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The rocky road to reconciliation : exploring the effects of Aboriginal title jurisprudence on the relationship… Horrocks-Denis, Émilie 2013

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THE ROCKY ROAD TO RECONCILIATION: EXPLORING THE EFFECTS OF ABORIGINAL TITLE JURISPRUDENCE ON THE RELATIONSHIP BETWEEN FIRST NATIONS  AND THE CROWN IN CANADA  by  ?MILIE HORROCKS-DENIS B.A., McGill University, 2011  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF  THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Political Science)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  August 2013  ? ?milie Horrocks-Denis, 2013   ii Abstract  The purpose of this paper is to explore the effects of Aboriginal title jurisprudence on the relationship between First Nations and the Crown in Canada, paying particular attention to the Tsilhqot?in case involving the Tsilhqot?in Nation?s Aboriginal title claim for lands in British Columbia.  Findings show that the 2007 British Columbia Supreme Court?s trial judgement in Tsilhqot?in Nation v. British Columbia attempted to improve relations between the Tsilhqot?in and the Crown by placing equal weight on oral history and oral tradition evidence, adopting a broad and flexible standard of occupation, affirming the inapplicability of the Forest Act to Aboriginal title lands, and expressing an opinion on Tsilhqot?in Aboriginal title to facilitate the subsequent process of negotiations.  Nonetheless, the trial judgement failed to provide the Tsilhqot?in people with a declaration of Aboriginal title, due to a defect in their pleadings.  By contrast, while the 2012 British Columbia Court of Appeal?s decision in William v. British Columbia correctly allowed the Tsilhqot?in appeal on the issue of pleadings, it largely contributed to subverting relations between the Tsilhqot?in Nation and the Crown by interfering with the factual findings of the trial judge, creating a false dichotomy between site-specific and territorial claims, endorsing a narrow and stringent standard of occupation, articulating a preference for Aboriginal rights over Aboriginal title, and putting forward a hollow conception of reconciliation, which fails to place equal weight on the Aboriginal and non-Aboriginal perspectives.  The Tsilhqot?in case confirms the broader pattern of Canadian Aboriginal title jurisprudence, whereby courts consistently dismiss Aboriginal title claims, either on procedural grounds to avoid dealing with their merits, or on substantive grounds to safeguard the interests of the Canadian state and society.   iii Preface  This thesis is original, unpublished, independent work by the author, ?. Horrocks-Denis.    iv  Table of Contents  Abstract ..................................................................................................................................... ii Preface...................................................................................................................................... iii Table of Contents ..................................................................................................................... iv Acknowledgements.................................................................................................................. vi Dedication ............................................................................................................................... vii 1 Introduction..........................................................................................................................1 2 Overview of the Common Law of Aboriginal Title ............................................................7 2.1 St. Catherine?s Milling: Aboriginal Title as a ?Personal and Usufructuary Right? ..................................................................................................................7 2.2 Province of Ontario: Aboriginal Title as a ?Mere Burden? .................................9 2.3 Calder: Aboriginal Title as an Inherent Legal Right..........................................11 2.4 Guerin: Sui Generis Interest and Fiduciary Duty...............................................13 2.5 Adams and C?t?: Interaction between Aboriginal Rights and Title ...................14 2.6 Delgamuukw: Theoretical Framework for Aboriginal Title...............................16 2.6.1 Procedural and Evidentiary Issues .......................................................16 2.6.2 Nature and Content of Aboriginal Title ...............................................18 2.6.3 Proof of Aboriginal Title .....................................................................19 2.6.4 Justification of Aboriginal Title Infringements ...................................20 2.6.5 Limits on the Nature and Scope of Aboriginal Title ...........................22       v  2.7 Marshall and Bernard: Divergent Standards of Occupation..............................25 2.7.1 Majority Decision: Rigid and Narrow Standard of Occupation ..........25 2.7.2 Minority Decision: Broad and Flexible Standard of Occupation ........27 2.8 Summary of the Overview of the Common Law of Aboriginal Title ................28 3 Competing Conceptions of Aboriginal Title and Reconciliation in the Tsilhqot?in Case .29 3.1 Tsilhqot?in Nation v. British Columbia: Trial Court Decision ...........................30 3.1.1 Preliminary Issue: ?All or Nothing? Aboriginal Title Claim...............31 3.1.2 Treatment of Oral History and Oral Tradition Evidence .....................32 3.1.3 Proof of Aboriginal Title: Occupation, Continuity and Exclusivity....33 3.1.4 Division of Powers and the Doctrine of Interjurisdictional Immunity 36 3.1.5 Justification of Aboriginal Title Infringements ...................................37 3.1.6 Reconciliation as a Balancing Game ...................................................39 3.1.7 Justice Vickers? Na?ve Vision of Reconciliation .................................40 3.2 William v. British Columbia: Court of Appeal Decision....................................48 3.2.1 Preliminary Issue: ?All or Nothing? Aboriginal Title Claim...............49 3.2.2 Site-Specific v. Territorial Aboriginal Title Claims ............................50 3.2.3 Intensity and Regularity of Use ...........................................................52 3.2.4 Cultural Security and Reconciliation ...................................................53 3.2.5 Justice Groberman?s Hollow Conception of Reconciliation ...............55 4 Future of Aboriginal Title and Reconciliation in Canada..................................................64 5 Conclusion .........................................................................................................................70 Bibliography ............................................................................................................................73   vi Acknowledgements   I am grateful for the stimulating academic environment created by the faculty, staff, and my fellow students at the University of British Columbia.  I would like to sincerely thank my supervisor, Dr. Gerald Baier, whose guidance, patience, and support helped me survive stressful semesters and improve the quality of my thesis, and who made an effort to provide me with several opportunities to diversify and enrich my experiences as a graduate student, teaching assistant, and research assistant during the past academic year.  Thank you to Dr. Douglas Harris for agreeing to take the time from his busy schedule as Associate Dean of Graduate Studies at the Faculty of Law to act as my second reader and examiner.  Special thanks to my Law professor, David Rosenberg, for helping me navigate the deep and murky waters of Canadian Aboriginal title jurisprudence, and for sparking my interest in the Tsilhqot?in case.  Thank you to Dr. Christopher Manfredi, who trained me well for the intellectual demands of graduate school by supervising my undergraduate thesis and philosophizing with me on the sources and effects of the Supreme Court of Canada?s power of rights review in the Charter era.  Thanks to my former teaching assistants Erin Crandall and Emmanuelle Richez for encouraging me to apply to Master?s programs specializing in Canadian constitutional politics, and inspiring me to become an organized teaching assistant myself.  I am also very grateful to my former professors ?ric B?langer, James Kelly, and Mark Brawley, former employer Annie Tranchemontagne, and mentor Roger MacLean for contributing to furthering my academic career and widening my horizons by generously agreeing to write several letters of recommendation on my behalf over the past few years.  Last but not least, thank you to my family and close friends for their constant love and support throughout my postsecondary studies, and adventures at home and abroad.   vii Dedication  To my loving family   1 1 Introduction  Aboriginal title jurisprudence is the most controversial and indeterminate body of law in Canada.1  Following the entrenchment of Aboriginal and treaty rights in section 35(1) of the Constitution Act, 19822, judges were left with the difficult task of defining the nature and scope of Aboriginal title, and clarifying its connection to Aboriginal rights.3  In the landmark decision of Delgamuukw v. British Columbia, released in 1997, the Supreme Court of Canada adopted a relatively broad and generous definition of Aboriginal land rights, holding that Aboriginal title constitutes ?the right to the exclusive use and occupation of the land,? which includes ?the right to choose to what uses land can be put,? and has an ?inescapable economic component.?4  The Court also set out extensive tests for the proof, infringement, justification, and extinguishment of Aboriginal title, but did not apply these standards in Delgamuukw, instead sending the case back to trial because of procedural issues and flaws in the evidentiary record.5  Since the development of a theoretical framework for the recognition of Aboriginal title in Delgamuukw, several land claims have reached the level of the Supreme Court of Canada, but none has succeeded.6  Consequently, considerable uncertainty remains about the                                                  1  K. McNeil, ?Aboriginal Title and Aboriginal Rights: What?s the Connection?? (1997) 36:1 Alta Law Rev 117 at 117-118. 2  The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Constitution Act, 1982]. Section 35(1) reads: ?[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.? 3  J. Borrows, ?Domesticating Doctrines: Aboriginal Peoples after the Royal Commission? (2001) 46 McGill LJ 615 at 645; K. McNeil, ?Aboriginal Title and the Supreme Court: What?s Happening?? (2006) 69 Sask L Rev 281 at 305; B. Slattery, ?The Metamorphosis of Aboriginal Title? (2006) 85 Can Bar Rev 255 at 255-256. 4  Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 166 [hereinafter Delgamuukw].  5  Ibid. at paras. 76-77, 107-108, 170-171, 184-186; K. McNeil, ?Aboriginal Rights in Transition: Reassessing Aboriginal Title and Governance? (2001) 31:1/2 Am Rev Can Stud 317 at 319-320.  6  See Justice Groberman?s introduction to Aboriginal title in William v. British Columbia, 2012 BCCA 285 (CanLII), <http://canlii.ca/t/frt8m> (retrieved on July 30, 2013) [hereinafter William v. British Columbia], at paras. 159-160.   2 precise nature and extent of Aboriginal title rights.7  This uncertainty is frustrating for Aboriginal title litigants and for those who perceive the potential of courts to act as agents of societal change in the broader process of reconciliation.  The Supreme Court?s reluctance to accept Aboriginal title claims likely results from the vast areas of land involved in such cases, and its apprehensions regarding the potential consequences of recognizing Aboriginal title lands on the interests of third parties and the regulatory powers of the federal and provincial governments.8  However, the Court?s hesitance to apply its own theory of Aboriginal title to recognize concrete geographical areas hinders the resolution of outstanding land claims, and compromises the potential reconciliation between Aboriginal and non-Aboriginal peoples in Canada.  The purpose of this paper is to review the evolution of Aboriginal title jurisprudence and explore its effects on the relationship between First Nations9 and the Crown in Canada.10  Accordingly, the trial and appellate court decisions in the Tsilhqot?in case, which involves the Aboriginal rights and title claims of the Tsilhqot?in Nation to two portions of its traditional territory in the west central interior of British Columbia, will be studied to assess                                                  7  G. Christie, ?Judicial Justification of Recent Developments in Aboriginal Law? (2002) 17:2 CJLS 41 at 51-52; B. Donovan, ?The Evolution and Present Status of Common Law Aboriginal Title in Canada: The Law?s Crooked Path and the Hollow Promise of Delgamuukw? (2001) 35:1 UBC L Rev 43 at 44-45; McNeil, supra. note 1 at 117-118.  8  William, supra note 6 at paras. 158-161.  See also Christie, ?Judicial Justification?, supra note 7 at 62-64; K. Wilkins, ?Take Your Time and Do it Right: Delgamuukw, Self-Government Rights and The Pragmatics of Advocacy? (2000) 27:2 Man LJ 241 at 246-249; D. G. Newman, ?Tsilhqot?in Nation v. British Columbia and Civil Justice: Analyzing the Procedural Interaction of Evidentiary Principles and Aboriginal Oral History? (2006) 43 Alta L Rev 433 at 444-445.   9  The terms ?Indigenous peoples,? ?Aboriginal peoples,? ?native peoples,? and ?First Nations? are employed interchangeably in this paper to refer to the native population of North America, organized in distinct and self-governing societies, prior to the arrival of European settlers.   10  This paper is based on the assumption that it is appropriate to articulate and interpret the constitutional rights of Aboriginal peoples in Canada in a language and institutional context that is non-Aboriginal.  While many Aboriginal peoples may reject this analytical approach because they regard the Canadian legal and political structure as illegitimate and oppressive, I believe that it is possible to interpret the Aboriginal rights entrenched in section 35(1) of the Constitutional Act, 1982 in a manner that recognizes, protects and promotes the self-determination and social, cultural and economic development of First Nations in Canada.  See W. F. Pentney, ?The Rights of the Aboriginal Peoples of Canada and the Constitution Act, 1982. Part I: The Interpretive Prism of Section 25? (1988) 22:1 UBC L Rev 21 at 22.    3 the impact of the Supreme Court of Canada?s jurisprudential framework for Aboriginal title on Crown-First Nation relations.   On 24 January 2013, the Supreme Court agreed to hear the appeal in Roger William et al. v. British Columbia et al.,11 in November 2013, granting costs to the Tsilhqot?in Nation for both the application for leave to appeal and the appeal, regardless of the ultimate disposition of the case.  Legal experts across the country, including Kent McNeil, Gordon Christie, and S?bastien Grammond, consider Roger William as the most important Aboriginal title case since Delgamuukw, as its outcome will have serious implications for the modern-day treaty process in British Columbia, as well as for the resolution of unsettled land claims in the rest of Canada.12   Given the significant economic and jurisdictional aspects of Aboriginal title, this paper posits that, by accepting Aboriginal title claims, courts would help to improve relations between Aboriginal peoples and the Crown.  That is, by recognizing the right of Aboriginal peoples to the ownership and management of natural resources on and under portions of their traditional territories, declarations of Aboriginal title would ensure their cultural survival and economic development in the twenty-first century.  Conversely, courts would contribute to hindering reconciliation between First Nations and the Crown by dismissing Aboriginal title                                                  11  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 v. Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region et al., online: Judgements of the Supreme Court of Canada, Applications for Leave, File No. 34986 (January 24, 2013) <http://scc.lexum.org/> (retrieved on July 30, 2013) [hereinafter William et al. v. British Columbia et al]. 12  Canadian Press, ?B.C. First Nation?s land claim headed for Supreme Court? online: Globe and Mail (January 24, 2013) <http://www.theglobeandmail.com/news/british-columbia/bc-first-nations-land-claim-headed-for-supreme-court/article7779212/> (retrieved on July 30, 2013); P. O?Neil, ?Supreme Court of Canada agrees to hear B.C. natives land claims case? online: Vancouver Sun (January 24, 2013) <http://www.vancouversun.com/news/Supreme+Court+Canada+agrees+hear+native+land+claims+case/7866869/story.html> (retrieved on July 30, 2013); K. McNeil, ?Reconciliation and Third-Party Interests: Tsilhqot?in Nation v. British Columbia? (2010) 8:1 Indigenous LJ 7 at 8.   4 claims, thereby depriving the former of the possibility of exercising a limited form of self-government and maintaining a moderate livelihood in the modern era.  This essay is structured in three main sections.  First, I survey the common law of Aboriginal title13 from the late nineteenth century to the present, focusing on the following cases: St. Catherine?s Milling and Lumber Company v. The Queen;14 Province of Ontario v. Dominion of Canada;15 Calder et al. v. British Columbia;16 Guerin v. The Queen;17 R. v. Adams;18 R. v. C?t?;19 Delgamuukw v. British Columbia;20 and R. v. Marshall; R. v. Bernard.21  I devote particular attention to changes in the definition of the nature and content of Aboriginal title, the fiduciary relationship between First Nations and the Crown, the interaction between Aboriginal title and Aboriginal rights, as well as the tests for the proof of Aboriginal title and justification of Aboriginal title infringements.  Second, I examine the application of the theoretical framework for the recognition of Aboriginal title in the British Columbia Supreme Court?s trial decision in Tsilhqot?in Nation v. British Columbia,22 delivered by Justice Vickers in 2007, and the British Columbia Court of Appeal?s reasons and conclusions in William v. British Columbia,23 pronounced by Justice Groberman in June                                                  13  The statutory law of Aboriginal title is not discussed in this paper due to time and space considerations.  The Supreme Court of Canada?s recent Aboriginal title rulings in Wewaykum Indian Band, Haida Nation, Taku River, and Manitoba Metis, which deal with the honour and fiduciary duty of the Crown vis-?-vis First Nations, are excluded from the scope of this analysis for the same reasons.  See Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14. 14  St. Catherine's Milling and Lumber Co. v. The. Queen (1888), 14 App. Cas. 46 [hereinafter St. Catherine?s Milling]. 15  Province of Ontario v. Dominion of Canada, [1909] S.C.R. 1 [hereinafter Province of Ontario]. 16  Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313 [hereinafter Calder]. 17  Guerin v. The Queen, [1984] 2 S.C.R. 335 [hereinafter Guerin].  18  R. v. Adams, [1996] 3. S.C.R. 101 [hereinafter Adams]. 19  R. v. C?t?, [1996] 3 S.C.R. 139 [hereinafter C?t?]. 20  Delgamuukw, supra note 4.  21  R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 [hereinafter Marshall and Bernard].  22  Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 [hereinafter Tsilhqot?in Nation].  23  William, supra note 6.    5 2012.  Finally, I turn to the consequences of the trial and appellate decisions in the Tsilhqot?in case for the future of Aboriginal title and reconciliation between First Nations and the Crown in Canada.  Findings show that the British Columbia Supreme Court?s trial judgement in Tsilhqot?in Nation v. British Columbia sincerely sought to harmonize relations between the Tsilhqot?in people and the Crown by prioritizing the Aboriginal perspective in the assessment of oral history and oral tradition evidence, adopting a broad and flexible standard of occupation, affirming the unconstitutionality of attempts by British Columbia to manage forestry resources on Tsilhqot?in title lands through the application of the Forest Act24, and expressing an opinion on Tsilhqot?in Aboriginal title to facilitate the subsequent process of negotiations.  Yet, the trial judge ultimately failed to reach an ?honourable settlement? between the Tsilhqot?in and the Crown, by refusing to grant the Aboriginal community a declaration of title, due to a defect in their pleadings.25  The rationale behind this dismissal was the trial judge?s principled but perhaps na?ve belief that the resolution of Aboriginal title claims would be better served by negotiation than litigation.26  Consequently, the trial ruling in Tsilhqot?in Nation has negative ramifications for the future of Aboriginal title rights, suggesting that courts could decline to make declarations of Aboriginal title if they perceive the adversarial structure of the Canadian judicial system and legal strictures as precluding the ultimate goal of reconciliation between Aboriginal and non-Aboriginal peoples in Canada.27                                                  24  Forest Act, R.S.B.C. 1996, c. 157 [hereinafter Forest Act].  25  McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 7-25; Tsilhqot?in Nation (B.C.S.C.), supra note 22 at para. 1382.  26  D. Lambert, ?The Tsilhqot?in Case? (2012) 70:6 Advocate 819; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 7-14.  27  McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at13-14; G. R. Shiveley, ?Negotiation and Native Title: Why Common Law Courts are Not Proper Fora for Determining Native Land Title Issues? (2000) 33 Vand J Transnat'l L 427 at 456-462; R. Yurkowski, ??We are All Here to Stay?: Addressing Aboriginal Title Claims After Delgamuukw v. British Columbia? (2000) 31 VUWLR 471 at 472, 493.    6 By contrast, even though Justice Groberman allowed the Tsilhqot?in appeal on the issue of pleadings, the British Columbia Court of Appeal?s appellate decision in William v. British Columbia contributed to subverting relations between the Tsilhqot?in people and the Crown, by interfering with the factual findings of the trial judge, creating a false dichotomy between site-specific and territorial Aboriginal title claims, adopting a narrow and rigid standard of occupation, manifesting a preference for Aboriginal rights over Aboriginal title, and endorsing a hollow conception of reconciliation, which fails to place equal weight on the Aboriginal and non-Aboriginal perspectives.28  The Court of Appeal?s decision in William bodes ill for the future of Aboriginal title in Canada because it employs the language of site-specificity, intensity of use, and cultural security as a rhetorical mechanism to reduce if not outright remove the economic and jurisdictional elements of Aboriginal title.   The trial and appellate decisions in the Tsilhqot?in case confirm the pattern of Canadian Aboriginal title jurisprudence, whereby courts consistently dismiss Aboriginal title claims, either on procedural grounds to avoid dealing with their merits, or on substantive grounds to safeguard the interests of the Canadian state and society.  This tendency reflects the strategic decision-making of courts seeking to safeguard their institutional legitimacy vis-?-vis other political institutions and the public, by delegating the resolution of Aboriginal land claims to the democratic process.  Nonetheless, in light of the historical context and structural imbalance of power between First Nations and the federal and provincial governments, Canadian judges must fulfil their role in the broader process of reconciliation by recognizing and affirming the existence of Aboriginal title rights in Canada.                                                  28  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 820; L. Mandell, ?Aboriginal Title Over the Buffalo Jump: Decision of the British Court of Appeal in the Tsilhqot?in Case? online: (2012) [Mandell Pinder Barristers and Solicitors] 1 at 1-12.   7 2 Overview of the Common Law of Aboriginal Title  This section surveys the evolution of the common law of Aboriginal title in Canada?s high courts.  The historical review reveals that a narrow, rigid conception of Aboriginal title, as a political ?personal and usufructuary right,? contingent upon the good will of the Crown, prevailed during the first eighty-five years following Confederation.29  By contrast, a broad, flexible conception of Aboriginal title, as a sui generis legal right inherent in the prior occupation of First Nations, has emerged in the last four decades of Aboriginal rights jurisprudence.  Nonetheless, remnants of imperialism and paternalism persist in contemporary Aboriginal law, as implicit in the Supreme Court of Canada?s refusal to call into question the sovereignty and underlying title of the Crown to all lands in Canada, its unilateral imposition of an inherent limit on the scope of Aboriginal title, and its creation of a relaxed test for the justification of Aboriginal title infringements, inter alia.30 2.1 St. Catherine?s Milling: Aboriginal Title as a ?Personal and Usufructuary Right?  The existence of Aboriginal title in Canada was first recognized by the Judicial Committee of the Privy Council in the decision of St. Catherine?s Milling and Lumber Company v. The Queen, handed down in the late 1880s.31  Aboriginal litigants did not directly participate in this case, which sought to determine whether lands located within the boundaries of Ontario belonged to the provincial or federal government, in light of the 1873 cession treaty between the Dominion of Canada and the Salteaux tribe of Ojibeway Indians.32                                                   29  St. Catherine?s Milling, supra note 14 at 54.  30  See e.g. J.  Borrows, ?Sovereignty?s Alchemy: An Analysis of Delgamuukw v. British Columbia? (1999) 37 Osgoode Hall LJ 537 at 548; P. Macklem, ?What?s Law Got to Do with It? The Protection of Aboriginal Title in Canada? (1997) 35:1 Osgoode Hall LJ 125 at 132-137.  31  The Judicial Committee of the Privy Council acted as Canada?s highest tribunal in criminal cases from 1867 to 1888, and civil law cases from 1867 to 1949, when the Supreme Court of Canada became the country?s final court of appeal.  32  St. Catherine?s Milling, supra note 14 at 47; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 282-284.   8 Lord Watson, writing for the majority, ruled that although the federal government has exclusive power over ?Indians, and [l]ands reserved for the Indians,? pursuant to section 91(24) of the Constitution Act, 186733, it does not have the right to interfere with Ontario?s beneficial interest in the lands within its provincial boundaries.34  However, the most interesting aspect of this judgement is Lord Watson?s discussion of the nature of First Nations? interest in the lands following their surrender.  Specifically, Lord Watson characterized ?Indian title? as ?a personal and usufructuary right, dependent upon the good will of the Sovereign.?35  The term ?usufructuary? suggests that Aboriginal peoples have the right to engage in hunting, gathering, trapping and other traditional activities on Crown lands, short of waste or destruction.  In contrast, the qualifier ?personal? signifies that Aboriginal title is inalienable except to the Crown.36  Underlying the inalienability of Aboriginal title is the paternalistic idea that Aboriginal peoples require protection from corrupt European colonizers to preserve their homelands; this rationale is explicit in the text of the Royal Proclamation, 176337.   Furthermore, Lord Watson held that the ?Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden.?38  The use of the phrase ?mere burden? betrays the imperialism of the Lordships sitting on the Privy                                                  33  Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 91(24) [hereinafter Constitution Act, 1867].  34  St. Catherine?s Milling, supra note 14 at 59-60. 35  Ibid. at 54.  36  O. W. MacLaren, M. Barry, and K. Sangster, ?Tsilhqot?in Nation v. British Columbia? (2011) 43 Survey Review 123 at 124-125.  37  Royal Proclamation, 1763, R.S.C. 1985, App. II, No. 1 [hereinafter Royal Proclamation, 1763]. The Royal Proclamation, 1763 in part provides: ?[a]nd whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the future, [?], We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement [?].? See also K. McNeil, ?Self-Government and the Inalienability of Aboriginal Title? (2002) 47 McGill LJ 473 at 477-481, 509-510.  38  St. Catherine?s, supra note 14 at 58.    9 Council bench, who believed that the land rights of Aboriginal nations are attributed to the bounty of the Sovereign rather than to their occupation of North American territory prior to European settlement.  The Privy Council thus endorsed a contingent conception of Aboriginal title, which denies the existence of Aboriginal legal rights to land use and possession, except if these rights have been expressly acknowledged by a Crown act.39    Given that Lord Watson?s comments on the nature of Aboriginal title were made in obiter dicta?that is, were incidental to the point of law being decided?they were not supposed to be binding on lower courts.  Yet, for eighty-five years following the Privy Council?s decision in St. Catherine?s Milling, Canadian courts continuously conceptualized Aboriginal title as a ?personal and usufructuary right, dependent upon the good will of the Sovereign,? treating the Lordships? dicta as an authoritative judgement on the nature of Aboriginal title in Canada.40 2.2 Province of Ontario: Aboriginal Title as a ?Mere Burden? The Supreme Court of Canada confirmed the Privy Council?s conception of Aboriginal title in its decision in Province of Ontario v. Dominion of Canada, delivered in 1909.41  At issue was whether Ontario had a legal obligation to reimburse the federal government for the cost of executing the 1873 North-West Angle Treaty No. 3 with the Salteaux tribe of Ojibeway Indians, which removed the Aboriginal title from the lands passed on to the province at Confederation.42  The federal government argued that the Privy Council had not determined the state of the law on the substance and scope of Aboriginal title in St. Catherine?s Milling, and that Aboriginal title represented more than a ?personal and                                                  39  B. Slattery, ?The Organic Constitution: Aboriginal Peoples and the Evolution of Canada? (1996) 34:1 Osgoode Hall LJ 101 at 103-108. 40  Donovan, ?The Law?s Crooked Path?, supra note 7 at 50-52.  41  Ibid. at 52-55, 88-89. 42  Province of Ontario, supra note 15 at 1-2.    10 usufructuary right? contingent on the bounty of the Sovereign.  Rather, Aboriginal peoples? interest in the lands, prior to their sale, cession, or extinguishment, was a right of ?occupation and possession,? analogous to title in equitable fee simple.43    The Court was not responsive to the federal government?s position, deciding instead that the province was not liable for the expenses incurred in carrying out Treaty No. 3, because ?the treaty was not made for the benefit of Ontario, but in pursuance of the general policy of the Dominion in dealing with Indians? as well as the ?maintenance of peace, order and good government? in Canada.44  Justice Idington, writing for the majority, reaffirmed Lord Watson?s description of ?Indian title? as ?a personal and usufructuary right, dependent upon the good will of the Sovereign,? and that such title had been extinguished in the province of Ontario through the application of Treaty No. 3.45  Justice Duff also rejected Aboriginal peoples? interest in reserve lands, as a ?usufruct? and ?mere burden? on Crown title, employing the paternalistic language of Lord Watson.46  Justice Davies dissented on the question of Ontario?s liability for the financial costs of implementing the treaty, but he believed that the ?court should feel itself bound by the clear and definite pronouncement? made by the Privy Council on the nature of native title in the case of St. Catherine?s Milling.  Justice Davies was not ready to concede that ?such pronouncement was nothing more than a mere dictum of Lord Watson?s which we should ignore as not correctly expressing the law on the subject.?47  The Supreme Court of Canada thus elevated the Lordships? opinion on the nature of Aboriginal land rights in Canada to the status of a legally binding doctrine.48                                                    43  Ibid. at 36-38; Donovan, ?The Law?s Crooked Path?, supra note 7 at 52-55. 44  Province of Ontario, supra note 15 at 2; Donovan, ?The Law?s Crooked Path?, supra note 7 at 53. 45  Province of Ontario, supra note 15 at 107, 112.  46  Ibid. at 36-38; Donovan, ?The Law?s Crooked Path?, supra note 7 at 54. 47  Province of Ontario, supra note 15 at 94-95. 48  Donovan, ?The Law?s Crooked Path?, supra note 7 at 50-55, 88-89.    11 The Supreme Court?s decision to endorse the Privy Council?s definition of Aboriginal title as a ?personal usufruct,? in Province of Ontario v. Dominion of Canada, subsequently informed not only lower court decisions but also the federal government?s approach to Aboriginal land claims.  Ottawa had acknowledged the existence of Aboriginal land rights prior to their cession or surrender and regarded these rights as tantamount to equitable fee simple in the early twentieth century, but by the late 1960s its official position was that Aboriginal title rights did not exist in Canada.49  The case of Province of Ontario reveals the impact of the Supreme Court of Canada?s judgements on the recognition of Aboriginal title in the political sphere; as we will see below, this judicial power can be employed to either strengthen or hamper the recognition and protection of Aboriginal peoples? land rights.   2.3 Calder: Aboriginal Title as an Inherent Legal Right  The Judicial Committee of the Privy Council?s narrow, imperialist view of Aboriginal title as a ?personal and usufructuary right,? contingent upon the good will of the Crown, influenced Canada?s high courts for almost a century.  However, the Supreme Court of Canada?s 1973 decision in Calder et al. v. Attorney-General of British heralded a positive shift in Aboriginal rights jurisprudence.50  This case involved the claim of the Nisga?a Indian Tribe for a declaration ?that the Aboriginal title, otherwise known as the Indian title, of the [Nisga?a], [?] has never been lawfully extinguished.?51  Six justices recognized that Aboriginal title existed.  However, they split three to three about whether a series of colonial                                                  49  Ibid. at 55-56; D. Sanders, ?The Supreme Court of Canada and the ?Legal and Political Struggle? over Indigenous Rights? (1990) 22:3 Can Ethn Stud 122 at 122; see also Canada, Statement of the Government of Canada on Indian Policy (White Paper), presented to the First Session of the Twenty-Eighth Parliament by the Hon. Jean Chr?tien (Ottawa: Department of Indian Affairs and Northern Development, 1969).   50  Borrows, ?Domesticating Doctrines?, supra note 3 at 645; Donovan, ?The Law?s Crooked Path?, supra note 7 at 56-62; MacLaren, Barry, and Sangster, ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 125, 132; Sanders, ?The Legal Political Struggle?, supra note 49 at 122; Slattery, ?The Organic Constitution,? supra note 39 at 101-103, 107. 51  Calder, supra note 16 at 317.     12 proclamations and ordinances, enacted between 1858 and 1871, manifested a ?unity of intention? to extinguish Aboriginal title in what is now British Columbia.  As a result, the Nisga?a did not obtain the sought declaratory relief, on the preliminary grounds that the Court had no jurisdiction to make such a declaration, in the absence of a fiat of the Lieutenant Governor of British Columbia.52   Nonetheless, Justice Judson, who wrote for the three judges concluding that title had been extinguished, rejected the Privy Council?s conception of Aboriginal title as a ?personal or usufructuary right, dependent upon the good will of the Sovereign.?53  Instead, he affirmed that Aboriginal title arises from ?the fact that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.?54  Accordingly, Aboriginal title does not derive from any statutory or regulatory scheme, but rather flows from First Nations? historic occupation and possession of their traditional territories.55  The Supreme Court of Canada?s decision in Calder thus repudiated its colonial past by conceptualizing Aboriginal title as an inherent, legal right as opposed to a contingent, political interest.  The Court?s judgement in Calder also provided the impetus for the federal government to reverse its previous position that Aboriginal title did not exist in Canada, and to start negotiating the settlement of unresolved land claims with Aboriginal peoples in certain regions of the country.56                                                   52  Ibid. at 315, 345.   53  Ibid. at 328. 54  Ibid.  55  Calder, supra note 16 at 376; Macklem, ?What?s Law Got to Do with It?? supra note 30 at 128; Slattery, ?The Organic Constitution?, supra note 39 at 109-110.  56  Donovan, ?The Law?s Crooked Path and the Hollow Promise of Delgamuukw?, supra note 7 at 55; Sanders, ?The ?Legal Political Struggle? over Indigenous Rights?, supra note 49 at 124.   13 2.4 Guerin: Sui Generis Interest and Fiduciary Duty  In the 1984 case of Guerin v. The Queen, the Supreme Court of Canada was faced with the entrenchment of Aboriginal land rights in section 35(1) of the Constitution Act, 1982 and explored its legal ramifications for the relationship between First Nations and the Crown.  At issue was whether the appellants, the Chief and councillors of the Musqueam Indian Band, were entitled to recover damages from the federal government with respect to the lease to a golf club on the land of the Musqueam Indian Reserve.57  Justice Dickson, writing for the majority, acknowledged that the ?sui generis interest which Indians have in the land is personal in the sense that it cannot be transferred to a grantee.?58  The Court thus reaffirmed the Privy Council?s conception of Aboriginal title as inalienable to third parties.  However, it departed from the ruling in St. Catherine?s Milling by defining the proprietary interest of Aboriginal peoples in the land as ?sui generis? or unique.  Aboriginal land rights are sui generis, since they are neither European nor Indigenous in source or substance, but rather form a special, unwritten, intersocietal body of law.59   Furthermore, the Supreme Court ruled that this sui generis interest ?gives rise upon surrender to a distinctive fiduciary duty on the part of the Crown to deal with the land for the benefit of the surrendering Indians.?60  Specifically, Justice Dickson decided that, if the Crown ?breaches this fiduciary duty,? ?it will be liable to the Indians? for damages.61  The Crown?s violation of its fiduciary obligation vis-?-vis Aboriginal peoples thus entails actual legal consequences, not only political costs.  Given that the federal government had                                                  57  Guerin, supra note 17 at 364.  58  Ibid. at 382.  59  Macklem, ?What?s Law Got to Do with It?? supra note 30 at 127; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 319-320; Slattery, ?The Organic Constitution?, supra note 39 at 108-112; Slattery, ?The Metamorphosis of Aboriginal Title?, supra note 3 at 270-271.  60  Guerin, supra note 17 at 382.  61  Ibid. at 376.    14 unilaterally obtained a significantly less valuable lease than that promised to the Musqueam Nation, the Crown was deemed to have breached its fiduciary duty to the band.62  Accordingly, the Court upheld the trial judge?s decision and awarded the Musqueam people ten million dollars in damages.63  Guerin is thus significant in asserting the sui generis nature of Aboriginal title, as well as the legally enforceable fiduciary relationship between First Nations and the Crown.64  2.5 Adams and C?t?: Interaction between Aboriginal Rights and Title   The Supreme Court of Canada elucidated the relationship between Aboriginal title and Aboriginal rights in the rulings of R. v. Adams and R. v. C?t?, which were jointly released in October 1996, and dealt with the Aboriginal fishing rights of the Mohawk in the province of Quebec.65  More importantly, these cases inquired whether Aboriginal rights must be necessarily linked to a claim for Aboriginal title to land, or whether an Aboriginal right may arise independently of a claim for Aboriginal title.66  Chief Justice Lamer, delivering the majority judgement in Adams, addressed two ?radically different? understandings of the relationship between Aboriginal title and Aboriginal rights.67  Traditionally, Aboriginal title was conceived of as a bundle of individual rights, having no independent content.  However, Chief Justice Lamer rejected this approach for another, holding that Aboriginal title is a single manifestation of a broader conception of Aboriginal rights.68  The Court thus created a spectrum of Aboriginal rights, recognized and affirmed by                                                  62  Ibid. at 389, 488.  63  Ibid. at 391.  64  Macklem, ?What?s Law Got to Do with It?? supra note 30 at 128; McNeil, ?Aboriginal Title and Aboriginal Rights,? 118, 144-145. 65  McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 317-329; McNeil, ?Aboriginal Title and Aboriginal Rights?, supra note 1 at 118-125. 66  Adams, supra note 18 at para. 3; C?t?, supra note 19 at para. 3.  67  Delgamuukw, supra note 4 at para. 137.  68  Ibid.; Adams, supra note 18 at paras. 24-25.    15 section 35(1) of the Constitution Act, 1982, varying with their degree of attachment to the land.  At one extreme, there are Aboriginal rights simpliciter, which are ?practices, customs and traditions that are integral to the distinctive culture of the group claiming the right,? but lack a sufficient degree of connection to the land to support a title claim.69  At the opposite extreme, there is Aboriginal title, which provides more than the right to engage in cultural activities, conferring ?the right to the land itself.?70  In the centre, there are activities that are exercised on and intimately connected to a particular piece of land.  If these activities fail to prove title to the land, they may receive constitutional protection as site-specific rights.71   However, the Chief Justice emphasized that ?a site-specific hunting or fishing right does not, simply because it is independent of Aboriginal title to the land on which it took place, become an abstract fishing or hunting right exercisable anywhere; it continues to be a right to hunt or fish on the tract of land in question.?72  By restricting the scope of site-specific rights, this caveat reveals the Supreme Court?s cautious behaviour in the assessment of Aboriginal rights claims.  Presumably, the motive behind the majority decision was a fear that the recognition of the hunting or fishing rights of a particular Aboriginal group would create a domino effect, bringing other Aboriginal communities to assert and exercise analogous rights in other parts of the province, to the detriment of the interests of the larger Canadian society.  This decision thus hints at the two main goals that tend to guide Aboriginal rights jurisprudence: on the one hand, the Court seeks to preserve its institutional legitimacy vis-?-vis the federal and provincial governments and the public; on the other hand, it strives to maintain intercultural peace and harmony in Canada.                                                   69  Adams, supra note 18 at para. 26; citation from Delgamuukw, supra note 4 at para. 138.  70  Delgamuukw, supra note 4 at para. 138.   71  Adams, supra note 18 at para. 30; Delgamuukw, supra note 4 at para. 138.  72  Adams, supra note 18 at para 30 [emphasis in original].    16 2.6 Delgamuukw: Theoretical Framework for Aboriginal Title  In the monumental decision of Delgamuukw v. British Columbia, delivered in 1997, the Supreme Court of Canada delved into the substance and scope of the constitutional protection provided by section 35(1) of the Constitution Act, 1982 to common law Aboriginal title.73  This case concerned the claims of the Gitskan and Wet?suwet?en peoples for declarations of Aboriginal title and self-government over distinct portions of their traditional territories in northwest British Columbia, in an area amounting to 58,000 square kilometres.74  The Gitskan and Wet?suwet?en Nations had continuously lived on their homelands for over three thousand years.  These lands had never been ceded to nor bought by the Crown, by treaty or otherwise.  Both the British Columbia Supreme Court and the British Columbia Court of Appeal dismissed the Aboriginal communities? title claims.75  The Supreme Court of Canada?s reasons and conclusions regarding procedural and evidentiary issues, the nature and quality of Aboriginal title, the proof of Aboriginal title, and the justification of Aboriginal title infringements are reviewed below.  2.6.1 Procedural and Evidentiary Issues The Supreme Court remanded this case to trial on account of procedural issues and evidentiary uncertainties.76  Specifically, Chief Justice Lamer, writing for the majority, found that the Gitskan and Wet?suwet?en pleadings were flawed in two respects.  First, claims to ownership and jurisdiction at the trial level were replaced by collective claims to Aboriginal title and self-government at the appellate level.  Second, the individual claims by each house                                                  73  Delgamuukw, supra note 4 at para. 1.  74  Ibid. at paras. 7, 73.  75  Donovan, ?The Law?s Crooked Path?, supra note 7 at 79-80. 76  Delgamuukw, supra note 4 at paras. 76-77, 107-108, 170-171, 184-186.   17 were combined into two collective claims, one on behalf of each nation.77  The ratio decidendi of this case was thus that a problem in the pleadings would cause prejudice to British Columbia.  As stated by John Borrows, ?this finding seems rather formalistic and inflexible,? given the disparity in the parties? resources, and the longstanding denial of Aboriginal rights in the province.78  Furthermore, the Supreme Court held that a new trial was necessary, because the trial judge did not give independent weight to oral history evidence, and failed to take into account the Aboriginal perspective, contrary to the interpretive principles laid down in the case of R. v. Van der Peet.79  The Court?s refusal to rule on the Gitskan and Wet?suwet?en peoples? claims for Aboriginal title and Aboriginal self-government may reflect its reasonable fear of making a decision which would have a monumental impact on the interests of third parties, the power of the provincial government, as well as social peace and stability more broadly.80  Nevertheless, in light of the considerable length, complexity, and cost of this trial, the Court?s refusal to rule on the merits of the case is a cause for concern for future Aboriginal litigants, indicating that common law courts may not be the best forum for advancing Aboriginal title claims.81                                                    77  Delgamuukw, supra note 4 at paras. 73-77.  78  Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 548-553; see also D. Lambert, ?Three Points about Aboriginal Title? (2012) 70:3 Advocate 349 at 349-350. 79  Delgamuukw, supra note 4 at paras. 107-108; R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 68 [hereinafter Van der Peet].   80  Wilkins, ?Take Your Time and Do it Right?, supra note 8 at 242-249.  81  The trial entailed 76 witnesses, 53 affidavits, 9200 documents, and lasted 374 days of court time.  See Delgamuukw, supra note 4 at paras. 5-6, 89; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 319-320.  On the broader structural and ideological barriers to judicial independence and reconciliation in Aboriginal rights and title cases, see Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 548-553; P. H. Russell, ?High Courts and the Rights of Aboriginal Peoples: The Limits of Judicial Independence? (1988) 61 Sask L Rev 247; Shiveley, ?Negotiation and Native Title?, supra note 27 at 456-462; M. E. Turpel, ?Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences? (1989) 6 Can Hum Rts YB 3; Yurkowski, ?We are All Here to Stay?, supra note 27 at 472, 493.   18 2.6.2 Nature and Content of Aboriginal Title   Nonetheless, the Supreme Court?s decision in Delgamuukw is significant, since it identified the three sui generis dimensions of Aboriginal title.  The first sui generis aspect of Aboriginal title is its source, namely, ?the prior occupation of Canada by Aboriginal peoples.?82  The Court thus reaffirmed its rejection of the Privy Council?s imperialist conception of Aboriginal title as contingent on the good will of the Crown, in favour of a vision of title as stemming from the pre-existence of Aboriginal societies.83  Second, Aboriginal title is sui generis insofar as it is communal: ?Aboriginal title cannot be held by individual Aboriginal persons; it is a collective right to land held by all members of an Aboriginal nation.?84  Therefore, Aboriginal title is bestowed on collective bodies that have the legal personality required to possess property in their own right.85  The collective nature of Aboriginal title implies that it has a jurisdictional quality, which differentiates it from fee simple estates and other land rights.86  That is, the title-holding Aboriginal community must have the degree of self-government necessary to regulate the use and distribution of land within the community.87  The third sui generis aspect of Aboriginal title is its inalienability, which signifies that ?lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown.?88                                                    82  Delgamuukw, supra note 4 at para. 114.  83  Slattery, ?The Metamorphosis of Aboriginal Title?, supra note 3 at 110.  84  Delgamuukw, supra note 4 at para. 115.  85  McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 286-287.  86  Ibid.  87  Borrows, ?Domesticating Doctrines?, supra note 3 at 654; D. Lambert, ?Van der Peet and Delgamuukw: Ten Unresolved Issues? (1998) 32:2 UBC L Rev 249 at 267-268; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 286-287; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 477, 481-488. 88  Delgamuukw, supra note 4 at para. 113.    19 2.6.3 Proof of Aboriginal Title  In Delgamuukw, the Supreme Court developed the first test for the proof of Aboriginal title.  In order to put forward a claim for Aboriginal title, the First Nation claiming the right must fulfil three different criteria.  First, ?the land must have been occupied prior to sovereignty.?89  Reliance on the date of sovereignty assertion rather than that of contact distinguishes the Delgamuukw test for the proof of Aboriginal title from the Van der Peet test for the proof of Aboriginal rights.90  According to Chief Justice Lamer, requisite occupancy can be substantiated either by establishing the fact of physical occupation or by demonstrating the existence of Aboriginal laws in relation to land prior to European sovereignty.  The former approach to the proof of occupancy complies with the common law rule that ?title is presumed from possession,? whereas the latter seeks to accommodate Aboriginal legal systems.91  Second, if present occupation is depended upon to prove prior occupation, there must be continuity between present and past occupation.92  However, in light of evidentiary difficulties, the Court held that Aboriginal title claimants need not show ?an unbroken chain of continuity? between present and pre-sovereignty occupation.93  Third, occupation must have been exclusive at the time of sovereignty.94  The Court defined exclusivity as ?the ability to exclude others from the lands held pursuant to title,? acknowledging that trespass by other Aboriginal groups on a given territory does not necessarily undercut the community?s claims to exclusive occupation.95  Rather, a First Nation?s laws in relation to trespass could reinforce its claims to exclusive control of the                                                  89  Delgamuukw, supra note 4 at para. 143.  90  Ibid. at para. 144; Van der Peet, supra note 79 at para. 60.  91  Delgamuukw, supra note 4 at paras. 146-151; K. McNeil, ?The Onus of Proof of Aboriginal Title? (1999) 37:4 Osgoode Hall LJ 775 at 782-784, 800-801; Yurkowski, ?We are All Here to Stay?, supra note 27 at 489.  92  Delgamuukw, supra note 4 at para. 143.  93  Ibid. at para. 153; Van der Peet, supra note 79 at para. 65.  94  Delgamuukw, supra note 4 at para. 143. 95  Ibid. at para. 155.    20 land.96  In addition, Chief Justice Lamer accepted that ?joint title could arise from shared exclusivity.?97  The possibility of shared title is significant, since Aboriginal title cases often involve competing claims by distinct Aboriginal communities.98  2.6.4 Justification of Aboriginal Title Infringements  In Delgamuukw, the Supreme Court decided that Aboriginal title rights are not absolute, but rather can be restricted by the Crown.99  Accordingly, if an Aboriginal group successfully establishes its title to a piece of land, the onus of proof shifts to the Crown to justify infringements on this title.  Similar to the test for the justification of Aboriginal rights limitations, laid down in R. v. Sparrow,100 the first stage of the justificatory analysis involves evaluating whether the infringement on Aboriginal title furthers a ?compelling and substantial? legislative purpose.101  In light of the precedents established in R. v. Gladstone,102 the Court recognized that ?the range of legislative objectives that can justify the infringement of Aboriginal title is fairly broad.?103 Former Chief Justice Lamer contended that the breadth of these objectives was warranted by the need to ?reconcil[e] the prior occupation of North America by [A]boriginal peoples with the assertion of Crown sovereignty.?104  Examples of valid legislative goals identified by the Court include agriculture, forestry, mining, economic growth, and the ?settlement of foreign populations.?105                                                    96  Ibid. at paras. 156-157. 97  Ibid. at para. 158.  98  Ibid. at para. 185. 99  Delgamuukw, supra note 4 at para. 160.  100  R. v. Sparrow, [1990] 1 S.C.R. 1075 [hereinafter Sparrow]. 101  Delgamuukw, supra note 4 at para. 161.  102  R. v. Gladstone, [1996] 2 S.C.R. 723 [hereinafter Gladstone].  103  Delgamuukw, supra note 4 at para. 165. 104  Ibid.  105  Ibid.    21 The second stage of the test of justification investigates whether ?the infringement is compatible with the special fiduciary relationship between the Crown and [A]boriginal peoples.?106  The Delgamuukw justificatory test is distinguished from the Sparrow test, in highlighting the relevance of three aspects of Aboriginal title.  First, Aboriginal title represents ?the right to exclusive use and occupation of the land.?107  The title-holding community could thus potentially exclude private citizens and corporations from engaging in any activity on their lands.  Second, Aboriginal title has ?an inescapable economic component.?108  That is, Aboriginal peoples themselves have the right to reap the economic rewards of their lands, not merely the right to share in the profits resulting from another party?s exploitation of their title lands.109  This aspect of Aboriginal title signifies that lands held pursuant to title could be put to modern uses, thereby protecting and promoting the economic development of Aboriginal communities.110  Third, Aboriginal title involves the ?right to choose to what uses the land can be put.?111  This feature of Aboriginal title means that the fiduciary relationship between First Nations and the Crown may be fulfilled by the participation of the former in decisions made in relation to their lands.  Accordingly, Aboriginal title always imposes a ?duty of consultation? on the Crown, which may at times require the full consent of the relevant Aboriginal community.112  Furthermore, the Crown?s failure to engage in consultation ?in good faith? would be considered a breach of fiduciary obligation at common law, in agreement with the Court?s decision in Guerin.113                                                    106  Delgamuukw, supra note 4 at para. 162.  107  Ibid. at para. 166 [emphasis in original].  108  Ibid. [emphasis in original]. 109  Dufraimont, ?From Regulation to Recolonization: Justifiable Infringement of Aboriginal Rights at the Supreme Court of Canada? (2000) 58:1 UT Fac L Rev 2 at at 20-22. 110  Delgamuukw, supra note 4 at para. 169.  111  Ibid. at para. 166 [emphasis in original]. 112  Ibid. at para. 168.  113  Ibid.    22 2.6.5 Limits on the Nature and Scope of Aboriginal Title  The Supreme Court of Canada?s decision in Delgamuukw suggests that Aboriginal title is the most important Aboriginal right, since it encompasses a certain degree of self-determination and economic development, which would allow First Nations to survive and flourish in the twenty-first century.114  Nevertheless, several aspects of the ruling significantly restrict the nature and scope of Aboriginal title rights and cast doubt on the Court?s capacity to adjudicate on Aboriginal rights in an impartial and independent manner.   First, the Court?s test for the proof of Aboriginal title imposes a high burden of proof on the Aboriginal group claiming the right.  As discussed earlier, former Chief Justice Lamer held that Aboriginal title claimants must prove their exclusive and continuous occupation of land since the pre-sovereignty period.  Yet, it is unclear why Aboriginal peoples should bear the burden of proving their title against that of European settlers, given that Aboriginal groups were here first.115  The Court?s uncritical acceptance of Crown sovereignty and underlying title over lands in North America is discriminatory, holding Aboriginal societies to a higher standard in establishing title, which the Crown itself could not satisfy.116 Second, the test for the justification of Aboriginal title infringements misinterprets the constitutional division of powers.  Specifically, most of the ?compelling and substantial? legislative objectives identified by the Court are situated within provincial areas of jurisdiction.  Consequently, former Chief Justice Lamer seems to have assumed that British Columbia possesses the legislative authority to infringe Aboriginal title rights.  Yet, this                                                  114  Borrows, ?Domesticating Doctrines?, supra note 3 at 654; Lambert, ?Van der Peet and Delgamuukw?, supra note 87 at 267-268; MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 134; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 285-287; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 477, 481-488, 509-510. 115  McNeil, ?The Onus of Proof of Aboriginal Title?, supra note 91 at 777.  116  Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 572-573; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320; McNeil, ?The Onus of Proof of Aboriginal Title?, supra note 91 at 775-803.   23 assumption is inconsistent with Chief Justice Lamer?s conclusion attained elsewhere that the federal government has exclusive competence over ?Indians, and [l]ands reserved for the Indians,? pursuant to section 91(24) of the Constitution Act, 1867.  Judicial uncertainty and confusion surrounding this constitutional issue remains to be definitively resolved.117  Setting the division of powers problem aside, the list of ?compelling and substantial? purposes for the justification of Aboriginal title infringements identified by the Supreme Court in Delgamuukw is also problematic because the development of agriculture, forestry, and mining would involve not only British Columbia?s regulation of Aboriginal title lands, but also the extraction of the resources from those lands, not for the benefit of Aboriginal peoples, but rather for the benefit of the province and private corporations.  For Kent McNeil, ?this looks more like expropriation than infringement.?118  The Supreme Court of Canada?s decision to call colonization a ?compelling and substantial? purpose for the infringement of Aboriginal title rights also makes a mockery of the history of dispossession of First Nations in the province.119  Moreover, the majority?s justificatory standard does not demand any concession on the part of the Crown, contrary to the broader objective of reconciliation, which requires mutual compromises.120  By subordinating the constitutionally protected rights of Aboriginal peoples to the socioeconomic interests of the province, the Supreme                                                  117  Constitution Act, 1867, supra note 33 at s. 91(24).  On the division of powers problem, see Lambert, ?Van der Peet and Delgamuukw?, supra note 87 at 265-267; K. McNeil, ?Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction? (1998) 61 Sask L Rev 431; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; K. McNeil, ?The Vulnerability of Indigenous Land Rights in Australia and Canada? (2004) 42:2 Osgoode Hall LJ 271 at 292-293. 118  McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 319.  See also Dufraimont, ?From Regulation to Recolonization?, supra note 109 at 24-26, 30; McNeil, ?The Vulnerability of Indigenous Land Rights?, supra note 117 at 292-293.  119  Borrows, ?Domesticating Doctrines?, supra note 3 at 648-649; Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 568-569; Dufraimont, ?From Regulation to Recolonization?, supra note 109 at 24-26, 30; Lambert, ?Three Points about Aboriginal Title?, supra note 78 at 349-350; K. McNeil, ?Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and McLachlin? (2003) 2 Indigenous LJ 1 at 25. 120  J. Borrows, ?Frozen Rights in Canada: Constitutional Interpretation and the Trickster? (1997) 22:1 Am Indian L Rev 37 at 61.   24 Court seems to have employed ?reconciliation? as a tool to legitimate almost any limitation on Aboriginal land rights for the benefit of non-Aboriginal Canadians.  This disingenuous definition of reconciliation does violence to the remedial intent underlying section 35(1) of the Constitution.121 Finally, the Supreme Court unilaterally imposed an inherent limitation on the scope of Aboriginal title rights.  Specifically, Chief Justice Lamer held that the capacity of the title-holding community to decide how to allocate the land is ?subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples.?122  According to the Court, the inherent limit on Aboriginal title flows from its sui generis nature, and aims at safeguarding the intrinsic value of land for future generations.123  However, this restriction subverts the right of Aboriginal peoples to self-government and economic growth, because it obliges Aboriginal groups to surrender their lands to the Crown, if they seek to use them for unspecified ?non-Aboriginal purposes.?124   Hence the Supreme Court of Canada?s unilateral imposition of restrictions on the substance and scope of Aboriginal title reflects residues of imperialism and paternalism in the country?s high courts, which undermine the relationship between First Nations and the Crown.125                                                  121  Ibid.; R. L. Barsh and J. Youngblood Henderson, ?The Supreme Court?s Van der Peet Trilogy: Na?ve Imperialism and Ropes of Sand? (1997) 42:4 McGill LJ 993 at 999; Borrows, ?Domesticating Doctrines?, supra note 3 at 648-649; Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 568-569; Dufraimont, ?From Regulation to Recolonization?, supra note 109 at 12-17; McNeil, ?Reconciliation and the Supreme Court?, supra note 119 at 4-10, 17-19, 23-25. 122  Delgamuukw, supra note 4 at para. 166.  123  Ibid. at paras. 125-132; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 286. 124  Delgamuukw, supra note 4 at 131; citation from Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 570-571; Donovan, ?The Law?s Crooked Path,? supra note 7 at 88. 125  Borrows, ?Domesticating Doctrines?, supra note 3 at 652-653; Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 570-571; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 286; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 479.   25 2.7 Marshall and Bernard: Divergent Standards of Occupation  The Supreme Court of Canada?s decision in R. v. Marshall; R. v. Bernard is of paramount importance, since it evaluated the validity of an Aboriginal title claim for the first time since Delgamuukw.126  These consolidated cases inquired whether the Mi?kmaq in Nova Scotia and New Brunswick could engage in commercial logging on Crown lands without authorization, pursuant to Aboriginal title or treaty rights.127  The concurring judgements reached the same conclusion, specifically, that the respondents lacked Aboriginal title or treaty rights to log on Crown lands for commercial purposes, and thus restored their convictions.128  However, the majority and minority decisions interpreted the Delgamuukw standard for the proof of prior occupation, in very different ways.  These divergent understandings of Aboriginal title are discussed below.  2.7.1 Majority Decision: Rigid and Narrow Standard of Occupation  In assessing whether the respondents possessed Aboriginal title to the lands they logged, Chief Justice McLachlin, writing for the majority in Marshall and Bernard, set out a rigid and narrow standard of occupation for the proof of Aboriginal title.  Specifically, Chief Justice McLachlin stated that ?exclusive possession in the sense of intention and capacity to control is required to establish [A]boriginal title.  Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing, or exploiting resources.?129  Chief Justice McLachlin?s test for the proof of occupancy is thus more onerous than that laid down by former Chief Justice Lamer in Delgamuukw, because it requires evidence of intensive and regular use of lands.  While intensity and regularity reflect                                                  126  McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 281-282. 127  Marshall and Bernard, supra note 21 at paras. 1-2, 5.  128  Ibid. at paras. 6, 35, 110.  129  Ibid. at para. 70.    26 the sedentary form of agriculture found in the ?English country garden? or foreign plantation, they are incompatible with the nomadic or semi-nomadic lifestyles of the overwhelming majority of Indigenous peoples in the pre-sovereignty period.130  Therefore, Chief Justice McLachlin?s high standard of occupation means that First Nations will face even greater challenges in gaining rights of ownership and control over their traditional territories and natural resources in the future.131    Furthermore, the majority?s test for the proof of Aboriginal title in Marshall and Bernard deviates from that developed in Delgamuukw by focusing on the fact of physical occupation to establish Aboriginal title, consistent with common law rules surrounding possession.132  Yet, in Delgamuukw, the Lamer Court had held that the existence of Aboriginal customs and laws in relation to land could also demonstrate the requisite occupation.  By failing to incorporate Aboriginal legal systems in the new standard of occupation required for the proof of Aboriginal title, Chief Justice McLachlin disregarded the Aboriginal perspective, contrary to the interpretive principles articulated in the cases of Sparrow, Van der Peet, and Delgamuukw.133   Such insensitivity to the Aboriginal perspective is also implicit in the translation theory of Aboriginal title, put forward by the majority in Marshall and Bernard.  According to Chief Justice McLachlin, the task of the judiciary ?is to translate the pre-sovereignty                                                  130  P. L. A. H. Chartrand, ?R. v. Marshall; R. v. Bernard: The Return of the Native? (2006) 55 UNBLJ 135 at 135-140 131  MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 132. 132  McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 227-300; McNeil, ?The Onus of Proof of Aboriginal Title?, supra note 91 at 782-784, 800-801. 133  Delgamuukw, supra note 4 at paras. 146-151; Sparrow, supra note 100 at 1112; Van der Peet, supra note 79 at paras. 49-50.  See also Chartrand, ?The Return of the Native?, supra note 130 at 140-142; Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 7; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 227-300.   27 Aboriginal right to a modern common law right.?134  Aboriginal title is thus perceived as a ?translated right held under English common law.?135  Yet, Aboriginal title does not derive from the translation of Aboriginal customary practices into non-Aboriginal legal categories.  Rather, Aboriginal title represents a unique intersocietal right, which bridges the gap and guides the interplay between Indigenous and non-Indigenous legal systems.  Consequently, Chief Justice McLachlin?s conception of Aboriginal title signals a strong departure from the sui generis approach previously adopted by the Supreme Court.  Moreover, by distorting the nature and limiting the scope of Aboriginal title, the majority decision in Marshall and Bernard is likely to intensify grievances and undermine the ultimate goal of reconciliation between First Nations and the Crown.136  2.7.2 Minority Decision: Broad and Flexible Standard of Occupation   The concurring judgement of Justices LeBel and Fish agreed with the Chief Justice?s ultimate disposition of the appeal, but was ?concerned? about several aspects of her reasons.  Justice LeBel, delivering the minority decision, affirmed that ?the approach adopted by the majority is too narrowly focused on common law concepts related to property interests.?137  That is, Chief Justice McLachlin?s test for the proof of Aboriginal title relies on the fact of physical occupation rather than Aboriginal legal systems to establish possession.  In light of the nature of land use by native peoples, the test for the proof of Aboriginal title laid down by the majority ?may prove to be fundamentally incompatible with a nomadic or semi-nomadic lifestyle.?138  Accordingly, Justice LeBel argued that ?[o]ccupation should be proved by                                                  134  Marshall and Bernard, supra note 21 at para. 70.  135  Slattery, ?The Metamorphosis of Aboriginal Title?, supra note 3 at 280. 136  Ibid. at 277-281.  137  Marshall and Bernard, supra note 21 at para. 110.  138  Ibid. at para. 126.  See also Chartrand, ?The Return of the Native?, supra note 130 at 140; MacLaren, Barry, and Sangster, ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 132.   28 evidence not of regular and intensive use of the land but of the traditions and culture of the group that connect it to the land.?139  By removing the requirements of regularity and intensity of use, the minority?s standard of occupation is significantly less onerous than that of the majority, and thus may facilitate the acquisition of land rights by Aboriginal title claimants.  The minority?s standard of occupancy also manifests more sensitivity to the Aboriginal perspective by emphasizing the special bond between the Aboriginal group and its land base.  Consequently, the minority?s less stringent test for the proof of Aboriginal title is more conducive to the reconciliation of First Nations with the Crown. 2.8 Summary of Overview of the Common Law of Aboriginal Title   In sum, this section reviewed the evolution of Canadian Aboriginal title jurisprudence from the late nineteenth century to the present.  Findings show a shift from a narrow, rigid conception of Aboriginal title to a broad, flexible understanding of Aboriginal title.  However, elements of imperialism and paternalism persist in contemporary Aboriginal title law, as implicit in the Supreme Court?s consistent refusal to call into question the sovereignty and radical title of the Crown, its unilateral imposition of limits on the use of Aboriginal title lands, the high onus of proof on Aboriginal title claimants to establish exclusive, pre-sovereignty occupation, and the low burden of proof for the Crown to justify infringements on Aboriginal title.140  While these factors significantly constrain the nature and scope of Aboriginal land rights, Aboriginal title nevertheless remains the most valuable Aboriginal right, since its jurisdictional and economic dimensions may allow Aboriginal societies to survive and thrive in the modern era.                                                  139  Marshall and Bernard, supra note 21 at para. 140.  140  Borrows, ?Domesticating Doctrines?, supra note 3 at 652-653; Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 570-573; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 286; McNeil, ?The Onus of Proof of Aboriginal Title?, supra note 91 at 775-803; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 479.   29 3 Competing Conceptions of Aboriginal Title and Reconciliation in the Tsilhqot?in Case   The purpose of this section is to study the application of the jurisprudential framework for the recognition of Aboriginal title, in the trial and appellate decisions in the Tsilhqot'in case, and explore its effects on the relationship between First Nations and the Crown in Canada.  I presume that the preservation of Aboriginal title?s potential for self-rule and economic growth would serve to improve relations between First Nations and the Crown, whereas its reduction or elimination would exacerbate tensions and compromise the ultimate goal of reconciliation between Aboriginal and non-Aboriginal Canadians.  Justice Vickers? decision in Tsilhqot?in Nation v. British Columbia reveals a genuine attempt to further reconciliation between the Tsilhqot?in Nation and the Crown by prioritizing the Aboriginal perspective in the evaluation of oral history and oral tradition evidence, adopting a large and liberal standard of occupation, identifying an Opinion Title Area, and affirming the invalidity of attempts by British Columbia to regulate forestry resources on Tsilhqot?in title lands.  Nevertheless, Justice Vickers did not succeed in attaining a just and ?honourable settlement? between the Tsilhqot?in and the Canadian state, by dismissing the former?s application for a declaration of Aboriginal title, due to a problem in their pleadings.141 In contrast, while Justice Groberman, writing for the British Columbia Court of Appeal, correctly allowed the appeal on the pleadings issue, his reasons and conclusions in William v. British Columbia contributed to undermining relations between the Tsilhqot?in people and the Crown by interfering with the factual findings of the trial judge, misinterpreting the law on territoriality and site-specificity, adopting a narrow and rigid                                                  141  McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 7-25; Tsilhqot'in Nation, supra note 22 at para. 1382.    30 standard of occupation, articulating a preference for Aboriginal rights over Aboriginal title, and endorsing a hollow conception of reconciliation, which subordinates the constitutional rights of Aboriginal peoples to the interests of the Canadian state and society.142   3.1 Tsilhqot'in Nation v. British Columbia: Trial Court Decision  The British Columbia Supreme Court?s trial decision in Tsilhqot?in Nation v. British Columbia is the closest any court has come to making a declaration of Aboriginal title in Canada.  The four hundred and fifty-eight page judgement, penned by Honourable Mr. Justice Vickers, was released on November 20th, 2007, after three hundred and thirty-nine days of trial, which extended over almost five years and cost tens of millions of dollars.143  Similar to Delgamuukw, Tsilhqot?in Nation deals with a claim for Aboriginal title to lands in central British Columbia.144  The action was brought by Roger William, in his representative capacity as Chief of the Xeni Gwet?in, one of the six bands comprising the Tsilhqot?in Nation.145  The Tsilhqot?in applied for a declaration of Aboriginal rights and a declaration of Aboriginal title to two separate parts of the Cariboo-Chilcotin region of British Columbia, defined as the Tachelach?ed (Brittany Triangle) and the Trapline Territory.  The Claim Area includes 438,000 hectares of land and forms about five percent of what the Tsilhqot?in perceive to be their traditional territory.146  This action was triggered by British Columbia?s authorization of commercial logging in the traditional territory of the Tsilhqot?in in the                                                  142  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 819-830; Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 1-12. 143  Lambert, ?The Tsilhqot'in Case?, supra note 26 at 819; MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 126, 135; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 8; D. G. Newman, and D. Schweitzer, ?Between Reconciliation and the Rule(s) of Law: Tsilhqot?in Nation v. British Columbia? (2008) 41:2 UBC L Rev 249 at 255.  144  Tsilhqot?in Nation, supra note 22 at para. 28.  145  Ibid. at para. 34.  146  Ibid. at para. 40.    31 1980s, without the community?s consent.147  Issues raised by the proceedings include whether the Tsilhqot?in people are entitled to a declaration of Aboriginal title to all or parts of the Claim Area, whether the Forest Act applies to Aboriginal title lands, and whether the undertaking of any forest development activity by the province would unjustifiably infringe the Tsilhqot?in Nation?s Aboriginal title rights in the Claim Area.148  The trial judge?s reasons and conclusions on these and other issues are explored below.  3.1.1 Preliminary Issue: ?All or Nothing? Aboriginal Title Claim  Similar to the Supreme Court of Canada?s decision in Delgamuukw, the British Columbia Supreme Court?s trial judgment in Tsilhqot?in Nation dismissed the Aboriginal title claim on procedural grounds.149  Mr. Justice Vickers, delivering the trial decision, granted the Tsilhqot?in a declaration of Aboriginal rights to hunt and trap animals and birds throughout the Claim Area, including the right to capture and use wild horses, and the right to trade in skins and pelts ?as a means of securing a moderate livelihood.?150  However, he declined to issue a declaration of Aboriginal title, due to a defect in the Tsilhqot?in people?s pleadings.151  In the statement of claim, the Tsilhqot?in sought a declaration of Aboriginal title to two distinct regions, namely the Tachelach?ed (Brittany Triangle) and the Trapline Territory.  The statement of claim did not explicitly request declaratory relief over parts of those areas, in the event that the court was not convinced that Tsilhqot?in Aboriginal title existed throughout the Claim Area.  Yet, in final argument, Chief Roger William argued on behalf of the Tsilhqot?in Nation that a declaration could be made with respect to any portions                                                  147  Ibid. at para. 38. When the forest companies gave up plans to log in the Claim Area, the action against them was discontinued.  148  Ibid. at para. 101.  149  Lambert, ?The Tsilhqot'in Case?, supra note 26 at 819. 150  Tsilhqot?in Nation, supra note 22 at paras. 1240-1241, 1265. 151  Ibid. at paras. 129, 961.    32 of the Claim Area that the trial court found to be subject to Aboriginal title.152  In response, British Columbia argued that the absence of the magic words ?or any portions thereof? in William?s statement of claim meant that the court could only find Aboriginal title to the entire Claim Area, or reject the claim altogether.153  The trial judge ultimately sided with the province, concluding that the case was structured as an ?all or nothing claim,? and to allow the Tsilhqot?in to retroactively seek a declaration of title over portions of the Claim Area would be prejudicial to the Crown in right of British Columbia and Canada.154   3.1.2 Treatment of Oral History and Oral Tradition Evidence  In the course of this lengthy trial, the court heard oral history and oral tradition evidence, and received a large number of historical documents.  Evidence was tendered in a wide variety of fields, including archaeology, anthropology, history, cartography, hydrology, biology, linguistics, forestry, and forest ecology.155  Despite the trial judge?s conclusion on the pleadings issue, he decided to assess the evidence and issue a non-binding opinion on Tsilhqot?in Aboriginal title to facilitate the subsequent process of negotiations.  Before doing so, however, Justice Vickers articulated his preferred methodological approach for the interpretation of oral history and oral tradition evidence in Aboriginal rights and title cases.  Whereas the Supreme Court of Canada has employed the phrases ?oral tradition? and ?oral history? interchangeably, the trial judge differentiated between these terms, following anthropologist Jan Vansina?s categorization of oral evidence in Oral Evidence as History.  Oral histories refer to ?reminiscences, hearsay, or eyewitness accounts about events and                                                  152  William, supra note 6 at paras. 49-50.  153  Tsilhqot?in Nation, supra note 22 at paras. 106, 120.  154  Ibid. at para. 129; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 8.  155  Tsilhqot?in Nation, executive summary.   33 situations which are contemporary; that is, which occurred during the lifetime of the occupants.?156   By contrast, oral traditions denote remembrances and stories about events and situations that ?are no longer contemporary,? but have been transmitted from the past to the present generation of Aboriginal peoples by word of mouth.157  Therefore, oral tradition evidence is the only form of evidence available to Aboriginal rights and title claimants, in relation to events or situations that occurred prior to European contact or sovereignty.158  Given the evidentiary difficulties of establishing prior occupation, Justice Vickers stated that ?[t]rial judges are not to impose impossible burdens on Aboriginal claimants.  The goal of reconciliation can only be achieved if oral tradition evidence is placed on an equal footing with historical documents.?159  Accordingly, the trial judge attempted to overcome the ?Eurocentric tendency? to rely on written records rather than unwritten accounts, by placing equal weight on oral history and oral tradition evidence, and considering the entire body of evidence from the Aboriginal perspective.160  3.1.3 Proof of Aboriginal Title: Occupation, Continuity and Exclusivity  Applying his methodological framework for the assessment of oral history and oral tradition evidence, Justice Vickers considered the evidence of the Tsilhqot?in Nation?s use and occupation of the Claim Area from three different perspectives.161  First, Justice Vickers                                                  156  J. Vansina, Oral Tradition as History (Madison: The University of Wisconsin Press, 1985) at 12-13, cited by Justice Vickers in Tsilhqot?in Nation, supra note 22 at para 141.  157  Vansina, Oral Tradition as History, supra note 156 at 12-13, cited by Justice Vickers in Tsilhqot?in Nation, supra note 22 at paras. 141-142.  158  Tsilhqot?in Nation, supra note 22 at para. 143; see also Newman and Schweitzer, ?Between Reconciliation and the Rule(s) of Law?, supra note 143 at 267. 159  Tsilhqot?in Nation, supra note 22 at paras. 152, 203.  On evidentiary challenges faced by Aboriginal rights and title claimants, see MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 127.  160  Tsilhqot?in Nation, supra note 22 at para. 196; see also Newman and Schweitzer, ?Between Reconciliation and the Rule(s) of Law?, supra note 143 at 267-271. 161  Tsilhqot?in Nation, supra note 22 at para. 946.    34 identified sites in the Claim Area characterized by a certain degree of permanency, such as villages, cultivated fields, and camping sites.162  Second, he interpreted the occupation of the Claim Area from the standpoint of land use, discovering a ?clear pattern of Tsilhqot?in seasonal gathering? in various places in the Claim Area.163  Third, the trial judge examined evidence of use of the Claim Area after the assertion of Crown sovereignty, observing that the historical pattern of seasonal resource gathering in several locations of the Claim Area continued over time.164  While this test of occupancy reflects common law rules surrounding possession, it fails to take into account Tsilhqot?in laws in relation to land use.165  Justice Vickers concluded that ?there was an extensive network of trails? created and used by the Tsilhqot?in people inside and outside of the Claim Area, prior to European contact and Crown sovereignty in the former colony of British Columbia.166  He also confirmed that the Tsilhqot?in people have occupied the Claim Area for over two hundred and fifty years.167  However, the trial judge failed to find regular use in the entire area of the Tachelach?ed and Trapline Territory.  Furthermore, he refused to issue a declaration of Tsilhqot?in Aboriginal title to smaller sections of the Claim Area, because they were not separately pleaded.168    Nevertheless, Justice Vickers accepted counsel?s invitation to express an opinion on Tsilhqot?in Aboriginal title ?to assist the parties in the negotiations that lie ahead.?169  Applying the test for the proof of Aboriginal title, laid down in Delgamuukw and expanded in                                                  162  Ibid. at para. 947.  163  Ibid. at para. 948.  164  Ibid. at para. 950.  165  McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 227-300; McNeil, ?The Onus of Proof of Aboriginal Title?, supra note 91 at 782-784, 800-801. 166  Ibid. at para. 679.  Justice Vickers identified the moment of contact as 1793, whereas the unilateral assertion of sovereignty by the Crown in the former colony of British Columbia was accepted as occurring in 1846, the date the Treaty of Oregon was concluded.  See Ibid. at paras. 601-602 and 1211-1212. 167  Ibid. at para. 677.  168  Ibid. at para. 957.  See also discussion on the preliminary issue at paras. 106-129.  169  Ibid. at para. 958, citation at para. 961.    35 Marshall and Bernard, the trial judge identified the land that the Tsilhqot?in continuously and exclusively occupied at the moment of sovereignty assertion from three viewpoints: village sites, cultivated fields, and trail networks.  Specifically, the Opinion Title Area forms approximately forty percent of the Claim Area, comprising the ?land, rivers, lakes and many trails? occupied and used by members of the Tsilhqot?in society ?as definite tracts of land on a regular basis? for hunting, gathering, fishing, and trapping purposes.170  According to Justice Vickers, ?this is the land over which they held exclusionary control,? and that afforded the Tsilhqot?in Nation security and continuity in the face of Crown sovereignty.171   The trial judge emphasized that his opinion on Tsilhqot?in land rights was not binding on the parties, in light of his conclusion on the pleadings.  However, he conceded that, if he were wrong on the preliminary issue, his conclusion on Tsilhqot?in Aboriginal title, in relation to lands within the Tachelach?ed and Trapline Territory, would be ?binding on the parties as a finding of fact in these proceedings.?172  Finally, Justice Vickers expressed his hope that identifying the Opinion Title Area would ?assist the parties to achieve a fair and lasting resolution? of the title claim, and realize ?a reconciliation of all interests? involved.173  As a result, the trial decision delivered by the British Columbia Supreme Court in Tsilhqot?in Nation v. British Columbia is the closest any Canadian court has come to issuing a declaration of Aboriginal title in Canada.174                                                   170  Ibid. at para. 960.  171  Ibid.  172  Ibid. at para. 961.  173  Ibid. at para. 962.  174  MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 126, 135; Newman and Schweitzer, ?Between Reconciliation and the Rule(s) of Law?, supra note 143 at 255.    36 3.1.4 Division of Powers and the Doctrine of Interjurisdictional Immunity  After expressing a non-binding opinion on Tsilhqot?in Aboriginal title over portions of the Tachelach?ed and Trapline Territory, Mr. Justice Vickers explored the legal effects of British Columbia?s Forest Act on the Tsilhqot?in people?s land rights.  He affirmed that the province?s legislative and regulatory regime for the management of forestry resources must respect the constitutional division of powers.175  Specifically, he held that the doctrine of interjurisdictional immunity protects the core of federal jurisdiction from provincial interference with its exclusive powers over ?Indians, and [l]ands reserved for the Indians,? pursuant to section 91(24) of the Constitution Act, 1867.176  This doctrine developed by the Supreme Court of Canada posits that any provincial law that is in pith and substance concerned with Aboriginal peoples and their lands ?is ultra vires of the province.?177  Moreover, provincial laws of general application may apply to First Nations as long as they do not touch the core of ?Indianness,? or in today?s vernacular, the core of Aboriginal title.178 Applying the doctrine of interjurisdictional immunity, the trial judge made three important conclusions.  First, Aboriginal rights protected in section 35(1) of the Constitution Act, 1982 are part of the core of federal jurisdiction under section 91(24) of the Constitution Act, 1867, such that provincial laws cannot extinguish Aboriginal rights.179  Second, ?[t]he Forest Act, an [a]ct of general application, cannot apply to Aboriginal title land because its provisions all go to the core of Aboriginal title.  The management, acquisition, removal and                                                  175  Tsilhqot?in Nation, supra note 22 at para. 1001.  176  Constitution Act, 1867, supra note 33 at s. 91(24); McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 15-19.  177  Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at para. 67, cited in Tsilhqot?in Nation, supra note 22 at para. 1001.  178  Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55, at para. 14; Delgamuukw, supra note 4 at paras. 177-178; R. v. Morris, [2006] 2 S.C.R. 915, 2006 SCC 59, at para. 84, cited in Tsilhqot?in Nation, supra note 22 at paras. 1001, 1045. 179  Tsilhqot?in Nation, supra note 22 at para. 1045.    37 sale of [timber] falls within the protected core of federal jurisdiction.?180  Third, although the provisions of the Forest Act do not extinguish Aboriginal title, their application affects the core of Aboriginal title.  Therefore, ?[t]he doctrine of interjurisdictional immunity is engaged and the Forest Act is inapplicable? where it interferes with the forest resources found on Aboriginal title lands.181   3.1.5 Justification of Aboriginal Title Infringements   Justice Vickers concluded that the provisions of the Forest Act do not apply to Aboriginal title lands by virtue of the division of powers and the doctrine of interjurisdictional immunity.  Nevertheless, in case he were wrong on this constitutional issue, Justice Vickers decided to determine whether the application of the Forest Act infringes on Tsilhqot?in Aboriginal title.  He adapted the test for the infringement of Aboriginal rights, set out by the Supreme Court of Canada in Sparrow, to the context of Aboriginal title.  The trial judge implicitly situated the test of infringement in the context of reconciliation, asserting that, ?to have significance for Aboriginal people, Aboriginal title must bring with it the collective right to plan for the use and enjoyment of that land for generations to come.?182  According to Justice Vickers, the unilateral imposition of the provincial forestry regulation scheme ?removes the ability of the Tsilhqot?in people to control the uses to which the land is put, [?] and to realize certain economic gains associated with harvesting rights.?183  The Forest Act also denies members of the Tsilhqot?in                                                  180  Ibid. at para. 1031.  181  Ibid. at para. 1032.  Nonetheless, Justice Vickers? conclusion on the inapplicability of the Forest Act to Tsilhqot?in Aboriginal title lands is not binding on the parties to the proceedings given his conclusion on the preliminary issue.  This means that Aboriginal title must be proven on particular pieces of land before provincial regulatory schemes cease applying to those lands.  See Newman and Schweitzer, ?Between Reconciliation and the Rule(s) of Law?, supra note 143 at 272-273.  182  Tsilhqot?in Nation, supra note 22 at para. 1064. 183  Ibid. at para. 1066.   38 Nation ?their preferred means of enjoying the benefits? of their title lands.184  Hence the trial judge held that the ?cumulative effect? of British Columbia?s decisions with respect to logging on Aboriginal title lands constitutes ?a prima facie infringement and requires justification.?185  Accordingly, Justice Vickers applied the two-part test for the justification of Aboriginal title infringements, laid down in Delgamuukw.  First, the infringement must advance a ?compelling and substantial? legislative purpose.  Even though the trial judge acknowledged that ?forestry falls within the range of government activities that might justify the infringement of Aboriginal title,? he concluded that British Columbia did not demonstrate that it has a compelling and substantial legislative objective for forestry activities in the Claim Area, because ?[?] there was no evidence that logging in the Claim Area was economically viable.?186 The province thus failed the first part of the test. Nevertheless, Justice Vickers moved on to the second stage of the justificatory analysis, to assess whether the provincial forestry management scheme is compatible with the fiduciary relationship between the Tsilhqot?in Nation and the Crown.  In accordance with the jurisdictional component of Aboriginal title, identified in Delgamuukw, he affirmed that the Crown always has a duty of consultation in the context of Aboriginal title cases, and thus must involve the Tsilhqot?in people in decisions made with respect to their title lands.187  After evaluating the entire evidentiary record, Justice Vickers concluded that, by refusing to recognize and accommodate Aboriginal title claims, British Columbia ?has failed in its                                                  184  Ibid. at para. 1066.  185  Ibid. at para. 1066.  186  Ibid. at para. 1107.  Another reason cited by the trial judge was that ?there is no compelling evidence that it is or was necessary to log the claim area to deter the spread of the 1980s mountain pine beetle infestation.?  See Ibid. at para. 1108.  187  Ibid. at paras.1112; 1114; Delgamuukw, supra note 4 at paras. 164, 168.    39 obligation to consult with the Tsilhqot?in people,? contrary to the fiduciary duty and honour of the Crown.  Hence ?the province has failed to justify its infringement of Tsilhqot?in Aboriginal title.?188  However, this finding was not binding on the parties to these proceedings, as the judge had not granted the Tsilhqot?in a declaration of Aboriginal title. 3.1.6 Reconciliation as a Balancing Game Throughout his decision in Tsilhqot?in Nation v. British Columbia, Mr. Justice Vickers defined reconciliation as a process to ?balance Tsilhqot'in interests and needs with the interests and needs of the broader society.?189  The trial judge articulated his ?consistent hope that, whatever the outcome [of the case,] it would ultimately lead to an early and honourable reconciliation with the Tsilhqot?in people.?190  However, he lamented the fact that the reluctance of governments to recognize the full significance of section 35(1) of the Constitution Act, 1982 has situated the issue of reconciliation within the courtroom, ?one of our most adversarial settings.?191  As a result, the trial judge came to see the ?Court?s role as one step in the process of reconciliation.?192  Accordingly, even though Justice Vickers was unable to make a declaration of Aboriginal title, he expressed an opinion on Tsilhqot?in Aboriginal title, as a means to facilitate the subsequent process of negotiations between the Crown and the Tsilhqot?in people.193  The trial judge emphasized that ?there will have to be compromises on all sides if a just and lasting reconciliation is to be achieved.?194  He also specified that the ?impoverished view of Aboriginal title advanced by Canada and British                                                  188  Tsilhqot?in Nation, supra note 22 at para. 1141.  189  Ibid. at para. 1369. 190  Ibid. at para. 1338.  191  Ibid. at para. 1350; see also Lambert, ?The Tsilhqot?in Case?, supra note 26 at 820; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 9-10.  192  Tsilhqot?in Nation, supra note 22 at para. 1340; see also McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 9-10.  193  Tsilhqot?in Nation, supra note 22 at para. 1375.  194  Ibid. at para. 21.    40 Columbia, characterized by the plaintiff as the ?postage stamp? approach to Aboriginal title, cannot be allowed to pervade and inhibit genuine negotiations.?195  Justice Vickers? recurrent calls for negotiations in Tsilhqot?in Nation echo those of then Chief Justice Dickson and Justice La Forest in Sparrow and former Chief Justice Lamer in Delgamuukw, suggesting that Canadian courts may feel uncomfortable with their role in the process of reconciliation between First Nations and the Crown, and would prefer to delegate this fundamental task to democratically elected branches of government.196  In the following section, I turn to the consequences of Justice Vickers? conclusion on the preliminary issue, treatment of oral evidence, approach to the test for the proof of Aboriginal title, discussion of the division of powers and doctrine of interjurisdictional immunity, application of the test for the justification of Aboriginal title infringements, and vision of reconciliation on the relationship between First Nations and the Crown.   3.1.7 Justice Vickers? Na?ve Vision of Reconciliation   The British Columbia Supreme Court?s trial judgement in Tsilhqot?in Nation v. British Columbia has mixed implications for relations between the Crown and First Nations in Canada.  On the one hand, Justice Vickers? conclusion on the preliminary issue is likely to undercut the confidence of Aboriginal peoples in the Canadian judicial system and the Crown.  In particular, the ratio decidendi that the federal and provincial governments would suffer prejudice from the ?all or nothing? structure of the Tsilhqot?in?s Aboriginal title claim is likely to be construed as ludicrous and offensive, in light of the stark history of                                                  195  Ibid. at para. 1376.  196  Justices Dickson and La Forest stated in Sparrow, supra note 100 at 1105, that section 35(1) of the Constitution Act, 1982 ?provides a solid constitutional base upon which subsequent negotiations can take place.?  Similarly, former Chief Justice Lamer concluded his judgement in Delgamuukw by affirming, supra note 4 at para. 186, that ?[u]ltimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve [?] ?the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.? Let us face it, we are all here to stay.?  See also Newman, ?Tsilhqot?in Nation v. British Columbia and Civil Justice?, supra note 8 at 444-445.    41 dispossession and cultural assimilation of Indigenous peoples in British Columbia and Canada.197  According to Kent McNeil, although the inconsistency between the Tsilhqot?in?s statement of claim and final argument may have been a legitimate legal reason to refuse to make a declaration of Aboriginal title, it should have been discovered and resolved earlier through amendment.198  Moreover, in light of the enormous length, cost and complexity of the legal proceedings in this case, the trial judge?s dismissal of the Tsilhqot?in people?s Aboriginal title claim, on account of a minor defect in the pleadings, is almost tragic.199  These findings suggest that common law courts are perhaps not the most appropriate setting to solve Aboriginal title claims, on account of their adversarial structure, strict adherence to formalistic rules of procedure, and the substantial time and monetary resources required for a protracted litigation process.200  Therefore, the trial ruling?s refusal to recognize Aboriginal title is likely to heighten tensions between the Tsilhqot?in Nation and the Crown, and to undercut the broader, long-term objective of reconciling Aboriginal peoples with the Canadian state and society.    On the other hand, various parts of his reasons suggest that Justice Vickers sincerely sought to facilitate the attainment of an early and ?honourable settlement? with the Tsilhqot?in Nation, and to harmonize relations between First Nations and the Crown.201  First, his decision furthered the objective of reconciliation by attributing priority to the                                                  197  Tsilhqot?in Nation, supra note 22 at para. 129.  See also Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 548-553; Lambert, ?Three Points about Aboriginal Title?, supra note 78 at 349.   198  McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 9. 199  Ibid.  200  Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 548-553; Russell, ?High Courts and the Rights of Aboriginal Peoples?, supra note 81 at 274-276; Shiveley, Negotiation and Native Title?, supra note 27 at 427-249, 456-462; Turpel, ?Aboriginal Peoples and the Canadian Charter?, supra note 81 at 5-6; Yurkowski, ?We are All Here to Stay?, supra note 27 at 472, 493.  201  Tsilhqot?in Nation, supra note 22 at para. 1382.    42 Aboriginal perspective in the assessment of oral history and oral tradition evidence.202  Justice Vickers was cognizant of the evidentiary difficulties inherent in the adjudication of Aboriginal rights and title claims in general, and the Tsilhqot?in?s land claim in particular.  The Tsilhqot?in lacked a written language until the last half of the twentieth century; therefore, ?the history of the Tsilhqot?in people is an oral history,? which can only be accessed by listening to their legends and stories.203  The absence of Tsilhqot?in written records raised a number of evidentiary issues; that is, the plaintiffs had to prove their exclusive, pre-sovereignty occupation of the Tachelach?ed and Trapline Territory centuries later and without the help of a written history.204   As a result, Justice Vickers decided to relax standard rules of evidence to accommodate the perspective of Aboriginal peoples, consonant with the interpretive principles set out by the Supreme Court of Canada in the cases of Van der Peet and Delgamuukw.205  Specifically, he attempted to avoid the ?Eurocentric tendency? to rely on the written word by consistently giving equal weight to oral tradition evidence and historical evidence.206   According to Dwight Newman, Justice Vickers? treatment of the evidence reflects a ?reasonable effort toward [?] the practical reconciliation? of the Aboriginal and common law perspectives, which may help lower courts determine the admissibility and weight attributed to oral history and oral tradition evidence in future Aboriginal rights and title cases.207  Consequently, the trial judge?s approach to the interpretation of oral history                                                  202  Newman and Schweitzer, ?Between Reconciliation and the Rule(s) of Law?, supra note 143 at 267-271. 203  Tsilhqot?in Nation, supra note 22 at para. 131.  204  Ibid. at para. 132.  See also MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 127.  205  Delgamuukw, supra note 4 at paras. 80-84, 112, 147-149, 156; Van der Peet, supra note 79 at paras. 49-50. 206  Tsilhqot?in Nation, supra note 22 at para. 203. 207  Justice Vickers? approach to the admissibility and interpretation of oral history and oral tradition evidence is discussed in detail in the Tsilhqot?in Nation order, delivered in 2004.  See William et al. v. British Columbia et al., 2004 BCSC 148 (CanLII), <http://canlii.ca/t/1gfq9> (retrieved on July 30, 2013) [hereinafter Tsilhqot?in   43 and oral tradition evidence could potentially increase the faith of First Nations in the fairness of the Canadian judicial process.   Second, the test for the proof of Aboriginal title in Tsilhqot?in Nation aimed at reconciling First Nations with the Crown.  While Justice Vickers failed to incorporate the Tsilhqot?in people?s laws in relation to land into his test of occupancy, his willingness to assess the evidence of the Tsilhqot?in people?s use and occupation of the Claim Area in a variety of ways manifests sensitivity to the Aboriginal perspective.  This flexible approach to the evidence signals a departure from the stringent standard of occupation set out by the Supreme Court of Canada?s majority decision in Marshall and Bernard, which requires ?regular occupancy or use of definite tracts of land.?208  Rather, by studying the Tsilhqot?in people?s seasonal migration patterns, land use, and degree of attachment to the land, the trial judge implicitly endorsed the minority judgement?s more generous standard of occupation.209  This occupancy standard serves to accommodate the semi-nomadic lifestyles of most Aboriginal peoples in the pre-sovereignty period, since it takes into account ?the traditions and culture of the group that connect it to the land.?210  Consequently, by adopting a broad and liberal standard of occupation for the proof of Aboriginal title, the trial ruling is likely to facilitate findings of Aboriginal title, and strengthen the relationship between First Nations and the Crown in Canada.   Third, Justice Vickers tried to improve relations between the Tsilhqot?in people and the Crown, by clarifying the precise nature and location of Tsilhqot?in title lands in British                                                                                                                                                        Nation Order]; see also MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 126, 128-129; Newman, ?Tsilhqot?in Nation v. British Columbia and Civil Justice?, supra note 8 at 444-446, 449.  208  Marshall and Bernard, supra note 21 at para. 70.  209  MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 132, 136; Newman and Schweitzer, ?Between Reconciliation and the Rule(s) of Law?, supra note 143 at 249-256.  210  Marshall and Bernard, supra note 21 at paras. 131, 140.     44 Columbia.  As mentioned earlier, Justice Vickers was ?unable to find regular use? of land throughout the Tachelach?ed and Trapline Territory, and could not make ?a declaration of Tsilhqot?in Aboriginal title to smaller areas included within the whole,? since they had not been separately pleaded.211  Nonetheless, the trial judge offered an opinion on Tsilhqot?in Aboriginal title, indicating sites inside and outside the Claim Area that were occupied by the Tsilhqot?in people at the time of sovereignty assertion to a degree sufficient to merit a finding of Aboriginal title.212  This opinion was meant to ?assist the parties in the negotiations that lie ahead? and ?achieve a reconciliation of all interests.?213  Therefore, even though Justice Vickers declined to make a declaration of Aboriginal title, he genuinely attempted to foster reconciliation and dialogue between the Tsilhqot?in people and representatives of the federal and provincial Crown, by identifying the Opinion Title Area.  Fourth, the trial judge reinforced the relationship between First Nations and the Crown by concluding that the Forest Act is inapplicable to Aboriginal title lands under the constitutional division of powers and doctrine of interjurisdictional immunity.214  Justice Vickers acknowledged the serious implications that this ruling will have on British Columbia?s ability to regulate Aboriginal title lands.  Specifically, the inapplicability of the Forest Act to Aboriginal title lands signifies that British Columbia lacks the constitutional authority to grant interests in the timber located on Tsilhqot?in title lands to third parties.  The province also lacks the power to oversee forest development projects on these lands.215  Nonetheless, he believed that these conclusions were compatible with the primary role of Parliament in affairs relating to Aboriginal peoples in Canada.  The trial judge declared that                                                  211  Ibid. at para. 957.  212  Ibid. at para. 960.  213  Ibid. at paras. 961-962.  214  Tsilhqot?in Nation, supra note 22 at at paras. 1031-1032, 1045.  215  Ibid. at para. 1002; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 15-19.    45 ?[t]he denial or avoidance of this constitutional responsibility is unacceptable if there is to be a just reconciliation in this era of decolonization.?216  He also expressed approval for Kent McNeil?s opinion that British Columbia ?has been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871.  What is truly disturbing is not that the province can no longer do so, but that it has been able to get away with it for so many years.?217  This represents a strong statement in favour of the Aboriginal title rights of First Nations in Canada, suggesting that the federal government will have to compensate Aboriginal peoples for the continued violation of their land rights in British Columbia.   Fifth, Mr. Justice Vickers furthered the goal of reconciliation by affirming that, even if his conclusions on the constitutional issues were wrong, the application of British Columbia?s Forest Act would still unjustifiably infringe Tsilhqot?in Aboriginal title rights.  As aforementioned, the trial judge found that the Forest Act constitutes a prima facie infringement on Tsilhqot?in Aboriginal title, because this forestry framework ?removes the ability of the Tsilhqot?in people to control the uses to which the land is put, [?] and to realize certain economic gains associated with harvesting rights.?218  By recognizing and affirming the economic and jurisdictional aspects of Aboriginal title, the trial judge created constitutional space for the self-government and economic development of the Tsilhqot?in Nation in the twenty-first century.   Furthermore, given British Columbia?s failure to acknowledge and accommodate the Aboriginal rights and title claims advanced by the Tsilhqot?in, the trial court concluded that                                                  216  Tsilhqot?in Nation, supra note 22 at para. 1046.  217  K. McNeil, ?Aboriginal Title and Section 88 of the Indian Act? (2000) 34:1 UBC L Rev 159 at 194, cited in Tsilhqot?in Nation, supra note 22 at para. 1047.  218  Tsilhqot?in Nation, supra note 22 at para. 1066 [emphasis added].   46 ?the [p]rovince has failed in its obligation to consult with the Tsilhqot?in people,? and ?failed to justify its infringement of Tsilhqot?in Aboriginal title.?219  This conclusion reflects Justice Vickers commitment to the principles of ?deep consultation and accommodation? in the context of Aboriginal rights and title claims, as well as his willingness to hold the provincial Crown to a high standard in its dealings with Aboriginal peoples.220  Consequently, the trial court?s judgement in Tsilhqot?in Nation contributed to reinforcing the fiduciary relationship between First Nations and the Crown and the broader objective of reconciliation in Canada.  Finally, even though Justice Vickers envisaged the ultimate goal of reconciliation throughout his decision and sought to facilitate the subsequent process of negotiations between the Tsilhqot?in people and agents of the Crown, he may have failed to appreciate the lack of political incentives and public support for the provincial and federal governments to negotiate in good faith with representatives of the Tsilhqot?in Nation, and make concessions to their claims for rights of use and occupation of the Tachelach?ed and Trapline Territory.  Since the constitutional entrenchment of Aboriginal and treaty rights in 1982, the governments of British Columbia and Canada have systematically denied First Nations the opportunity to exercise their Aboriginal title rights recognized and affirmed by the Constitution.  The denial is inferred from the fact that the federal and provincial governments have fought every single case involving claims for Aboriginal title.221   While the formal land claims process purports to promote just and lasting land settlements between First Nations and the Crown, Canada and British Columbia have both imposed the inclusion of ?extinguishment clauses? in modern-day treaties, such as Nisga?a                                                  219  Ibid. at para. 1141.  220  Ibid.  221  Christie, ?Judicial Justification of Recent Developments in Aboriginal Law?, supra note 7 at 62-64; Lambert, ?Three Points about Aboriginal Title?, supra note 78 at 349-350.    47 and James Bay agreements, as a means to prohibit Aboriginal communities from pursuing rights and title claims in court.222  This situation suggests that the stark imbalance of power between First Nations and the Crown often precludes the negotiation process from fully appreciating and accommodating the land claims of Aboriginal peoples.  Despite the flaws of the Canadian judicial system, it is still better equipped than politicians to protect and promote the constitutional rights of Aboriginal peoples in Canada, due to its relatively impartial and nonpartisan nature.223  From this perspective, the tendency of Canadian courts to reject title claims on procedural as opposed to substantive grounds could be perceived as an abdication of judicial power to protect the constitutional rights of Aboriginal peoples rather than as sensitivity and deference to the legislative and executive branches of government.  The foregoing analysis shows that Justice Vickers was an inspired and principled judge who sincerely sought to participate in the ?larger process of reconciliation between the Tsilhqot?in people and broader Canadian society,? by considering oral evidence from the Aboriginal perspective, adopting a large and liberal standard of occupation for the proof of Aboriginal title, expressing an opinion on Tsilhqot?in Aboriginal title, and asserting the unconstitutionality of British Columbia?s attempts to control Tsilhqot?in title lands through the Forest Act.224  However, the trial decision ultimately failed to attain an ?honourable settlement with Tsilhqot?in people,? by declining to issue a declaration of Aboriginal title, due to a defect in the Nation?s pleadings.225  Since Justice Vickers could have found a way around the pleadings issue, had he believed a declaration of Aboriginal title would have been                                                  222  Ibid.; T. Gordon, ?Canada Empire, and Indigenous People in the Americas? (2006) 2:1 Soc Stud 47 at 59-60; P. Rynard, ??Welcome In, But Check Your Rights at the Door?: The James Bay and Nisga?a Agreements in Canada? (2000) 33:2 CJPS 211; Yurkowski, ?We are All Here to Stay?, supra note 27 at 495.  223  Christie, ?Judicial Justification?, supra note 7 at 60-64.  224  Tsilhqot?in Nation, supra note 22 at para. 18.  225  Ibid. at para. 1382.    48 fair and just remedy in the circumstances, his failure to grant the Tsilhqot?in declaratory relief seems to have been informed by his na?ve preference for negotiation over litigation in the resolution of Aboriginal title claims.226  Consequently, the trial ruling in Tsilhqot?in Nation has dire ramifications for the future of Aboriginal title litigation, intimating that courts could decline to issue declarations of Aboriginal title, if judges construe the ?winner take all? approach of the judicial system and the constraints of the law as obstructing the broader objective of reconciliation between Indigenous and non-Indigenous Canadians.227  3.2 William v. British Columbia: Court of Appeal Decision   Following the trial decision in Tsilhqot?in Nation v. British Columbia, the parties to the proceedings attempted to attain a settlement, but ultimately found it necessary to continue with the appeal.228  Justice Vickers? decision to issue a non-binding opinion as to the title area thus failed to assist the parties in finding common ground.229  A three-judge panel of the British Columbia Court of Appeal, composed of Madam Justice Levine, Mr. Justice Tysoe, and Mr. Justice Groberman, heard the appeals in the Tsilhqot?in case for six days in November 2010.  After being reserved for more than nineteenth months, the Court of Appeal?s judgement in William v. British Columbia was finally released by Mr. Justice Groberman on 27 June 2012, with Justices Levine and Tysoe concurring in the reasons.  The                                                  226  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 820; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 7-14.  227  Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 548-553; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 13-14; Russell, ?High Courts and the Rights of Aboriginal Peoples?, supra note 81 at 274-276; Shiveley, Negotiation and Native Title?, supra note 27 at 427-249, 456-461; Turpel, ?Aboriginal Peoples and the Canadian Charter?, supra note 81 at 5-6; Yurkowski, ?We are All Here to Stay?, supra note 27 at 472, 493.   228  William, supra note 6 at para. 28; R. Matas, ?B.C. turns to courts after negotiations fail in landmark case? online: Globe and Mail, February 26, 2009 <http://www.theglobeandmail.com/news/british-columbia/bc-turns-to-courts-after-negotiations-fail-in-landmark-case/article1154149/> (retrieved on July 30, 2013). 229  Nevertheless, Justice Groberman, writing for the Court of Appeal, emphasized that neither the fact that the parties were unable to settle this matter short of appeal nor the fact that the Court disagreed with him on certain issues of law should be regarded as reducing Justice Vickers? ?thorough understanding and careful analysis of the evidence? in the trial decision.  See William, supra note 6 at paras. 29 and 164.     49 Court of Appeal?s decision upheld the trial ruling granting the Tsilhqot?in a declaration of Aboriginal rights to hunt and trap animals and birds throughout the Claim Area, including the right to capture and use wild horses ?for transportation and work,? and the right to trade in skins and pelts for the purposes of securing a ?moderate livelihood.?230   However, the Court of Appeal dismissed the Tsilhqot?in Nation?s claim for Aboriginal title to the Tachelach?ed and Trapline Territory for four main reasons.  First, although the Court found that the Tsilhqot?in?s claim for Aboriginal title to the Tachelach?ed and Trapline Territory was not structured as an ?all or nothing claim,? it was concerned with the competing conceptions of Aboriginal title advanced by the plaintiff and defendants.231  Second, the Aboriginal title claim advanced by Roger William on behalf of the Tsilhqot?in was framed as a territorial claim rather than a site-specific claim.232  Third, Justice Groberman considered himself free to set aside Justice Vickers? findings of fact on Tsilhqot?in Aboriginal title, because he decided that a ?broad territorial claim? does not constitute a valid foundation for an Aboriginal title claim.233  Fourth, the Court held that an overly broad declaration of Aboriginal title is at odds with the ultimate goal of reconciliation; rather, the recognition of Aboriginal rights would be sufficient to ensure the cultural security of native peoples in the twenty-first century.234  These conclusions are discussed in detail below.  3.2.1 Preliminary Issue: ?All or Nothing? Aboriginal Title Claim   First, the Court of Appeal rejected Justice Vickers? ruling that Roger William?s land claim was structured as an ?all or nothing claim,? such that the Court lacked the jurisdiction                                                  230  Ibid. at paras. 267, 288, 344.  231  Ibid. at paras. 117-118, 344.  232  Ibid. at paras. 214, 217-218, 344.  233  Ibid. at paras. 219-225, 344.  234  Ibid. at paras. 219, 235-239.   50 to issue a declaration of Tsilhqot?in Aboriginal title to discrete portions of the Claim Area.235  Specifically, Justice Groberman stated ?[t]he claim was sufficiently pleaded to allow the Court to find that Aboriginal title had been proven in respect of only part of the Claim Area,? without prejudice to the federal or provincial Crown.236  Underlying this finding was the perceived necessity for judicial suppleness and sensitivity to the Aboriginal perspective in the context of Aboriginal title cases.  Prior to the assertion of Crown sovereignty, the occupation of traditional territories by most First Nations did not tend to be delimited by precise natural boundaries, but rather remained ?ill-defined and fluid.?237  As a result, Justice Groberman recognized that ?to require proof of Aboriginal title precisely mirroring the claim would be too exacting,? especially in the case of such semi-nomadic peoples as the Tsilhqot?in.238  The Court of Appeal thus rejected the Crown?s argument that the way in which Roger William structured his application for relief on behalf of the Tsilhqot?in would be prejudicial to British Columbia and Canada.239  However, the Court was concerned that the territorial theory of Aboriginal title advanced by the Tsilhqot?in would cause prejudice to the provincial and federal governments, who adhered to a site-specific understanding of title.240  These competing conceptions of land rights are articulated below. 3.2.2 Site-Specific v. Territorial Aboriginal Title Claims  In William v. British Columbia, the Court of Appeal differentiated between two different types of Aboriginal title claims, namely territorial and site-specific claims.241  According to the Court, Roger William?s case was based on a territorial theory of Aboriginal                                                  235  Ibid. at para. 103.  236  Ibid. at para. 117.  237  Ibid. at para. 118.  238  Ibid.  239  Ibid. at para. 107.  240  Ibid. at paras. 120-126.  241  Ibid. at para. 205.    51 title, because he presumed that ?occupation? could be established by revealing the physical presence and the seasonal resource-gathering patterns of the Tsilhqot?in Nation at and around the time of sovereignty.242  In contrast, British Columbia and Canada embraced a site-specific conception of title, arguing that Aboriginal title could only be declared over definite tracts of land that were regularly and intensively used by First Nations in the pre-sovereignty period.243  Roger William argued on behalf of the Tsilhqot?in that by asking semi-nomadic groups to demonstrate the intensive and regular use of clearly identifiable tracts of land, the provincial and federal governments were adopting a ?postage stamp? approach to title, which is fundamentally incompatible with the Aboriginal perspective.244   Nonetheless, the Court of Appeal accepted the defendants? characterization of William?s claim as a ?territorial? one.245  The Aboriginal leader did not attempt to show that the Tsilhqot?in physically occupied the entire Claim Area, either at all times or on a seasonal basis.  Rather, he demonstrated that the Tsilhqot?in lived in different parts of the Claim Area at different periods.  The fact that the area being claimed represented only a fraction of the region, regarded as the traditional territory of the Tsilhqot?in, did not preclude the claim from being described as territorial rather than site-specific.246  Furthermore, the Court of Appeal held that a broad territorial claim constituted an inappropriate basis for an Aboriginal title right, and failed to comply with the tests for the proof of exclusive, pre-sovereignty occupation laid down in Delgamuukw and Marshall and Bernard.247  Instead, Aboriginal title could only be claimed over specific sites subject to regular and intensive historical use.248                                                   242  Ibid. at para. 120.  243  Ibid. at para. 211. 244  Ibid. at para. 210.  245  Ibid. at paras. 215, 217.  246  Ibid. at para. 217.  247  Ibid. at paras. 219-225, 344. 248  Ibid. at paras. 224-225.    52 Responding to the concerns raised by the minority decision in Marshall and Bernard, Justice Groberman emphasized that the requirements of site-specificity, intensity and regularity of use would not prevent such semi-nomadic peoples as the Tsilhqot'in from fulfilling the standard of occupation for the purpose of a title claim.249  3.2.3 Intensity and Regularity of Use In applying the standard of intensive and regular occupation, the Court of Appeal decided that the Tsilhqot?in did not meet the test for the proof of Aboriginal title.  While Roger William showed that the Tsilhqot?in had engaged in hunting, trapping, and fishing in different parts of the Claim Area in the period around 1846, Justice Groberman belittled these cultural activities as occurring ?more or less on an opportunistic basis.?250  William also presented evidence of attempts by the Tsilhqot?in to restrict the access of outsiders to their traditional territory to prove their exclusive occupation of the Claim Area prior to the assertion of Crown sovereignty in 1846; however, the Court dismissed this evidence as ?anecdotal? and thus unreliable.251  Moreover, Justice Groberman perceived the absence of permanent villages, and cultivated or enclosed fields in the traditional territory of the Tsilhqot?in as detrimental to their title claim.252  Consequently, the Court of Appeal decided that, ?[e]xcept in respect of a few specific sites, the evidence did not establish regular presence on or intensive occupation of definite tracts of land within the Claim Area.?253  The more rigid standard of occupation set out by the Court of Appeal thus obstructed the recognition of Tsilhqot'in Aboriginal title.                                                   249  Ibid. at para. 222.  250  Ibid. at paras. 214, 216.  251  Ibid.  252  Ibid. at paras. 215-216.  253  Ibid. at para. 215.    53 The Court of Appeal contended that ?it is not clear what precise test the [trial] judge applied in determining whether Tsilhqot?in occupancy of the Claim Area was sufficient to found title.?254  Although the trial judge did not identify and define a clear standard of occupation, it is obvious that he believed that occupation could be established on a regional or territorial basis.255  Given that Justice Vickers had dealt with the evidence of pre-sovereignty occupation within the framework of a territorial rather than a site-specific claim, Justice Groberman regarded himself as free to reject the trial judge?s findings of fact to the effect that the Tsilhqot?in Nation had Aboriginal title to the Opinion Title Area, constituting approximately forty percent of the Claim Area.256  Nevertheless, in light of the significant uncertainty surrounding the law of Aboriginal title and the nature of this ?test case,? Justice Groberman decided that his dismissal of the title claim would not prevent the Tsilhqot?in from advancing new actions for Aboriginal title to definite tracts of land within the Tachelach?ed and Trapline Territory in the future.257   3.2.4 Cultural Security and Reconciliation   The Court of Appeal?s decision in William v. British Columbia did not express significant concerns about the repercussions of its rejection of Chief Roger William?s Aboriginal title claim for the economic future of the Tsilhqot'in Nation.  Justice Groberman was ?not convinced? that the relationship between the Tsilhqot?in Nation and their land ?requires the recognition of Aboriginal title on a territorial basis.?258  Instead, this connection would call for the Court to acknowledge the existence of Aboriginal rights respecting the                                                  254  Ibid. at para. 228.  255  Ibid. at para. 229.  256  Ibid. at paras. 240-241.  See also Lambert, ?The Tsilhqot?in Case?, supra note 26 at 820-821.  257  William, supra note 6 at para. 241, 344.  258  Ibid. at para. 233.    54 cultural values of the Tsilhqot?in community.259  According to the Court of Appeal judge, William?s position with respect to Tsilhqot?in Aboriginal title did not take into consideration the fact that ?title is not the only tool available to provide cultural security to the Tsilhqot?in;? rather, ?various types of Aboriginal rights afford cultural security and safeguard the capacity of First Nations to continue to engage in traditional lifestyles.?260  The result of this approach to Aboriginal title for such semi-nomadic groups as the Tsilhqot?in would not be ?a patchwork of unconnected ?postage stamp? areas of title, but rather a network of specific sites over which title can be proven,? linked by large areas in which different forms of identifiable Aboriginal rights can be exercised.261  Justice Groberman viewed this understanding of the interaction between Aboriginal title and Aboriginal rights as ?entirely consistent? with the customs of Indigenous peoples, as well as with the purposes behind the entrenchment of Aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982.262    The Court of Appeal judge also believed that this conception of the interplay between Aboriginal title and Aboriginal rights was compatible with the ultimate objective of reconciliation.263  Justice Groberman repeatedly affirmed that he regarded broad territorial claims for Aboriginal title as ?antithetical to the goal of reconciliation,? which requires that ?the traditional rights of First Nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians.?264  Recalling former Chief Justice Lamer?s conclusion in Delgamuukw that ?we are all here to                                                  259  Ibid.  260  Ibid. at para. 236.  261  Ibid. at para. 238.  262  Ibid.  263  Ibid. at para. 239. 264  Ibid. at para. 219.    55 stay,? Justice Groberman called for mutual concessions on the part of the Crown and First Nations to facilitate the peaceful co-existence of Aboriginal and non-Aboriginal Canadians.   In the following subsection I explore the implications of the Court of Appeal?s conclusion on the preliminary issue, conception of the law of territoriality and site-specificity, requirement of regular and intensive use for the proof of Aboriginal title, and vision of reconciliation for the relationship between First Nations and the Crown.  3.2.5 Justice Groberman?s Hollow Conception of Reconciliation   By allowing the appeal on the pleadings issue, the British Columbia Court of Appeal infused a certain degree of flexibility into outdated rules of procedure and helped to restore the confidence of Aboriginal peoples in the Canadian judicial system.  Nevertheless, Justice Groberman?s conclusions in William v. British Columbia largely subverted relations between First Nations and the Crown for four main reasons. First, Justice Groberman violated the principle of non-interference by setting aside the factual findings of the trial judge with respect to Tsilhqot?in Aboriginal title.  In Tsilhqot?in Nation v. British Columbia, Justice Vickers had recognized that if his interpretation of the preliminary issue were wrong, then his conclusion on Tsilhqot?in Aboriginal title, insofar as it applied to land within the Tachelach?ed and the Trapline Territory, would be binding on the parties as a finding of fact in the proceedings.265  Given that Justice Groberman ruled in William v. British Columbia that the trial judge had committed an error of law with respect to the pleadings issue, one would assume that the Court of Appeal would grant the Tsilhqot?in Nation a declaration of Aboriginal title to the relevant region of the Opinion Title Area. Yet, Justice Groberman refused to provide the Tsilhqot?in with declaratory relief, preferring instead to revisit Justice Vickers? findings of fact.  This decision contravenes the                                                  265  Tsilhqot?in Nation, supra note 22 at para. 961.    56 general principle of non-interference laid down by the Supreme Court of Canada in Delgamuukw, such that ?appellate courts should not substitute their own findings of fact for those of the trial judge,? absent a ?palpable and overriding error.?266  In general, appellate intervention would be justified ?where the courts below have misapprehended or overlooked material evidence.?267  In the context of section 35(1) cases in particular, appellate interference would be warranted by the failure of a trial court to grasp the evidentiary difficulties in adjudicating Aboriginal rights claims when first, implementing the rules of evidence and second, evaluating the evidence before it.268  Consequently, the British Columbia Court of Appeal?s decision to interfere with the factual findings made by the British Columbia Supreme Court, despite the lack of a ?palpable and overriding error? in the trial judge?s treatment of the evidence, may be construed as an error of law and a manifestation of judicial activism or overreaching.   Second, the majority judgement misinterpreted the law of site-specificity and territoriality.  As aforementioned, Justice Groberman decided in William v. British Columbia that only site-specific as opposed to territorial claims for Aboriginal title are legally tenable and likely to succeed in court.269  This is the first time that the concept of site-specificity has been applied to Aboriginal title, though it is relatively familiar in Aboriginal rights jurisprudence.270  Site-specific rights are situated at the centre of the spectrum of Aboriginal rights, defined by the Supreme Court of Canada in Adams and C?t?, with Aboriginal rights simpliciter and Aboriginal title at the two other extremes.  In these joint cases, then Chief                                                  266  Delgamuukw, supra note 4 at para. 78, citing Stein et al. v. ?Kathy K? et al. (The Ship), [1976] 2 S.C.R. 802 at 278.  267  Delgamuukw, supra note 4 at para. 78, citing Chartier v. Attorney-General of Quebec, [1979] 2 S.C.R. 474, at 493.   268  Citation from Delgamuukw, supra note 4 at para. 80; Van der Peet, supra note 79 at para. 68.  269  William, supra note 6 at paras. 220-225, 231, 239; Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 2.  270  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 823.     57 Justice Lamer ruled that site-specific rights provide constitutional protection to activities, which are exercised on and linked to a particular piece of land, but lack a sufficient degree of connection to establish title.271  Yet, the Court of Appeal?s reasons fail to appreciate that site-specificity is a concept that applies to Aboriginal rights, not Aboriginal title.272  As stated by the Supreme Court of Canada in Delgamuukw, ?Aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive [A]boriginal cultures.  Site-specific rights can be made out even if title cannot.?273  This passage clearly shows that site-specific Aboriginal rights are conceptually distinct from Aboriginal title.  Aboriginal title represents the broadest Aboriginal right, which is not confined to site-specific activities, but rather ?confers [?] the right to the land itself.?274  As a legal right to the exclusive use and occupation of land, it makes more sense for Aboriginal title claims to be conceptualized and structured in a broad, territorial manner than in narrow, site-specific terms.  By arbitrarily restricting the scope of Aboriginal title to specific sites, the Court of Appeal compromised the potential of Aboriginal title to protect the economic development and self-determination of Indigenous peoples in the twenty-first century.   Furthermore, whereas the Supreme Court failed to define ?definite tracts of land? in Delgamuukw, the Court of Appeal conflated this phrase with ?specific sites? in its decision in William v. British Columbia.275  Examples of specific sites cited by the Court of Appeal as                                                  271  Adams, supra note 18 at para. 26.  272  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 824.   273  Delgamuukw, supra note 4 at para. 138. 274  Ibid.  See also Borrows, ?Domesticating Doctrines?, supra note 3 at 654; Lambert, ?Van der Peet and Delgamuukw?, supra note 87 at 267-268; MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 134; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 285-287; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 477, 481-488, 509-510. 275  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 824.   58 satisfying the standard of occupation for Aboriginal title include ?salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.?276  While this list refers to places where site-specific Aboriginal rights could indeed be located and exercised, it does not indicate definite tracts of land exclusively occupied by Aboriginal peoples prior to sovereignty.277  Former British Columbia Court of Appeal judge Douglas Lambert points out that a buffalo jump may be situated on Aboriginal title land, ?but no one would think of it as being occupied exclusively as a buffalo jump by [a particular] Aboriginal people.?278  To conceive of Aboriginal title as ?site-specific? in the sense the phrase has been used in Aboriginal rights jurisprudence is simply incorrect.279  Moreover, most Aboriginal peoples do not contemplate their traditional territories in terms of discrete and independent sites, but rather as complex, overlapping regions united by a shared spirit.  The idea that First Nations strictly depended on promontories or rocks for fishing and salt licks for their sustenance and survival flouts not only the Aboriginal perspective but also common sense.280  Therefore, the Court of Appeal?s partial and fragmented as opposed to comprehensive and unified conception of land jeopardizes the economic and jurisdictional components of Aboriginal title.281   Third, the Court of Appeal set out a stringent standard of occupation for the proof of Aboriginal title, which disregards the Aboriginal perspective, especially that of nomadic or semi-nomadic groups.  In his analysis, Justice Groberman decided that ?Aboriginal title can only be proven over a definite tract of land[,] the boundaries of which are reasonably capable                                                  276  William, supra note 6 at para. 221.  277  Ibid. at para. 220.  278  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 824.  279  Ibid.   280  Ibid. at 353; Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 4.  281  Ibid.    59 of definition.?282  The appellate judge also ruled that ?a certain regularity and intensity of presence is needed before it will count as occupancy.?283  The Court of Appeal thus implicitly defined occupation as the regular presence or intensive use of definite tracts of land.  This definition reflects that adopted by the McLachlin majority in the consolidated cases of Marshall and Bernard; however, it deviates from the test of occupation set out by the Supreme Court in Delgamuukw.284  In the latter case, former Chief Justice Lamer declared that there were two main methods for Aboriginal title claimants to meet the occupancy test: first, by demonstrating the existence of Aboriginal laws and regulations in relation to land; second, by proving the physical presence of Aboriginal peoples in the pre-sovereignty period.285  Former Chief Justice Lamer also held that physical occupation could be established in ?a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources.?286  The Supreme Court carefully left the question of intensity of use amounting to occupation to be determined on a case-by-case basis.287  The test for the proof of Aboriginal title adopted by the Court of Appeal in William v. British Columbia is thus more onerous than that endorsed by the Supreme Court of Canada in Delgamuukw, because it requires evidence of intensive and regular land use.  While intensity and regularity reflect and reinforce the sedentary form of agriculture preferred by European settlers, these requirements are incompatible with the nomadic or semi-nomadic lifestyles of the vast majority of Aboriginal groups in the pre-sovereignty era, including the Tsilhqot?in                                                  282  William, supra note 6 at para. 230.  283  Ibid. at para. 225.  284  Marshall and Bernard, supra note 21 at paras. 56, 70.  285  Delgamuukw, supra note 4 at paras. 147-149.  286  Ibid. at para. 149.  287  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 825.    60 Nation.  The Court of Appeal?s onerous standard of occupation signifies that First Nations will face even greater obstacles to obtaining rights of ownership and control over their traditional territories and natural resources in the future.288  The test for the proof of Aboriginal title articulated by the Court of Appeal in William also departs from that developed in Delgamuukw, for it exclusively focuses on the fact of physical occupation to demonstrate Aboriginal title.289  By singling out the requirement of ?the regular use of definite tracts of land? from former Chief Justice Lamer?s discussion of occupation in Delgamuukw, Justice Groberman respected common law rules surrounding possession, but overlooked the legal system and customs of the Tsilhqot?in Nation.  The Court of Appeal?s judgement thus failed to reconcile the Aboriginal perspective with the common law, contrary to the constitutional principles laid down by the Supreme Court of Canada in the landmark cases of Sparrow, Van der Peet, and Delgamuukw.290   Fourth, the Court of Appeal?s judgement in William v. British Columbia undermined relations between First Nations and the Crown by articulating a strong preference for Aboriginal rights over Aboriginal title.  In William, Justice Groberman ruled that ?title is not the only tool available to provide cultural security to the Tsilhqot?in.?291  Rather, ?[t]he cultural security and continuity of First Nations can be preserved by recognizing their title to [?] ?definite tracts of land,? and by acknowledging that they hold other Aboriginal rights in much more extensive territories.?292  This statement contradicts the continuum of Aboriginal                                                  288  Chartrand, ?The Return of the Native?, supra note 130 at 135. 289  McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 227-300; McNeil, ?The Onus of Proof of Aboriginal Title?, supra note 91 at 782-784, 800-801. 290  Delgamuukw, supra note 4 at paras. 146-151; Sparrow, supra note 100 at 1112; Van der Peet, supra note 79 at paras. 49-50.  See also Chartrand, ?The Return of the Native?, supra note 130 at 140-142; Lambert, ?The Tsilhqot?in Case?, supra note 26 at 825; Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 7; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 227-300. 291  William, supra note 6 at para. 235.  292  Ibid. at para. 237.    61 rights created by the Supreme Court of Canada in Adams, which posits that Aboriginal title is the most powerful legal tool available to Aboriginal litigants, since it represents the right to the exclusive possession of property.293   The result of the Court of Appeal?s ruling if it were law would be to confine Aboriginal title to hunting and trapping rights over definite and intensively used tracts of land, as they were traditionally exercised in the pre-sovereignty period.  This site-specific conception of Aboriginal title might be sufficient for sustenance purposes; however, it would effectively preclude the Tsilhqot?in people from deriving any economic benefits from their homelands, either by the application of their Aboriginal title rights, or by compensation for the infringement of these rights by the federal or provincial governments.294  According to Justice Groberman?s theory of title, as soon as the Tsilhqot?in community were to commence the commercial exploitation of its title lands, these lands would become the absolute legal property of the Crown.  Yet, the Crown?s assertion of sovereignty and title over the Tachelach?ed and Trapline Territory would be illegitimate, in light of the absence of a formal treaty between the Tsilhqot?in Nation and the Crown.295  Moreover, it is only through the ownership and control of resources on and under their Aboriginal title lands that the Tsilhqot?in would obtain the means to maintain a moderate livelihood in the modern era.296  To paraphrase Douglas Lambert, ?sustenance [and] trapping rights will not do the trick in                                                  293  Adams, supra note 18 at paras. 26, 30.  See also Borrows, ?Domesticating Doctrines?, supra note 3 at 654; Lambert, ?Van der Peet and Delgamuukw?, supra note 87 at 267-268; MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 134; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 285-287; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 477, 481-488, 509-510. 294  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 829-830; Mandell, ?Aboriginal title over the Buffalo Jump?, supra note 28 at 1-2.  295  Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 1-2, 7. 296  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 829-830.   62 201[3].?297  Consequently, by articulating a preference for the judicial recognition of Aboriginal rights over Aboriginal title, Justice Groberman seems to have used the language of cultural security to obscure and erase the economic and jurisdictional aspects of Aboriginal title.  This rhetorical strategy flouts the fiduciary duty and honour of the Crown in its dealings with Aboriginal peoples.  Finally, the Court of Appeal?s decision in William v. British Columbia undermines the relationship between First Nations and the Crown by endorsing a hollow conception of reconciliation, which allows the sovereignty of the Crown and the socioeconomic interests of non-Aboriginal Canadians to trump the constitutional rights of Aboriginal peoples.  In William, Justice Groberman ruled that an ?overly broad recognition of Aboriginal title? is not conducive to the ultimate goal of reconciliation, which requires ?a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians.?298  This definition of reconciliation is fundamentally flawed because it places more weight on the welfare of the non-Aboriginal majority than the constitutional rights of Aboriginal peoples, contrary to legal principles and precedent.299  As suggested by the Supreme Court of Canada?s decision in Sparrow, the Aboriginal perspective should be prioritized in the balancing of Aboriginal rights and non-Aboriginal interests, consistent with the ?special trust relationship and the responsibility? of the Crown vis-?-vis First Nations in Canada.300  Yet, Justice Groberman?s idea of reconciliation does just the opposite, by subordinating the constitutionally protected rights of Aboriginal peoples to the socioeconomic interests of non-Aboriginal Canadians.                                                    297  Ibid. at 823.  298  William, supra note 6 at para. 239.  299  Delgamuukw, supra note 4 at paras. 81-82, 84, 112, 147-148, 156-15; Sparrow, supra note 100 at 1112, Van der Peet, supra note 79 at paras. 49-50. 300  Sparrow, supra note 100 at 1115-1116.   63 In sum, Justice Groberman may have helped to improve the confidence of Aboriginal peoples in the Canadian judicial system by allowing the appeal on the pleadings issue, thereby injecting some suppleness into rigid rules of procedure.  Nevertheless, the Court of Appeal?s decision in William v. British Columbia largely undercut relations between First Nations and the Crown in Canada, by interfering with the factual findings of the trial judge on Tsilhqot?in Aboriginal title, misinterpreting the law of site-specificity and territoriality, endorsing a narrow and stringent standard of occupation for the proof of Aboriginal title, expressing a preference for Aboriginal rights over Aboriginal title in the provision of cultural security, and adhering to a hollow vision of reconciliation, which subordinates the constitutional rights of Aboriginal peoples to the sovereignty of the Crown and the socioeconomic interests of non-Aboriginal Canadians.   64 4 Future of Aboriginal Title and Reconciliation in Canada  This section aims at assessing the ramifications of the trial and appellate decisions in the Tsilhqot?in case for the future of Aboriginal title and reconciliation between First Nations and the Crown in Canada.  The Tsilhqot?in case reflects the overarching pattern of Canadian Aboriginal title jurisprudence, whereby courts consistently reject Aboriginal title claims, either on procedural grounds to avoid dealing with their merits, or on substantive grounds to defend the interests of the Canadian state and society.  This pattern points to two different types of deficiencies in the Canadian judicial system, which pose significant obstacles to the recognition of Aboriginal title lands and the broader objective of reconciliation between First Nations and the Crown: specifically, structural and ideological limitations.301 On a structural level, the Canadian judicial system seems to be unable to adequately acknowledge and accommodate the demands of Aboriginal peoples, due to its adversarial structure, strict adherence to legal rules of procedure and precedent, and the excessive time and cost involved in the litigation of Aboriginal rights claims.302  These structural constraints were present in the case of Calder, since the ratio decidendi of the Supreme Court of Canada?s decision was that it lacked the jurisdiction to grant the Nisga?a Nation a declaration of Aboriginal title to lands in the northwest of British Columbia, in the absence of a fiat from the Lieutenant Governor of the province.303  The case of Delgamuukw also illustrates the structural limits to the judicial recognition of Aboriginal title, since the Supreme Court justices declined to decide on the merits of the Gitskan and Wet?suwet?en peoples? claims for Aboriginal title and self-government in northwest British Columbia, remanding the case to                                                  301  Russell, ?High Courts and the Rights of Aboriginal Peoples?, supra note 81 at 274.  302  On the structural obstacles to the adjudication of Aboriginal rights and title cases, see Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 548-553; Shiveley, ?Negotiation and Native Title?, supra note 27 at 456-462; and Yurkowski, ?We are All Here to Stay?, supra note 27 at 472, 493.  303  Calder, supra note 16 at 315, 317, 345.    65 trial, due to problems in the pleadings and flaws in the evidentiary record.304  The British Columbia Supreme Court?s trial ruling in Tsilhqot?in Nation v. British Columbia further exemplifies the structural restrictions on reconciliation between First Nations and the Crown.  Even though Justice Vickers was sympathetic and sensitive to the perspectives and aspirations of the Tsilhqot?in people, he ultimately dismissed their Aboriginal title claim on account of a minor defect in the structure of their pleadings.305  Given the enormous length, complexity and costs associated with these three cases, ?not only in economic but in human terms as well,? the frequent refusal of Canadian courts to address the merits of Aboriginal title claims, in order to comply with rigid rules of procedure, casts doubt on the justiciability of Aboriginal land claims in Canada.306   On an ideological level, the Canadian judicial system seems to be systematically biased against Aboriginal claimants, because courts are mainly ?non-Aboriginal in their membership,? display limited knowledge and understanding of the cultural values and world views of Aboriginal peoples, and are ultimately ?too tied to the dominant society to [serve] as truly independent and impartial adjudicators? of Aboriginal rights and title claims.307  Ideological barriers to judicial independence and impartiality can be inferred from the legal constructs of Crown sovereignty and radical title that prevail in Canadian Aboriginal rights jurisprudence.308  The uncritical acceptance of Crown sovereignty and underlying title by Canadian courts could be construed as illegitimate, since First Nations were never formally                                                  304  Delgamuukw, supra note 4 at paras. 76-77, 107-108, 170-171, 184-186. 305  Tsilhqot?in Nation, supra note 22 at paras. 129, 961.   306  Delgamuukw, supra note 4 at para. 186. 307  On the ideological barriers to judicial independence in the context of Aboriginal rights cases, see Russell, ?High Courts and the Rights of Aboriginal Peoples?, supra note 81, quotation at 274-275.  See also Borrows, ?Sovereignty?s Alchemy?, supra note 30; Macklem, ?What?s Law Got to Do with It?? supra note 30; and Turpel, ?Aboriginal Peoples and the Canadian Charter?, supra note 81.   308  On the uncritical acceptance of Crown sovereignty and underlying title in Canadian Aboriginal rights jurisprudence, see e.g. Borrows, ?Sovereignty?s Alchemy?, supra note 30 at 572-573; Christie, ?Judicial Justification?, supra note 7 at 67.   66 conquered by European colonizers in North America, nor did they surrender their self-government and land rights to the Crown following Confederation.309  The Supreme Court of Canada?s decision in the consolidated cases of Marshall and Bernard indicates that ideological factors effectively frustrate findings of Aboriginal title, since the majority endorsed an exacting standard of occupation for the proof of Aboriginal title, which the Mi'kmaq failed to meet.  This standard reflects common law rules rather than Aboriginal laws in relation to land use, and conflicts with the semi-nomadic lifestyles of most First Nations in the pre-sovereignty period.310  Ideological impediments to judicial independence and impartiality are also implicit in the British Columbia Court of Appeal?s judgement in William v. British Columbia, which denied the Tsilhqot?in people?s application for Aboriginal title, because the ?broad and territorial? structure of the claim was deemed to be ?antithetical to the goal of reconciliation.?311  The Court of Appeal contended that reconciliation requires that ?the traditional rights of First Nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians.?312  This definition of reconciliation is disingenuous, insofar as it demands that Aboriginal peoples concede their constitutional rights to accommodate the socioeconomic interests of non-Aboriginal Canadians in the case of a conflict.   The Canadian judiciary?s frequent rejection of Aboriginal title claims for procedural reasons may in part be explained, but certainly not justified, by strategic judicial decision-                                                 309  On the questionable origins of European sovereignty and settlement, see e.g. J. Borrows, ?Tracking Trajectories: Aboriginal Governance as an Aboriginal Right? (2005) 38:2 UBC L Rev 285; K. Ladner and M. McCrossan, ?The Road Not Taken: Aboriginal Rights after the Re-Imagining of the Canadian Constitutional Order? in ed. J. B. Kelly and C. P. Manfredi, Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (Vancouver: UBC Press, 2009) at 265-266. 310  Marshall and Bernard, supra note 21 at paras. 70.  See also Chartrand, ?The Return of the Native?, supra note 130 at 135-140; MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 132. 311  William, supra note 6 at para. 219.  312  Ibid.    67 making.  This model conceptualizes judges as strategic rational actors who attempt to maximize their preferences in the face of internal and external constraints.313  Consistent with Alexander Hamilton?s famous formulation in Federalist 78, this paradigm claims that courts must maintain their institutional legitimacy to survive, since they possess the power neither of the purse nor the sword, and thus depend on the legislative and executive branches of government to implement their decisions.314  Additionally, given that lower courts confront the constant threat of appeal, they are more likely than their appellate counterparts to respect the norm of stare decisis, or to decide points of law according to legal precedent, in order to rally the support of their colleagues higher up in the judicial hierarchy.315 As a court of final instance, the Supreme Court of Canada does not face the threat of appeal, but justices are nonetheless constrained by the need to negotiate and bargain with their colleagues to reach a majority decision.316  Since the Supreme Court gained control over its docket in 1975, it has tended to hear a greater number of ?hard cases,? in which the language of legal principles and precedents is unclear.  As a result of their docket control, Supreme Court justices have more leeway to engage in judicial policy-making.317  The Court?s discretionary power is further enhanced in the field of Aboriginal rights, since section 35(1) of the Constitution Act, 1982 is subject to neither the reasonable limits clause in                                                  313  On the strategic model of judicial decision-making, see R. Knopff, D. Baker and S. LeRoy,  ?Courting Controversy: Strategic Judicial Decision Making? in J. B. Kelly and C. P. Manfredi, ed., Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (Vancouver; Toronto: UBC Press, 2009) at 66-69; C. Manfredi, ?Strategic Behaviour and the Canadian Charter of Rights and Freedoms? in D. E. Abelson, P. James, and M. Lusztig, ed. The Myth of the Sacred: The Charter, the Courts, and the Politics of the Constitution in Canada (Montreal: McGill-Queen?s University Press, 2002) at 147-167; and P. T., Spiller and R. Gely, ?Strategic Judicial Decision Making? in G. A. Caldeira, R. D. Kelemen, and K.W. Whittington, ed., The Oxford Handbook of Law and Politics (Oxford: Oxford University Press, 2009) at 1-22.   314  L. Hausegger and T. Riddell, ?The Changing Nature of Public Support for the Supreme Court of Canada? (2004) 37:1 CJPS 23 at 23; V. Radmilovic, ?Strategic Legitimacy Cultivation at the Supreme Court of Canada: Quebec Secession Reference and Beyond? (2010) 43:3 CJPS 843 at 845. 315  Knopff, Baker and LeRoy, ?Courting Controversy?, supra note 313 at 66. 316  Ibid.; Manfredi, ?Strategic Behaviour and the Canadian Charter?, supra note 313 at 150. 317  D. R. Songer, S. W. Johnson, C. L. Ostberg, and M. E. Wetstein, Law, Ideology and Collegiality: Judicial Behaviour in the Supreme Court of Canada (Montreal: McGill-Queen?s University Press, 2012) at 45-47, 56.    68 section 1 nor to the notwithstanding clause in section 35(1) of the Canadian Charter of Rights and Freedoms.318  The exclusion of section 35(1) from the scope of these provisions, which generally create space for legislative responses to judicial decisions, means that the Supreme Court enjoys finality over the constitutional interpretation of Aboriginal rights in Canada.319   Yet, the Supreme Court of Canada seems to be uncomfortable with its virtually unconstrained power to adjudicate on Aboriginal rights and title claims.  The repeated calls for negotiation and compromise made by Justices Dickson and La Forest in Sparrow, and former Chief Justice Lamer in Delgamuukw, hint at the Court?s hesitance to issue formal declarations of Aboriginal title, and unease with its role in the broader process of reconciliation.320  The strategic model of judicial decision-making would construe the Court?s cautionary behaviour as a rational and reasonable means to preserve its institutional legitimacy, in the face of the public?s fears of the potential effects of Aboriginal title rights on the interests of third parties and the regulatory powers of the federal and provincial governments.321  This paradigm would also predict that the uncertainty, high visibility, and controversy surrounding most Aboriginal land claims compound the Court?s tendency to cultivate institutional legitimacy and support from external actors and institutions.322   Nevertheless, the reticence of Canadian courts to recognize Aboriginal title lands is disconcerting for those who regard Aboriginal title as a powerful legal tool, which could                                                  318  Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ss. 1 and 33 [hereinafter Canadian Charter]. 319  V. Radmilovic, ?A Strategic Approach to Judicial Legitimacy: Supreme Court of Canada and the Marshall Case? (2010) 15:1 Rev Const Stud 77 especially at 93.  320  See supra note 194 and accompanying text.  321  On public apprehensions of the potential recognition of Aboriginal title and self-government rights in Canada, see Wilkins, ?Take Your Time and Do it Right?, supra note 8 at 252-266.   322  Radmilovic, ?Strategic Legitimacy Cultivation?, supra note 314 at 850-852; Radmilovic, ?A Strategic Approach to Judicial Legitimacy?, supra note 319 at 89-90.    69 afford titleholders a limited form of self-determination and economic development in the twenty-first century.323  While courts are tempted to delegate the resolution of Aboriginal title claims to the democratic process, genuine negotiations between First Nations and the federal and provincial governments are precluded by the stark and systemic imbalance of power between these parties.  This disparity of power may be deduced from Canada and British Columbia?s successive policies of cultural assimilation and territorial dispossession of Indigenous peoples, as well as their decisions to fight against every single Aboriginal title case that has come before the Supreme Court, since the entrenchment of Aboriginal and treaty rights in section 35(1) in the Constitution Act, 1982.324   In light of the historical context, the Canadian judiciary?s self-proclaimed preference for negotiations over litigation in the resolution of Aboriginal title claims seems more like an abdication of judicial power than a manifestation of judicial deference to elected governments.  Despite their structural flaws, courts are better positioned than the federal and provincial governments to uphold the honour and fiduciary duty of the Crown to First Nations by recognizing and affirming Aboriginal title rights.  While the judicial acceptance of Aboriginal title claims would have radical consequences for the interests of third parties and for the provinces? constitutional authority to regulate Aboriginal title lands, Canadians must accept these short-term costs, as a means to redress past injustices and advance the long-term goal of reconciliation between First Nations and the Crown.325                                                    323  Borrows, ?Domesticating Doctrines?, supra note 3 at 654; Lambert, ?Van der Peet and Delgamuukw?, supra note 87 at 267-268; MacLaren et al., ?Tsilhqot?in Nation v. British Columbia?, supra note 36 at 134; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 285-287; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 477, 481-488, 509-510. 324  Christie, ?Judicial Justification of Recent Developments in Aboriginal Law?, supra note 7 at 62-64; Lambert, ?Three Points about Aboriginal Title?, supra note 78 at 349-350.   325  See McNeil, ?Aboriginal Title and Section 88 of the Indian Act?, supra note 217 at 194, cited in Tsilhqot?in Nation, supra note 22 at para. 1047; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 21-5.    70 5 Conclusion  To conclude, this paper explored the effects of Aboriginal title jurisprudence on the relationship between First Nations and the Crown in Canada.  Particular attention was devoted to the Tsilhqot?in case, which deals with the Aboriginal rights and title claims of the Tsilhqot?in people to portions of its traditional territory in the west central interior of British Columbia.  Legal scholars across the country concur that the Tsilhqot?in case, scheduled for argument in November 2013, is the most significant Aboriginal title case to be decided by the Supreme Court of Canada since Delgamuukw v. British Columbia, as it will have serious implications for the modern-day treaty process in British Columbia and the settlement of outstanding land claims in the rest of Canada.326 In light of the significant jurisdictional and economic dimensions of Aboriginal title identified by the Supreme Court in Delgamuukw, this paper presumed that the judicial acceptance of Aboriginal title claims would help to harmonize relations between Aboriginal peoples and the Crown, by allowing for the cultural and economic flourishing of First Nations in the twenty-first century.327  Conversely, the judicial rejection of Aboriginal title claims was interpreted as undermining relations between First Nations and the Crown, by preventing the former from exercising a limited form of self-determination and maintaining a moderate livelihood in the modern era.328                                                   326  Canadian Press, ?B.C. First Nation?s land claim headed for Supreme Court?, supra note 12; O?Neil, ?Supreme Court of Canada agrees to hear B.C. natives land claims case?, supra note 12; McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 8.  327  Borrows, ?Domesticating Doctrines?, supra note 3 at 654; Lambert, ?Van der Peet and Delgamuukw?, supra note 87 at 267-268; McNeil, ?Aboriginal Title and the Supreme Court?, supra note 3 at 285-287; McNeil, ?Aboriginal Rights in Transition?, supra note 5 at 320-321; McNeil, ?Self-Government and the Inalienability of Aboriginal Title?, supra note 37 at 477, 481-488, 509-510. 328  Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 1-2; Lambert, ?The Tsilhqot?in Case?, supra note 26 at 820-822.   71 Results revealed that the 2007 British Columbia Supreme Court?s trial decision in Tsilhqot?in Nation v. British Columbia genuinely attempted to reconcile the Tsilhqot?in people with the Crown by giving precedence to the Aboriginal perspective in the evaluation of oral evidence, endorsing a broad and flexible standard of occupation, expressing an opinion on Tsilhqot?in Aboriginal title, and affirming that the Forest Act is inapplicable to and unjustifiably infringes on Tsilhqot?in title lands.  Nonetheless, the trial judge ultimately failed to facilitate the attainment of an early and honourable settlement between the Tsilhqot?in people and the Crown, by declining to issue a declaration of Aboriginal title, because of a defect in their pleadings.329  Given that Justice Vickers could have bypassed this preliminary issue, the trial decision has negative implications for the future of Aboriginal title litigation, since it suggests that courts could decline to issue declarations of Aboriginal title, if they regard the constraints of the law and the adversarial structure of the Canadian judicial system as incompatible with the ultimate goal of reconciliation between Aboriginal and non-Aboriginal peoples in Canada.330 By contrast, the 2012 British Columbia Court of Appeal?s ruling in William v. British Columbia largely contributed to undercutting relations between the Tsilhqot?in Nation and the Crown by interfering with the factual findings of the trial judge, establishing an artificial dichotomy between site-specific and territorial Aboriginal title claims, endorsing a narrow and stringent standard of occupation, articulating a preference for Aboriginal rights over Aboriginal title, and advancing a hollow vision of reconciliation, which does not place equal weight on the Aboriginal and common law perspectives.331  The Court of Appeal?s                                                  329  McNeil, ?Reconciliation and Third-Party Interests?, supra note 12 at 7-25. 330  Ibid. at 13-14. 331  Lambert, ?The Tsilhqot?in Case?, supra note 26 at 819-830; Mandell, ?Aboriginal Title Over the Buffalo Jump?, supra note 28 at 1-12.   72 judgement in William has dire ramifications for the future of Aboriginal title, because it relied on the concepts of site-specificity, intensity of use, and cultural security to constrain the economic and jurisdictional components of Aboriginal title.   Finally, the lower court decisions in the Tsilhqot?in case confirm the larger pattern of Canadian Aboriginal title jurisprudence, whereby courts consistently dismiss Aboriginal title claims, either on procedural grounds to avoid dealing with merits, or on substantive grounds to safeguard the interests of the Canadian state and society.  This tendency likely reflects the strategic decision-making of courts, which seek to preserve their institutional legitimacy vis-?-vis external political actors and the public, by delegating the resolution of Aboriginal land claims to the democratic process.  Nevertheless, given historical grievances and the structural disparity of power between First Nations and the federal and provincial governments, Canadian courts and judges must fulfil their role in the broader process of reconciliation by recognizing and affirming the existence of Aboriginal title rights in Canada.     73 Bibliography  Legislation Canada, Statement of the Government of Canada on Indian Policy (White Paper), presented to the First Session of the Twenty-Eighth Parliament by the Hon. Jean Chr?tien (Ottawa: Department of Indian Affairs and Northern Development, 1969).    Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 91(24).  The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.  Forest Act, R.S.B.C. 1996, c. 157.  Royal Proclamation, 1763, R.S.C. 1985, App. II, No. 1.  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Van der Peet, [1996] 2 S.C.R. 507.    75 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 v. Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region et al., online: Judgements of the Supreme Court of Canada, Applications for Leave, File No. 34986 (January 24, 2013) <http://scc.lexum.org/> (retrieved on July 30, 2013).  St. Catherine's Milling and Lumber Co. v. The. Queen (1888), 14 App. Cas. 46.  Stein et al. v. ?Kathy K? et al. (The Ship), [1976] 2 S.C.R. 802.  Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550  Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 (CanLII), <http://canlii.ca/t/1whct> (retrieved on July 30, 2013).  William et al. v. 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