Law Foundation of British Columbia
1. Indigenous
Peoples definition of Original Title
Indigenous Peoples’ understanding of Aboriginal Title is very
different from that recognized by Canadian law.
From an Indigenous Perspective, Aboriginal (Original) Title to the
Lands, Water and Resources flows from the fact that the Creator placed our
Nations upon our territories, together with the traditional laws and
responsibilities to care for and protect those territories.
To Indigenous Peoples, Sovereignty is the inherent right and
responsibility of Indigenous Nations to care for and protect our traditional
lands and resources, to govern ourselves, and to enter to into relationships
with other Nations of Peoples, guided by our own laws and legal traditions. Indigenous Sovereignty is reflected in the
fact that when newcomers first arrived on these lands, Indigenous Nations –
with their own laws, territories, economies and societies – were already here. When Indigenous Peoples speak of Aboriginal
Title, it is more than an interest in land; Aboriginal Title is an inalienable
responsibility given by the Creator that each of us holds internally, and
reflects our relationship with the land itself and all other life that we share
the land with.
In Aboriginal Title and Rights
Position Paper (1978) the Union of B.C.
Indian Chiefs described Aboriginal Title like this:
The Sovereignty of our Nations comes from the Great Spirit. It is not granted nor subject to the approval
of any other Nation. As First Nations we
have the sovereign right to jurisdiction rule within our traditional
territories. Our lands are a sacred
gift. The land is provided for the
continued use, benefit and enjoyment of our People and it is our ultimate
obligation to the Great Spirit to care for and protect it.
Traditionally, First Nations practised uncontested, supreme and
absolute power over our territories, our resources and our lives with the right
to govern, to make and enforce laws, to decide citizenship, to wage war or to
make peace and to manage our lands, resources and institutions. Aboriginal
Title and Rights means we as Indian people hold Title and have the right to
maintain our sacred connection to Mother Earth by governing our territories
through our own forms of Government. Our
Nations have a natural and rightful place within the family of nations of the
world. Our political, legal, social and
economic systems developed in accordance with the laws of the Creator since
time immemorial and continue to this day.
Our power to govern rests with the people and like our Aboriginal
Title and Rights, it comes from within the people and cannot be taken away.[1]
In British Columbia
·
Laws taught on the land and
waters reflect a living philosophy grounded in principles of respect and the
responsibility to conserve resources for future generations (for example, many
Indigenous Nations have laws and teachings which guide where, when, and how
animals or resources may be harvested);
·
Laws that reflect Indigenous
Peoples relationships to their traditional lands, the living world and
supernatural beings are recorded in songs and stories, carved into masks or
totem poles, and performed in dance and through ceremonies;
·
Laws are carried forward on the
breath and in the words of speakers in Long houses at feasts, in potlatches and
traditional gatherings; and
·
Laws are unfolded, untangled and
upheld in the collective discussion and decision-making processes that
Indigenous Peoples follow when making decisions that impact the land.
There are as many different expressions of Indigenous laws about the
land as there are Indigenous Nations.
These laws are not written into statutes, rules and regulations; they
are articulated very differently from any expression of laws in Canadian
society. Many people who are not familiar
with Indigenous legal systems may fail to recognize Indigenous laws or may
mistake them simply as simple stories or legends when they hear them.[2]
Indigenous
Peoples’ relationship with to their territorial lands is unique from Western
concepts of property or relationships with land. Indigenous cultures and societies are intricately
tied to land and Indigenous cultures and cannot be understood without this
connection. Abstract property notions,
such as the ability to sell or alienate land, may be antithetical to Indigenous
Peoples’ world view. To Indigenous
Peoples “Our Land is Our Culture”. This
principle provides a very different starting point from which to view the land compared
to Western notions which consider land as a possession, or a commodity that can
be managed and exploited.
Aboriginal Title and Sovereignty are also expressed in diverse
Indigenous political, social and cultural traditions, including the Potlatch
and other forms of governance and traditional decision-making. The following quotations from Indigenous
scholars highlight various Indigenous perspectives:
Aboriginal jurisprudences rely on performance and oral
traditions rather than on political assemblies, written words, and
documents. They stress the principle of
totality and the importance of using a variety of means to disclose the
teachings and to display the immanent legal order. They have always been consensual,
interactive, and cumulative. They are
intimately embedded in Aboriginal heritages, knowledges, and languages. They are intertwined and interpenetrated with
worldviews, spirituality, ceremonies, and stories, and with the structure and
style of Aboriginal music and art. They
reveal robust and diverse legal orders based on a performance culture, a shared
kinship stressing human dignity, an ecological integrity that demonstrates how
Aboriginal peoples deliberately and communally resolved recurring problems.[3]
The Indian
elders in British Columbia
Ownership, in the Indigenous context, involves understanding
Indigenous peoples’ profound connection to their homelands. The notion of a “homeland: is not simply
lands, but everything around one’s world:
land, air, water, stars, people, animals, and especially the spirit
world. Understanding the balance in
one’s world takes a long time, and one cannot hope to learn these relationships
without being guided by people who possess, and practice, these forms of
knowledge. This knowledge is passed on
by the oral traditions of the community, and virtually every Indigenous
community practices the oral traditions in one form or other. The knowledge gained from the oral traditions
shapes one’s understanding of the world, it gives the world meaning.[5]
Each Aboriginal Nation has particular traditions, protocols, and
rules concerning stories and the way that stories are to be told for teaching
and learning purposes. The types of stories
can vary from the sacred to the historical; from the development and
perpetuation of the social/political/cultural ways to the personal life
experiences and testimonials. …The power
of storywork creates a synergistic effect among the story, the context in which
the story is used , the way the story is told, and how one listens to make
meaning.[6]
“The St’át’imc
have lived upon the land since time
began. Our
history is written upon the land. Our history
is passed on
from generation to generation, through the
stories and
legends.” ~ St’át’imc elders
“Our culture
identifies who we are, how we live,
what we do, what
we believe in, now and in the future,
·
Websites which discuss
Indigenous Laws (Law Commission of Canada) and specific communities who have
articulated portions of their laws or decision making processes on their
websites:
St’át’imc Nation: http://www.statimc.net/
Gitxsan Chiefs Office: http://www.gitxsan.com/html/who.htm
Centre For Indigenous Environmental
Resources: http://www.cier.ca/new-and-noteworthy.aspx?id=196
Indigenous Bar Association of Canada
·
Websites that have examples of
laws expressed through song, or examples of images carved or otherwise
represented which contain an explanation of how these reflect the laws and
Title of the People.
U’mista Cultural Centre Society website: http://www.umista.org/kwakwakawakw/tribes.php
[Conference Webcast] Indigenous Law and
Legal Systems Conference, January 26 & 27, 2007, University of Toronto
2. Transition: Arrival
and Settlement of Newcomers
Indigenous-Crown relations in Canada
are deeply marred by Canada North America , they acknowledged the Indigenous political
and legal structures that were in place. [8]
International laws in place at the time dictated how settlers could
acquire interests in lands occupied by Indigenous Nations. Under their own laws, newcomers could only
acquire an interest in Indigenous lands in a limited number of circumstances:
·
By conquest, where there was a
war and the land was won; or
·
By agreement, if Indigenous
Peoples voluntarily ceded their interests in the land (i.e., through treaty or
sale).[9]
Colonial
authorities respected Indigenous Nations not only for their greater population
numbers, but for their military, social and political sophistication. In talking about this initial period of
contact, the Supreme Court of Canada observed that “both Great Britain and France
felt that the Indian nations had sufficient independence and played a large
enough role in North America for it to be good
policy to maintain relations with them very close to those maintained between
sovereign nations”.[10]
These
principles were reflected in the Royal Proclamation, 1763 which required
colonial governments to negotiate treaties with Indigenous Nations before
newcomers could acquire an interest in Aboriginal Title lands.
Indian Provisions in the Royal
Proclamation, 1763
And We do further strictly enjoin and require all Persons whatever, who
have either wilfully or inadvertently seated themselves upon any Lands within
the Countries above described, or upon any other Lands, which, not having been
ceded to, or purchased by Us, are still reserved to the said Indians as
aforesaid, forthwith to remove themselves from such Settlements. [11]
The
Royal Proclamation, 1763 recognized
that Britain Canada ,
the fourteen Douglas Treaties on Vancouver Island ,
and the Numbered Treaties after confederation.
Historic Treaties
From
an Indigenous perspective, these Peace and Friendship Treaties are sacred
nation-to-nation agreements which created mutually beneficial relationships
between the Crown and Indigenous Nations.[12] The solemn
promises to uphold the terms of the treaty for "as long as the sun shines,
the grass grows and the rivers flow" means that treaties are living
agreements which cannot be extinguished or altered without Indigenous consent. Treaties allowed for the peaceful creation of
Canada
In
contrast, Canadian authorities argue that historic treaties represent land
surrenders, freeing the land encompassed by the treaties of all Aboriginal
Title. From this perspective, treaties
are simple land transactions rather than relational agreements that reconcile
and define the rights and obligations of treaty partners.
[Incongruency – AP respect
newcomers – land surrender]
In British Columbia Vancouver
Island .
Map of Douglas Treaties
Negotiated on Vancouver Island between
1850-1854:
To Indigenous Nations, these treaties were not land cession
agreements but set out the obligations of each party to allow for their
peaceful coexistence then and into the future.
As in other parts of Canada ,
Indigenous population numbers on Vancouver Island
at the time the Douglas Treaties were entered far outstripped those of the newcomers. Encroachment by newcomers on Aboriginal Title
lands without Indigenous Nations consent was causing increasing conflict. Governor James Douglas, faced with the
reality that newcomers were in no position to take up or defend lands without
first obtaining the consent of Indigenous Nations, negotiated treaties which
would allow for peaceful settlement, guaranteeing to the Indigenous Nations the
right to carry on their own traditions and to continue to exist governed by
their own laws and to continue to make their living from their traditional
lands and waters.
Sample Text of Douglas Treaty
Swengwhung Tribe - Victoria
Peninsula
Know all
men, we, the chiefs and people of the family of Swengwhung, who have signed our
names and made our marks to this deed on the thirtieth day of April, one
thousand eight hundred and fifty, do consent to surrender, entirely and for
ever, to James Douglas, the agent of the Hudson's Bay Company in Vancouver
Island, that is to say, for the Governor, Deputy Governor, and Committee of the
same, the whole of the lands situate and lying between the Island of the Dead,
in the Arm or Inlet of Camoson, where the Kosampsom lands terminate, extending
east to the Fountain Ridge, and following it to its termination on the Straits
of De Fuca, in the Bay immediately east of Clover Point, including all the
country between that line and the Inlet of Camoson.
The
condition of our understanding of this sale is this, that our village sites and
enclosed fields are to be kept for our own use, for the use of our children,
and for those who may follow after us; and the land shall be properly surveyed,
hereafter. It is understood, however, that the land itself, with these small
exceptions, becomes the entire property of the white people for ever; it is
also understood that we are at liberty to hunt over the unoccupied lands, and
to carry on our fisheries as formerly.
We have
received, as payment, Seventy-five pounds sterling.[15]
The text of the Douglas Treaties are all similar and very broadly
worded. Indigenous Nations and Canadian
governments continue to differ as to their actual meaning. However, despite their differing concepts of
land cession and given the historic reality of the times, it is clear newcomers
were in no position to ask Indigenous Peoples to give up Aboriginal Title. [16] The historical context of these treaties was
described by the British Columbia Court of Appeal in R. v. White and Bob:
[I]t was at the time of Douglas particularly important for the
maintenance of law and order that Indian rights be respected and interpreted
broadly in favour of the Indians, not merely for the due administration of law,
but also for the safety of settlers who constituted a minority of, at the most,
1,000 persons, there being 30,000 Indians on Vancouver Island alone, apart from
the warlike tribes to the north, who always constituted a raiding threat and
against whom the maintenance of friendship with the local Indians afforded a
measure of security. … These being facts of history and notorious, it is
reasonable to infer that Parliament had them in mind.[17]
After
1854, no new treaties were negotiated in British
Columbia
Population
numbers also started to shift. As more
newcomers arrived in North America and began
to build permanent settlements, Indigenous numbers began to fall by the
introduction of new diseases to which they had no immunity. The era of Peace and Friendship which
characterized the early days of Indigenous-Crown relations ended. A new era emerged where newcomers simply began
to ignore their own laws and deny the existence of Aboriginal Title and
Indigenous sovereignty despite that Indigenous Nations in British Columbia British Columbia
The Land Question in British Columbia
The history of conflict over the Land Question is reflected in the Union of B.C. Indian Chiefs Aboriginal Title Implementation Paper:[19]
As the Original Peoples of this Land, we have never reached any
agreement or treaty with Canada
concerning the occupation, settlement, sovereignty and jurisdiction that Canada
Newcomers had to find a way around their own laws which recognized
Aboriginal Title and forbade the settlement of Aboriginal Title lands without
the consent of Indigenous Nations. Instead
of entering treaties (as their own laws required), newcomers simply began to grant
interests in Aboriginal Title lands, to exercise authority and pass laws based on
several legal arguments which have since been discredited as based on
unacceptable racist assumptions. These
include:
·
Terra Nullius: The Province argued that there was no
Aboriginal Title for them to address because Indigenous Peoples were so
primitive and uncivilized that they were incapable of holding Title to lands or
having laws to govern the land. The
doctrine of “Terra Nullius” is the
claim on the part of newcomers and their governments that land was empty or
vacant, and that there were no Aboriginal People capable of holding Aboriginal
Title living on the land (therefore they did not have to follow their own laws
and enter a treaty to address the lands before settling it). It was not a denial of the fact that
Aboriginal People existed, but rather an assertion that Aboriginal People were
simply too uncivilized to be able to be considered people capable of holding
Aboriginal Title and so the lands could be considered, terra nulius ‑
that there are no Indigenous Peoples who hold title to the lands, and they are,
legally “empty”.;
·
Doctrine of Discovery: That Aboriginal Title was simply extinguished
when newcomers happened upon the territories in habited by Indigenous Peoples
and governed by Indigenous laws;
·
Doctrine of Adverse
Possession: That the Province
extinguished Aboriginal Title by issuing other interests in the lands and
resources;
·
Passage of Time: The Province argued, in effect, that
Aboriginal Title had died of old age and no longer existed because it was in
the past and had been superceded by the Province’s own assertion of Title; and
The
underlying assumptions which form the basis of these false legal doctrines are
also reflected in the laws and policies Canada
began to implement once settlers felt secure in North
America . The new goal of Canada Canada ’s Deputy Superintendent General of Indian
Affairs, said the goal of these policies was “to continue until there is not a
single Indian in Canada
One
of the primary tools by which Canada
Indian Reserves
are lands set aside for Indigenous Peoples that Canada
To prevent
Indigenous Nations from pursuing their collective Aboriginal Title, Indigenous
Peoples were prohibited from leaving reserve lands and, by 1927, it was illegal
to hire lawyers to pursue Aboriginal Title claims in court.[22] At the same time, other ways that Indigenous
Peoples relied on the land were also criminalized. For example, Indigenous Peoples were arrested
for hunting, fishing, and other activities on the land that their ancestors had
exercised since time immemorial.
Even after
reserves were established and Indigenous People forced to move onto them, there
were further newcomer demands for land.
In many cases, already small reserve lands were “cut off” and these
lands were taken. These “cut off” lands
form the basis of “specific claims” today.
Specific claims differ from “Land claims” insofar as they involve only
those lands taken from the reserves set aside under Canadian law for the use
and benefit of Indians. In contrast
“Land claims” involve a struggle for recognition of traditional Aboriginal
Title lands in their entirety, not simply small portions of reserve lands.
Federal Responsibility
The
responsibility to make decisions about “Indians, and Lands reserved for the
Indians” is exclusively a federal power under section 91(24) of the Constitution Act, 1867.[23]
Jurisdiction
of all other lands and resources were granted to the Provinces under section
109 “subject to any trusts in respect thereof or any interest other than that
of the Crown." These provisions
form the basis of the earliest Canadian case dealing with Aboriginal Title.
St. Catherine’s Milling and Lumber Company v. The Queen [24] involved a dispute between the province of Ontario Canada Ontario
It
is important to note that the Indigenous Nations interpretation of Treaty #3 was
not considered in this dispute. The idea
that Aboriginal Title had been extinguished by treaty was based entirely on the
arguments formulated by Canada
and the province
of Ontario Canada
The result of the history where Indigenous People could only
surrender their Aboriginal Title to the federal crown is that the federal government
maintains a fiduciary duty to safeguard Indigenous Peoples’ interest in
Lands. A fiduciary relationship is one
where one party has a duty to care for and protect the interests of the other
party. The fiduciary relationship has
been explained in this way:
A fiduciary relationship is one in which one party (the
beneficiary/Aboriginal Peoples) places trust and confidence in another (the fiduciary/the
Crown), and is justified in expecting the other to act in his or her best
interests. Examples include lawyer and
client; doctor and patient/ and, the Crown and Aboriginal Peoples.
The Crown, as fiduciary, must:
·
Exercise its powers as the Aboriginal
Peoples would, and subject to any conditions imposed by the Aboriginal Peoples;
·
Act according to a high
standard of honesty, integrity, and utmost loyalty;
·
Act in a trust-like versus
adversarial manner;
·
Not benefit from the
relationship;
·
Where they profit from a breach
of their duties, surrender any profits to the Aboriginal Peoples; and
·
Ensure that Aboriginal Peoples
are not exploited in any dealings related to our Lands.[25]
In giving primary responsibilities for relationships with Indigenous
People and the protection of Indigenous lands to the federal government under
s. 91(24), Canada’s constitution obligates the federal government to address
Aboriginal Title and protect the interests of Indigenous Peoples.
When British Columbia
All lands, Mines, Minerals, and Royalties belonging to the several
Provinces…shall belong to the several Provinces…in which the same are situate
or arise, subject to any Trust existing in respect thereof, and to any Interest
other than that of the Province in the same.
Where Aboriginal Title exists, this is a pre-existing interest, and
would limit or restrict any ownership or jurisdiction that the Province claimed
to Aboriginal Title lands.
Professor Kent McNeil argues that the legal result of the operation
of Section 109 and the continuation of Aboriginal Title is that “[t]he nature
of the underlying title the provincial Crown has by virtue of s. 109 is
therefore determined negatively: it
amounts to whatever interest remains after the Aboriginal title that burdens it
has been subtracted.”[26]
Period of Denial
In
B.C., Indigenous Nations continued to press for legal recognition of their
Aboriginal Title until the Indian Act
prohibitions of 1927 made it illegal for Indigenous Nations to organize or
pursue their legal claims.[27] Throughout this period, Canada and British Columbia
After the provisions making it illegal
for Indigenous Nations to pursue their Aboriginal Title were lifted, Indigenous
Nations throughout British Columbia began to reinvigorate their political and
legal calls for recognition of their Aboriginal Title. Politically, organized opposition against
governments continued denial of Aboriginal Title was solidified in 1969 when
the federal government released its Statement
of the Government of Canada on Indian Policy. Known as the White Paper, the federal government’s new policy proposed
to further transform Indigenous-Crown relations by doing away with the Indian Act and terminating Canada Canada
After many years of the denial of Aboriginal Title and futile
efforts on the part of Indigenous Nations to have Aboriginal Title recognized,
the Nisga’a people brought a court case claiming Aboriginal Title to the Nass
watershed. For the first time in
Canadian history, the Supreme Court of Canada affirmed that Aboriginal Title
exists. However, the judges on the Court
disagreed about whether or not Aboriginal Title had been extinguished by the
assertion of Canadian sovereignty and the fact that the province had issued
interests in the lands to third parties.
In Calder, Justice Judson
said that Aboriginal Title exists because, before the newcomers arrived, Indigenous
Nations were already here: “…the fact is
that when the settlers came, the Indians were there, organized in societies and
occupying the land as their forefathers had done for centuries.”[30]
After many years of outright denial of the existence of Aboriginal
Title, the decision in Calder caused
governments to start to address Aboriginal Title. Calder affirmed
the fact that the Land Question was still alive in British Columbia
In response to the “uncertainty” of Crown sovereignty flowing from Calder, the federal government created the
1973 “Comprehensive Claims Policy” to address Aboriginal Title not covered by
treaty or any other legal arrangement.
The policy was amended in 1996, but its goal remains to establish legal
certainty by recognizing Indigenous land interests to a minimal land base in
exchange for Indigenous Peoples’ consent to the extinguishment of Aboriginal
Title to the whole of their territories.[31]
Not surprisingly, many Indigenous Nations in British Columbia
Although Calder left open
the question of whether Aboriginal Title had been extinguished by the assertion
of Crown sovereignty, Indigenous Peoples would continue to fight politically
and in the courts for recognition of their Aboriginal Title and Rights. Canada
Constitutional Recognition - s. 35(1) of the Constitution Act,
1982
In
the late 1970’s Canada began
efforts to formally patriate its Constitution from Britain British North
America Act, 1867). The BNA basically set out the self-governance
rights of Canada Canada ’s colonial status basically ended with
the passage of the Statute of Westminster
in 1931, and Britain
The
result of these intensive lobbying efforts was the inclusion within Canada’s
constitution (Constitution Act, 1982)
of Section 35 which promises:
The existing
aboriginal and treaty rights of the aboriginal peoples of Canada
Section
35 constitutionally protects Aboriginal Title, Rights and Treaty rights, and means
that Indigenous Peoples can challenge government actions where they threaten or
infringe those rights. In its operation,
s. 35 has had a significant impact on the recognition of Aboriginal Title and
has increased recognition of the need for legal recognition of distinct legal
and political space for Indigenous Nations in the Canadian legal
landscape.
The first major
judicial discussion of Aboriginal Title after the Constitution Act, 1982
was the Supreme Court of Canada decision in Guerin v. The Queen.[32] Although this case involved a dispute over the
management of reserve lands, the Court also addressed broader issues relating
to the fiduciary obligations of the federal government and the existence of
Aboriginal Title.
The SCC said that “the
fiduciary relationship between the Crown and the Indians has its roots in the
concept of aboriginal, native or Indian title.”
Because Canada
With respect to the existence of Aboriginal
Title, the Court held that:
The Indians'
interest in their land is a pre-existing legal right not created by the Royal
Proclamation of 1763, by s. 18(1) of the Indian Act, or by any other executive
order or legislative provision. The nature of the Indians' interest is best
characterized by its inalienability, coupled with the fact that the Crown is
under an obligation to deal with the land on the Indians' behalf when the
interest is surrendered.
Relying on Calder,
the Court said that the existence of Aboriginal Title was a “legal right
derived from the Indians’ historic occupation and possession of their tribal
lands…” The inalienability of Aboriginal Title lands
except to the Crown gives rise to a sui generis interest in the land and
fiduciary relationship with the Canada
Nevertheless, in R.
v. Van der Peet, a case dealing with the Aboriginal Right to sell fish, the
Supreme Court of Canada held that Aboriginal Title was a distinct subcategory
of Aboriginal Rights under s. 35(1) of the Constitution Act, 1982.[33] The Court held that:
Aboriginal
rights arise from the prior occupation of land, but they also arise from the
prior social organization and distinctive cultures of aboriginal peoples on
that land. In considering whether a claim to an aboriginal right has been made
out, courts must look both at the relationship of an aboriginal claimant to the
land and at the practices, customs and traditions arising from the claimant's
distinctive culture and society. Courts must not focus so entirely on the
relationship of aboriginal peoples with the land that they lose sight of the
other factors relevant to the identification and definition of aboriginal
rights.[34]
This
interpretation of Aboriginal Title differs significantly from that of
Indigenous Peoples conception that Aboriginal Rights flow from Aboriginal Title
and cannot be separated from the land.
In
interpreting s. 35, the Supreme Court has said that its purposes are to:
·
Ensure that Indigenous Peoples
survive as unique Peoples with their own cultures and traditions;
·
Address the history of
injustice perpetrated against Indigenous Peoples through the denial of
Aboriginal Title, Rights and Treaty Rights; and
·
Reconcile the fact that
Indigenous societies were here, and continue to exist, with the assertion of
Canadian Crown Sovereignty (Van
der Peet,[35]
Delgamuukw v. B.C.;[36])
·
In R. v. Sappier and Gray[37]
the Supreme Court of Canada said that the purposes of s. 35 include to protect
the “cultural security and continuity” of Indigenous societies.
Van der Peet discussed the existence of Aboriginal Title in the context of s. 35 (1) Aboriginal Rights. Guerin dealt with Indigenous Peoples interests in reserve lands and the federal government’s duty to protect those lands. In Calder the Supreme Court of Canada acknowledged the existence of Aboriginal Title grounded in Indigenous Peoples prior occupation, possession and use of their land, but had split on the question of whether the Nisga’a’s Aboriginal Title had been extinguished by the assertion of Crown sovereignty. This issue was revisited by the Supreme Court of Canada in the 1997 Delgamuukw case.
Delgamuukw v. British
Columbia
In 1986, Gitksan and Wet’suwet’en Nations brought an action against the province
of British Columbia in the groundbreaking case, a court case asking for
recognition of their Aboriginal Title to their traditional territories based on
their traditional laws and systems of governing and managing their territories[38]
(Delgamuukw v. British Columbia
In
1997 the Supreme Court of Canada (the “SCC”) released its landmark decision in Delgamuukw
v. British Columbia. The SCC ruled for the first time that
Aboriginal Title continues to exist, was not extinguished by the assertion of
Canadian sovereignty or Provincial laws, and is protected by section 35(1) of
the Constitution Act, 1982.[40] The SCC also set
out a number of principles about what Aboriginal Title means, how Aboriginal
Peoples can prove Aboriginal Title, and what governments need to do when they
make decisions that infringe Aboriginal Title and Rights.
The
SCC said that Aboriginal Peoples can use their oral history to prove Aboriginal
Title. This is important because
Aboriginal Peoples come from oral traditions where Aboriginal Peoples’
connections to their lands and their laws about their traditional territories
are transmitted across generations through story, song, dance and ceremonies in
the Feast Hall, not the written word.
At trial, the Gitksan and Wet’suwet’en Nations introduced their oral
traditions (the Gitksan "adaawk" and the
Wet’suwet’en "kungax") as evidence to show
their ownership and jurisdiction to their
lands. The lower court rejected
this evidence, saying that it was unreliable.
The SCC said the trial judge erred by not fairly assessing and giving
proper weight to the Aboriginal oral tradition evidence since it is often the
only evidence Aboriginal Peoples’ have to prove their Aboriginal Title and
Rights.
The SCC set out a three part test for proving Aboriginal Title. First, an Aboriginal group has to show that
they occupied an area before the British asserted sovereignty. In B.C. this would be before 1846. To prove pre-sovereignty occupation,
Aboriginal Peoples can rely on their oral history and their traditional use of
the territory (for example, hunting, fishing, gathering, village sites, etc.).
Second, because Aboriginal Peoples Title and jurisdiction may have
been interrupted by colonial settlement, an Aboriginal group can prove
occupation by showing a connection between the present day and pre-sovereignty
times. To prove continuity, the
Aboriginal group must show that their people continued to use the land (for
example, that they continued to hunt, fish, trap, gather berries or medicines,
engaged in spiritual practices and other activities on the land).
Third, an Aboriginal group must show that they exclusively used,
occupied and possessed the lands they claim Aboriginal Title over. This would include being able to show that
they controlled the lands through their own laws or systems of governance which
granted or denied other people use of their traditional territory or access
resources on their traditional lands and waters. Exclusive use and occupation does not mean no
other Aboriginal group was allowed to use the area, but that one group was
recognized as the owners and others needed permission to enter on the land and
take resources (e.g. hunting or fishing etc.).
So for example, an Aboriginal group could show certain areas were
jointly used with another group for hunting because the two groups had entered
into an inter-tribal agreement or protocol based on one group’s recognized
ownership and jurisdiction over the lands or waters.
The SCC said Aboriginal Title and Rights are constitutionally
protected by section 35(1) of the Constitution
Act, 1982. Aboriginal Peoples have a
right to decide which uses Aboriginal Title lands may be used as long as those
uses preserve their connection to the land.
If the Aboriginal group wants to use the land in a way that destroys
that connection, they must first surrender the land to the government. For example, the SCC said an Aboriginal group
cannot turn a traditional hunting ground into a mall or parking lot. If an Aboriginal Nation does want to develop
Aboriginal Title land for non-traditional purposes, they must surrender the
land to the government first.
Aboriginal Title is a
burden on Crown title. Aboriginal Title
and Rights are not absolute. The SCC
said government can pass laws and make decisions about lands and resources that
infringe Aboriginal Title and Rights but they must justify their actions by
showing the courts why the law or decision should be allowed. The SCC set out a two part “justification
test” that governments must pass if they want to infringe Aboriginal
Title. First, government must show that
the law or decision was passed for a compelling and substantial legislative
objective. For example, a law or
regulation to develop agricultural lands, forestry, mining or hydroelectric
power which adversely impacts Aboriginal Title and Rights may be held by the
courts to be valid if government can show it is in the best interests of
society as a whole. The SCC said that
laws or regulations which deal with the general economic development of the
interior, protects the environment or endangered species, is required to build
infrastructure or support the settlement of lands by new Canadians, may be
deemed in the best interests of society and can infringe or displace Aboriginal
Title and Rights.
Next,
government must uphold the honour of the Crown in all its dealings with and on
behalf of Aboriginal Nations. Government’s
have a fiduciary duty to act in the best interests of Aboriginal Nations. The SCC said that when government wants to
infringe constitutionally protected Aboriginal Title or Rights it must show
that Aboriginal interests were taken into account and given a priority in the
government’s decision-making process.
To determine if government has fulfilled its fiduciary duty and acted
honourably with respect to Aboriginal Title and Rights, the Courts will look at
the legislation or decision to see if government has consulted in good faith
with the Aboriginal Nation whose interests will be impacted, that government
has taken into account and accommodated Aboriginal Title and Rights, and have
impaired these rights as little as possible.
The
Supreme Court of Canada’s decision in the Delgamuukw case was the first
instance where the unanimous Supreme Court agreed that Aboriginal Title exists
and had not been extinguished, nor could it ever be extinguished by provinces
as Indigenous lands are under exclusive federal jurisdiction.
What is Aboriginal Title? The Supreme Court
of Canada said that Aboriginal Title protects the relationship between
Indigenous Peoples and their territories, it is more than the right to practice
specific activities (such as hunting and fishing) on the land, it is a right to
the land itself.
Aboriginal
Title includes:
·
The right to make decisions
about the land, and to decide to what uses Aboriginal Title lands can be put;
·
Economic component that evolves
to reflect modern relationships between the People and their land and evolving
economies;
·
Aboriginal Title is a
collective interest in the land which is held by Aboriginal Nations and not by
individual communities or individual Indigenous persons; and
·
Aboriginal title is “sui generis” from all other types of
property interests. (Sui generis is a legal term that refers
to the fact that something is unique or different).
To
prove the existence of Aboriginal Title, Indigenous People have to show:
·
The historic use and occupation
of territories by Indigenous Peoples when the Crown asserted sovereignty over
those lands (for B.C., this is 1846)[41];
·
That Indigenous Peoples
exclusively occupied territory; and
·
The Indigenous Peoples’
relationship with their lands. This can
include the fact that Indigenous Peoples have their own laws for protecting or
making decisions about the lands. For
example, in Delgamuukw, the Gitksan
and Wet’suwet’en introduced evidence of their adaawk and kungax, their
oral traditions detailing governance and relationships with certain territories
to demonstrate that they have Aboriginal Title and to show their own laws about
the land.
(However the range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s aboriginal title.[42])
The
Supreme Court listed examples of the limitations to what Indigenous Peoples
could do with their Aboriginal Title lands as including not being able to strip
mine a hunting ground because that would destroy the traditional relationship
between the land and the people.
Aboriginal Title is “inalienable” other than to the federal Crown. This means that Aboriginal Title cannot be
sold, bought or traded with any other party other than with the federal Crown,
and Provinces cannot extinguish Aboriginal Title.
The
Supreme Court also addressed how government decisions about land and resources
must account for Aboriginal Title:
“There is always
a duty of consultation. Whether the
Aboriginal group has been consulted is relevant to determining whether the
infringement of Aboriginal title is justified…
The nature and scope of the duty of consultation will vary with the
circumstances. In occasional cases, when
the breach is less serious or relatively minor, it will be no more than a duty
to discuss important decisions that will be taken with respect to lands held
pursuant to Aboriginal title. Of course,
even in these rare cases, it will be significantly deeper than mere
consultation. Some cases may even
require the full consent of an Aboriginal nation, particularly when provinces
enact hunting and fishing regulations in relation to Aboriginal lands.”
In
discussing the process of consultation, the Supreme Court of Canada proposed
this as a way that Canadian government decisions could reconcile the assertion
of Canadian sovereignty with the continuing existence of Aboriginal Title.
An important element of the Delgamuukw
decision was that it recognized how important Aboriginal Title lands are to
the continued cultural survival of Indigenous Nations, and included Indigenous
Peoples’ rights to make decisions about their lands. Recognition of Indigenous legal systems is
embodied in this decision because Indigenous Peoples make decisions about the land
within a framework of laws and legal systems.
Aboriginal Title is a communal interest held by Indigenous Nations and
according to the collective laws of those Nations. The Supreme Court of Canada said that if an
Indigenous Nation “had laws in relation to land, those laws would be relevant
to establishing the occupation of lands which are the subject of a claim for
aboriginal title. Relevant laws might
include, but are not limited to, a land tenure system or laws governing land
use.”[43]
“Unlike fee simple
lands, Aboriginal title lands are vested in communities that have laws
predating Crown sovereignty. Such
communities have the legal personality necessary for them to have real property
rights that are defined and protected externally by the common law, but that
are governed internally by continuing Aboriginal law. Moreover, Aboriginal law is not frozen at the
time of sovereignty. …Aboriginal
communities have decision-making authority that is governmental in nature, the
exercise of which enables them to change their internal land laws. Aboriginal title is therefore more than a
proprietary interests. It has a
jurisdictional quality that removes it from common law estates in land and
makes it truly sui generis.”[44]
Aboriginal
Title includes the Indigenous laws which controlled the territory and protected
the land. The existence of Indigenous
laws is equally part of the definition of Aboriginal Title.
Consultation and
Accommodation/Reconciliation: Consultation Law – Haida and Taku and other consultation
cases – and how this impacts upon the decisions that the Crown makes to
authorize uses of lands or resources that might impact Aboriginal Title?]
In
Marshall and Bernard the Supreme
Court of Canada clarified the test for proving Aboriginal Title. At issue was whether the Mi’kmaq had a right
to harvest trees for commercial purposes on unoccupied Crown lands without
provincial authorization in the provinces of Nova Scotia
and New Brunswick
In
Bernard, a Mi’kmaq was charged with
unlawful possession of logs he was taking to a sawmill in contravention of the New Brunswick Marshall , 35 members of the Mi’kmaq Nation in Nova Scotia
The
Court rejected the Mi’kmaq’s argument that they had a modern treaty right to
harvest trees based on a trade clause in the 1760 and 1761 treaties entered
between the Mi’kmaq and the British Crown.
Although the SCC had found in an earlier case (Marshall 1 and Marshall 2)
that a trade clause granted the Mi’kmaq a right to engage in traditional
activities so as to obtain a moderate livelihood from the land and sea (in Marshall 1 and 2, to fish and sell eels), the Court held that this was not a general
right to any traditional activity the Mi’kmaq engaged in, but was limited to
those products the Mi’kmaq traded with Europeans at the time the treaty was
entered. There was insufficient
evidence to show that the Mi’kmaq had traditionally traded wood products with
the British to support a claim that modern commercial logging was a logical
evolution of an earlier trade right.[46]
In
determining the Mi’kmaq’s claim for Aboriginal Title, the Court reviewed the
lower courts application of the test for proving Aboriginal Title set out in Delgamuukw. At trial, the lower court applied a strict
test for proof of Aboriginal Title requiring evidence of “regular and exclusive
use of the cutting sites in question”[47]
before the Crown asserted sovereignty.
The Courts of Appeal applied a “looser” test, holding that “it was
enough to show that the Mi’kmaq had used and occupied an area near the cutting
site… This proximity permitted the inference that the cutting site would have
been within the range of seasonal use and occupation by the Mi’kmaq.”[48] The SCC held that proof of Aboriginal Title
“is established by aboriginal practices that indicate possession similar to
that associated with title at common law”[49]
and requires proof of “exclusive” “pre-sovereignty” “physical occupation” of
the land by the Mi’kmaq.[50]
The
Court listed several examples that might be used to show that Aboriginal People
“occupied’” the land prior to the assertion of sovereignty, including “the
existence of dwellings, cultivation of fields, and regular use of parts of the
lands for “hunting, fishing or otherwise exploiting its resources”[51]
and said that:
“It follows from the requirement of exclusive occupation that
exploiting the land, rivers or seaside for hunting, fishing or other resources
may translate into aboriginal title to the land if the activity was
sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal hunting and
fishing rights exercised in a particular area will translate to a hunting or
fishing right.”[52]
Aboriginal
Title does not flow from occasional entry or use of the land.[53] Rather, as per Delgamuukw, exclusive
occupation means “the intention and capacity to retain exclusive control” and
regular use of the land. The ability to
exclude others from using the land might be considered as part of the necessity
for showing proof of Aboriginal Title. This could include whether the
Indigenous People were able to demonstrate that they had effective control of
land, and could have excluded other people from the territory. “Shared exclusivity may result in joint
title”, while “non-exclusive occupation may establish rights “short of title.”
Evidence
of “overt acts of exclusion” is not required as it may difficult for Indigenous
Nations to produce such evidence dating back hundreds of years ago when there
was no written history.[54] However, a “demonstration of effective
control of the land by the group, from which a reasonable inference can be
drawn that it could have excluded others had it chosen to do so” is sufficient.
On
the question of whether “nomadic or semi-nomadic peoples” could ever make out a
claim for Aboriginal Title, the SCC said that although “not every nomadic
passage or use will ground title to the land,” Delgamuukw contemplated that “physical occupation” sufficient to
ground title to land may be established by “regular use of definite tracts of
land for hunting, fishing or otherwise exploiting its resources.”[55] Less intensive uses of the land “may give
rise to different rights” short of title.[56]
Indigenous
People must also prove continuity “in the sense of showing the group’s descent
from the pre-sovereignty group whose practices are relied on for the right.”[57] In all these matters, Indigenous Peoples can
rely on their oral histories as evidence “provided it meets the requisite
standards of usefulness and reasonable reliability.”[58]
In
Marshall and Bernard, the SCC found
insufficient evidence to support an Aboriginal Title claim by the Mi’kmaq and
upheld the lower courts assessment of the evidence. Although the Mi’kmaq were “moderately
nomadic”, there was no evidence to demonstrate that they exclusively occupied
or controlled sites in question. At
best, the Mi’kmaq may have made “occasional forays” to the areas where the
cutting occurred to hunt and fish, but the Mi’kmaq had failed to show they
exercised exclusive control over the land, and a common law right of Aboriginal
Title could not be supported.
To
the extent the Marshall decision
rests almost entirely on proof of exclusive use and occupation, and requires
regular use of the land to establish Aboriginal Title, the Courts conclusions
fail to recognize Indigenous laws and legal traditions with respect to land
which may dictate other ways of caring for and protecting the land. The Court recognized the need to take into
account the aboriginal perspective, saying that:
In my view,
aboriginal conceptions of territoriality, land-use and property should be used
to modify and adapt the traditional common law concepts of property in order to
develop an occupancy standard that incorporates both the aboriginal and common
law approaches. Otherwise, we might be implicitly accepting the position that
aboriginal peoples had no rights in land prior to the assertion of Crown
sovereignty because their views of property or land use do not fit within
Euro-centric conceptions of property rights.[59]
However, at para. 77, the Court said:
[T]he task of
the court is to sensitively assess the evidence and then find the equivalent
modern common law right. The common law right to title is commensurate with
exclusionary rights of control. That is what it means and has always meant. If
the ancient aboriginal practices do not indicate that type of control, then
title is not the appropriate right. To confer title in the absence of evidence
of sufficiently regular and exclusive pre-sovereignty occupation, would
transform the ancient right into a new and different right. It would also
obliterate the distinction that this Court has consistently made between lesser
aboriginal rights like the right to fish and the highest aboriginal right, the
right to title to the land: Adams, Côté.
Aboriginal
laws thus have been reduced to the “Aboriginal perspective”, and Aboriginal
Title to a subset of Aboriginal Rights and only to certain areas where they can
prove exclusive use and occupation. This
conflicts with the broad conception of Aboriginal Title which Indigenous
Peoples hold.
One
issue which has come to the forefront in recent Aboriginal Title litigation is
the extent of Aboriginal Title lands.
Indigenous Peoples believe (and have argued forcefully in court) that
Aboriginal Title extends to include the entirety of their traditional
territories. The province, on the other
hand, has claimed that Aboriginal Title applies to only very specific areas or
tracts of land. These are the issues
currently before the Supreme Court of B.C. in the William/Xeni v. British Columbia case.
If
Aboriginal People only periodically visit, or seasonably visit an area, this
may not be sufficient to show the degree of occupation necessary to establish
Aboriginal Title.
Recognition of Indigenous
Oral Traditions
One
of the important parts of the decision was its decision of Indigenous oral
traditions and laws. McEachern rejected
the evidence offered by the Indigenous Peoples, finding that it was not
credible and could not be relied upon.
Instead, he relied heavily upon “written records” (ie., the journals of
trader Brown). Prior to this time,
Canadian courts had relied heavily on written information as the strongest
evidence or proof in court cases. This
situation put Indigenous Peoples in a very poor position, as most of Indigenous
Peoples evidence is contained within the oral tradition. The Supreme Court said that Indigenous
Peoples oral traditions are a valid form of evidence in courts and must be
respected and treated on an equal footing with other forms of evidence (i.e.,
written evidence, or the evidence of “experts”)
Canadian
governments are still allowed to take actions which may infringe or impact upon
Aboriginal Title lands. However, they
have to be able to justify those infringements (set out the test; consider to
what degree this whole discussion should be included here) One possibility for a graphic or interactive
inclusion on the webpage is to go through the various steps that are included,
both in proof and in justification for infringements)
After
the decision in Delgamuukw the
recognition of Aboriginal Title remains an outstanding issue. The Province has followed a policy of issuing
interests in the lands and resources, and has said that Indigenous Peoples have
to prove the existence of their Aboriginal Title in court before the Province
will acknowledge it. The only other
option is that the Province will agree to negotiate recognition in modern land
claims.
For
many Indigenous Peoples these two options are unacceptable. Proving Aboriginal Title in court is a
process that takes many years and millions of dollars. Negotiating a modern land claim in a process
that requires extinguishment of a Nation’s Aboriginal Title in exchange for a
limited area of “treaty settlement lands” is equally unacceptable to many
Indigenous Peoples.
Into the Future: Recovery of
Indigenous Laws and Recognition of Indigenous Laws about the lands.
Indigenous Laws
Under Canadian common law, the doctrine of Continuity says that
where there were pre-existing Indigenous laws these survived the arrival of the
newcomer societies and their assertion of sovereignty:
European settlement did not
terminate the interests of aboriginal peoples arising from their historical
occupation and use of the land. To the
contrary, aboriginal interests and customary laws were presumed to survive the
assertion of sovereignty, and were absorbed into the common law as rights…[60]
Justice Williamson, in Campbell
v. British Columbia (Ministry of Attorney General) recognized that Indigenous laws continue to
form part of the fabric of the Canadian legal system: “recognition by the courts that most
aboriginal persons accept the legitimacy of an evolving customary or
traditional law, just as most Canadians accept the legitimacy of common and
statutory law.”[61]
In
Van der Peet the Supreme Court of Canada cited the Australia High Court
in Mabo’s discussion of
Indigenous laws:
Native title has its origin
in and is given its content by the traditional laws acknowledged by and the
traditional customs observed by the Indigenous inhabitants of a
territory. The nature and incidents of native title must be
ascertained as a matter of fact by reference to those laws and customs …
|
This position is the same as
that being adopted here. "Traditional laws" and "traditional
customs" are those things passed down, and arising, from the pre-existing
culture and customs of aboriginal peoples. The very meaning of the
word "tradition" -- that which is "handed down [from ancestors]
to posterity", The Concise Oxford Dictionary (9th ed. 1995), -- implies
these origins for the customs and laws that the Australian High Court in Mabo is asserting to be relevant for the
determination of the existence of aboriginal title. To base
aboriginal title in traditional laws and customs, as was done in Mabo, is, therefore, to base that title
in the pre-existing societies of aboriginal peoples. This is the
same basis as that asserted here for aboriginal rights.[62]
Aboriginal
Title and Rights, from a Canadian legal perspective, are “inter-societal” laws
that incorporate both Indigenous and Canadian common law[63]
[1] http://www.ubcic.bc.ca/Resources/atrp.htm. See also:
Delgamuukw.org at http://www.delgamuukw.org/
; Gitxsan Chiefs Office at http://www.gitxsan.com/html/who.htm
; United Nations Permanent Forum on Indigenous Issues at http://www.un.org/esa/socdev/unpfii/en/about_us.html
;
[2] Jo-Anne Fiske, “From Customary Law to Oral Traditions: Discursive Formation of Plural Legalisms in Northern British Columbia , 1857-1993,” (1997/1998)
115/116 BC Studies 267 at 285.
[3] Sakej Henderson, “Aboriginal Jurisprudence and Rights,” in Kerry
Wilkins, ed., Advancing Aboriginal Claims:
Visions/Strategies/Directions (Saskatoon
[4] Louise Mandell, “Native
Culture on Trial” in K.E. Mahoney and S. Martin, eds., Equality and Judicial
Neutrality (Agincourt, Ontario:
Carswell Company Limited, 1987)
[5] Dale Turner, “Oral Traditions and the Politics of (Mis)Recognition”
in Anne Waters, ed., American Indian Thought: Philosophical Essays (Malden , MA
[6] Jo-ann Archibald, Coyote Learns to Make a Storybasket: The Place of First Nations Stories in
Education (PhD Thesis, Simon Fraser University, 1997) [unpublished].
[7] http://www.statimc.net/slra/report/part1.pdf
[8] See for example, the Royal Commission on Aboriginal Peoples Final
Report, Chapter 9. Available online
at: http://www.ainc-inac.gc.ca/ch/rcap/sg/cg9_e.pdf
Louise Mandell, “Offerings to an
Emerging Future” in Ardith Walkem and Halie Bruce, eds., Box of Treasures or
Empty Box? Twenty Years of Section 35
(Penticton
[10] R. v. Sioui, [1990] 1 S.C.R. 1025 at para. 68 [Sioui].
[11] Full Text available online at:
http://www.ainc-inac.gc.ca/ch/rcap/sg/sga4_e.html
[12] Royal Commission on Aboriginal Peoples, Report of the Royal
Commission on Aboriginal Peoples, Vol. 1, Looking Forward, Looking Back
(Ottawa: Minister of Supply & Services, 1996); John J. Borrows and Leonard
I. Rotman, Aboriginal Legal Issues:
Cases, Materials & Commentary, 2nd ed.,,(Toronto:
Lexis Nexis/Butterworth, 2003).
[13] Ibid; James [Sakej]
Youngblood Henderson, “Empowering Treaty Federalism”, (1994) 58 Sask.
[14] NRCAN Douglas Treaties Map:
available online at http://atlas.nrcan.gc.ca/site/english/maps/historical/indiantreaties/historicaltreaties?mapsize=525+466&scale=2796868.351135&mapxy=-2112187.662654152+606412.4964031532&mode=zoomin&layers=&hidetextbox=&urlappend=%26map_scalebar_imagecolor%3D255%20255%20255
[15] Douglas Treaty Texts, Available online at http://www.ainc-inac.gc.ca/pr/trts/doug_e.html
[16] Differences of opinion as to how they
should be interpreted. Indigenous
Peoples interpret Historic Treaties as “Peace and Friendship” treaties which
set out the agreements that the parties made as to how they would live together
in peace into the future. The Canadian
government now interprets them as though they were land session agreements
where Indigenous Peoples ceded Aboriginal Title to their territories.
[17] R. v. White and Bob,
[1964] 52 W.W.R. 193 (B.C.C.A.) at 211
[18] See for example, Douglas C. Harris, Fish, Law and Colonialism: The
Legal Capture of Salmon in British Columbia ,
(Toronto : University of Toronto Press
[19] http://www.ubcic.bc.ca/Resources/implementation.htm
[20] Duncan Campbell Scott, deputy superintendent general of Indian
affairs, testimony before the Special Committee of the House of Commons
examining the Indian Act amendments of 1920, National Archives of Canada,
Record Group 10, volume 6810, file 470-2-3, volume 7, pp. 55 (L-3) and 63 (N-3).
[21] Royal Commission on Aboriginal Peoples, Volume 1, Looking Forward Looking Back
Part Two: False Assumptions and a Failed Relationship, online at: http://www.ainc-inac.gc.ca/ch/rcap/sg/sgm9_e.html
Part Two: False Assumptions and a Failed Relationship, online at: http://www.ainc-inac.gc.ca/ch/rcap/sg/sgm9_e.html
[22] For a fuller discussion about the Indian Act and its various provisions see: Royal Commission on Aboriginal Peoples, Vol.
1, Looking Forward Looking Back, Ch. 9.
Available online at: http://www.ainc-inac.gc.ca/ch/rcap/sg/sgm9_e.html
[24] (1888), 14 App. Cas. 46 (P.C.) [St.
Catherine’s Milling].
[25] Eagle {Consultation
materials – cite]cite
[27] See for example: 1911 Declaration
of the Lillooet Tribe, available online at:
http://www.statimc.net/tribe/declaration.htm;
1910 Declaration of the Interior Tribes of B.C., available online at: http://www.skeetchestn.ca/NewWeb/sir_wilferd_laurie.htm;
Chronology of Events surrounding Nisga’a actions pursuant to their Aboriginal
Title, available online at: http://www.ainc-inac.gc.ca/pr/agr/nsga/chrono_e.html;
Speech of David McKay, spokesperson for the Nisga’a Nation cited in Calder v. AG BC, [1973] SCR 313.
[28] See for example: http://www.ubcic.bc.ca/about/history.htm
[29] [1973] S.C.R. 313 [Calder].
[31] See generally: RCAP, Vol. 2,
Restructuring the Relationship; http://www.ainc-inac.gc.ca/ps/clm/gbn/index1_e.html
[32] [1984] 2 SCR 335 [Guerin].
[33] R. v. Van der Peet,
[1996] S.C.J. No. 77 [Van der Peet].
[34] Van der Peet at para. 74.
[35] [1996] 4 C.N.L.R. 177 (S.C.C.) [Van der Peet].
[37] R. v. Sappier; R. v. Gray,
2006 S.C.C. 54, para. 33.
[38] [If we are interested in making comments
about the racism that subsists in the denial of Aboriginal Title and the way it
is reflected in some court cases]
Initial decision (the McEachern decision) was a loss for the Gitksan
Wet’suwet’en, and the court seemed to accept a “terra nullius” theory that the
Indigenous Peoples did not hold title because they were not sufficiently
civilized or organized to have governance systems in place to actually hold
Title to the land. The lives of
Indigenous Peoples was “nasty, brutish, and short”.
[39] [1997] 3 S.C.R. 1010 [Delgamuukw].
[40] [1997] 3 S.C.R. 1010
[41] Would have to explain about what it means that the Crown asserted
sovereignty. As well, what are ways that
Indigenous Peoples could show that they “occupied” a territory?
Is there room here for a criticism of
the fact that Indigenous Peoples have to “prove” title when the Crown’s title
to the lands is not questioned by the Courts?
[44] McNeil ,
Kent Sask.
[45] [2005] S.C.J. No 44 [Marshall
[46] Marshall
[47] Marshall
[48] Marshall
[49] Marshall
[50] Marshall
[51] Marshall
[52] Marshall
[53] Marshall
[54] Marshall
[55] Marshall
[56] Marshall
[57] Marshall
[58] Marshall
[59] Marshall
[60] Mitchell
v. M.N.R., [2001] 1 S.C.R. 911, para. 8
[61] Campbell v. British Columbia Campbell
[62] Van der Peet, at para. 40.
[63] Ibid. at 198-200.
