This week, ReconciliAction YEG will be focusing on ways that Indigenous peoples' rights have been restricted or denied in the past, and they ways in which they are still denied today. Today’s post concerns the right that is at the core of Indigenous peoples' livelihood: their right to land.
Indigenous peoples' right to their land is derived from an obvious truth: they inhabited it exclusively long before anyone else did. To use a generalization borrowed from British common law terminology, Indigenous peoples had an absolute property interest in the lands they occupied. However, this is no longer the case. Indigenous peoples' land rights have been restricted such that they bear little resemblance to the absolute interest that Indigenous people enjoyed prior to European contact. This erosion of rights did not occur overnight.
The gradual process of restricting Indigenous land rights did not happen because of common law or Aboriginal title theories, but because of European imperialism. The legal theories came later to justify and/or make sense of the imperialism. Sometimes Europeans even had to resort to fantasies like terra nullius (the belief that it was okay for Europeans to colonize this land because it was largely uninhabited at the time of European contact) to justify their imperialism.
After the Seven Years War, the British asserted sovereignty over their new colonies in the Royal Proclamation of 1763. The Royal Proclamation also played a foundational role in future Indigenous rights by stating that Indigenous people should not be “disturbed,” and by providing some important early provisions that protect Indigenous lands from seizure by individual European settlers. However, the Royal Proclamation’s assertion of Crown sovereignty took away ultimate title in the land away from Indigenous people and vested that ultimate title in the Crown instead. Though the Royal Proclamation is a foundational document in Canada's constitutional makeup, it was a unilateral declaration and Indigenous peoples did not consent to it.
Through the rest of the 18th and19th centuries, treaties were signed wherein Indigenous peoples ceded land title to the Crown. However, even in those cases, it is seldom clear that the parties had the same intentions or understandings of the treaties' terms. Also, as we discussed a couple of weeks ago during Treaty 6 week, treaties were often signed by Indigenous leaders under duress. Thus, based on common law principles regarding the formation of contracts, the legitimacy of the process by which Indigenous peoples' land was ceded to the Crown is tenuous. However, that has not stopped the Supreme Court of Canada from upholding such treaties.
Gaining ultimate title to Indigenous peoples' lands has enabled the Crown to "take up" Treaty lands, and even infringe sui generis Aborginal title when the Crown can satisfy the judiciary that their duty to consult was fulfilled. Gaining ultimate title from Indigenous peoples has meant that the Crown's fiduciary obligation to Indigenous peoples constitutes (usually) a duty to consult and accommodate, instead of a duty to acquire consent.
However, significant progress has been made towards reclaiming Indigenous peoples' claims to their lands. Section 35 of the Constitution Act, 1982  and landmark judgments like Calder v British Columbia (AG), Delgamuukw, and Tsilhqot'in Nation v British Columbia, have acknowledged the existence of Aboriginal title prior to European contact, and have established the tests that must be met in order to successfully claim Aboriginal title to land.
The Truth and Reconciliation Commission had the following to say concerning Canadian common law's treatment of Indigenous peoples' land claims:
In Canada, law must cease to be a tool for the dispossession and dismantling of Aboriginal societies. It must dramatically change if it is going to have any legitimacy within First Nation, Inuit and Metis communities. Until Canadian law becomes an instrument supporting Aboriginal peoples' empowerment, many Aboriginal people will continue to regard it as a morally and politically malignant force. A commitment to truth and reconciliation demands that Canada's legal system be transformed.
We echo this aspiration.
Until next time,
Team ReconciliAction YEG
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 Royal Proclamation, 1763, RSC, 1985, App. II, No. 1.
 James Reynolds, Aboriginal Peoples and the Law: A Critical Introduction, (Vancouver: UBC Press, 2018) at 130-1.
 ReconciliAction YEG, "Treaty 6: Famine and Pestilence" (17 September 2018), online: <https://ualbertalaw.typepad.com/faculty/2018/09/treaty-6-famine-pestilence-and-mistahi-maskwa.html>.
 Grassy Narrows First Nation v Ontario, 2014 SCC 48; Mikisew Cree First Nation v Canada, 2005 SCC 69
 Delgamuukw v British Columbia,  3 SCR 1010 at para 168 [Delgamuukw].
 Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
  SCR 313.
 2014 SCC 44.
 Canada's Residential Schools: Reconciliation, vol 6 of TRC at 51.
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