation - See paragraphs 51 to 66.

Indians, Inuit and Métis - Topic 5566

Lands - Land claims - Aboriginal title - Nature of - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in - The court discussed the legal characterization of aboriginal title, concluding that the characteristics of aboriginal title flowed from the special relationship between the Crown and the aboriginal group in question - This relationship made aboriginal title unique - Analogies to other forms of property ownership, such as fee simple, might assist in understanding aspects of aboriginal tile, but they could not dictate precisely what it was or was not - See paragraphs 67 to 72.

Indians, Inuit and Métis - Topic 5566

Lands - Land claims - Aboriginal title - Nature of - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the rights conferred by aboriginal title - While aboriginal title conferred ownership rights similar to those associated with fee simple, it came with an important restriction - It was collective title held not only for the present generation, but for all succeeding generations - It could not be alienated except to the Crown nor encumbered in ways that would prevent future generations from using and enjoying it - Nor could the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land - Governments and others seeking to use the land had to obtain the aboriginal title holders' consent - In the absence of consent, the government's only recourse was to establish that the proposed incursion on the land was justified under s. 35 of the Constitution Act, 1982 - See paragraphs 73 to 76.

Indians, Inuit and Métis - Topic 5566

Lands - Land claims - Aboriginal title - Nature of - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the rights conferred by aboriginal title - An incident of aboriginal title was the exclusive right to decide how the land was used and the right to benefit from those uses - To justify overriding the aboriginal title-holding group's wishes on the basis of the broader public good, the government had to show that (1) it had discharged its procedural duty to consult and accommodate; (2) its actions were backed by a compelling and substantial objective; and (3) the governmental action was consistent with the Crown's fiduciary obligation to the group - See paragraphs 77 to 88.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - [See all Indians, Inuit and Métis - Topic 5564 ].

Indians, Inuit and Métis - Topic 5569

Lands - Land claims - Aboriginal title - Infringement - Justification - [See third Indians, Inuit and Métis - Topic 3 and third Indians, Inuit and Métis - Topic 5566 ].

Indians, Inuit and Métis - Topic 5569

Lands - Land claims - Aboriginal title - Infringement - Justification - This litigation involved aboriginal title and aboriginal rights in an area in the west central interior of British Columbia that the plaintiff considered its traditional territory - In response to proposed logging in the area, the plaintiff sued British Columbia, Canada and others, seeking, inter alia, a declaration that the Tsilhqot'in Nation had aboriginal title to the area - The Supreme Court of Canada, having granted a declaration of aboriginal title over the area at issue, as requested by the Tsilhqot'in, discussed the provincial legislature's constitutional power to legislate with respect to forests on aboriginal title land - Where legislation affected an aboriginal right that was protected by s. 35 of the Constitution Act, 1982, two inquiries were required - First, did the legislation interfere with or infringe the aboriginal right and, second, if so, could the infringement be justified - To justify an infringement, the Crown had to establish (1) that it had complied with the duty to consult and accommodate; (2) there was a compelling and substantial legislative objective; and (3) the benefit to the public was proportionate to any adverse effect on the aboriginal interest - This framework permitted a principled reconciliation of aboriginal rights with the interests of all Canadians - While it was unnecessary for the disposition of this appeal, the court stated that it agreed with the courts below that there was no compelling and substantial legislative objective for the forestry cutting permits issued in this case - See paragraphs 117 to 127.

Cases Noticed:

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 10].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 12].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 13].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 14].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 16].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 17].

Western Australia v. Ward (2002), 213 C.L.R. 1 (Aust. H.C.), refd to. [para. 31].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 34].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.) (2003), 218 N.S.R.(2d) 78; 687 A.P.R. 78; 2003 NSCA 105, appld. [para. 39].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 235 N.S.R.(2d) 151; 747 A.P.R. 151; 2005 SCC 43, refd to. [para. 43].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 89].

R. v. Morris (I.) et al., [2006] 2 S.C.R. 915; 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [para. 132].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 136].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 149].

Ryan Estate et al. v. Universal Marine Ltd. et al., [2013] 3 S.C.R. 53; 447 N.R. 1; 339 Nfld. & P.E.I.R. 312; 1054 A.P.R. 312; 2013 SCC 44, refd to. [para. 149].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 149].

Authors and Works Noticed:

Hogg, P.W., The Constitutional Basis of Aboriginal Rights, in Morellato, M., Aboriginal Law Since Delgamuukw (2009), p. 3 [para. 10].

McNeil, K., Aboriginal Title and the Supreme Court: What's Happening? (2006), 69 Sask. L. Rev. 281, generally [para. 43].

McNeil, K., Common Law Aboriginal Title (1989), pp. 198 to 200 [para. 39]; 204 [para. 47].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, p. 758 [para. 35].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 1 [para. 108].

Ziff, B., Principles of Property Law (5th Ed. 2010), p. 245 [para. 111].

Counsel:

David M. Rosenberg, Q.C., Jay Nelson, David M. Robbins and Dominique Nouvet, for the appellant;

Patrick G. Foy, Q.C., and Kenneth J. Tyler, for the respondents, Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region;

Mark R. Kindrachuk, Q.C., Brian McLaughlin and Jan Brongers, for the respondent, the Attorney General of Canada;

Alain Gingras and Hubert Noreau-Simpson, for the intervener, the Attorney General of Quebec;

Heather Leonoff, Q.C., for the intervener, the Attorney General of Manitoba;

P. Mitch McAdam, Q.C., and Sonia Eggerman, for the intervener, the Attorney General for Saskatchewan;

Sandra Folkins, for the intervener, the Attorney General of Alberta;

Robert J. M. Janes and Karey Brooks, for the intervener, the Te'mexw Treaty Association;

Charles F. Willms and Kevin O'Callaghan, for the interveners, the Business Council of British Columbia, the Council of Forest Industries, the Coast Forest Products Association, the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia;

Joseph J. Arvay, Q.C., Catherine J. Boies Parker and Patrick Macklem, for the intervener, the Assembly of First Nations;

Diane Soroka, for the interveners, the Gitanyow Hereditary Chiefs of Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu, Haizimsque, Watakhayetsxw, Luuxhon and Wii'litswx, on their own behalf and on behalf of all Gitanyow, and the Office of the Wet'suwet'en Chiefs;

Robert B. Morales and Renée Racette, for the intervener, the Hul'qumi'num Treaty Group;

Written submissions only by Louise Mandell, Q.C., Stuart Rush, Q.C., Michael Jackson, Q.C., Terri-Lynn Williams-Davidson, David Paterson and Angela D'Elia, for the intervener, the Council of the Haida Nation;

David C. Nahwegahbow and Guy Régimbald, for the intervener, the Indigenous Bar Association in Canada;

Maria Morellato, Q.C., Cheryl Sharvit and Stacey Edzerza-Fox, for the intervener, the First Nations Summit;

Written submissions only by John W. Gailus and Christopher G. Devlin, for the interveners, the Tsawout First Nation, the Tsartlip First Nation, the Snuneymuxw First Nation and the Kwakiutl First Nation;

Louise Mandell, Q.C., Michael Jackson, Q.C., Ardith Walkem and Nicole Schabus, for the interveners, the Coalition of Union of British Columbia Indian Chiefs, the Okanagan Nation Alliance and the Shuswap Nation Tribal Council and their member communities, Okanagan, Adams Lake, Neskonlith and Splatsin Indian Bands;

Justin Safayeni and Paul Joffe, for the interveners, Amnesty International and the Canadian Friends Service Committee;

Tim A. Dickson, for the intervener, the Gitxaala Nation;

Gregory J. McDade, Q.C., and F. Matthew Kirchner, for the interveners, the Chilko Resorts and Community Association and the Council of Canadians.

Solicitors of Record:

Rosenberg & Rosenberg, Vancouver, British Columbia; Woodward & Company, Victoria, British Columbia, for the appellant;

Borden Ladner Gervais, Vancouver, British Columbia, for the respondents, Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region;

Attorney General of Canada, Saskatoon, Saskatchewan, for the respondent, the Attorney General of Canada;

Attorney General of Quebec, Quebec, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta;

Janes Freedman Kyle, Vancouver, British Columbia, for the intervener, the Te'mexw Treaty Association;

Fasken Martineau DuMoulin, Vancouver, British Columbia, for the interveners, the Business Council of British Columbia, the Council of Forest Industries, the Coast Forest Products Association, the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia;

Arvay Finlay, Vancouver, British Columbia, for the intervener, the Assembly of First Nations;

Peter Grant & Associates, Vancouver, British Columbia, for the interveners, the Gitanyow Hereditary Chiefs of Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu, Haizimsque, Watakhayetsxw, Luuxhon and Wii'litswx, on their own behalf and on behalf of all Gitanyow, and the Office of the Wet'suwet'en Chiefs;

Robert B. Morales, Ladysmith, British Columbia, for the intervener, the Hul'qumi'num Treaty Group;

White Raven Law Corporation, Surrey, British Columbia, for the intervener, the Council of the Haida Nation;

Nahwegahbow, Corbiere Genoodmagejig, Rama, Ontario; Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener, the Indigenous Bar Association in Canada;

Mandell Pinder, Vancouver, British Columbia; Morgan & Associates, West Vancouver, British Columbia, for the intervener, the First Nations Summit;

Devlin Gailus, Victoria, British Columbia, for the interveners, the Tsawout First Nation, the Tsartlip First Nation, the Snuneymuxw First Nation and the Kwakiutl First Nation;

Mandell Pinder, Vancouver, British Columbia; University of British Columbia, Vancouver, British Columbia; Thompson Rivers University, Kamloops, British Columbia, for the interveners, the Coalition of Union of British Columbia Indian Chiefs, the Okanagan Nation Alliance and the Shuswap Nation Tribal Council and their member communities, Okanagan, Adams Lake, Neskonlith and Splatsin Indian Bands;

Stockwoods, Toronto, Ontario; Paul Joffe, Saint-Lambert, Quebec, for the interveners, Amnesty International and the Canadian Friends Service Committee;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the intervener, the Gitxaala Nation;

Ratcliff & Company, North Vancouver, British Columbia, for the interveners, the Chilko Resorts and Community Association and the Council of Canadians.

This appeal was heard on November 7, 2013, by McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. On June 26, 2014, McLachlin, C.J.C., delivered the following judgment in both official languages for the court.

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328 practice notes
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    ...(Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 147]. William v. British Columbia et al., [2014] 2 S.C.R. 256; 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. Tsilhqot'in Nation v. British Columbia - see William v. British C......
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    ...Institutions Act, S.U.C. 1858, 22 Vic., c. 99, Municipal Act, 2001, S.O. 2001, c. 25, ss. 44, 55, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, Guerin v. The Queen, [1984] 2 S.C.R. 335, R. v. Van der Peet, [1996] 2 S.C.R. 50, Lax ......
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