Revisiting Aboriginal Title Part I: The BCCA and Sufficient Occupancy

This commentary is the first of several parts detailing the ongoing development of the doctrine of Aboriginal title in Canada. This first part is a condensed and informal version of a longer paper that treats these issues in much greater detail. The longer version, complete with citations, is available here.  

A previous TheCourt.ca comment by Andrew Cyr provides the factual background and a summary of the trial judgment, Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, along with an outline of the history of Aboriginal title jurisprudence. This commentary begins where Mr. Cyr left off, chiefly concerning itself with the Court of Appeal’s decision. 

The Supreme Court of Canada (“SCC”) will release its decision on the appeal from William v British Columbia, 2012 BCCA 285 [William], later this week. The resolution of this appeal will dramatically affect the shape and character of future Canadian Aboriginal title claims, for three reasons. The first is that in considering the appeal, the SCC will have to clarify a particular point of Aboriginal title doctrine, namely, the nature of occupation sufficient to satisfy a claim to title.

The British Columbia Court of Appeal (“BCCA”) in William endorsed a narrow, site-specific understanding of title, essentially establishing a new and rigorous test for sufficient occupancy, which it held was consistent with previous jurisprudence and the overall goals of Aboriginal title. The SCC is now tasked with determining whether the BCCA erred in its decision.

Secondly, in addition to establishing doctrinal certainty, the SCC will be in a position to set out the on-the-ground implications of a successful title claim; that is, they will be able to speak to the rights that recognized title-claimants will enjoy, and how those rights impact third party interests. The third reason is historical: William may become the very first case in which an Aboriginal title claim is successful.

The goal of this Part I is to provide a brief overview of the main issue on appeal to the SCC, as well as an analysis of the BCCA’s reasons. Ultimately, it will be argued that the BCCA erred in establishing a strict, “site-specific” test for sufficient occupancy. Aboriginal title is not, by its nature, site specific. Part II will offer an alternative manner of dealing with the question of sufficient occupancy, and show how this suggestion might be more consistent with the jurisprudence on the subject.

The Central Issue: Sufficient Occupancy

In Delgamuukw v British Columbia, [1997] 3 SCR 1010 [Delgamuukw], Lamer CJC set out the three requirements necessary for a successful Aboriginal title claim: (i) the land must have been occupied pre-sovereignty; (ii) there must be sufficient continuity between present and pre-sovereignty occupation; and (iii) the pre-sovereignty occupation must have been exclusive.

In William, the BCCA is presented with two divergent interpretations of the first requirement. That is, what kind of occupation will be sufficient to make out a title claim? This doctrinal uncertainty is recognized by Groberman J of the BCCA, who writes that Delgamuukw “does not fully address the quality of occupancy necessary to support a title claim.” The lack of explicit guidance as to what will suffice for physical occupation, and the resulting interpretive latitude, becomes the central issue in William.

Chief Roger William, the appellant, forwarded a more expanded, diffuse understanding of sufficient occupancy, akin to the standard found by the Trial Judge, Vickers J. On this view, “regular,” and not intense use is emphasized, such that title could be established but through exclusive, regular use of hunting and fishing grounds, in addition to the recognized title-grounding occupation associated with settlements and agricultural cultivation. The respondents argued for a “site-specific” model of occupancy, on which title could only be satisfied in areas clearly delineated and intensely used.

The BCCA endorsed the site-specific model, clarifying requirement (i) such that Aboriginal title claims grounded in resource-exploitation could only be found in strictly defined, intensely used areas, such as particular hunting grounds, “salt licks,” or “particular rocks or promontories used for netting salmon.” The BCCA also held that Chief Roger William’s position could be characterized as ‘territorial,’ and that such an understanding of occupancy departed from what was contemplated in Delgamuukw. Furthermore, it held that such ‘territorial’ claims were inconsistent with the overall rationale of Aboriginal title and the broader reconciliatory goals of Aboriginal rights writ large.

The Court of Appeal’s Arguments for the Site-Specific Model

The BCCA offers three distinct arguments for endorsing the ‘site-specific’ model of sufficient occupancy. For brevity’s sake, the first argument from jurisprudential consistency cannot be rehearsed here. The full argument, the passages referenced, and accompanying critical remarks are available here, at pages 5-19. Suffice it to say that the BCCA argues that previous jurisprudence contemplates the site-specific model and not a regular-use understanding of occupancy. As argued at the link above, it is far from clear that the SCC’s decisions in Delgamuukw and R v Marshall; R v Bernard, [2005] 2 SCR 220 [Marshall; Bernard] establish such a conclusion.

The second argument is purposive: Groberman J argues that a “territorial” claim does not fit with the purposes behind section 35 of the Constitution Act, 1982, or the rationale for common law’s recognition of title (William, para 219). The BCCA then sets out what it takes to be the purpose of section 35: that Aboriginal rights writ large, including Aboriginal title, have as their end or purpose the protection of Aboriginal people’s cultural security an continuity (para 236). Further, the BCCA sees rationale for the recognition of title is that in certain instances, continued connection with the land itself is central to the culture’s security and identity (para 171). Title is one particular tool with which to protect a group’s cultural identity.

We can agree with the BCCA’s outlining of the purpose of section 35 generally and title in particular. However, Groberman J does not go on to offer an argument for the proposition that a site-specific model, rather than a regular use, more diffuse understanding of occupancy can better protect cultural identity. Indeed, without further argument, it seems that a narrower, highly specific model of occupancy may hinder, rather than promote cultural security. That is, to borrow from the trial judge, it is unlikely that protecting only “postage stamp” areas such as particular rocks or salt licks will further this goal.

Furthermore, previous cases, including Delgamuukw, seem to endorse the appellant’s position of a non-site specific model. In a concurring opinion, La Forest J writes that “aboriginal occupancy refers not only to the presence of aboriginal peoples in villages or permanently settled areas. Rather, the use of adjacent lands and even remote territories to pursue a traditional mode of life is also related to the notion of occupancy” (Delgamuukw, para 199). Here, La Forest indexes occupancy to whether or not the land was used to “pursue a traditional mode of life,” that is, one of a certain cultural heritage that must be protected by section 35.

Without more, we cannot say that the BCCA has provided a persuasive purposive argument for the site-specific model of title. As Groberman J himself recognized, the telos of title is to protect exclusive occupation where that occupation is critical to the cultural identity of Aboriginal peoples (William, para 171). Answering the question of occupation should be aimed at centrality to culture, not a narrow characterization of intense use.

The final argument offered by the BCCA is that the “territorial,” non site-specific model offered by the appellants is not consistent with the broader reconciliatory goals of title. The reconciliatory role of title is that it must bring together historical aboriginal rights and modern rights held under Canadian law writ large. There are two independent sets of interest at play, and both interests must be reconciled such that Aboriginal and non-Aboriginal claims are equally respected and minimally impaired. Groberman J holds that only a site-specific model of sufficient occupancy will not achieve this goal. His reasons, when reconstructed, run as follows:

1. In the context of Aboriginal rights, reconciliation is a process of   coming to a practical compromise respecting and minimally impairing the Aboriginal and non-Aboriginal interests engaged.
2. A territorial or non site-specific understanding of sufficient occupancy would increase the number of defensible Aboriginal title claims, and thus unnecessarily damage non-aboriginal interests
3. From (1) and (2), if follows that our test for sufficient occupancy should be site-specific

Careful readers will note that (3) does not follow from (1) and (2) without some additional premise about how an increase in title claims actually damages third party interests. What is required is a tacit premise that the recognition of title entailing full enforcement of that title. That is, (3) follows from (1) and (2) if, in every instance where title is made out, it is wholly enforceable against all other interests. This would be no reconciliation indeed. However, we do not have to accept this unstated premise, and thus, we do not have to accept (3).

In The Metamorphosis of Aboriginal Title, Professor Brian Slattery argues for the separation of questions regarding title’s recognition and title’s reconciliation. That is, a question of whether a group has historical title to a land is governed by one set of principles, namely “The Principles of Recognition,” while a question of how established historical title will be practically enforced is governed by another set of concerns, “The Principles of Reconciliation.” The former principles function to signal a court’s acknowledgement of the legitimacy of an Aboriginal group’s title claim. The latter take the former as their starting point, but then consider the indigenous group’s current interests, the rights of third parties and wider societal concerns, leaving it to the parties to negotiate a compromise that respects all interests involved, as far as possible.

Failing to recognize the distinction between recognition and reconciliation of title claims, the BCCA recoils from the thought of automatic enforcement of a recognized title claim, and therefore more strictly interprets sufficient occupancy in (3). Professor Slattery predicts this kind of finding when he cautions that a failure to distinguish bewteen the two sets of principles will lead to an “artificially restrictive” interpretation of historical title.

We can now say that the concern over a non site-specific understanding of occupation not meeting the reconciliatory goals of title is misplaced. With that, each of the arguments for the site-specific model have been shown to be unpersuasive.

Asking the Wrong Question

The foregoing has shown that the site-specific model is not expressly contemplated by previous jurisprudence, nor the view that squares with the broad goals of section 35 or its reconciliatory imperative. So what should be the standard for sufficient occupancy? It seems intuitive to suggest the opposite view, that of the appellant in William: that a territorial model, one that requires only regular use, will be sufficient.

The truth of the matter is, that none of the arguments above have shows that the appellant’s model is correct. Rather, we have established that the jurisprudence does not preclude the success of a title claim that is not site-specific. That is, among the set of possible title-grounding claims, there are at least some that will be non site-specific.

What this goes to show is that to ask what “category” of claim will be sufficient may be to ask the wrong question. Terminological side-taking is not helpful to the parties or the court. The central question, that which has to inform our understanding of what will satisfy a claim to title, has to do with the purpose of title – the protection of cultural identity and security. This issue will be taken up in Part II.