Understanding Aboriginal Rights
and Title in British Columbia
George Nicholson, LLB.
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?
“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
Part One
Real Property Law Primer for
Aboriginal Rights
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
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
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
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.
Part Two
Aboriginal 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.
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
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.
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
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.
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
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.
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
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
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
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
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
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 nonAboriginal fishermen after conservation concerns
have been met.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
Use
Aboriginal Rights and Title
An Abstract Example
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
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
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
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
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
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
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
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.
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
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
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