by Frank Larue
The recent Pacific Business and Law Institute Conference organized to inform the public of the immediate impact of the British Columbia Supreme Court report written by Justice Vickers on the Tsilhquot’in Nation Decision on Aboriginal Title and Right was unfortunately not that well-attended, but those of us who were there came away with a great deal more understanding of both the history of litigation and negotiation up to the present moment and the uncertainties which await future claims to be brought before the courts. The decision recently released has been hailed by all interested parties as the most significant trial judgment on Aboriginal title and rights since the Supreme Court of Canada decided the Delgamuukw case in 1997, and is the first case in which a court has concluded that evidence before it proves aboriginal title over certain lands, a decision the significance of which almost guarantees that it will be appealed. Therefore, its implications for future litigation and negotiation need to be clarified and understood at as profound a cultural level and with as little ambiguity as possible. The Vickers judgment has two major implications for the future: One, it demonstrates the type and degree of evidence required to prove aboriginal title; and two, while it reinforces the importance of the Crown’s obligation to consult and accommodate First Nations in respect of their claims of title and rights, it does not change the scope of the Crown’s duty in this respect.. Although the Crown did not make a final declaration on aboriginal title the Judge did state his opinion that the Tsilhquot’in Nation does in fact have title to a significant portion of the claim area estimated at approximately 200,000 hectares.
The original case was brought by Chief Roger William of the Xeni Gwet’in First Nation on its behalf and on behalf of the approximately 3,000 members of the Tsilhquot’in Nation, of which the Xeni Gwet’in is a part. The territory claimed is in the Cariboo-Chilctin region of Brirish Columbia near Williams Lake. The Court held that it could not make a final decision of aboriginal title or grant a legal remedy because of the way the case had been pleaded in the plaintiff’s Statement of Claim. However the judge did state an opinion on the basis of the evidence that the Tsilhquot’in did have aboriginal title to a significant portion of the area claimed. He also encouraged the parties to negotiate a swift resolution to the outstanding issues, and reconcile longstanding proceeding on the basis that the Tsilhquot’in do indeed have rights to hunt, trap, and trade in furs to sustain a moderate livelihood throughout the claims area. It is well-known that the Province of British Columbia has its own very serious differences from the rest of the country in how the treaty process has evolved over the years due to among other things its late arrival into Confederation and these differences resulted in a trial lasting 339 days and a written judgment of well over 400 pages. Had third party litigants such as corporations and individual landowners not been called to testify the results in both cases would have been even longer.
In any case, although no legal remedy resulted from the time and money spent on the case no matter what its outcome, certain rulings in the Vickers report do set precedents in areas extremely important for future claims. These relate to evidence, pleadings, legal procedure and costs, all of which will help in future litigation to streamline processes. In particular, Vickers ordered that the defendant provincial and federal governments pay a significant portion of the plaintiff’s costs and all of their out of pocket expenses. A procedure was also established to be followed by counsel whenever a witness was expected to give oral history testimony or oral tradition evidence in order to allow counsel for the defendants an opportunity to test the reliability of that evidence.
The trial judge also reviewed the extensive jurisprudence on aboriginal title and rights concluding that aboriginal title is a species of aboriginal right which confers a “right to the land itself.” The precise content of this right has yet to be established but at the very least it includes the right to exercise a degree of control over the resource activities which take place on the land. The Court decision left no doubt that the presence of the Tsilhquot’in people in the Claim Area has been uninterrupted and continuous from prior to 1846 (the year Britain acquired sovereignty over British Columbia) and up to the present time. (A description of these lands can be is available on the B.C. Courts’ website:www.courts.gov.bc.ca)
In coming to his conclusions the trial judge relied heavily on oral history and oral tradition because the Claim Area is “a remote part of the Province and it comes as no surprise that historical knowledge of the area is sparse.” Perhaps the most important implication emerging from the judgment is that the adversarial system of the Canadian courts is not equipped to resolve these claims and that reconciliation which is the ultimate objective of such consultation is in the end negotiation rather than litigation; that is to say how to reconcile the cultural continuity of ‘Indianess’ with the ongoing development of a modern society without ‘rubbing salt into old wounds’, a phrase appropriate to the situation we are left with after spending so much money and time to reach a conclusion that was obvious to the litigants in the beginning. The most glaring judgment is that we are in the position we are in because both levels of governments (federal and provincial) have not acted honorably over that past two centuries nor have they made good on the promises they have continually made when such cases have been brought to court.