Herramientas e instrumentos

Historically, the position of the Crown courts states that title to the majority of the land in Canada is held by the Crown, with Aboriginal rights and title only a burden on that Crown title (St. Catherine’s Milling 1888). Challenging this deep-rooted position,

Mohawk scholar Taiaiake Alfred states that “all land claims in Canada … arise from the mistaken premise that Canada owns the land it is situated on. In fact, where

Indigenous people have not surrendered ownership, legal title to ‘Crown’ land does not exist – it is a fiction of Canadian (colonial) law” (1999, 120). For most First Nations peoples in British Columbia, their title to their land has not been ceded through war or treaty.³² This unceded title, given a somewhat limiting term of “Aboriginal title”³³ by Canadian courts, remains as simply an encumbrance, limitation, or a “burden” on Crown claims to prime “underlying” title to lands and resources (Delgamuukw 1997, par. 145).³⁴

Currently, there are three leading conceptions of Aboriginal title in Canada: “as a customary right, a right under English common law, and a sui generis right” (Slattery 2007, 256). The Supreme Court of Canada has described Aboriginal title in Delgamuukw v. British Columbia 1997.

32 See Section 2.1.5, Land Under Treaty in British Columbia, for more discussion of treaties in British Columbia.

33 See Glossary for a fuller description of Aboriginal title.

34 For a complete review of the implications of the Delgamuukw decision on Aboriginal title, see Mary Hurley’s work entitled Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia prepared for the Land and Government Division of the Library of Parliament (2000).

…first …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; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

(Delgamuukw 1997, par. 117)

[Aboriginal title] is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in Aboriginal legal systems. As with other Aboriginal rights, it must be understood by reference to both common law and Aboriginal perspectives. (Delgamuukw 1997, par. 112)

A further dimension of Aboriginal title is the fact that it is held communally.

Aboriginal title cannot be held by individual Aboriginal persons; it is a collective right to land held by all members of an Aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of

Aboriginal title which is sui generis and distinguishes it from normal property interests. (Delgamuukw 1997, par. 115)

While the Delgamuukw decision established that Aboriginal title has not been

extinguished, the decision did so “without clarifying either from what it derives or how, or to what extent, it may be infringed” (Harris 2002, 296). And the hope that Aboriginal title has been fairly clearly described in Canada has “been shaken with the recent

decision of the Supreme Court in R v. Marshall/R. v. Bernard [original cases 1999] where the Court seems adrift in a conceptual sea, without benefit of star or compass” (Harris 2002, 256).

The Supreme Court’s description of Aboriginal title also places limits on this type of title versus Crown title.³⁵ One of the limiting factors of the Supreme Court’s definition of Aboriginal title surrounds the uses that may be made of the land, given the

relationship Indigenous people had, and still have, with the land. The Court views the past use and relationship with the land as unevolving and unchangeable.

It seems to me that these elements of Aboriginal title create an inherent limitation on the uses to which the land, over which such title exists, may be put. For

example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims Aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot). (Delgamuukw 1997, par. 128)

The recent 2007 Tsilhqot’in ruling in the British Columbia provincial courts supported the assertion that Indigenous people hold title, over and above provincial jurisdiction, to all or some of their claimed territory (Tsilhqot’in 2007). The judgment clearly states that the Tsilhqot’in First Nation’s sovereignty and land title was not ceded by the symbolic acts of the British Crown in the 18^th century.

I am not persuaded that private adventurers or commissioned officers of His Majesty’s Royal Navy, even with their best intentions, can to the degree required by international law, assert sovereignty over vast territories by planting a flag and speaking to the utter silence of the mountains and boreal forests. They are, in

35 Crown occupation and sovereignty has been justified on sometimes racist, and always evolving, justice arguments proceeding from terra nullis (the land was unoccupied), biological racism (Indians were an inherently savage species requiring protection), and cultural racism (European governance and

industrialization is a sign of progress, evolution and civilization, something for Indians to aim to achieve) (Haig-Brown and Nock 2006).

my view, just words blowing in the wind. I agree entirely with Lambert J. A.

when he said in Delgamuukw [emphasis in original] (B.C.C.A.) at par. 707:

Sovereignty, of course, does not occur when the first sea captain steps ashore with a flag and claims the land for the British Crown. Cook did that in 1778.

Sovereignty involves both a measure of settled occupation and a measure of administrative control.³⁶ (Tsilhqot’in 2007, par. 596)

During the process of writing this dissertation, the voices of Indigenous leaders in British Columbia have become stronger and more unified around the issue of

Aboriginal title, particularly in light of the landmark Tsilhqot’in decision. In November of 2007, the First Nations Leadership Council hosted a three day strategic planning session which was attended by over 120 First Nations leaders from across British Columbia. First Nations leaders examined and discussed the important Tsilhqot’in Nation v. BC decision and presented a unified signed strategy entitled “All Our

Relations” A Declaration of the Sovereign Indigenous Nations of British Columbia, affirming Aboriginal title to their traditional territories across the province (First Nations

Leadership Council 2007). The opening paragraph states:

We, the Indigenous leaders of British Columbia, come together united and celebrate the victory of the Tsilhqot’in and Xeni Gwet’in peoples in securing recognition of their Aboriginal title and rights – and all those Indigenous Nations and individuals that have brought important court cases over the years resulting in significant contributions in the protection and advancement of Aboriginal title and rights, including the Nisga’a, Gitxsan, Wet’suwet’en, Haida, Taku River Tlingit, Musqueam, Heiltsuk and Sto:lo [sic] - shining light on the darkness of years of Crown denial of our title and rights. After pursuing different pathways, we now come together to make this solemn Declaration out of our common desire to be unified in affirming our Aboriginal title. (First Nations Leadership Council 2007)

36 Emphasis and lack of internal quotation marks in original.