* David M. Rosenberg, Q.C., counsel for Chief Roger William and the Tsilhqot’in, was counsel at Trial, on appeal to the B.C.C.A. and further appeal to the S.C.C. in this case. He practices at Rosenberg Law in Vancouver. David argued the case for the Tsilhqot’in in the Supreme Court of Canada. This article relies heavily on three previous papers written by David: Tsilhqot’in Nation v. British Columbia 2014 SCC 44 Part I 10 Reasons Why the Tsilhqot’in Succeeded written for the Affinity Institute Conference September 26, 2014; Tsilhqot’in Nation v. British Columbia 2014 SCC 44 Part II Strategic Litigation Issues in an Aboriginal Rights Case from Trial to the Supreme Court of Canada written for the Pacific Business & Law Institute Conference October 7 & 8, 2014; Tsilhqot’in Nation v. British Columbia 2014 SCC 44 Part III Sufficiency of Occupation written for Continuing Legal Education Aboriginal Law Conference November 13, 2014.
* Jack Woodward, Q.C., was co-counsel at Trial, on appeal to the B.C.C.A. and co-signed the appellant’s factum at the S.C.C. in this case. He is the author of Native Law, published by Carswell, the leading text on aboriginal law in Canada, and has a long history of practice in this field.
In this article the authors, who were counsel on the Tsilhqot’in case, conclude that there is one clear and obvious strategy open to non-treaty First Nations as a result of the June 26, 2014 decision of the Supreme Court of Canada, which is to immediately commence actions claiming aboriginal title to their traditional lands. The urgency results from the sharp distinction the law now draws between provincial rights to encroach upon aboriginal title lands before a declaration of aboriginal title, versus the more difficult standard of justification after such a declaration. The necessity of filing proceedings at an early date is highlighted by the possibility that provincial limitations laws may apply to claims of aboriginal title. The authors review some of the procedural obstacles they overcame during the 25 year history of the Tsilhqot’in litigation, and suggest that future litigation will now proceed to a decision with relative ease because the main procedural roadblocks have been cleared.
On June 26, 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. That 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 the Tsilhqot’in case the Court found that aboriginal title was territorial in nature, and in doing so the Court overturns the Court of Appeal and rejects the test that would have confined aboriginal title to smaller specific sites like fishing rocks or buffalo jumps.
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. In order to accomplish that task, Chief Roger William representative actions seeking interim injunctive relief and declarations of aboriginal rights and title to approximately 438,000 hectares of land in central British Columbia. The actions, which included claims for hunting and trapping rights and aboriginal title, were consolidated and went to trial, appeal to the British Columbia Court of Appeal, and further appeal to the Supreme Court of Canada. The Tsilhqot’in succeeded at trial and on appeal to the British Columbia Court of 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. 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 the same area which the Trial Judge opined was aboriginal title land. For reasons later found to be in error, the Trial Judge had declined to grant a declaration of title.
Prior to contact, the Tsilhqot’in were hunters and trappers and, like many First Nations in British Columbia, practiced a seasonal round. 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.
The Tsilhqot’in defended their territory vigorously. Their pre-contact history of warring with neighbouring First Nations was legendary and the pre-contact practice continued long after contact. The ferocity and vigilance with which the Tsilhqot’in jealously protected their territory was a focus at trial.
The date of contact is important in aboriginal rights cases as it is the critical date for a First Nation to define and establish the claimed aboriginal right. In British Columbia that date has been determined to be 1793, the date that Alexander MacKenzie journeyed near the Claim Area, although it is an open question as to whether or not he actually made contact with the Tsilhqot’in. 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. 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.
Tsilhqot’in territory is remote and inhospitable. It is only in relatively recent times that people other than Tsilhqot’in have settled in this territory. The operative date in British Columbia for establishing proof of aboriginal title is 1846 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. He recorded the observations he made when meeting groups of Tsilhqot’in people. They were living in subterranean homes called Kigli Holes. He described their social organization and some of their traditional practices.
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.
A prime example is what occurred when the gold rush came to British Columbia in the 1860’s. Alfred Waddington, a politician, author and businessman, championed the construction of a road from the head of Bute Inlet through Tsilhqot’in territory into the gold fields at Barkerville. In 1862 the smallpox epidemic had decimated many First Nations in British Columbia including the Tsilhqot’in. That was the same year Waddington began lobbying for the construction of a wagon road through Tsilhqot’in territory. Approval was granted in 1863 and the construction was under way in 1864 when the road builders came to Tsilhqot’in territory. They entered without permission of the Tsilhqot’in. There were reported hostilities and one of the workers threatened the Tsilhqot’in with another round of smallpox. 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. Klatsassin and his followers then successfully drove every non-Tsilhqot’in person from Tsilhqot’in territory. This was the only occasion in British Columbia history when an Aboriginal Nation succeeded, however briefly, in killing or driving out every non-aboriginal person from their territory
Whatever the triggering event for the start of the Tsilhqot’in 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. 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. The Tsilhqot’in people have always asserted that Klatassin 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. Klatsassin and the warriors were convicted and hanged at Quesnellemouth. Klatsassin’s last words were reported to have been “we meant war; not murder”.
The Attorney General for British Columbia subsequently apologised to the Tsilhqot’in people for the wrongs done to them during the Chilcotin War of 1864. In 1999, the Province unveiled a commemorative plaque “To honour those who lost their lives in defence of the territory and the traditional 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.”
On October 26, 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.
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 claim area which was comprised of the Brittany Triangle (Tachelach’ed) and the Nemiah Trapline. 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 license to carry out industrial logging within the Tsilhqot’in territory. 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 Tsihqox River that defined the western boundary of the Claim Area. 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. The blockade led to a meeting between the Chiefs of the Tsilhqot’in and Premier Harcourt and certain Ministers at 108 Mile House. At that meeting, the Premier promised that logging would not go ahead without the consent of the Xeni Gwet’in. In spite of that promise, licenses were subsequently issued which would have led to logging within the Claim Area if the litigation had not proceeded.
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 ended 25 years later when on June 26, 2014 the Supreme Court of Canada in a unanimous decision written by the Chief Justice declared that the Tsilhqot’in had aboriginal title.
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, and in dismissing the Crown appeals the Court confirmed that the Tsilhqot’in had aboriginal hunting and trapping rights. The Court of Appeal decision remains the final word and authority with respect to Tsilhqot’in aboriginal rights other than title. The Tsilhqot’in have aboriginal hunting and trapping rights, and the right to earn a moderate livelihood from those rights, and these site specific aboriginal rights apply throughout the entire Claim Area.
The appeal to the Supreme Court of Canada was focussed on the issue of aboriginal title. Some of the key positions taken by the Tsilhqot’in before the Supreme Court of Canada and the findings that the Court made on these issues can be summarized as follows:
- Aboriginal Title can be territorial and is not to be restricted to intensively used particular sites as found by the British Columbia Court of Appeal. A proper interpretation of paragraph 149 of the Delgamuukw decision is that aboriginal title can extend to tracts of land used for hunting.
- The trial was of extraordinary length and complexity and the Trial Judge did a thorough analysis in reaching his findings of fact. The British Columbia Court of Appeal should not have interfered with those findings of fact absent palpable and overriding error. The Supreme Court of Canada, based on those findings of fact, declared aboriginal title to the area where the Trial Judge was of the opinion that title existed.
- Similarly, on the findings of fact made by the Trial Judge, the Supreme Court of Canada found that British Columbia had breached its duty to consult the Tsilhqot’in people in the issuance of forestry authorizations and other land use planning.
THE SUPREME COURT OF CANADA: APPLYING LEGAL THEORY ON THE GROUND
The judgment from the Supreme Court of Canada is a comprehensive, well written, review of the law on aboriginal title. It consolidates and explains the jurisprudence in this area of the law, and goes on to give real teeth to what were before theoretical pronouncements. For example, we knew before this decision that aboriginal title existed in theory, but now we know what it is in fact. We now know that aboriginal title can be territorial and in this case aboriginal title has been declared for more than just intensively used specific sites. It has been declared to exist for a territory.
Another example in which the Supreme Court of Canada takes a theoretical concept and gives it concrete application is with respect to the spectrum of consultation. In previous decisions title was described as being at the high end of the spectrum, and in theory where aboriginal title existed the Crown was required to enter into deep consultation and accommodate the title holder. We now have a concrete example in which the court has found a breach of the duty to consult and an infringement by the grant of licenses and by strategic forestry planning that took place without the consent of the aboriginal title holders.
THE LAW ON SUFFICIENCY OF OCCUPATION FOR PROOF OF TITLE
The Court took the opportunity to revisit the law on what constitutes sufficient occupation for the purpose of establishing aboriginal title. The Court adopts the reasoning of Cromwell, J. A. (as he then was) from his decision in the Nova Scotia Court of Appeal in R v. Marshall  1 CNLR 211; 2003 NSCA 105. This would appear to be a reversal of the Court’s position on occupation as the Court previously overturned the decision from the Nova Scotia Court of Appeal R v. Marshall; R v. Bernard,  2 SCR 220. However, in the Tsilhqot’in case the Supreme Court of Canada return to consider the issue and expressly adopts the view of Cromwell, J.A..
Cromwell, J.A.’s thorough discussion of both the common law and aboriginal perspective on occupation of land are instructive. Cromwell, J.A. stated in R v. Marshall:
138 I would adopt, in general terms, Professor McNeil’s analysis that the appropriate standard of occupation, from the common law perspective, is the middle ground between the minimal occupation which would permit a person to sue a wrong-doer in trespass and the most onerous standard required to ground title by adverse possession as against a true owner. The physical acts relied on as proof of occupation must be considered in light of the nature of the land and the purposes for which it could reasonably be used. Where, as here, we are dealing with a large expanse of territory which was not cultivated, acts such as continual, though changing, settlement and wide-ranging use for fishing, hunting and gathering should be given more weight than they would be if dealing with enclosed, cultivated land. Perhaps most significantly, and to use words quoted by Pollock and Wright, it is impossible to confine the evidence to the very precise spot on which the cutting was done: Pollock and Wright at p. 32. Instead, the question must be whether the acts of occupation in particular areas show that the whole area was occupied by the claimant.
182 In my respectful view, the courts below erred in requiring proof of regular, intensive use of the cutting sites to establish aboriginal title. In my opinion, this standard of occupation misapplies the common law perspective, fails to give equal weight to the aboriginal perspective, and does not take into account the nature of the land under consideration.
183 The test as expressed in Delgamuukw is whether the claimant has established exclusive occupation at sovereignty of the lands claimed. The question, in my opinion, is not whether exclusive occupation of the cutting sites was established, but whether exclusive occupation of a reasonably defined territory which includes the cutting sites, was established. Insistence on proof of acts of occupation of the specific cutting sites within that territory is, in my opinion, not consistent with either the common law or the aboriginal perspective on occupation.
195 In my view, the SCAC erred in law by requiring the appellants to prove intensive, regular use of the cutting sites to establish aboriginal title and in failing to set aside the holding of the trial judge that a moderately nomadic people, such as the Mi’kmaq, could generally not establish aboriginal title.
Given that the Supreme Court of Canada overturned both the New Brunswick Court of Appeal decision in R. v Bernard and the Nova Scotia Court of Appeal decision in R. v Marshall, it is understandable that the Crown and the British Columbia Court of Appeal erroneously concluded that Aboriginal title was not territorial in nature and furthermore nomadic or semi-nomadic modes of occupation would not be sufficient for proof of Aboriginal title. Indeed that was the very concern expressed by LeBel and Fish JJ. in their minority reasons in R. v Marshall; Bernard. Confusion had crept into the law and required clarification
BEFORE AND AFTER: HOW THE NEW STATEMENT OF THE LAW EMPHASIZES THE URGENCY OF LITIGATION TO OBTAIN A DECLARATION OF TITLE. Four paragraphs of the Tsilhqot’in decision are worth reproducing because of the surprising consequences of the new doctrine they represent:
 Prior to establishment of title by court declaration or agreement, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed. If the Crown fails to discharge its duty to consult, various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII),  2 S.C.R. 650, at para. 37.
 After Aboriginal title to land has been established by court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982. The usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title.
 The practical result may be a spectrum of duties applicable over time in a particular case. At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. Finally, once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.
 Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.
In these passages the Supreme Court does some remarkable things:
- The court emphasizes the crisp divide between the enforceability of aboriginal title before and after the moment when title is recognized (that is, by court declaration or agreement). This is a departure from the long-settled legal principle that a declaration is a judgment which proclaims the pre-existing rights of the parties. But in this case, there is a fundamental difference between the right of the parties before and after the issuance of the declaration because the issuance of the declaration itself changes the rights of the parties.
- This is a practical and pragmatic compromise by the Court, which deftly avoids the situation where declarations of aboriginal title would upset long-settled rights and expectations of the Crown and private parties, which expectations were built up over the many decades or even centuries during which aboriginal title was being infringed. The remedies for pre-declaration infringements include “injunctive relief, damages, or an order that consultation or accommodation be carried out” but do not include “the usual remedies that lie for breach of interests in land” – meaning, of course, ejectment for trespass.
- The emphasis on looking forward, not backward, shows up in the remedies available to challenge unconstitutional legislation. The court said “if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward”. Unspoken is the clear implication that the court is not likely to declare such legislation, and the rights accumulated pursuant to such legislation, retroactively inapplicable. What’s done is done.
- The Court’s outright rejection of the doctrine of interjurisdictional immunity, together with the forthright statement that provincial laws will normally apply to lands subject to a claim of aboriginal title, at least up to the point of a court declaration, mean there is an ongoing jeopardy to an aboriginal nation in delaying court proceedings. Mining, forestry, roadbuilding, hydro-electric projects, etc., can all proceed without the need to obtain aboriginal consent, up to the point of the court declaration.
- The Tsilhqot’in decision puts the court system at the heart of the process for reconciliation of provincial and aboriginal interests. This is a departure from the usual role of the court system, which is far more passive: to review facts and events in the past, and award the parties remedies based on whether rights were breached in the past. But in the case of aboriginal title, the rights undergo a substantial change at the moment a court declaration is granted, thus putting a spotlight on the speed at which the parties get through the court process.
- The Saskatchewan Court of Queen’s Bench has applied Tsilhqot’in to say that provincial limitations legislation are effective to curtail the ability of an aboriginal group to claim section 35 rights. Consider this chilling reasoning of the Saskatchewan court:
 Furthermore, in regard to the third criteria in Tsilhqot’in for determining a prima facie infringement of an Aboriginal right, imposition of limitations legislation does not preclude the rights holder from their preferred means of exercising the right. The plaintiff was free to exercise the right of possession, or commence an action for infringement of this right. The limitations legislation itself does not limit the plaintiffs’ ability to do so, it merely bars the right to bring the claim and receive a remedy after the lapse of the prescribed limitation period.
If the Peter Ballantyne decision is correct, the situation is unfair. One party (the province) can pass legislation that bars the action of the other party (the aboriginal group). But the Tsilhqot’in decision leaves no doubt that on a broader scale, the provinces are in a position to move forward with settlement and industrial development on aboriginal lands with relative impunity, up to the point where a declaration of aboriginal title is actually granted.
The authors conclude that the only sensible course of action for any aboriginal group with a claim of aboriginal title is to proceed to obtain a court declaration as quickly as possible. Time lost in getting through the litigation can never be recovered, because the most valuable remedies will not be granted retroactively, and furthermore, the provinces may be in a position to enact limitations legislation which will bar claims due to the passage of time.
Nemiah Valley Indian Band v. Riverside Forest Products Ltd.  B.C.J. No. 2459; 37 C.P.C. (4th) 101.
Xeni Gwet’in First Nations Government v. British Columbia 2002 BCSC 1904;  B.C.J. No. 3366
WHAT COMES NEXT: How the Tsilhqot’in Decision gives insight into the litigation to come.
Following is a brief foreshadowing of the issues that will arise in future litigation, together with some insight into those issues we have learned from the Tsilhqot’in case. The topics we will briefly cover here are:
- Representative Proceedings
- Proper Rights-Holding group
- Who are the proper Defendants?
- Dealing with overlaps with neighbouring Nations
- Dealing with private interests within the claim area – notice of the claim
- Whether Fee Simple is subject to aboriginal title
- Whether an infringement must be claimed to get a declaration
- When will the discretion to issue a declaration be exercised
In a preliminary application, British Columbia challenged the right of Chief Roger William to claim aboriginal title on behalf of his people. The trial judge dismissed that application and allowed the action to proceed, without proof of authority to bring the action: Claims for aboriginal title and aboriginal rights should be brought as representative actions. The representative should be a member of the group claiming the right. The issue of authority to bring the action is best decided by the trial judge as a question of mixed fact and law. It is convenient and appropriate to try aboriginal rights claims and aboriginal title claims together. Nemaiah Valley Indian Band v. Riverside Forest Products (1999), C.P.C. (4th) 101, 1999 Carswell BC 2438 (S.C.).
PROPER RIGHTS-HOLDING GROUP
The trial judge concluded that the proper rights holder, whether for Aboriginal title or Aboriginal rights, is the community of Tsilhqot’in people. He said that the Tsilhqot’in people were the historic community of people sharing language, customs, traditions, historical experience, territory and resources at the time of first contact and at sovereignty assertion. The Aboriginal rights of individual Tsilhqot’in people or any other sub-group within the Tsilhqot’in Nation are derived from the collective actions, shared language, traditions and shared historical experiences of the members of the Tsilhqot’in Nation.
WHO ARE THE PROPER DEFENDANTS?
Preliminary proceedings in the Tsilhqot’in case lead to the conclusion that Canada is always a proper party to a claim of aboriginal rights and title. In the Tsilhqot’in case, Canada was originally joined as a consequence of the reserve creation defence, a particular defence raised by British Columbia that would have required Canada’s participation in the proceedings. Even though that defence was eventually abandoned, and no direct relief was claimed against Canada in the consolidated actions that went to trial, Canada’s presence as a party in the litigation was necessary and required.
DEALING WITH OVERLAPS WITH NEIGHBOURING NATIONS
There was an overlap claim in the Tsilhqot’in case with respect to a portion of the claim area. The trial judge did not hear from the First Nation with the claimed territorial overlap. When the Trial Judge found title, he did not include the area of the alleged overlap. For strategic reasons, the Tsilhqot’in focused the appeal to the Supreme Court of Canada on the area in which the Trial Judge had found that title had been proved, rather than the entire area that had been claimed at trial. The Trial Judge had rejected the claim to title for about 60 percent of the claim area and that included the area of overlap. Accordingly, there was no overlap issue on the appeal to the Supreme Court of Canada. The trial judge concluded, simply, “The area over which I have found a sufficient degree of occupation to ground Aboriginal title, both inside and outside the Claim Area, does not include overlapping territory and was effectively controlled by Tsilhqot’in people.” The authors recommend this approach. Either the overlaps should be resolved before the litigation is before the court, or claims should be limited to those areas where there is not an overlap. Otherwise the claimant aboriginal group will be embarking on the difficult project of proving title not only against the Crown, but also against their aboriginal neighbours.
DEALING WITH PRIVATE INTERESTS WITHIN THE CLAIM AREA – NOTICE OF THE CLAIM
The courts will not allow aboriginal title litigation become unmanageable merely because of the large number of private interests who may be affected by a declaration of aboriginal title. Indeed, private rights holders may not be proper parties. There is no reason to name as parties those tenure holders in the claim area who derive their claimed interest from the Crown. In fact, there is no obligation in a claim for aboriginal title to even notify tenure holders that a declaration of aboriginal title is being claimed with respect to the area in which they hold tenure. It is sufficient to name the Crown, as the tenure holders’ interests derive from the Crown and their submissions would only duplicate the arguments advanced by the Crown. If they were added as parties or interveners then it could frustrate the litigation from going forward. But it is different for other First Nations who may have an overlap or interest in the claimed area, they should be notified and may intervene.
WHETHER FEE SIMPLE IS SUBJECT TO ABORIGINAL TITLE
The Trial judge in Tsilhqot’in said: “Given that the jurisdiction to extinguish has only ever been held by the federal government, the Province cannot and has not extinguished these rights by a conveyance of fee simple title to lands within the Claim Area: see Delgamuukw v. British Columbia, (S.C.C.) paras. 172-176.” But even if this statement was a correct view of the law in 2007 when it was written, it is now placed in doubt by the Supreme Court of Canada’s decision in 2014. The outright rejection of the doctrine of interjurisdictional immunity in Tsilhqot’in means that provincial land laws may well have the effect of overriding aboriginal title. Furthermore, the courts have proven to be very reluctant to disentitle fee simple holders of their lands based on ancient aboriginal claims.
WHETHER AN INFRINGEMENT MUST BE CLAIMED TO GET A DECLARATION
An aboriginal group has been denied a bare declaration of aboriginal or treaty rights because an infringement of those rights was not claimed. The B.C. Court of Appeal said
“Generally, modern courts have continued to adhere to the principle that declaratory actions should not be entertained where the declaration will serve little or no practical purpose or raises a matter of only hypothetical interest. Conversely, where the pleadings disclose a “real difficulty,” present or threatened, the action will lie.”
The Cheslatta decision has been widely followed, but may not have been correctly decided in light of the Manitoba Metis decision, in which the Supreme Court of Canada said: “A declaration is a narrow remedy. It is available without a cause of action, and courts make declarations whether or not any consequential relief is available.” Nevertheless, in September 2014 Cheslatta was followed for the proposition that aboriginal rights cannot be properly defined separately from the limitation of those rights and that the definition of the circumstances in which infringement is justified is an important part of the process of defining the right itself. Manitoba Metis was not referred to in that decision.
WHEN WILL THE DISCRETION TO ISSUE A DECLARATION BE EXERCISED?
It did not necessarily follow that because the Trial Judge was correct and the British Columbia Court of Appeal was in error with respect to their respective theories on aboriginal title that the Supreme Court of Canada would grant a declaration of aboriginal title to the Tsilhqot’in. A declaration is an equitable remedy and the Court has a discretion on whether or not to grant such equitable relief. In one case, the Court exercised its discretion to not grant the return of lands based on aboriginal title. The Tsilhqot’in argued in both the written submissions and oral submissions before the Supreme Court of Canada, that this case was the proper case for the exercise of discretion in favour of granting a declaration of title. Ten reasons why the Tsilhqot’in argued that a declaration of aboriginal title was appropriate in this case:
- The Trial Judge made findings of fact that include that the Tsilhqot’in exclusively controlled the proven title area and physically occupied those lands to a degree sufficient to establish aboriginal title. Those findings of fact were entitled to considerable deference given the record in this case.
- The area in question is a relatively remote and undeveloped area with a vast majority of the population being Tsilhqot’in today as it has been historically.
- For the purposes of the declaratory relief being sought in the Supreme Court of Canada, private lands were not at issue and accordingly the declaratory relief would not directly impact fee simple interests.
- There were no overlapping claims of other First Nations with respect to the land over which the declaration of aboriginal title was sought.
- The title area does not include any major urban centres.
- The local non-aboriginal property holders and residents supported the granting of a declaration of aboriginal title for the proven title area. In this regard, the submissions of the intervenors, the Chilko Resorts and Community Association and the Council of Canadians were helpful.
- There had been no logging activity in the proven title area for the 25 years prior to the appeal being heard by the Supreme Court of Canada and accordingly the status quo favoured a declaration of aboriginal title. In addition, there was no plan for commercial logging in the future. In other words, the court could be assured that there would be no significant change in the immediate future on the ground as a result of a declaration of aboriginal title.
- The Tsilhqot’in had publicly stated through their own declaration that they intended to preserve the Title Area and not allow commercial logging or road building activities.
- The Supreme Court of Canada had before it an immense record. That record was able to be amassed as a result of an advanced costs order. As a result, the case presented to the Supreme Court of Canada was a suitable test case that had been brought forward at enormous public expense.
- A number of intervenors pressed upon the Court that other processes were not succeeding in Canada in terms of the recognition and demarcation of aboriginal title. It was pressed upon the Supreme Court of Canada that a declaration of aboriginal title was a necessary step in the process of reconciliation and it would provide assistance for all parties in the future.
THE TSILHQOT’IN CASE IS NOT TO BE RESTRICTED TO ITS FACTS
Since the decision has been rendered by the Supreme Court of Canada, many have tried to minimize the significance of the decision and have gone so far as to suggest that the case is to be restricted to its facts and would not have application for claims brought by other First Nations. They argue that without the comprehensive trial record that was created in this case, other First Nations will not be able to establish claims for aboriginal title. Of course, that is ignoring the principles set out by the Supreme Court of Canada concerning the proof and content of aboriginal title. It is like arguing that one cannot establish negligence unless the claim involves a snail and a bottle of ginger beer (see Donoghue v Stevenson  A.C. 562 (U.K.H.L.) considered the first authority to establish this tort). Beyond the facts particular to the Tsilhqot’in, the case establishes legal theory and principles that are far reaching and will have application in future cases. To state just a few of these principles:
- Aboriginal title is territorial and not restricted to specific sites.
- Aboriginal title gives the title holder the right to pro-actively manage the land.
- Aboriginal title gives the title holder the beneficial interest in the land.
- Although Provincial laws of general application may apply to aboriginal title land, where that legislation infringes aboriginal title the threshold for justifying the legislation is high. To be valid the legislation must pass a rigorous test which includes having a compelling and substantial objective and that the government action is consistent with the fiduciary duty owed by the Crown to the First Nation.
- The Crown must seek the consent of the First Nation if its actions amount to infringement and in most cases that consent must be obtained or the remedies imposed by the Court will be significant.
It was not a given that the Tsilhqot’in would appeal to the Supreme Court of Canada in this case. In the face of resistance, and at considerable cost and sacrifice, the Tsilhqot’in and Chief Roger William carried the torch for all First Nations. They fought for what they knew to be true – the land was theirs. It was wrongly taken from them. It was fortunate for them and other First Nations that they did not resile from their beliefs. The decision of the British Columbia Court of Appeal in this case would have left First Nations impoverished. The Supreme Court of Canada decision has left First Nations empowered. The way has been cleared to right a great historical injustice, i.e. that the aboriginal title lands of First Nations were systematically exploited for the benefit of others and taken from First Nations without their consent.
In the Tsilhqot’in case, the Supreme Court of Canada has further developed the law of aboriginal title. Future title claims will build on the territorial nature of aboriginal title. Claims should be advanced to preserve remedies that could otherwise be lost by the passage of time.
 Peter Ballantyne Cree Nation v Canada (Attorney General), 2014 SKQB 327.
 Tsilhqot’in Nation v. British Columbia 2007 BCSC 1700
 William v. British Columbia 2012 BCCA 285
 Tsilhqot’in Nation v. British Columbia 2014 SCC 44
 Edward Sleigh Hewlett, “The Chilcotin Uprising of 1864” BC Studies 19 (1973) 50
 R. C. Lundin Brown, Klatsassin and Other Reminiscences of Missionary Life in British Columbia, 1873
 Tsilhqot’in Nation v. British Columbia 2014 SCC 44 at paragraph 50
 Tsilhqot’in Nation v. British Columbia 2014 SCC 44 at paragraphs 39 and 40
 R v. Marshall, R v. Bernard  SCR 220 at paragraph 126
 Tsilhqot’in Nation v. British Columbia 2014 SCC 44 at paragraph 61
 Kruger v. The Queen  1 S.C.R. 104 at page 109 (bolding added)
 R v. Marshall; R v. Bernard  SCC 43 at paragraph 66 (bolding added)
 Peter Ballantyne Cree Nation v Canada (Attorney General), 2014 SKQB 327 at paragraph 127.
 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, per Vickers J., at paragraph 470.
 William v. British Columbia, 2002 BCSC 1904 in which the trial judge dismissed an application by Canada to be removed as a party.
 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, per Vickers J., at paragraph 938.
 William v. Riverside Forest Products Limited, 2002 BCSC 1199, in which the trial judge dismissed an application by the defendant, British Columbia, for an order compelling the plaintiff to provide notice of the plaintiff’s claims to all land or resource use tenure holders, or applicants for tenure, whose interests may be affected by the litigation.
 William v. British Columbia, 2003 BCSC 2036 in which the trial judge struck out the claim against Riverside Forest Products Ltd.
 Nemiah Valley Indian Band v. Riverside Forest Products Ltd. 2002 BCSC 1199;  10 W.W.R. 486; 4 B.C.L.R. (4th) 379
 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, per Vickers J., at paragraph 997.
 Chippewas of Sarnia Band v. Canada (Attorney General), 1 C.N.L.R. 56 (Ont.C.A). The application of the doctrine of laches to aboriginal claims was approved in the dissenting opinion of the Supreme Court of Canada in Manitoba Metis Federation Inc. v. Canada (Attorney General),  1 SCR 623, 2013 SCC 14 at paragraph 298.
 Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539 at paragraph 13.
 Manitoba Metis Federation Inc. v. Canada (Attorney General),  1 SCR 623, at paragraph 143. The Court referred to Cheslatta in the same paragraph, but without explicitly overturning it.
 Chief Joe Hall v. Canada Lands Company Limited, 2014 BCSC 1704, at paragraph 55.
 Chippewas of Sarnia Band v. Canada (Attorney General), 1 C.N.L.R. 56 (Ont C.A.)