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2007 BCSC 1700 Tsilhqot’in Nation v. British Columbia

by NationTalk on November 22, 20074666 Views

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:
Tsilhqot’in Nation v. British Columbia,
2007 BCSC 1700

Date: 20071120
Docket: 90-0913
Registry: Victoria

Between:
Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and on behalf of all other members of the Tsilhqot’in Nation
Plaintiff

And:

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
Defendants

Before: The Honourable Mr. Justice VickersReasons for Judgment

Counsel for the Plaintiff
J. Woodward, D. Rosenberg,P. Hutchings, P. Rosenberg,M. Browne, D. M. Robbins,G. S. Campo, H. Mahony,M. Couling, S. Nixon, M. Haddock, J. Nelson, G. Reed and D. Mildon

Counsel for British Columbia (Forestry)
P. G. Foy, Q.C., T. Leadem, Q.C.,G. J. Underwood, K. J. Tyler,K. E. Gillese, J. G. Penner,E. Christie, S. Lysyk and J. Z. Murray

Counsel for The Attorney General of Canada
G. Donegan, Q.C., B. McLaughlin,M. P. Doherty, J. Chow,C. Cameron, J. Blackhawkand I. Jackson

Date and Place of Trial/Hearing:
339 Days between November 18, 2002 and April 11, 2007
Victoria and Tl’ebayi, Xeni (Nemiah Valley), B.C.

EXECUTIVE SUMMARY
The Xeni Gwet’in First Nations Government is one of six Tsilhqot’in bands. This action is brought by Chief Roger William in his representative capacity as Xeni Gwet’in Chief on behalf of all Xeni Gwet’in and all Tsilhqot’in people.

The plaintiff seeks declarations of Tsilhqot’in Aboriginal title in a part of the Cariboo-Chilcotin region of British Columbia defined as Tachelach’ed (Brittany Triangle) and the Trapline Territory.

In addition, the plaintiff seeks declarations of Tsilhqot’in Aboriginal rights to hunt and trap in the Claim Area and a declaration of a Tsilhqot’in Aboriginal right to trade in animal skins and pelts.

The “Nemiah Trapline Action” was commenced in the Supreme Court of British Columbia on April 18, 1990. The plaintiff commenced the “Brittany Triangle Action” on December 18, 1998. Both actions were provoked by proposed forestry activities in Tachelach’ed and the Trapline Territory.

The trial commenced in Victoria on November 18, 2002. There were a total of 339 trial days. In the late fall and early winter of 2003, the Court sat for five weeks in the language resource room of the Naghataneqed Elementary School at Tl’ebayi in Xeni (Nemiah Valley). The balance of the trial took place in Victoria. 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 thefields of archeology, anthropology, history, cartography, hydrology, wildlife ecology, ethnoecology, ethnobotany, biology, linguistics, forestry and forest ecology.

The Tsilhqot’in people are a distinct Aboriginal group who have occupied the Claim Area for over 200 years.

The Court is not able, in the context of these proceedings, to make a declaration of Tsilhqot’in Aboriginal Title. The Court offers the opinion that Tsilhqot’in Aboriginal title does exist inside and outside the Claim Area. On the evidence in this case, title lands includes:
• The Tsilhqox (Chilko River) Corridor from its outlet at Tsilhqox Biny (Chilko Lake) including a corridor of at least 1 kilometre on both sides of the river and inclusive of the river up to Gwetsilh (Siwash Bridge);
• Xeni, inclusive of the entire north slope of Ts’il?os. This slope of Ts’il?os provides the southern boundary, while the eastern shore of Tsilhqox Biny marks the western boundary. Gweqez Dzelh and Xeni Dwelh combine to provide the northern boundary, while Tsiyi (Tsi ?Ezish Dzelh or Cardiff Mountain) marks the eastern boundary.
• North from Xeni into Tachelach’ed to a line drawn east to west from the points where Elkin Creek joins the Dasiqox (Taseko River) over to Nu Natase?ex on the Tsilhqox. Elkin Creek is that water course draining Nabi Tsi Biny (Elkin Lake), flowing northeast to the Dasiqox;
• On the west, from Xeni across Tsilhqox Biny to Ch’a Biny and then over to the point on Talhiqox Biny (Tatlayoko Lake) where the Western Trapline boundary touches the lake at the southeast shore, then following the boundary of the Western Trapline so as to include Gwedzin Biny (Cochin Lake);
• On the east from Xeni following the Dasiqox north to where it is joined by Elkin Creek; and
• With a northern boundary from Gwedzin Biny in a straight line to include the area north of Naghatalhchoz Biny (Big Eagle Lake or Chelquoit Lake) to Nu Natase?ex on the Tsilhqox where it joins the northern boundary of Tachelach’ed over to the Dasiqox at Elkin Creek.

Aboriginal title land is not “Crown land” as defined by provincial forestry legislation. The provincial Forest Act does not apply to Aboriginal title land. The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s. 91(24) of the Constitution Act, 1967.

The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title.

Tsilhqot’in people have an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial, and cultural uses. This right is inclusive of a right to capture and use horses for transportation and work.

Tsilhqot’in people have an Aboriginal right to trade in skins and pelts as a means of securing a moderate livelihood.
These rights have been continuous since pre-contact time which the Court determines was 1793.

Land use planning and forestry activities have unjustifiably infringed Tsilhqot’in Aboriginal title and Tsilhqot’in Aboriginal rights.

The plaintiff’s claim for damages is dismissed without prejudice to a renewal of such claims as they may pertain to Tsilhqot’in Aboriginal title land.

View complete court Judgement

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