Two World Views
in Law
Historical and Contemporary
Legal Decisions Surrounding
Aboriginal Title and Rights
UBCIC Aboriginal Title and Rights
Position Paper (1978)
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.
An Elder Speaking About the Law of
the Land (1975) “The Land is the
Culture” - UBCIC
http://www.archive.org/download/LandistheCulture/
Land_is_the_Culture_001.wmv
Aboriginal Title



The Supreme Court of Canada said that
Aboriginal Title protects the relationship between
Indigenous Peoples and their territories.
Aboriginal Title is more than the right to practice
specific activities (hunt, fish) on the land. It is a
right to the land itself.
Aboriginal Title exists from the fact that
Indigenous People were the Original People on
the land now known as Canada.
Aboriginal Title Includes:




The right to make decisions about the land.
Economic development opportunities that evolve
to reflect modern uses of land.
A group interest in the land held by Indigenous
Nations, not by individual people.
An understanding that Aboriginal Title is “Sui
Generis,” which means it is unique from all other
types of property interests.
Indigenous Sovereignty


Indigenous Sovereignty is the inherent right and
responsibility of Indigenous Nations to care for
and protect traditional lands and resources, to
govern themselves, and to enter into
relationships with other Nations of Peoples,
guided by their own laws and legal traditions.
Indigenous Nations, with their own laws,
territories, economies, and societies were already
here when newcomers arrived.
Indigenous Law and Expression



Indigenous laws and systems of land ownership
are unique to each Nation’s customs, and oral
traditions.
Each Nation has its own expressions of laws.
Laws are not written into statutes, rules, and
regulations. Laws are understood through
custom, legend, ceremony and oral tradition.
Indigenous Law Is Realized As:



Land and water are respected and Indigenous
people have a responsibility to conserve
resources for future generations.
Laws about land, living and the supernatural
world are expressed and recorded through song,
dance, story, carving and/or ceremony.
Laws are carried forward through Indigenous
languages and speeches at feasts, longhouses,
potlatches, and collective ceremonial gatherings.
Indigenous Law vs Western Law



Indigenous laws and relationships to land differ
from Western notions of land as “property.”
Land is not a possession or commodity to exploit
or sell.
“Our Land is Our Culture” (UBCIC) affirms that
Indigenous relationships to land are inseparable
from Indigenous culture and must be reflected in
law.
Indigenous Homeland


‘Ownership’ for Indigenous people involves
understanding the connection to their homeland.
The connection to homeland is demonstrated
through cultural practices and Indigenous
language.
Homeland is not simply ‘land’ but everything in
one’s world: land, water, air, stars, people,
animals and the spirit world.
Philip Paul discusses colonization and
the differences between native and
non-native attitudes to land (1975)
– UBCIC
http://www.archive.org/download/LandistheCulture_0/
The_Land_is_the_Culture_002.wmv
Royal Proclamation, 1763



Royal Proclamation 1763, required British/French
Governments (colonial governments) to negotiate
treaties with Indigenous Nations before
newcomers could take interest in the lands.
It affirmed that Aboriginal Title to land and
resources exists as they are the Original People
of the land.
Canadian Federal and Provincial Governments
have ignored the laws of the Royal Proclamation
in BC, by not signing treaties.
Constitution Act, 1867



Under Section 91 (24) of the Constitution Act,
1867, the Federal Government became legally
responsible to make decisions about “Indians,
and lands reserved for the Indians.”
All other lands and resources became the
responsibility of each Province.
To this day, the Indian Act and Section 91 (24)
remain under Federal jurisdiction.
Indian Act, 1876




Federal legislation first passed in 1876 to manage
and control Indigenous People.
Intended to replace early treaty making policy
and assume control over Indigenous land.
Allowed the Government to remove Indigenous
People from their traditional land onto reserves.
Outlawed Indigenous forms of governance and
land ownership.
Treaties



In Canada, with the exception of BC, treaties
were signed between the Federal
Government/British Crown and Indigenous
Nations.
These treaties were in recognition of Indigenous
Rights and Title to land as outlined by the Royal
Proclamation, 1763.
The only treaties signed in BC are the “Douglas
Treaties” on Vancouver Island, and “Treaty 8” in
North-eastern BC.
Sir James Douglas


Governor of
Vancouver Island
1851-63 and
Governor of BC
1858-64.
Signed the
“Douglas Treaties.”
Canadian Laws
Against Indigenous People
 Terra
Nullius
The argument made by Governments in legal
disputes that Aboriginal Title to land did not exist
because the land was “empty” or “vacant.”
The argument that Indigenous Nations were
primitive and uncivilized, and were not capable of
managing or having laws to govern the land.
Canadian Laws
Against Indigenous People
 Doctrine
of Discovery
That Aboriginal Title was simply extinguished when
newcomers came upon the land lived on and
governed by Indigenous People, because it had
been “discovered.”
 Doctrine
of Adverse Possession
The Province extinguished Aboriginal Title by
declaring other interests in the land and
resources.
Canadian Laws
Against Indigenous People
 Passage
of Time
That Aboriginal Title “died of old age.” It did not
exist anymore because it was in the past and too
much time had passed for Aboriginal Title and
Rights (as declared in Royal Proclamation) to be
valid.
All of these arguments were used in law to avoid
having to sign treaties with Indigenous People.
Chief Saul Terry on the relationship
between Canada and First Nations.
- UBCIC
http://www.archive.org/download/
ChiefSaulTerryspeakingfortheNoSideonthe
Charlottownconstitutionalreferendum/V376001.wmv
Indian Reserves



Indian Reserves are land set aside for Indigenous
People that Canada holds in trust.
Indigenous People do not own reserve lands.
At the time of the Indian Act, 1876, Indigenous
People were not allowed to leave reserve lands,
and it was illegal for them to hire lawyers to try
and acquire their lands back.
Tahltan Indians, Cassiar District.
Map of Reserves 1, 2, 10.
Chief Simon Baker on reserves and
Aboriginal Title (1977) – UBCIC
http://ubcic.bc.ca/files/Audio/McKenna-cBride/Background/Ac4-aClip48.mp3
Fiduciary Relationship



The Federal Government has a Fiduciary Duty to
Indigenous Peoples’ interest in land.
The Crown, as fiduciary, must act and make
decisions in the best interest of Indigenous
People.
Other examples of fiduciary relationships are
“client and lawyer” or “patient and doctor.”
Calder v. Attorney-General of BC,
1973 Supreme Court of Canada


Dr. Frank Calder, Nisga’a, defended that Nisga’a
People have an Aboriginal Right to the resources
of the Nass watershed because of their Aboriginal
Title.
Supreme Court of Canada landmark decision that
determined Aboriginal Title exists on the basis of
the fact “that when settlers came, the Indians
were there, organized in societies and occupying
the land as their forefathers had done for
centuries” (UBCIC, 2007).
Dr. Frank Calder, Nisga’a
Doug Sanders on Land Claims, Calder
Case, and Treaties.
http://www.archive.org/download/
ExcerptfromTheLandisthecultureacaseforBCIndianlandclaimsclip008/
The_Land_is_the_Culture_008.wmv
Constitution Act, 1982


Canada formally removed itself as a British
colony and became entirely self-governing by
replacing British North America Act with the
Constitution Act of 1982.
Section 35 of the Constitution protects
Aboriginal Title, Rights, and Treaty rights:
“The existing Aboriginal and Treaty rights of
Aboriginal peoples of Canada are herby
recognized and affirmed.”
Purpose of Section 35 of the
Constitution is:



To ensure Indigenous Peoples survive as unique
Peoples with their own culture and traditions.
To address the history of injustice against
Indigenous People through the denial of
Aboriginal Title, Rights and Treaty Rights.
To protect the “cultural security and continuity” of
Indigenous societies.
Delgamuukw v. British Columbia
1997 Supreme Court of Canada



The Supreme Court of Canada landmark decision
in Delgamuukw v. British Columbia ruled for the
first time that Aboriginal Title continues to exist.
Aboriginal Title was not extinguished by the
assertion of Canadian sovereignty or Provincial
laws.
Aboriginal Title is protected by Section 35 of the
Constitution Act, 1982.
Gitksan Wet’suwet’en
Territories in BC
Oral Tradition as Evidence



In Delgamuukw v. British Columbia, the Gitksan
and Wet’suwet’en Nations introduced their oral
traditions as evidence to show their ownership
and jurisdiction to their lands.
The Supreme Court acknowledged that oral
tradition (knowledge shared through story, song,
dance and ceremony, and is not written) is valid
evidence in court.
Oral Tradition must be given equal weight in
court as written documents.
“If the culture, identity and spirit of
Indigenous Peoples are to survive,
the land must be maintained with
respect and understanding among all
peoples in these lands.”
- UBCIC Our Culture Lives in the Land.