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B C Court of Appeal
by Harry A. Slade
This appeal was from the decision at trial at which it was held that:
(i) The Gitksan Wet'suwet'en (the Plaintiffs) had not proven their claim of ownership of and jurisdiction over the claimed territory. (ii) The Plaintiffs had proven their aboriginal rights for non-exclusive sustenance purposes in a portion of the territory.
(iii) All the Plaintiffs' rights were extinguished by the time that the colony of British Columbia joined the Canadian federation in 1871.
The claim of the Gitksan Wet'suwet'en to ownership and jurisdiction was dismissed by the majority decision of the Court of Appeal. The trial judge's order was, however, varied. The Court of Appeal ruled that the Gitksan Wet'suwet'en had established non-exclusive aboriginal sustenance rights within a portion of the territory over which they had claimed ownership and jurisdiction, and that these rights had not been extinguished prior to 1871.
The dissenting decisions of two justices of the Court would have allowed the appeal, generally, but not on the basis that the-Gitksan Wet'suwet'en had established an exclusive right of ownership and plenary jurisdiction over the territory. The minority decision held that the Gitksan Wet'suwefen had established aboriginal title or aboriginal rights in the land, and rights of self-government, over some of the territory.
Four Justices of the Court of Appeal wrote reasons: the reasons for judgment of Mr. Justice Macfarlane were concurred in by Mr. Justice Taggart. The other justices who wrote reasons are Mr. Justice Wallace, Mr. Justice Lambert and Mr. Justice Hutcheon.
The Justices of the Court of Appeal differed on:
(i) Their identification of the specific legal issues that were properly before them for decision; and
(ii) Their conclusions on certain of the legal issues that they agreed were before them.
For reasons that will become apparent, the fact that the majority adopted a different view on the issues that were before them for decision from the justices who wrote minority decisions is of some importance in coming to an understanding of the decision.
The justices in the majority (Macfarlane, concurred in by Taggart, and Wallace), differed in their view from the minority (Justices Lambert and Hutcheon), in characterizing the issues that were before the Court for decision.
This occurred in two significant areas:
(i)'ownership'/aboriginal title
(ii)'jurisdiction'/aboriginal self-government.
The Gitksan Wet'suwet'en had characterized their claim as 'ownership' and 'jurisdiction'. None of the Justices accepted the Gitksan Wet'suwet'en characterization of aboriginal rights as ownership or jurisdiction. The majority dismissed the claim to ownership and jurisdiction. They did this on the basis that, in their view, the common law does not protect aboriginal rights of ownership and jurisdiction of the breadth and scope claimed by the Plaintiffs.
The majority found that the Plaintiffs' claim at trial was for ownership and jurisdiction and aboriginal sustenance rights. They did not consider that the Plaintiffs had put before the Court any claim to aboriginal title short of full 'ownership' in the full legal sense of that term. Similarly, the majority treated the claim to jurisdiction as a claim to rights for government that would, if found to exist, extend to the regulation of the rights of all persons within the claimed territory.
The decision of Mr. Justice Lambert, in the minority, treats the claim of 'ownership' as a claim to aboriginal title. His judgment also deals with aboriginal rights. Both Justices Lambert and Hutcheon treat the claim to 'jurisdiction' as a claim to rights of self-government or self-regulation. Mr. Justice Hutcheon does not expressly characterize the claim to 'ownership' as a claim to aboriginal title, but concludes that the Gitksan Wet'suwet'en had established 'aboriginal rights to land'.
The differences of view between the majority and minority on the issues before the Court for decision are of some importance. Because the majority did not consider the Gitksan Wet'suwefen case to involve a claim of aboriginal title, as an interest distinct from 'ownership', it remains open for the Plaintiffs to pursue a fresh action to claim aboriginal title. The same would appear to be the case in relation to self-government; the majority rejected the Plaintiffs' claim to 'jurisdiction' as pleaded, but did not deal with the issue of a more limited form of aboriginal selfgovernment or self-regulation.
In the result, it is only the decisions of the minority Justices that deal directly with proof of aboriginal title and the existence of powers of self-regulation. They also address the scope and character of aboriginal title and government short of full ownership and plenary jurisdiction.
After disposing of the Gitksan Wet'suwet'en claims to 'ownership' and 'jurisdiction', the majority of the Court deal with the proof of, and legal protection for, aboriginal rights. They are dealing with sustenance rights, as distinct from title. Hence, the emphasis of the two judgments of the majority (Macfarlane and Wallace) focuses on aboriginal practices and activities. This to some extent contrasts with the approach taken by Mr. Justice Lambert who, in dissent, speaks in terms of an interest in land that reaches beyond the right to engage in specific practices or habits. Mr. Justice Lambert also speaks in his reasons of aboriginal rights to engage in certain specific practices, such as hunting and fishing.
This is not to say that the majority and dissenting opinions failed to address the same issues. The following list of issues were dealt with in the reasons of justices in the majority and minority:
Four of the five justices found that the Proclamation had no application in British Columbia. One Justice expressed no opinion on the matter.
The finding of the justices was that the Proclamation reflected British colonial policy. In the result, the existence of aboriginal rights and title does not depend upon the application of the Proclamation to territory.
Three members of the Court found it was not appropriate to attempt to characterize the aboriginal interest as being proprietary or personal. They found it is art interest sui generis, and that the nature and scope of aboriginal rights and title is to be determined as a fact, based on the evidence at trial. This view was concurred in by a fourth Justice.
(i) Determination of the Protected Interest
The common thread through the reasons is that aboriginal interests are determined by asking what the organized society regarded as an integral part of their distinctive culture.
The majority excluded any practices which became prevalent as a result of European influences from its definition of rights.
(ii) Elements of Proof
To prove an existing aboriginal right, the majority held it necessary to prove , on the
evidence, that a practice was:
(a) integral to the distinctive culture of an aboriginal society in which some ancestors of the Plaintiffs were members, and
(b) that the practice existed as an aboriginal right when British sovereignty was asserted, and it was unextinguished in 1982.
(iii) Standard of Proof
Mr. Justice Macfarlane asserted that, in determining what specific territory has been used or occupied for aboriginal purposes, the requirement is sufficient use and occupation to support the inference that the area was the traditional homeland of the aboriginal people asserting the right.
The legal protection for aboriginal rights and title, within the Canadian system of law, is found in the common law of Canada. Aboriginal practices, customs, or traditions which are fundamental to the culture and social organization of an organized society of aboriginal peoples became incorporated into the common law as 'rights'.
The recognition and affirmation of aboriginal rights in s35 of the Constitution extended constitutional protection to those common law rights which existed in 1982.
The Court unanimously rejected the notion of aboriginal rights and title having been generally extinguished prior to 1871.
It was held that the Province of British Columbia lacked the power to extinguish aboriginal interests after 1871, except where the Federal Government had clearly and plainly empowered the Province to extinguish aboriginal rights or title. It was held that s88 of the Indian Act, which extends provincial laws of general application to Indians, does not clearly and plainly authorize extinguishment by the Province.
It was held that aboriginal rights and title could not be extinguished after 1982, except with consent.
(i) Aboriginal Rights in Practice
The majority found that the Plaintiffs have unextinguished, non-exclusive aboriginal sustenance rights, protected by the common law, and now protected as existing aboriginal rights under s35(l) of the Constitution Act 1982. The specific characteristics of those rights were not defined, but were left to definition through negotiation, or, failing agreement, definition through further legal proceedings.
The Court urged the parties to a negotiated resolution of the outstanding issues.
The dissenting Justices also addressed, in a general way, the characteristics of aboriginal title. Mr. Justice Lambert quoted from the decision of the Australian High Court in Mabo, which found that an exclusive aboriginal title entitles its holder "as against the whole world to possession occupation, use and enjoyment of the lands..." Mr. Justice Hutcheon found that aboriginal rights to land "were of such a nature as to compete on an equal footing with proprietary interests".
The Court left it to further Court proceedings to determine whether specific aboriginal interests may have been lawfully interfered with, and the consequences of any conflict between existing aboriginal interests and the rights of persons holding interest in land under Provincial grants.
(ii) Frozen versus Evolving Rights
The majority found that existing aboriginal rights must reflect aboriginal practices as at the time of the assertion of British sovereignty. This was taken, for the purposes of this case, to be 1846. They concluded that such rights could be exercised through modem means.
Mr. Justice Lambert, in dissent, characterized rights as 'evolving', such that their contemporary exercise may involve modernization of the right. If the right at the time of sovereignty was, subject to conservation, to kill all the deer that they wished, for whatever purpose they wished, then the contemporary exercise of that right would still be to kill all the deer they wished, subject to a modern formulation of the conservation priority, for whatever contemporary purpose they wished.
Mr. Justice Lambert also found that if an aboriginal right was established as a right of exclusive occupation, possession, use and enjoyment of land, the contemporary right would extend to contemporary usages, irrespective of whether a specific use existed at the date of assertion of sovereignty.
(iii) Exclusivity
The Court found that aboriginal rights, for example the sustenance rights of hunting and gathering, could be held by more than one aboriginal society. Rights to occupancy of specific lands, however, would require proof of exclusive possession as at the date of sovereignty.
Mr. Justice Lambert suggested the possibility of shared exclusive aboriginal title. This would offer the potential for more than one aboriginal society enjoying rights of occupation on a shared basis, but to the exclusion of all others.
It will be apparent from the foregoing that this decision has not established a defined set of enforceable aboriginal rights for the Plaintiffs. The Court has left it to the parties to negotiate toward a definition of rights, and, failing agreement, further proceedings could be taken in the Courts to seek definition of the rights.
The decision is, however, conclusive in the finding that the Plaintiffs do not have the form of ownership and jurisdiction that they claimed in their pleadings, and sought to prove at trial. This does not foreclose the possibility of the Plaintiffs establishing aboriginal title within the claimed territory, and powers of self-regulation, in future proceedings. The case, therefore, leaves it open to all other First Nations to pursue claims of aboriginal rights, title and self-regulation.
There is, of course, the possibility that the findings on any of the issues could be changed as a result of an appeal to the Supreme Court of Canada. The Supreme Court could also determine whether to deal with the questions concerning aboriginal title and self-government which were addressed by the dissenting Justices.
The most important ruling on a point of law in the decision is the Court's conclusion that aboriginal interests were not generally extinguished prior to 1871.
The decision gives rise to no small measure of uncertainty around the future definition of the legal rights of both aboriginal and non- aboriginal persons. The practical and legal consequences of the continued existence of aboriginal rights went unstated. Where aboriginal rights and title come into conflict with the rights of the Province, or persons holding grants from the Province, it is not clear whose right will prevail.
This uncertainty, faced by both sides, may provide motivation to pursue negotiations toward treaties, as treaties represent a practical solution to the definition of rights which have real and tangible utility in a ‘modern’ society.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/50.html