Tansi Nîtôtemtik
Call to Action #52
We call upon the Government of Canada, provincial and territorial governments, and the courts to adopt the following legal principles:
Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.
Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.
Aboriginal title refers to the inherent Aboriginal right to land or a territory and is recognized by the Canadian legal system as sui generis or unique.[1] Land is sacred and a central element of Indigenous societies and a part of their identity. While not all Indigenous issues revolve around land, Aboriginal rights and some treaty rights are very much tied to Indigenous relationships with the land. Indigenous peoples traditionally viewed land in a very different manner from Europeans. They did not regard land as something to be owned, rather it was viewed as something to be used and cared for.[2] Because of the different emphasis and understandings of Indigenous stewardship versus European property ownership laws and the doctrines of Terra Nullius and Discovery, Indigenous title has been largely dismissed and ignored by the Government and courts until more recent times.[3]
Indigenous identity has been largely derived from the land they have used and occupied before the arrival of Europeans. Indigenous peoples believe strongly that they had and still have certain rights in regard to the land.[4] These rights include a right to live on the land and use of the land to hunt and for other traditional pursuits; granted not from an external source but as a result of exercising those practices.
Over time, these rights regarding Aboriginal title have been recognized and affirmed by court decisions. These decisions have contributed to the definition of Aboriginal title in more precise terms, which have set further parameters on how the Crown may justify infringing upon Aboriginal title and making it easier to extinguish.[5] The Delgamuukw[6] decision of 1997 defines Aboriginal title as a burden on the Crown's underlying title. This means that Aboriginal title can be ceded and transferred only to the Crown, who does not have to prove or validate its claim to sovereignty. Delgamuukw is a controversial decision because the Crown assumed sovereignty without questioning its legitimacy and is inconsistent with native interpretation of title. [7]
Regardless, the Delgamuukw decision set the precedent for the Crown to negotiate terms with Aboriginal title holders should a third party have interest in the land. It also established that 3 things were required for Indigenous peoples to prove their title, summarized here:
- Sufficiency—There must be evidence that Indigenous peoples occupied the land before European contact
- Continuity—Occupation of this land must be continuous between the present and contact
- Exclusivity—at the time of contact, the Indigenous group must be the sole group claiming control of the territory. (Tsilhqot’in Nation v British Columbia, para. 32)[8]
The cases Haida and Taku River have further determined that the Crown has a responsibility to consult or accommodate First Nations even if an existing Aboriginal title to the lands has not been proven in court.
Essentially, Call to Action #52 aims to provide that once sufficiency, continuity and exclusivity have been proven, Indigenous people should have full rights over their territory of which those rights cannot be infringed upon unless it is proven to be justifiable. Legally, there is no question that Aboriginal title exists, especially after the Delgamuukw decision that further affirmed a territorial use-based approach.
This Call to Action has seen no movement whatsoever on solidifying any legislation to protect Aboriginal title, and the Crown is continuing to make decisions to avoid the implications of Aboriginal title and Indigenous governance. The courts have held the Crown to a standard of consultation but not consent, and Canada's “prove it”[9] approach continues to be hypocritical and unprogressive. Canada gets an F on this TRC Call to Action.
Until next time,
Team ReconciliAction YEG
[1] Erin Hanson, Indigenous foundations, Aboriginal title: what is “title”? Aboriginal Title (ubc.ca)
[2] John J. Borrows and Leonard I. Rottman, Aboriginal legal issues: Cases, Materials and Commentary 4th edition LexisNexis 2012 page 181
[3] Ibid
[4] Ibid
[5] Supra note 1 Ibid
[6] Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010
[7] Aboriginal rights coalition of British Columbia, What have you heard? Victoria, 1991. 7.
[8] Supra note 1 Ibid
