The Tsilhqot’in nation at the Supreme Court of Canada tomorrow

Wednesday, November 6, 2013

This decision comes down tomorrow at around 9:30 am. 

We express solidarity with the Tsilhqot'in nation, and sincerely hope they are soon able to take title under common law to the traditional territory that is inherently theirs.

A Summary of the Case and the Issues
The Tsilhqot’in nation began legal action against British Columbia in the 1980s when the British Columbia government first began to grant logging rights to third parties on their unceded traditional territory.
Alongside legal action the Tsilqot’in blockaded logging roads in the early 1990s, resulting in a promise by the then premier that no further logging rights would be granted without permission of the Tsilqot’in nation.
In the late 1990s further logging rights were granted, and the Tsilqot’in consolidated their legal actions, and launched what was to become this case: the biggest Aboriginal title case since Delagamu’ukw.
The trial decision in the Tsilqot’in case came down in 2007. Between 2007 and 2009 the Tsilqot'in and the British Columbia government agreed not to proceed with an appeal and attempted to negotiate a settlement. In 2009, against the wishes of the Tsilqot'in, Canada and British Columbia applied to have the stay of proceedings lifted, and to proceed with an appeal.
The British Columbia Court of Appeal handed down a decision in 2012, which is the subject of tomorrow's Supreme Court of Canada hearing.
The territory over which the Tsilqot'in claim title is less than 5 percent of their traditional territory. Clear cutting had already begun on the larger territory when the actions began in the 1990s. The territory is largely undeveloped- phones came to the area in 2000, and it is still not completely on the electrical grid- there were no roads at all until the late 1970s.
Roger William, the named litigant, is the former Chief.
Aside from the respondents the Attorney General of Canada and British Columbia there are many interveners including other First Nations, Aboriginal organisations, the Attorney Generals of other provinces, Amnesty International, third parties located in the claimed territory, and industry associations.
What is the case about in a nutshell.
The British Columbia Court of Appeal has called this a test case for the further development of the legal test for Aboriginal title which emerged from the Delgamuukw case in 1997.
The case represents two very divergent views on the legal test for Aboriginal title, one argued successfully at trial by the Tsilqot’in, and the other successfully on appeal by British Columbia. The difference between the two tests is significant, and will certainly affect the ability of formerly nomadic and semi nomadic nations to prove title at all, and, significantly, will likely affect all title claims regardless of the historical patterns of land use of the claiming nation.
In order to prove title an Aboriginal nation must show, amongst other things,
Sufficient occupation of the claimed territory by regular use of definite tracts of land (for hunting, fishing or for otherwise exploiting its resources).
The question, especially for formerly nomadic or semi nomadic peoples, is what activities amount to sufficient occupation during the relevant time period to be able to prove title.
The 2007 trial judgement found that well documented, repeated, traditional (not haphazard) patterns of seasonal occupation over large tracts of land, coupled with exclusive occupation was sufficient to prove title , although declined to rule fully on the matter.
This decision recognises the ways in which Indigenous laws of landuse functioned to regulate the seasonal movement of Indigenous nations across their territory, and the ways in which nations that shared a geographic border deployed Indigenous law to share and define territory.
These same Indigenous laws and legal orders exist  and are deployed today.
The sucessful application of this kind of test could potentially give an Aboriginal nation some forms of territorial sovereignty over larger tracts of land. This, in my opinion, would be an exciting development.
The 2012 British Columbia Court of Appeal on the other hand restates this test with two new, important words: that the claimant must show intensive presence at particular sites, and that this will likely amount only to title over those sites.
Significantly the British Columbia Court of Appeal also states that under these circumstances where title is found over these 'particular sites' lesser Aboriginal rights ought to be granted over the larger territory in question as this is the best way to maintain Aboriginal cultures without 'unnecessarily interfering with Crown Sovereignty and the well-being of other Canadians.'
This, in my opinion, is problematic for two, interconnected reasons.
First, the Supreme Court of Canada in Delagamu’ukw made it clear that S. 35 rights must be viewed from both the common law and the Aboriginal perspective. To subvert s. 35 title rights to Crown sovereignty and the 'wellbeing of other Canadians' as a starting principle of constitutional interpretation misunderstands s. 35 jurisprudence, and the constitutional order in Canada which calls for a recognition of existing Aboriginal rights.
S. 35 did not create Aboriginal rights alongside Charter rights. Rather s. 35 recognises and entrenches existing inherent Aboriginal rights which predate the 1982 Constitution. According to the Supreme Court of Canada these inherent rights must be given broad and liberal interpretation, based on the ways in which Indigenous peoples were occupying and governing this territory during the period of colonisation. The common law, even in its most cynical manifestations, as never required that as a matter of constitutional interpretation, inherent Aboriginal rights must narrow their natural legal scope in order to accommodate 'other Canadians'. This amounts to a political compromise which conveniently ignores the common law on s. 35 jurisprudence to date.
Second, and relatedly, the British Columbia Court of Appeal's decision fails to into account the laws and legal orders of Indigenous peoples living on this territory at the time of colonisation
(and those that continue to exist today). In Delagamu’ukw the Court made it clear that for those Indigenous nations which had not treated away territorial rights, the root of their inherent claim to title lay in unceded Indigenous legal sovereignty over those territories. In framing the right to title this way the Court acknowledges that Indigenous nations had (and still have) laws and legal orders that govern their traditional territories. That is the source of their territorial sovereignty, and the reason at common law for acknowledging and entrenching in s. 35 the right to ‘title’.
Alongside law governing the internal functioning of each nation, Indigenous nations also have international laws as between nations. The British Columbia Court of Appeal's decision is based on the notion that when nomadic, semi-nomadic or more settled Indigenous nations were not physically ON a specific piece of land ( or fishing spot, or buffalo jump etc.) that pretty much anyone could come onto their traditional territories and ‘exploit resources’ at will. This fundamentally misunderstands the international laws between Indigenous nations which created and today sustain a complex, continent-wide system of delimitation and sharing of territory based on Indigenous laws and legal orders. Neighbouring Indigenous nations did not and do not ‘wander onto’ Tsilqot'in territory to hunt, fish or live without permission from the Tsilqot'in: Indigenous law prevented and prevents them from doing so.
A common law analogy would be to argue that just because I am at work, and not standing in my backyard, my neighbour can rightfully come over, pick my cucumbers and set up a tent. Just because the common law system of property holding is written down, and the Tsilqit'in system of land use was and is primarily oral does not mean they are not equal, and, according to the Supreme Court in Delgamu'uk, equally worthy of legal recognition when defining the parameters of a s. 35 right.
The British Columbia Court of Appeal erases current and historical iterations of Indigenous law, which is contrary to our own Supreme Court of Canada’s s. 35 jurisprudence and a huge step backwards for both Indigenous peoples and 'other Canadians.'
The outcome at the SCC will have a negative effect not only on title litigation to come, but on the negotiation of modern treaties, and other land claims.  A decision that unnecessarily narrows the parameters of s. 35 title, and erases Indigenous laws and legal orders puts pressure on Aboriginal groups to settle for less than they need, or are entitled to as the option of a full blown title claim becomes legally harder and harder to prove.

 Prof. Angela Cameron
Designed by Rachel Gold.