Wednesday, July 9, 2014

What is Aboriginal Title? A quick primer

The shortest definition I can create:

Aboriginal Title is First Nation's ownership and governance of the land.

Attributes of Aboriginal Title
  • It is a continued land tenure from before the arrival of the Europeans
  • It is a collective title owned by a definable group of people and governed by them
  • This collective title is restricted because it can not be misused or encumbered in ways that prevents future generations from using the land.
  • It is an exclusive ownership of the land
  • Aboriginal Title has ownership rights similar to fee simple, including:  the right to decide how the land will be used; the right of enjoyment and occupancy of the land;  the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.
  • The Crown does not retain a beneficial interest in Aboriginal Title land
  • The Crown does retain some right to create laws and regulations on Aboriginal Title land, but the form is this takes is not entirely clear when it comes to anything related to land management or land based tenures
  • Only the Crown may seek to buy the land outright from a First Nation and then only with the consent of the First Nation
  • The Crown has a limited ability to infringe Aboriginal Title if it is in the best interests of the First Nation and there is a compelling and substantive objective
History of Aboriginal Title in BC
  • Aboriginal Title is the oldest land tenure in BC.  It is older than any private land ownership, it is even older than any Crown ownership of the land.   
  • 1763 Royal Proclamation - this was a proclamation of the Crown after the Seven Years War that dealt with numerous issues related to the British Colonies in North America and the Caribbean.  One important aspect of if it was a recognition that aboriginal societies had rights to the land and that only the Crown could buy the land from them.   For many years governments argued that the Royal Proclamation did not apply to BC.
  • 1846 Oregon Treaty - This Treaty with the US has been taken by the Courts as the date of assertion of Crown sovereignty over BC.   This matters for Aboriginal Title because part of the test for title includes proof of control of the land before this date
  • 1850s The Douglas Treaties.   Jame Douglas signed a number of agreements with Vancouver Island First Nations to purchase lands from them.   In the 20th century these were recognized as Treaties.  These agreements are important because they are a clear recognition by the Crown at the time that unless a Treaty is signed with First Nations the land could not be made available for sale to the public.  It is also any early recognition that BC First Nations were land owners.
  • 1870s to 1890s Indian Reserve Commission in BC creates Indian Reserves without any Treaty settlement.   In most cases these Indian Reserves were created after the best lands were already pre-empted by settlers.   The commission took as their mandate to keep Indian Reserves small and site specific.  At no point were First Nations given any meaningful role in the commission.  In no case did the commission return to aboriginal people any lands that were taken from them without right. 
  • 1899 Treaty Eight is signed.   This Treaty covers north eastern BC and and was intended to extinguish their Aboriginal Title and rights
  • 1890s to the 1920s - Most First Nations in BC at some point made a declaration of owning the land or tried to go to court to have their land recognized.  They were politically well organized and well educated.  
  • 1912 to 1916  McKenna-McBride Royal Commission unilaterally acted as if the Crown could give and take land from BC First Nations without any consent.  In the process much of the best land allocated to First Nations by the Indian Reserve Commission were taken away from them.
  • 1920s to the early 1960s BC First Nations were legally prohibited from working on any claims of Aboriginal Title or Rights.  First Nation governments were not allowed to hire lawyers.   Many professions were closed to aboriginal people.
  • 1949 BC allows aboriginal people to vote and Nisga's leader Frank Calder is elected as an MLA.
  • 1969 creation of the Union of BC Indian Chiefs, the first modern Aboriginal Title and Rights advocacy organization in BC.
  • 1973 The Calder decision finds that Aboriginal Title did exist in the past but the decision does not come to an agreement if it still existed today or was extinguished - the justices ruled three no to extinguishment, three yes and one said the Nisga'a did not have permission to sue the government and therefore the case failed.
  • 1980 Hamlet of Baker Lake ruling - for the first time the courts offered a test for aboriginal title.   The core of this test is what is still applied by the courts in aboriginal title cases.
  • 1980s to 2007 - Postage stamp versus a large area of land debate.  Governments insisted that if anyone did have Aboriginal Title it would be a small postage stamp around existing Indian Reserves.   On the aboriginal side people insisted that title existed over large areas.    
  • 1996 Nisga'a Treaty signed.  The Treaty does not formally extinguish their Aboriginal Title but no longer allows them to make any claim of title.
  • 1997 Delgamuukw decision expands the Baker Lake test for Aboriginal Title and for the first time gives some idea of what Aboriginal Title confers.   Before this time many people worked on the assumption that Aboriginal Title was some larger bundle of Aboriginal Rights and certainly was not like any modern sense ownership of the land.   The powers that the Supreme Court of Canada enumerated in the 2014 Tsilhqot'in decision were all first referred to in Delgamuukw
  • 2014 Tsihlqot'in decision makes the first declaration of Aboriginal title land in BC.
Important legal cases related to aboriginal title
Canadian Cases
  • St Catherine's Milling - An 1888 decision that stated Aboriginal Title could only exist at the pleasure of the Crown and the Crown could take this away at any time.  What is important from this case is that the Privy Council affirmed that Aboriginal Title had existed and was specifically part of Canadian legal history because of the Royal Proclamation of 1763.   St Catherine's Milling found the title was a personal and usufructuary right 
  • Calder - This 1973 decision found that Aboriginal Title existed in BC in the past and could still exist at the time of the case.  It is the first time that ruling raised the possibility that Aboriginal Title did not depend on any action of the Crown.
  • Baker Lake - This 1980 decision was important because it created the first test for Aboriginal Title.   There had to be an organized society that exclusively occupied a specific area of land at the time of the Crown asserting sovereignty. 
  • Guerin - This 1984 decision is important for Aboriginal Title because it makes it clear Aboriginal Title was not created by the Royal Proclamation of 1763 or any other act of the Crown but exists independent of the Crown.  It also expands on what Aboriginal Title could be.   The ruling stated that the title was more than a personal and usufructuary right but not wholly a beneficial ownership of the land.  The Justices specifically do not attempt to describe the extent of Aboriginal Title powers.
  • Roberts - This 1989 decision affirmed that Aboriginal Title is part of Canadian common law
  • Sparrow - This 1990 decision clarified that Section 35 of the Constitution protected existing Aboriginal rights.   Most importantly, an act of government could never have extinguished an Aboriginal right.
  • Delgamuukw - This 1997 decision provided a more detailed ruling on what Aboriginal Title is, specifically "Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. The protected uses must not be irreconcilable with the nature of the group’s attachment to that land."    The ruling also expands on the Baker Lake test with a lot more detail on how the test should be applied.  Finally, the ruling made it clear there is no way in which the province could extinguish title
  • Bernard and Marshall - This 2005 ruling provided further guidance in the test for Aboriginal Title.  Most importantly it gave more weight to large areas of land being Aboriginal Title than a small area.
  • Tshilqot'in - This 2014 ruling was the first declaration of Aboriginal Title in Canada.   It affirmed the test for the existence of Aboriginal Title and further clarified what Aboriginal Title is 
Other Cases
  • Johnson v M'Intosh 1823 - This US decision made the Royal Proclamation of 1763 effective constitutional law though hinted at the idea of aboriginal title to the land legally existing before then.   The case recognized that only the government could buy the land from aboriginal people.
  • Cherokee Nation v Georgia 1831 - This US decision is important because it recognized that European assertion of sovereignty did not extinguish aboriginal governments.  Aboriginal people retained some of the rights of being a nation.
  • Amodu Tijani v. Southern Nigeria (Secretary) 1921 - This decision makes it clear that a Crown declaration of sovereignty does not extinguish existing titles.   It is a recognition that land tenures do not begin with the Crown and can continue to exist.  
  • Mabo v Queensland 1992 - This Australian decision is important because it overturned the idea of terra nullius.  Terra nullius was the idea that the land was empty and belonged to no one before the Crown asserted sovereignty.  Even though legal precedence in Canada indicated that terra nullius could not have been the case in BC, the governments would still raise it as an issue in court cases.   This case ended it forever.
Terms Related to Aboriginal Title
  • Terra nullius - An old international law concept that a land was empty and available for the European country that discovered it to own it outright.   It has not been defacto relevant in BC for decades but finally with the Mabo (1992) case in Australia it was struck down as a legal concept at all.
  • Doctrine of Discovery - It was under this doctrine that European nations claimed lands in the rest of the world.  The assumption was that the existing nations, governments or societies could not be sovereign in the face of the Europeans.  The problem with this concept is that in many cases there was no attempt to hold areas that were discovered, there was no attempt to actually assert sovereignty on the ground.
  • Allodial Title - This is the underlying title to the land.   It is an ancient form of land tenure now normally only ever held by the Crown.   Effectively what this title grants is the right to govern the land.  It is from the Crown's Allodial title that the government has the right to decide what happens on private property and gives the government the right to expropriate land.  It can also be called plenun dominium or radical title though the terms are not 100% interchangeable.  
  • Usufructuary Right - This is the idea that the person has the right to use the land for their benefit that belongs to someone else but can not change the nature of the land
  • Section 35 - This is Section 35 of the 1982 Constitution Act and is what protects Aboriginal and Treaty rights.   This not with standing clause does not apply to this section



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