Today the British Columbia Court of Appeal released its decision on the appeals of the Supreme Court of British Columbia’s decision in Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700. While the Court of Appeal analyzed some of the issues differently, it ultimately dismissed all appeals, and upheld the Supreme Court’s order in its entirety.
The Court of Appeal’s decision has been highly anticipated since the Supreme Court offered the “opinion” that the Tsilhqot'in Nation and Xeni Gwet’in First Nations Government (the “First Nations”) would have successfully proven aboriginal title to a portion of their claimed area, but then declined to actually grant a declaration of aboriginal title on the basis that the they had plead their claim for title on an “all or nothing” basis across the entire claimed area. The Supreme Court left open the possibility for the First Nations to pursue a claim over geographically smaller areas.
The Province of British Columbia, the Attorney General of Canada, and the First Nations all appealed. The issues raised on appeal included whether:
- The trial judge should have granted the First Nations aboriginal title over the entire claimed area;
- The trial judge should not have treated the title claim as an “all or nothing” claim and should not have considered himself without jurisdiction to grant aboriginal title to a portion of the claimed area; and
- The dismissal of the title claim ought to have been final, and not without prejudice to the First Nations’ pursuit of geographically smaller claims within the claimed area.
The Court of Appeal found that:
- The First Nations’ claim was not an “all or nothing” claim over the claimed area and the court could have granted title to a smaller area;
- However, title was not made out. The First Nations advanced their claim as a “territorial” claim rather than a “site-specific” claim. This “territorial” basis for the claim did not form a viable foundation for a title claim; and
- The First Nations are still free to pursue future title claims to specific areas within the claimed area on the basis that those specific areas constitute definite tracts of land which were actually occupied at the time Crown sovereignty was asserted.
Given the importance of these issues, Chief Marilyn Baptiste of the Xeni Gwet'in band says this matter will proceed to the Supreme Court of Canada.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.