Understanding Aboriginal Rights and Title in British Columbia

1. Understanding Aboriginal Rights and Title in British Columbia George Nicholson, LLB.

2. Goal of this Presentation • Why do Aboriginal people have special rights under the Constitution? • What is the content of Aboriginal rights and Aboriginal title? • What is the difference between Aboriginal rights and Aboriginal title?

3. “Property and Law were born and die together.” – Jeremy Bentham, English Philosopher “This we know. The Earth does not belong to man. Man belongs to the Earth.” - Chief Seattle

4. Part OneReal Property Law Primer for Aboriginal Rights

5. Property as a Bundle of Rights An owner of property generally has: • The right to sell or transfer property • The right to occupy, control and use property • The right to borrow against property • The right to protect your interest in property A Crown or government generally has: • The right to tax property • The right to make laws in regards to property • The right to expropriate interests from property for public purposes

6. Examples of European Land Interests • Crown, Radical or Ultimate Title:expressions sometimes used to refer to the rights and jurisdiction of a sovereign or crown that sits atop all other interests • Fee Simple: the most common form of individual land ownership in Canada. Example - most people who own their own home • Life Estates: an interest where a person will be granted property for as long as they live. Example – a will that leaves property to a widow for life and then to children • Easements: lesser interests for a specific purpose that do not give rise to ownership but are rights an owner must honour (servitude or a burden). Example – a hydro right of way • Covenants: A condition that an interest holder promises to abide by, often as a condition of sale. Example – a buyer of a condominium in a senior’s housing complex promises only to subsequently grant their property to another senior

7. Acquiring an Interest in Land Ways you can acquire an interest in land include: • Purchase • Transfer from an estate, with or without a will • Gift • Grants from the Crown • Through continual use, such as: • Adverse Possession (Squatter Rights) • Prescription (similar but for easements) • One way includes proving use since “time immemorial,” which for the Courts is 1189

8. Continual Use Interest in Land Lot A is owned by Albert. Albert sells his land to Bertha. When Bertha buys the land, she sees that, for whatever reason, the Certificate of Title and survey do not show a right of way for the road. She begins to deny the use of the road to the owners of Lots B, C, and D. The owners of B, C, and D prove to the courts that they and others have been using this as a road for over twenty years. The courts may rule that when Bertha bought Lot A from Albert, the right of way was a pre-existing burden on the land.

9. Part TwoAboriginal Rights in the Common Law “ The doctrine of Aboriginal rights exists… because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status.” – Chief Justice Lamer in R. v. Van der Peet, para 30.

10. Historical Treaties and Early Policy • Canada signed treaties numbered 1 to 11 with First Nations between 1871 and 1921 across all of Canada except the majority of British Columbia • Canada’s Royal Proclamation included language that “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds” • The Courts would later accept and cite letters from Governor Douglas that included comments that the Canadian colonizers would respond negatively to mistreatment of local First Nations by the government in regards to their land rights

11. St. Catharine’s Milling Case, 1888 • St. Catharine’s Milling and Lumber was a company that was seeking to log in the Wabigoon Lake area of Ontario • The First Nations in the area, various Ojibway, were signatories to Treaty #3 with Canada • Canada issued a licence to St. Catharine’s Milling Co. arguing that they had jurisdiction over the lands because of the past and continuing Indian interests. • Ontario challenged Canada’s jurisdiction, arguing that jurisdiction of the lands transferred to the Province with Treaty #3.

12. St. Catharine’s Milling Case (cont.) • “the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign” – Lord Watson • Aboriginal title was a pre-existing burden on the Crown title confirmed by the Royal Proclamation of 1763 • Once the Aboriginal rights are extinguished, by treaty for example, then the lands enure to the benefit of the province and no longer fall under the federal jurisdiction as lands for Indians. • The Crown could extinguish Aboriginal title at its pleasure and did through Treaty 3 • It was unnecessary to consider the precise nature of Aboriginal title because it was extinguished by Treaty 3

13. Post-St. Catherine’s and Pre-Calder • Aboriginal rights were presumed to be “personal or usufructuary” meaning they were not a right to the land but a right to use it in certain ways • Aboriginal rights were presumed to be extinguished if not throughout Canada, throughout most of Canada as per the historical treaties • Claims to Aboriginal rights were largely ignored by the courts. See for example Sikyea v. the Queen (1964) S.C.C.

14. The Calder or Nisga’a Case, 1973 • Frank Calder, a hereditary chief of the Nisga’a, asked the courts to clarify if the Nisga’a still held Aboriginal rights and title in their traditional territory. • At the time, the Nisga’a were not signatories to a treaty of any kind. • The Nisga’a lost at all lower level courts and appealed to the Supreme Court of Canada

15. The Calder Case (cont.) • Held 3-3-1 • Justice Judson, on behalf of 3 judges, ruled that Aboriginal title existed but was extinguished by the implementation of the Indian Act and the Reserve system. • Justice Hall, on behalf of 3 judges, ruled that Aboriginal title existed and continued to exist in BC • Justice Pigeon ruled against the Nisga’a on a technicality • Technically a 4-3 loss but received as a win by all.

16. The Calder Case (cont.) Reasons of Justice Hall (eventually affirmed by courts): • Aboriginal title continues to exist in British Columbia • Aboriginal title is derived from the prior use of land by Aboriginal people • As evidenced by historical treaties, the Royal Proclamation, and other historical documents, the Crown showed, even after the Indian Act, every intention of honouring the existing rights of Canada’s Aboriginal people including providing fair compensation to them when acquiring land • The provincial government did not have the authority to extinguish Aboriginal rights in BC as Governor Douglas attempted to do

17. Post-Calder • Canada established its comprehensive claims policy within a few years and began to negotiate modern treaties with First Nations in BC • Canada, BC, and the Nisga’a began negotiations that eventually resulted in the Nisga’a Final Agreement, the first treaty in BC in nearly 100 years

18. The Constitution Act, 1982 • S. 35(1) – “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” • The SCC would later rule that this provision does not create aboriginal rights but elevates the existing common law rights to constitutional status • In accordance with s. 54, Canada’s constitutions become the supreme laws of Canada and override any other laws

19. The Sparrow Case,1990 • Ronald Sparrow, a member of the Musqueam First Nation, was fishing pursuant to a community fish licence granted to the Band • The length of his drift net exceeded the length allowed by the licence • Mr. Sparrow argued that he was fishing pursuant to an Aboriginal right which now, according to the Constitution Act, 1982, superseded the fisheries regulations • Mr. Sparrow was convicted of fisheries violations at the trial level

20. Sparrow Case (cont.) • Any Aboriginal rights that existed in 1982 now enjoy constitutional protection • The Musqueam have an Aboriginal right to fish for food, social, and ceremonial purposes. (FSC) • When Aboriginal rights were raised to constitutional status, they did so with all their existing characteristics and limitations under the common law • Aboriginal rights could have been extinguished prior to 1982, but the Crown had to show clear and plain intention to do so • Aboriginal rights can still be infringed by the Crown if they can justify the infringement, which involves examining their objective and balancing the Crown’s power or authority along with their fiduciary duty to Aboriginal people

21. Sparrow (cont.) • Aboriginal rights should be permitted to evolve over time • In regards to the Musqueam fishing rights, the conservation of fisheries is potentially a valid reason for infringing their Aboriginal right, because sustaining fisheries is within the interest of the First Nation as well. • Because of their constitutional right, Musqueam should receive priority treatment over non-Aboriginal fishermen after conservation concerns have been met.

22. The Van der Peet Trilogy, 1996 • Around the same time the Courts released decisions in the Van der Peet case, the NTC Smokehouse case, and the Gladstone case, all of which considered claims for an Aboriginal right to sell fish or aquaculture • Dorothy Van der Peet, a member of the Sto:lo First Nation, sold 10 salmon to a non-Aboriginal person for $50. • She was charged with fisheries violations and claimed an Aboriginal right to sell the fish. • The Sto:lo did not successfully prove they engaged in significant trade activities pre-contact • The courts accepted proof that the Sto:lo engaged in significant trade activities afterwards with the Hudson’s Bay company

23. Van der Peet Trilogy (cont.) • “It must not be forgotten that the rights it recognizes and affirms are Aboriginal [emphasis original].” para 17 • For a “practice, custom or tradition” to give rise to an Aboriginal right, it must have been a “a central and significant part of the society’s culture” para 55 • Activities that were not central and could be true of any human society will not normally give rise to an Aboriginal right • It must be a distinctive, not necessarily unique, and integral aspect of their culture • A valid Aboriginal right can have been influenced by European culture, but activities which became central because of European influence cannot subsequently give rise to an Aboriginal right

24. Van der Peet Trilogy (cont.) • Claims to a commercial right to sell fish were similarly rejected by the Courts in NTC Smokehouse • A right to “sell” herring spawn was recognized in the Gladstone case because the Heiltsuk First Nation was able to show significant trade activities even as early explorers encountered them • The courts did acknowledge a right to “trade and barter” in Van der Peet and a right to “sell” in the Ahousaht case but not a “commercial” right, which it defines as the accumulation of wealth • In the recent William’s decision, the courts recognized a right to sell for a “modest livelihood” not the accumulation of wealth and even suggested the threshold for establishing such a right may not be high

25. Pamajewon Case, 1996 • Two First Nations passed by-laws in regards to casinos with the intention of allowing them on their lands regardless of provincial licence requirements • Mr. Pamajewon and Mr. Jones were charged criminally with operating a gaming house contrary to the Criminal Code • The First Nations did have some historical evidence showing they did traditionally play certain games that resembled gambling • Both First Nations claimed a right to self-government, including the right to pass their own laws in regards to gambling

26. Pamajewon Case (cont.) • Held for the Crown. Convictions upheld • The framework for testing whether an Aboriginal group has a right to self-government is the same as a claim for any other Aboriginal right • In this case, the FN did not establish that this sort of game playing was “distinctive” or “integral” to their culture • Previously there was debate among academics whether a First Nation should have powers like a municipality, like a province, or something else • Canada had already released its Inherent Right to Self Government policy which was arguably approved by this decision • Aboriginal self-governance is essentially tied to its Aboriginal rights, sometimes like a municipality, sometimes like a Province, and sometimes even like the federal government

27. Summary of Aboriginal Rights • It is a right to conduct site-specific activities • It is based on a ‘practice, custom or tradition’ that was “a central and significant part of the society’s culture.” – Van der Peet at para. 55 • The Aboriginal group must have been conducting the activity at the time of first contact • The nature of an Aboriginal right was not frozen in time but instead must be allowed to evolve into a modern version of the right • Self-Government should be approached the same as any other Aboriginal right • There must be a reasonable continuity of the right.

28. Limitations to Aboriginal Rights • Aboriginal rights could have been extinguished by the Crown prior to 1982 • Only by the federal crown • Only where the federal crown used clear and plain language • Aboriginal rights can be infringed by the Crown • The Crown must have a valid objective • The Crown must balance its power with its fiduciary duty to First Nations • Unlike Aboriginal title, it is not a right to the land itself per se

29. Adams & Coté Decisions, 1996 • In 1996, the courts simultaneously released decisions in Adams and Coté addressing a similar issue • George Adams, a member of the Mohawk nation, was fishing without a licence on Lake St. Francis in Quebec • The Mohawk were nomadic, and it was generally agreed that their traditional use of this fishing area was infrequent and not of central significance to them • The Crown argued that Aboriginal rights were tied to Aboriginal title which could not be made out in this fishing area • The SCC clarified that a First Nation could make a claim to an Aboriginal right even though they might not have had the kind of relationship that would give rise to Aboriginal title • Aboriginal rights fall along a spectrum ranging from basic rights, such as hunting and fishing rights, to Aboriginal title, which is a right to the land itself

30. The Delgamuukw Case, 1997 • Chief Delgamuukw and various hereditary chiefs of the Git’xan and the Wetsuweten people claimed “ownership” and “jurisdiction” of their traditional lands • They lost in lower level courts, including a particularly negative decision from the British Columbia Court of Appeal • They appealed to the Supreme Court of Canada and won on certain key issues • However, the SCC did not make a declaration of Aboriginal title and instead ordered a new trial

31. Delgamuukw (cont.) • Aboriginal title continues to exist. • It is sui generis (meaning a unique kind of land interest) • It is communally held • It is inalienable except to the Crown • Aboriginal title is distinct from other Aboriginal rights because it is a right to the land itself • It is a right to “exclusive use” and “occupation” of the lands • It cannot be used in ways that would be inconsistent with the relationship Aboriginal people had with the land

32. Establishing Aboriginal Title • “It arises where the connection of a group with a piece of land ‘was of central significance to their distinctive culture.’” – para. 137 • “the land must have been occupied prior to sovereignty.” – para. 143 • “if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre-sovereignty occupation.” – para. 143 • “at sovereignty, that occupation must have been exclusive.” – para. 143 • First Nations may only have title on lands where they lived or used regularly to conduct religious ceremonies

33. Content of Aboriginal Title • “Aboriginal title is a species of Aboriginal right.” para. 137 • “What Aboriginal title confers is the right to the land itself.” para 138 • It is not just a right to conduct Aboriginal rights • “Aboriginal title encompasses the right to exclusive use and occupation of the land.” para 117 • Aboriginal title is communally held • Aboriginal title normally carries with it subsurface rights

34. Content of Aboriginal Title (cont.) • Aboriginal title is sui generis and should not be compared to traditional English concepts of property law • Aboriginal title normally carries with it a bundle of Aboriginal rights that the First Nation holds exclusively

35. Limitations on Aboriginal Title • Aboriginal title cannot be used in ways that would be irreconcilable with the relationship Aboriginals have with the land • The example they give is strip mining • Aboriginal title can only be alienated to the Crown • The courts tie this to the limitation above and compare it to doctrine of equitable waste where a person with a life estate cannot commit wanton damage of the property. Alienation is still possible but the Crown must ensure there is some beneficial interest too all beneficiaries, probably even future generations • Aboriginal title can still be infringed, including for such things such as the “development of foreign populations” and hydro power, para 165.

36. Aboriginal Title A right to the land itself (a kind of ownership in the land), Delgamuukw at paragraph 138 A right to resources on the land Normally only held by a First Nation on lands where it made regular use, such as on lands where it constructed dwellings, Delgamuukw at paragraph 149 Includes a right to exclude others Proving Aboriginal title is difficult and has never been met for a parcel of land Aboriginal Rights (excluding Aboriginal Title) A right to conduct certain site-specific activities, such as hunting or fishing Not a right to own the land Held by the First Nation wherever it conducted those activities, such as hunting grounds and fishing grounds Does not normally include a right to exclude others Proving an Aboriginal right is considerably easier than proving Aboriginal title and has been done many times

37. Use Aboriginal Rights and Title An Abstract Example

38. Court Encouragement to Negotiate “By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation… Ultimately, it is through negotiated settlements, with good faith and give and take on all sides… that we will achieve… the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.” – Chief Justice Lamer, in Delgamuukw

39. The Haida Case, 2004 • BC was in the process of considering a renewal of the Tree Farm Licence that included forests on the Haida Gwai • Delgamuukw had already stated that the Crown has an obligation to consult with First Nations in regards to decisions that may affect their Aboriginal rights • Does BC still have a duty to Consult a First Nation in regards to an unproven Aboriginal right that has already been infringed? • The Courts held for the Haida First Nation

40. Haida (cont.) • The Haida have a significant prima facie case for Aboriginal title on parts of the island • The Haida, who successfully proved having a strong traditional relationship with the trees, have a strong prima facie case for Aboriginal rights to the forests on the island • BC must consult a First Nation wherever it has “real or constructive knowledge” that an Aboriginal right, proven or not, could be adversely affected by the crown’s decision • Where the First Nation has a particularly strong claim and/or where the decision could have a “significant adverse impact,” then First Nation consent may be required

41. Consultation & Accommodation • Not an Aboriginal right per se but attached to Aboriginal rights • Consultation is triggered anytime the Crown has “real or constructive knowledge” that a Crown action or decision may have an adverse impact on an existing or yet unproven Aboriginal right • Consultation requires at a minimum, sharing sufficient information, providing a reasonable time to evaluate the information, and hearing the concerns expressed by the First Nation • Accommodation is triggered when the adverse impact is particularly significant or when the First Nation claim to the land is particularly strong

42. The Honour of the Crown • The reconciliation of crown sovereignty and Aboriginal interests is an integral part of s. 35 • The honour of the Crown involves a spectrum of the Crown’s obligation • At a minimum the Crown must act with honour and integrity when dealing with First Nations, avoiding “even the appearance of sharp dealing” • At the higher end, when managing the assets of First Nations for example, the Crown has a fiduciary duty to Aboriginal people

43. The Little Salmon/Carmacks Case, 2010 • The Little Salmon/Carmacks First Nation were signatories to a modern treaty with Canada and the Yukon territorial government • A Non-First Nation individual applied to the territorial government for Crown land to be converted to fee simple land • None of the treaty provisions dealt specifically with whether consultation was necessary or not in this situation • The territorial government made several attempts to contact Little Salmon/Carmacks but they did not respond • The territorial government proceeded with the grant • The SCC ruled against Little Salmon because they felt the efforts of the Crown met their consultation obligations

44. Little Salmon (cont.) • The Courts ruled that the notion that a treaty can represent a “complete code” is not attainable • The grand purpose of the treaty and s. 35 is to enhance the special relationship the Crown has with Aboriginal people and not to allow it to come to harm • Under s. 35, the Crown must be honourable in all its dealings with First Nations, including treaty negotiation • The Crown cannot negotiate away from its obligations under s. 35 • The Crown cannot use treaty negotiations in such a way that would facilitate it bringing dishonour to the relationship it has with Aboriginal people • Instead the treaty is meant to allow the Crown and Aboriginal people to negotiate better mechanisms in regards to s. 35 obligations

45. Land Claims and Past Infringements • The vast majority of developments in British Columbia would qualify as infringements of Aboriginal rights and title • However, the majority of these would be justifiable after the fact • Justification should normally include “fair compensation” for the “inescapable economic component” of Aboriginal rights and title.

46. Reconciliation • “Aboriginal rights… must be understood by reference to both common law and Aboriginal perspectives.” - Chief Justice Lamer in Delgamuukw at para 112 • “The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.” – Justice Binnie at para 10 • Reconciliation is arguably not just a goal but a legal obligation

47. The William or Tsilhqot’in Decision • This year, the British Columbia Court of Appeal in William v. British Columbia has arguably begun to broaden the application of Aboriginal rights but also narrow the application of Aboriginal Title • Mr. Roger William, on behalf of the Tsilhqot’in, made claims for Aboriginal title throughout their traditional territory • At paragraph 219, the Judge says, “I do not see a broad territorial claim as fitting within the purposes of s. 35 of the Constitution Act, 1982 or the rationale for the common law’s recognition of Aboriginal title.” • The Judge continues at paragraph 220 saying that “Aboriginal title cannot generally be proven on a territorial basis, even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory.” • The case arguably narrows the application of Aboriginal title while at the same time expanding the application of Aboriginal rights

48. Cases (chronological order) • St. Catharines Milling & Lumber Co. v. The Queen (1888) 14 App Cas. 46 (H.L.) • Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 (S.C.C.) • R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.) • R. v. Van der Peet, [1996] 2 S.C.R. 507 (S.C.C.) • R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.) • R. v. NTC Smokehouse, [1996] 2 S.C.R. 672 (S.C.C.) • R. v. Pamajewon, [1996] 2 S.C.R. 821 (S.C.C.) • R. v. Adams, [1996] 3 S.C.R. 101 (S.C.C.) • R. v. Coté, [1996] 3 S.C.R. 139 (S.C.C.) • Deglamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.) • Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (S.C.C.) • Beckman v. Little Salmon/Carmacks, [2010] S.C.R. 53 (S.C.C.) • William v. British Columbia, [2012] BCCA 285 (B.C.C.A.) All available at www.canlii.org except the St. Chatharines Milling case