Tsilhqot’in Nation v. British Columbia

Tsilhqot’in Nation v. British Columbia
Collection
Supreme Court Judgments
Date
2014-06-26
Neutral citation
2014 SCC 44
Report
[2014] 2 SCR 7
Case number
34986
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
British Columbia
Subjects
Aboriginal law
Notes
SCC Case Information: 34986
Decision Content
SUPREME COURT OF CANADA
Citation: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256
Date: 20140626 Docket: 34986
Between:
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
and
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
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment: (paras. 1 to 153)
McLachlin C.J. (LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis and Wagner JJ. concurring)
tsilhqot’in nation v. british columbia, 2014 SCC 44, [2014] 2 S.C.R. 256
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
Indexed as: Tsilhqot’in Nation v. British Columbia
2014 SCC 44
File No.: 34986.
2013: November 7; 2014: June 26.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Aboriginal law — Aboriginal title — Land claims — Elements of test for establishing Aboriginal title to land — Rights and limitations conferred by Aboriginal title — Duties owed by Crown before and after Aboriginal title to land established — Province issuing commercial logging licence in area regarded by semi-nomadic First Nation as traditional territory — First Nation claiming Aboriginal title to land — Whether test for Aboriginal title requiring proof of regular and exclusive occupation or evidence of intensive and site-specific occupation — Whether trial judge erred in finding Aboriginal title established — Whether Crown breached procedural duties to consult and accommodate before issuing logging licences — Whether Crown incursions on Aboriginal interest justified under s. 35 Constitution Act, 1982 framework — Forest Act, R.S.B.C. 1995, c. 157 — Constitution Act, 1982, s. 35 .
Aboriginal law — Aboriginal title — Land claims — Provincial laws of general application — Constitutional constraints on provincial regulation of Aboriginal title land — Division of powers — Doctrine of interjurisdictional immunity — Infringement and justification framework under s. 35 Constitution Act, 1982 — Province issuing commercial logging licence in area regarded by semi-nomadic First Nation as traditional territory — First Nation claiming Aboriginal title to land — Whether provincial laws of general application apply to Aboriginal title land — Whether Forest Act on its face applies to Aboriginal title land — Whether application of Forest Act ousted by operation of Constitution — Whether doctrine of interjurisdictional immunity should be applied to lands held under Aboriginal title — Forest Act, R.S.B.C. 1995, c. 157 — Constitution Act, 1982, s. 35 .
For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived in a remote valley bounded by rivers and mountains in central British Columbia. It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory. The band objected and sought a declaration prohibiting commercial logging on the land. Talks with the Province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people. The federal and provincial governments opposed the title claim.
The Supreme Court of British Columbia held that occupation was established for the purpose of proving title by showing regular and exclusive use of sites or territory within the claim area, as well as to a small area outside that area. Applying a narrower test based on site-specific occupation requiring proof that the Aboriginal group’s ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established.
Held: The appeal should be allowed and a declaration of Aboriginal title over the area requested should be granted. A declaration that British Columbia breached its duty to consult owed to the Tsilhqot’in Nation should also be granted.
The trial judge was correct in finding that the Tsilhqot’in had established Aboriginal title to the claim area at issue. The claimant group, here the Tsilhqot’in, bears the onus of establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms. Aboriginal title flows from occupation in the sense of regular and exclusive use of land. To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive. In determining what constitutes sufficient occupation, which lies at the heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.
In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence. While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation. The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supports an inference of continuous occupation. And from the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs. The Province’s criticisms of the trial judge’s findings on the facts are primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title. Moreover, it was the trial judge’s task to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error. The Province has not established that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise. Absent demonstrated error, his findings should not be disturbed.
The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Prior to establishment of title, 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.
Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982 . This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group. This means the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty infuses an obligation of proportionality into the justification process: the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group. This s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.
The alleged breach in this case arises from the issuance by the Province of licences affecting the land in 1983 and onwards, before title was declared. The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests. The Province did neither and therefore breached its duty owed to the Tsilhqot’in.
While unnecessary for the disposition of the appeal, the issue of whether the Forest Act applies to Aboriginal title land is of pressing importance and is therefore addressed. As a starting point, subject to the constitutional constraints of s. 35 of the Constitution Act, 1982 and the division of powers in the Constitution Act, 1867 , provincial laws of general application apply to land held under Aboriginal title. As a matter of statutory construction, the Forest Act on its face applied to the land in question at the time the licences were issued. The British Columbia legislature clearly intended and proceeded on the basis that lands under claim remain “Crown land” for the purposes of the Forest Act at least until Aboriginal title is recognized. Now that title has been established, however, the timber on it no longer falls within the definition of “Crown timber” and the Forest Act no longer applies. It remains open to the legislature to amend the Act to cover lands over which Aboriginal title has been established, provided it observes applicable constitutional restraints.
This raises the question of whether provincial forestry legislation that on its face purports to apply to Aboriginal title lands, such as the Forest Act, is ousted by the s. 35 framework or by the limits on provincial power under the Constitution Act, 1867 . Under s. 35, a right will be infringed by legislation if the limitation is unreasonable, imposes undue hardship, or denies the holders of the right their preferred means of exercising the right. General regulatory legislation, such as legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires, will often pass this test and no infringement will result. However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.
Finally, for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, the framework under s. 35 displaces the doctrine of interjurisdictional immunity. There is no role left for the application of the doctrine of interjurisdictional immunity and the idea that Aboriginal rights are at the core of the federal power over “Indians” under s. 91(24) of the Constitution Act, 1867 . The doctrine of interjurisdictional immunity is directed to ensuring that the two levels of government are able to operate without interference in their core areas of exclusive jurisdiction. This goal is not implicated in cases such as this. Aboriginal rights are a limit on both federal and provincial jurisdiction. The problem in cases such as this is not competing provincial and federal power, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province. Interjurisdictional immunity — premised on a notion that regulatory environments can be divided into watertight jurisdictional compartments — is often at odds with modern reality. Increasingly, as our society becomes more complex, effective regulation requires cooperation between interlocking federal and provincial schemes. Interjurisdictional immunity may thwart such productive cooperation.
In the result, provincial regulation of general application, including the Forest Act, will apply to exercises of Aboriginal rights such as Aboriginal title land, subject to the s. 35 infringement and justification framework. This carefully calibrated test attempts to reconcile general legislation with Aboriginal rights in a sensitive way as required by s. 35 of the Constitution Act, 1982 and is fairer and more practical from a policy perspective than the blanket inapplicability imposed by the doctrine of interjurisdictional immunity. The result is a balance that preserves the Aboriginal right while permitting effective regulation of forests by the province. In this case, however, the Province’s land use planning and forestry authorizations under the Forest Act were inconsistent with its duties owed to the Tsilhqot’in people.
Cases Cited
Applied: R. v. Sparrow, [1990] 1 S.C.R. 1075; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; distinguished: R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915; referred to: Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Gladstone, [1996] 2 S.C.R. 723; Western Australia v. Ward (2002), 213 C.L.R. 1; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Marshall, 2003 NSCA 105, 218 N.S.R. (2d) 78; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; R. v. Marshall, [1999] 3 S.C.R. 533; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 11 .
Constitution Act, 1867 , ss. 91 , 92 , 109 .
Constitution Act, 1982 , Part I, Part II, s. 35.
Forest Act, R.S.B.C. 1996, c. 157, s. 1 “Crown land”, “Crown timber”, “private land”.
Royal Proclamation (1763) (reprinted in R.S.C. 1985, App. II, No. 1).
Authors Cited
Black’s Law Dictionary, 9th ed. St. Paul, Minn.: West, 2009, “vested”.
Hogg, Peter W. “The Constitutional Basis of Aboriginal Rights”, in Maria Morellato, ed., Aboriginal Law Since Delgamuukw. Aurora, Ont.: Canada Law Book, 2009, 3.
McNeil, Kent. “Aboriginal Title and the Supreme Court: What’s Happening?” (2006), 69 Sask. L. Rev. 281.
McNeil, Kent. Common Law Aboriginal Title. Oxford: Clarendon Press, 1989.
Slattery, Brian. “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Ziff, Bruce. Principles of Property Law, 5th ed. Toronto: Carswell, 2010.
APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Tysoe and Groberman JJ.A.), 2012 BCCA 285, 33 B.C.L.R. (5th) 260, 324 B.C.A.C. 214, 551 W.A.C. 214, [2012] 3 C.N.L.R. 333, [2012] 10 W.W.R. 639, 26 R.P.R. (5th) 67, [2012] B.C.J. No. 1302 (QL), 2012 CarswellBC 1860, upholding the order of Vickers J., 2007 BCSC 1700, [2008] 1 C.N.L.R. 112, 65 R.P.R. (4th) 1, [2007] B.C.J. No. 2465 (QL), 2007 CarswellBC 2741. Appeal allowed.
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 intervener 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 intervener the Coalition of the 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.
TABLE OF CONTENTS
I. Introduction 1
II. The Historic Backdrop 3
III. The Jurisprudential Backdrop 10
IV. Pleadings in Aboriginal Land Claims Cases 19
V. Is Aboriginal Title Established? 19
A. The Test for Aboriginal Title 24
(1) Sufficiency of Occupation 33
(2) Continuity of Occupation 45
(3) Exclusivity of Occupation 47
(4) Summary 50
B. Was Aboriginal Title Established in this Case? 51
VI. What Rights Does Aboriginal Title Confer? 67
A. The Legal Characterization of Aboriginal Title 69
B. The Incidents of Aboriginal Title 73
C. Justification of Infringement 77
D. Remedies and Transition 89
E. What Duties Were Owed by the Crown at the Time of the Government Action? 93
VII. Breach of the Duty to Consult 95
VIII. Provincial Laws and Aboriginal Title 98
A. Do Provincial Laws of General Application Apply to Land Held Under Aboriginal Title? 101
B. Does the Forest Act on its Face Apply to Aboriginal Title Land? 107
C. Is the Forest Act Ousted by the Constitution? 117
(1) Section 35 of the Constitution Act, 1982 118
(2) The Division of Powers 128
IX. Conclusion 153
The judgment of the Court was delivered by
The Chief Justice —
I. Introduction
[1] What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title? These are among the important questions raised by this appeal.
[2] These reasons conclude:
• Aboriginal title flows from occupation in the sense of regular and exclusive use of land.
• In this case, Aboriginal title is established over the area designated by the trial judge.
• Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.
• Where title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.
• Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, this framework displaces the doctrine of interjurisdictional immunity.
• In this case, the Province’s land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot’in people.
II. The Historic Backdrop
[3] For centuries, people of the Tsilhqot’in Nation — a grouping of six bands sharing common culture and history — have lived in a remote valley bounded by rivers and mountains in central British Columbia. They lived in villages, managed lands for the foraging of roots and herbs, hunted and trapped. They repelled invaders and set terms for the European traders who came onto their land. From the Tsilhqot’in perspective, the land has always been theirs.
[4] Throughout most of Canada, the Crown entered into treaties whereby the indigenous peoples gave up their claim to land in exchange for reservations and other promises, but, with minor exceptions, this did not happen in British Columbia. The Tsilhqot’in Nation is one of hundreds of indigenous groups in British Columbia with unresolved land claims.
[5] The issue of Tsilhqot’in title lay latent until 1983, when the Province granted Carrier Lumber Ltd. a forest licence to cut trees in part of the territory at issue. The Xeni Gwet’in First Nations government (one of the six bands that make up the Tsilhqot’in Nation) objected and sought a declaration prohibiting commercial logging on the land. The dispute led to the blockade of a bridge the forest company was upgrading. The blockade ceased when the Premier promised that there would be no further logging without the consent of the Xeni Gwet’in. Talks between the Ministry of Forests and the Xeni Gwet’in ensued, but reached an impasse over the Xeni Gwet’in claim to a right of first refusal to logging. In 1998, the original claim was amended to include a claim for Aboriginal title on behalf of all Tsilhqot’in people.
[6] The claim is confined to approximately five percent of what the Tsilhqot’in — a total of about 3,000 people — regard as their traditional territory. The area in question is sparsely populated. About 200 Tsilhqot’in people live there, along with a handful of non-indigenous people who support the Tsilhqot’in claim to title. There are no adverse claims from other indigenous groups. The federal and provincial governments both oppose the title claim.
[7] In 2002, the trial commenced before Vickers J. of the British Columbia Supreme Court, and continued for 339 days over a span of five years. The trial judge spent time in the claim area and heard extensive evidence from elders, historians and other experts. He found that the Tsilhqot’in people were in principle entitled to a declaration of Aboriginal title to a portion of the claim area as well as to a small area outside the claim area. However, for procedural reasons which are no longer relied on by the Province, he refused to make a declaration of title (2007 BCSC 1700, [2008] 1 C.N.L.R. 112).
[8] In 2012, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established, but left open the possibility that in the future, the Tsilhqot’in might be able to prove title to specific sites within the area claimed. For the rest of the claimed territory, the Tsilhqot’in were confined to Aboriginal rights to hunt, trap and harvest (2012 BCCA 285, 33 B.C.L.R. (5th) 260).
[9] The Tsilhqot’in now ask this Court for a declaration of Aboriginal title over the area designated by the trial judge, with one exception. A small portion of the area designated by the trial judge consists of either privately owned or underwater lands and no declaration of Aboriginal title over these lands is sought before this Court. With respect to those areas designated by the trial judge that are not privately owned or submerged lands, the Tsilhqot’in ask this Court to restore the trial judge’s finding, affirm their title to the area he designated, and confirm that issuance of forestry licences on the land unjustifiably infringed their rights under that title.
III. The Jurisprudential Backdrop
[10] In 1973, the Supreme Court of Canada ushered in the modern era of Aboriginal land law by ruling that Aboriginal land rights survived European settlement and remain valid to the present unless extinguished by treaty or otherwise: Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313. Although the majority in Calder divided on whether title had been extinguished, its affirmation of Aboriginal rights to land led the Government of Canada to begin treaty negotiations with First Nations without treaties ― mainly in British Columbia ― resuming a policy that had been abandoned in the 1920s: P. W. Hogg, “The Constitutional Basis of Aboriginal Rights”, in M. Morellato, ed., Aboriginal Law Since Delgamuukw (2009), 3.
[11] Almost a decade after Calder, the enactment of s. 35 of the Constitution Act, 1982 “recognized and affirmed” existing Aboriginal rights, although it took some time for the meaning of this section to be fully fleshed out.
[12] In Guerin v. The Queen, [1984] 2 S.C.R. 335, this Court confirmed the potential for Aboriginal title in ancestral lands. The actual dispute concerned government conduct with respect to reserve lands. The Court held that the government had breached a fiduciary duty to the Musqueam Indian Band. In a concurring opinion, Justice Dickson (later Chief Justice) addressed the theory underlying Aboriginal title. He held that the Crown acquired radical or underlying title to all the land in British Columbia at the time of sovereignty. However, this title was burdened by the “pre-existing legal right” of Aboriginal people based on their use and occupation of the land prior to European arrival (pp. 379-82). Dickson J. characterized this Aboriginal interest in the land as “an independent legal interest” (at p. 385), which gives rise to a sui generis fiduciary duty on the part of the Crown.
[13] In 1990, this Court held that s. 35 of the Constitution Act, 1982 constitutionally protected all Aboriginal rights that had not been extinguished prior to April 17, 1982, and imposed a fiduciary duty on the Crown with respect to those rights: R. v. Sparrow, [1990] 1 S.C.R. 1075. The Court held that under s. 35, legislation can infringe rights protected by s. 35 only if it passes a two-step justification analysis: the legislation must further a “compelling and substantial” purpose and account for the “priority” of the infringed Aboriginal interest under the fiduciary obligation imposed on the Crown (pp. 1113-19).
[14] The principles developed in Calder, Guerin and Sparrow were consolidated and applied in the context of a claim for Aboriginal title in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. This Court confirmed the sui generis nature of the rights and obligations to which the Crown’s relationship with Aboriginal peoples gives rise, and stated that what makes Aboriginal title unique is that it arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterward. The dual perspectives of the common law and of the Aboriginal group bear equal weight in evaluating a claim for Aboriginal title.
[15] The Court in Delgamuukw summarized the content of Aboriginal title by two propositions, one positive and one negative. Positively, “[A]boriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those [A]boriginal practices, customs and traditions which are integral to distinctive [A]boriginal cultures” (para. 117). Negatively, the “protected uses must not be irreconcilable with the nature of the group’s attachment to that land” (ibid.) — that is, it is group title and cannot be alienated in a way that deprives future generations of the control and benefit of the land.
[16] The Court in Delgamuukw confirmed that infringements of Aboriginal title can be justified under s. 35 of the Constitution Act, 1982 pursuant to the Sparrow test and described this as a “necessary part of the reconciliation of [A]boriginal societies with the broader political community of which they are part” (at para. 161), quoting R. v. Gladstone, [1996] 2 S.C.R. 723, at para. 73. While Sparrow had spoken of priority of Aboriginal rights infringed by regulations over non-aboriginal interests, Delgamuukw articulated the “different” (at para. 168) approach of involvement of Aboriginal peoples — varying depending on the severity of the infringement — in decisions taken with respect to their lands.
[17] In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, the Court applied the Delgamuukw idea of involvement of the affected Aboriginal group in decisions about its land to the situation where development is proposed on land over which Aboriginal title is asserted but has not yet been established. The Court affirmed a spectrum of consultation. The Crown’s duty to consult and accommodate the asserted Aboriginal interest “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (para. 39). Thus, the idea of proportionate balancing implicit in Delgamuukw reappears in Haida. The Court in Haida stated that the Crown had not only a moral duty, but a legal duty to negotiate in good faith to resolve land claims (para. 25). The governing ethos is not one of competing interests but of reconciliation.
[18] The jurisprudence just reviewed establishes a number of propositions that touch on the issues that arise in this case, including:
• Radical or underlying Crown title is subject to Aboriginal land interests where they are established.
• Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits.
• Governments can infringe Aboriginal rights conferred by Aboriginal title but only where they can justify the infringements on the basis of a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.
• Resource development on claimed land to which title has not been established requires the government to consult with the claimant Aboriginal group.
• Governments are under a legal duty to negotiate in good faith to resolve claims to ancestral lands.
Against this background, I turn to the issues raised in this appeal.
IV. Pleadings in Aboriginal Land Claims Cases
[19] The Province, to its credit, no longer contends that the claim should be barred because of defects in the pleadings. However, it may be useful to address how to approach pleadings in land claims, in view of their importance to future land claims.
[20] I agree with the Court of Appeal that a functional approach should be taken to pleadings in Aboriginal cases. The function of pleadings is to provide the parties and the court with an outline of the material allegations and relief sought. Where pleadings achieve this aim, minor defects should be overlooked, in the absence of clear prejudice. A number of considerations support this approach.
[21] First, in a case such as this, the legal principles may be unclear at the outset, making it difficult to frame the claim with exactitude.
[22] Second, in these cases, the evidence as to how the land was used may be uncertain at the outset. As the claim proceeds, elders will come forward and experts will be engaged. Through the course of the trial, the historic practices of the Aboriginal group in question will be expounded, tested and clarified. The Court of Appeal correctly recognized that determining whether Aboriginal title is made out over a pleaded area is not an “all or nothing” proposition (at para. 117):
The occupation of traditional territories by First Nations prior to the assertion of Crown sovereignty was not an occupation based on a Torrens system, or, indeed, on any precise boundaries. Except where impassable (or virtually impassable) natural boundaries existed, the limits of a traditional territory were typically ill-defined and fluid. . . . [Therefore] requir[ing] proof of Aboriginal title precisely mirroring the claim would be too exacting. [para. 118]
[23] Third, cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved.
V. Is Aboriginal Title Established?
A. The Test for Aboriginal Title
[24] How should the courts determine whether a semi-nomadic indigenous group has title to lands? This Court has never directly answered this question. The courts below disagreed on the correct approach. We must now clarify the test.
[25] As we have seen, the Delgamuukw test for Aboriginal title to land is based on “occupation” prior to assertion of European sovereignty. To ground Aboriginal title this occupation must possess three characteristics. It must be sufficient; it must be continuous (where present occupation is relied on); and it must be exclusive.
[26] The test was set out in Delgamuukw, per Lamer C.J., at para. 143:
In order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.
[27] The trial judge in this case held that “occupation” was established for the purpose of proving title by showing regular and exclusive use of sites or territory. On this basis, he concluded that the Tsilhqot’in had established title not only to village sites and areas maintained for the harvesting of roots and berries, but to larger territories which their ancestors used regularly and exclusively for hunting, fishing and other activities.
[28] The Court of Appeal disagreed and applied a narrower test for Aboriginal title — site-specific occupation. It held that to prove sufficient occupation for title to land, an Aboriginal group must prove that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty.
[29] For semi-nomadic Aboriginal groups like the Tsilhqot’in, the Court of Appeal’s approach results in small islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping. By contrast, on the trial judge’s approach, the group would e