Tansi Nîtôtemtik,
We’ve covered a lot of content this semester already, and admittedly, it can be hard to wrap my own head around all of the legalese surrounding Aboriginal rights and title. You start thinking about the Royal Proclamation, then you think about treaties, then s 91(24), then reserve land, and suddenly you’re confused and edit your colleague’s paper completely wrong. To break it down, we’ve made a little quick-reference guide about what’s going on.
Land, land, or land?
When considering the tests for rights and title, we have to consider the status of the land There are four categories of land when dealing with Aboriginal property:
1) Traditional land and territories,
2) Treaty lands,
3) Reserve lands, and
4) Aboriginal title lands.
Though some of these overlap each other geographically, it is important to distinguish their meaning so that legal issues can be appropriately addressed. Traditional land and territories refers to exactly that—land which was used by Indigenous groups prior to settlement. Treaty lands refer to the area where the “historical treaties” which were created between 1907 to 1923 and make up the 11 numbered treaties across Canada. A reserve is an area designated for occupation by Indigenous communities. It is not tied to treaty territory. A reserve can exist on treaty land, but it can also exist on non-treaty land (really, anywhere). Reserves are created in various ways, but essentially legislative power has been utilized by the Crown to designate that area. In fact, reserves are not created by the Indian Act but the Act does govern how they function. This is where Aboriginal title lands becomes tricky. Aboriginal title is the “inherent Aboriginal right to land or territory”.[3] Title deals with the land which was not been ceded to the Crown or extinguished.
Ceded, Un-ceded… Extinguished?
We can always thank the Royal Proclamation of 1763 for setting the tone for colonization and giving us a place to start piecing together “history”. When the Royal Proclamation was enacted, Indigenous groups were asked to “cede” (surrender) their lands to the Britain government so that they could achieve a sovereign nation. Extinguishment was argued to have occured when treaties were entered into, however, the court in Simon v the Queen held that the treaty must be interpreted with the First Nations’ interests in mind.[4] If the land was ceded or the title was properly extinguished, title cannot be proven.
Dealing with titles and rights claims:
There are three ways in which Aboriginal title and rights issues can be resolved: 1) courts, 2) negotiations, or 3) claims process.
The tests:
If you’re going to take anything away a case and bring it into the courtroom, always bring the test. Rights and title issues will usually be resolved by way of their appropriate test.
Test to prove Aboriginal right (Van der Peet):
- Integral: is the practice, custom, or tradition integral to that specific group?
- Continuity: was the practice, custom, or tradition done prior to European contact?
- Sovereignty: was the custom, tradition, or practice was part of an established system?
Test to prove Aboriginal title (Tsilhqot’in):
- Exclusive occupation,
- Prior to sovereignty, and
- Continuity of occupation
** This applies to semi-nomadic groups since the ruling in Tsilhqot’in.
What if title is proven but is infringed upon?
Unfortunately, the provincial and federal governments can still infringe title if they can justify infringement as consistent with their fiduciary duty to Aboriginal peoples. The test is as follows (Tsilhqot’in):
- Has the infringement been mitigated as much as possible in order for the province to meet its goal?
- Was fair compensation offered for the infringement?
- Was there adequate consultation and accommodation?
Moving forward: What’s next?
Members of the Nuchatlaht First Nation gather on the steps of B.C. Supreme Court on Friday, Jan. 20, 2017 after filing the case. Retrieved from http://www.cbc.ca/news/canada/british-columbia/six-photographs-from-bc-jan-16-1.3946247
Though Tsilhqot’in set the stage for proving Aboriginal title most recently, the battle remains uphill for many Indigenous groups. Given their lack of inclusion under both historical and modern treaties, Indigenous groups of British Columbia continue to face a number of these challenges. Most recently, the Nuchatlaht First Nation filed a claim to the BC Supreme Court in order to have their title and rights to the land recognized.[1] The Nuchatlaht have been occupying the West Coast of Vancouver Island for thousands of years, but have been frustrated by the decline in sacred land and resources, such as forest and fish, since the land was encroached upon by settler society.[2] This is a historical moment because it is the first time that the Tsilhqot’in decision in 2014 will be applied to a lower court case. Interestingly, the same legal counsel that represented the Tsilhqot’in Nation will be representing the Nuchatlaht. It will be interesting to watch this court case unfold and witness what prior decisions have on the Nuchatlaht First Nation’s future.
Until next time,
Team ReconciliAction YEG
- - - - - - - - - - - - - - - - - - - - - - -
[1] Chad Pawson, “Vancouver Island’s Nuchatlaht following Tsilhqot’in in land title claim” (20 January 2017) CBC News <online: http://www.cbc.ca/news/canada/british-columbia/nuchatlaht-files-aboriginal-land-title-case-bc-supreme-court-1.3945593 >.
[2] Nuchatlaht, <online: http://www.nuchatlaht.com/land-title-claim.html>
[3] UBC, Indigenous Foundations, <online: http://indigenousfoundations.arts.ubc.ca/aboriginal_title/>.
[4] Ibid.
- - - - - - - - - - - - - - - - - - - - - - -
Join the conversation by following us on Twitter: @ReconciliYEG; Facebook: www.facebook.com/reconciliActionYEG/; and Instagram: @reconciliactionyeg.
To receive daily alerts to our blog, email the words "add me" to [email protected].
I always enjoy these blog posts! Thanks for unpacking things in terms that are accessible; I've published something related to this topic; a bit of work I've done into the bureaucratic practices now shaping draft legislation to create private property regimes on First Nations.
I'll be at U of A later this spring to give a talk on it...details to follow soon I hope! http://www.tandfonline.com/doi/full/10.1080/24694452.2017.1403878
Posted by: Jeremy | February 02, 2018 at 08:55 AM
That should have read "First Nations land."
Posted by: Jeremy | February 02, 2018 at 08:56 AM
Glad to hear you enjoy our posts - we look forward to your talk in the spring!
Posted by: ReconciliAction YEG | February 02, 2018 at 01:08 PM