The British Columbia Court of Appeal rendered its judgment in the Tsilhqot'in decision. There will undoubtedly be enough papers published about this decision to support the forest industry for years to come, but, just for the use of those of you out there who want the initial half baked thoughts of the one of the participants, here goes. These thoughts are not an analysis of the case -- that will follow but more in the nature of birds-eye view comments about where this decision takes us and where it will likely go.
First, the Court of Appeal is clearly throwing down the gauntlet to the Supreme Court of Canada in this decision and, in essence, saying "you tell us what you really mean by aboriginal title." It is difficult to read this decision without getting the strong sense that the Court of Appeal believes that the Supreme Court of Canada has done everyone a disservice by not really telling us much about what they see the extent of aboriginal title being. Justice Groberman clearly sees this uncertainty as serving no-one's purposes:
[161] To some degree, the apparent reluctance of the courts to go beyond what is needed to resolve the specific cases is understandable. I have already noted that that is the traditional manner in which the common law has developed. Further, the stakes in Aboriginal title claims have been high – cases such as Calder, Delgamuukw, and Marshall; Bernard involved vast areas of land. The resolution of such claims can be critical to the future of both the First Nation involved and the broader Canadian population.
[162] The technical difficulty of this area of law has exacerbated the problem, and has led to considerable frustration. The efforts of the Nisga’a in Calder, the Gitksan and Wet’suwet’en in Delgamuukw, and the Tsilhqot’in in this case (to this point) all consumed enormous amounts of resources, only to have the cases end inconclusively due to problems with the way they were commenced or pleaded.
[163] The courts have frequently emphasized the need for resolution of Aboriginal rights and title issues through negotiated agreements where possible. The trial judge in this case went beyond the ordinary role of the court in attempting to set the stage for a negotiated resolution. Negotiated resolution of issues, however, is not facilitated by uncertainty in the law.
[164] It is apparent that all sides have attempted to resolve the issues in this case, but without success. That is not surprising, given that the theories of Aboriginal title espoused by the plaintiff, on the one hand, and the defendants, on the other, are as far apart as they are. The trial judge’s decision to provide a non-binding opinion as to the title area did not, in the end, assist the parties in finding common ground.
In this comment there is much truth: it is really a scandal that both Calder and Delgamuukw ended in uncertainty flowing from procedural, technical or evidentiary errors. It would have only made the law look even more discreditable if the Tsilhqot'in case had ended the same way. There are many who say that the lawyers are the only real winners in aboriginal litigation and that view would certainly have been reinforced if the Court of Appeal had not come to grips with the issues.
Second, the Court of Appeal clearly takes the view that aboriginal title is a limited right with a modest (I would say close to non-existent) role to play in the process of reconciliation but views non-title aboriginal rights as being far more robust and significant for this purpose. Justice Groberman's dismissive view of aboriginal title as a significant right is best seen in the examples he cites of where aboriginal title may exist outside of village sites or cultivated fields:
[221] In particular, I note that the examples of title lands given at para. 149 of Delgamuukw are well-defined, intensively used areas. The reference to hunting, fishing and other resource extraction activities is coupled with a specific description of the lands so used as “definite” tracts of land. I agree with British Columbia’s assertion that what was contemplated were specific sites on which hunting, fishing, or resource extraction activities took place on a regular and intensive basis. Examples might include salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.This definition seems to completely move past the word "tract" that was used in Delgamuukw and place the whole focus on the concept of "definite". In plain English a "tract" generally means an "extended area of land" and is synonymous in some contexts with concepts such as a "district" or "region". I suspect that most copy editors would have some difficulty in accepting without comment the use of the word "tract" to describe a salt lick or rock.
If this is was what the Supreme Court of Canada meant by aboriginal title in Delgamuukw it is hard to see what they were doing sending the matter back to trial. The plaintiffs in Delgamuukw clearly did not have this in mind in their pleading and the trial judgment likely would have happily conceded such places to them (save for the trial judge's view of extinguishment) and moved on. The Gitxsan certainly would not have wanted to go back to trial to figure out their rights to the salt licks in their territory.
Third, the governments may come to regret this victory. To date the governments have been concerned about aboriginal title because of the fact that they have viewed it as a more robust right than typical aboriginal harvesting rights. In the eyes of the government as long as the Indians can hunt moose somewhere infringements of hunting rights will be easily justified. The Court of Appeal takes a different view and appears to be determined to hold the Province to a much higher standard and to give much greater substance to the entire bundle of rights held by an aboriginal people. Justice Groberman says:
[235] It seems to me that the plaintiff’s approach to Aboriginal title does not account for the fact that title is not the only tool available to provide cultural security to the Tsilhqot’in.
[236] Aboriginal rights of various sorts protect cultural security and safeguard the ability of First Nations to continue to engage in traditional lifestyles. Indeed, as British Columbia points out, the phrase “cultural security and continuity” was originally used in Sappier; Gray to describe the function of Aboriginal rights in general, not merely Aboriginal title.
[237] Aboriginal title, while forming part of the picture, is not the only – or even necessarily the dominant – part. Canadian law provides a robust framework for recognition of Aboriginal rights. The cultural security and continuity of First Nations can be preserved by recognizing their title to particular “definite tracts of land”, and by acknowledging that they hold other Aboriginal rights in much more extensive territories.
On the whole this is still a major step backwards towards the "bundle of rights" theory rejected by the Supreme Court of Canada in Delgamuukw but aboriginal people should test the Court on this invitation to look to more extensive aboriginal rights to protect their cultural sovereignty. These rights need not be limited to pure "harvesting" rights. For example, why should an aboriginal people who consistently excluded others from their territory prior to and at 1792 not be able to assert an aboriginal right to exclude others (even if they cannot prove the occupancy necessary to found the Court of Appeal's impoverished view of aboriginal title). In this respect it is worth noting that the aboriginal people of the prairies and the Northwest Territories have been very successful in advancing their interests without recourse to aboriginal title.
Finally though this note of optimism has to be tempered by the fact that the Court of Appeal sends and explicit and disheartening message about the project of reconciliation and the recognition of aboriginal rights and aboriginal title -- namely that it is a project that is only really worth pursuing to the extent that it does not make vested non-aboriginal interests uncomfortable:
[239] It seems to me that this view of Aboriginal title and Aboriginal rights is fully consistent with the case law. It is also consistent with broader goals of reconciliation. There is a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians. As I see it, an overly-broad recognition of Aboriginal title is not conducive to these goals. Lamer C.J.C.’s caution in Delgamuukw that “we are all here to stay” was not a mere glib observation to encourage negotiations. Rather, it was a recognition that, in the end, the reconciliation of Aboriginal rights with Crown sovereignty should minimize the damage to either of those principles.For aboriginal people the whole Section 35 project and the idea of reconciliation is only meaningful if it is likely to result in substantial positive change in the circumstances of aboriginal people. If this is limited -- even in areas of Canada that are largely uninhabited by non-aboriginal people -- to legal concepts and rights that do not interfere with Crown sovereignty or the "well-being" of Canadians then it is unlikely this idea of reconciliation is going to appeal to many aboriginal people. Instead it is likely to reinforce the idea prevalent in aboriginal communities that ideas such as aboriginal rights, aboriginal title and reconciliation are empty phrases primarily designed to allow non-aboriginal people to feel redeemed and righteous about their own conduct and institutions.
