The Tsilhqot’in and Xeni Gwet’in Court Case for Rights and Title

April 18, 1990, the “Nemiah Trapline Action”, was brought by the plaintiff Chief Roger William in his capacity as Xeni Gwet'in Chief, on behalf of all Xeni Gwet'in and all Tsilhqot'in people, in the Supreme Court of B.C. vs. Her Majesty the Queen in Right of the Province of British Columbia, the Regional Manager of the Cariboo Forest Region and the Attorney General of Canada.  The case was heard by Justice David Vickers.

December 18, 1998, the “Brittany Triangle (Tachelach’ed) Action” began.

Both actions were provoked by proposed forestry activities in Tachelach'ed and the trapline territory.

The area claimed is approximately 4,380 sq. km or 438,000 ha.

November 18, 2002, the trial commenced in Victoria, B.C. A total of 339 days of testimony were heard until the trial ended on April 7, 2007. During the fall and winter of 2003, the Court sat for 5 weeks at the Naghatanequed Elementary School in the Nemiah Valley.

In the course of this lengthy trial, the court heard oral history and oral tradition evidence and considered a vast number of historical documents. Evidence was tendered in the fields of archeology, anthropology, history, cartography, hydrology, wildlife ecology, ethnoecology, ethnobotany, biology, linguistics, forestry and forest ecology.

November 20, 2007, Justice Vickers ruled that the Tsilhqot'in people are a distinct Aboriginal group who have occupied the Claim Area for over 200 years.

The court dismissed the claim for a declaration of Aboriginal title to the claimed area, relating to the "all or nothing" way the claim was pleaded. It did, however, express its opinion that the Tsilhqot'in Nation had proven Aboriginal title to parts of its claimed traditional territory.

In summary, the Court found:
1. The Tsilhqot’in people have aboriginal rights, including the right to trade furs to obtain a moderate livelihood, throughout the Claim Area.

2. British Columbia's Forest Act does not apply within Aboriginal title lands.

3. British Columbia has infringed the Aboriginal rights and title of the Tsilhqot’in people, and has no justification for doing so.

4. Canada’s Parliament has unacceptably denied and avoided its constitutional responsibility to protect Aboriginal lands and Aboriginal rights, pursuant to s. 91(24) of the Constitution.

5. British Columbia has apparently been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871.

(The dark green in the map above shows the area where Justice Vickers said the Xeni Gwet'in had proven their title case - approx. 50% of the claim area - and the light green, their proven rights area.  Fish Lake, the area of Taseko Mine's proposed "New Prosperity" Mine is within the proven rights area.)

All parties to the litigation appealed this decision.

November 15-22, 2010, the appeal case was heard in the British Columbia Court of Appeal. We are still awaiting the outcome.

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DECISION REACHED IN HISTORICAL LAND CLAIM CASE (from Woodward and Co.)

Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700

Victoria, British Columbia, November 21, 2007 - After a courageous and epic struggle, a small Tsilhqot'in First Nation that took on the governments of Canada and British Columbia to protect their land and way of life has been victorious in Court. In a major precedent-setting decision, Justice David Vickers of the British Columbia Supreme Court ruled today that the Tsilhqot'in (Chilcotin) people have proven Aboriginal title to approximately 200,000 square hectares in and around the remote Nemiah Valley, south and west of Williams Lake, British Columbia. Although Justice Vickers declined to make a declaration of title based on technical issues, he found that the tests for evidence of title were met in almost half the area claimed.

The trial lasted 339 days during which 29 Tsilhqot’in witnesses gave evidence, many in their native language. 604 exhibits were entered with Exhibit 156 alone containing over 1,000 historical documents. The Judge received about 7,000 pages of written submissions from the lawyers on all sides.

"The court has given us greater control of our lands. From now on, nobody will come into our territory to log or mine or explore for oil and gas, without seeking our agreement," said the Plaintiff, Chief Roger William. "The court recognized that we have proven title in about half of the Claim Area - and from today we accept our renewed responsibility and powers of ownership of those lands."

Throughout much of Canada and the United States, the colonial governments made treaties with First Nations to purchase their lands. This did not happen in most of British Columbia. The government has continued to deny that B.C.'s indigenous people inherited the land that their grandparents owned.

The Xeni Gwet'in claimed roughly 440,000 hectares as their traditional territory in a lawsuit that started as a battle against large-scale commercial logging. It is expected Judge Vickers will find the band established exclusive and continuous occupation - the current legal test of title - to nearly half of that parcel of land.

That's far more than the Crown has been willing to put on the table in negotiations. Modern treaties in British Columbia have averaged about 5 per cent of the traditional territories claimed, although they also include cash compensation.

Both the federal and provincial governments opposed the band's broad claims but made unprecedented concessions. The Crown accepted the band's claims to aboriginal rights to hunt and fish in the valley, and conceded title in a very limited way.

"This is an absolutely critical decision and it may have significant ramifications for treaty negotiations," Shawn Atleo, B.C. Chief of the Assembly of First Nations, said in an interview yesterday."