Land and Title rights is an enormous topic that we don’t expect you to become experts on. However, we will go over some of the basics because land theft is directly at the center of colonization. Today, the land use consultation process is part of a large, bureaucratic institution (the federal & provincial governments) that doesn’t have the ultimate goal of benefiting Indigenous peoples.
Considering the Land
In the Nikki Sanchez Ted Talk that you were asked to watch in the first lesson (Decolonization), she asks us whose land our grandmothers were born on. Have you thought about it? Can you answer the question? There are two predominant ways to consider this question: Was your grandmother born on her traditional lands, or was she born a settler?
So why should we think about the land? Why is it essential to recognize whose traditional lands you are occupying? As we talked about in the decolonization lesson, places like Canada, Australia, New Zealand, and the US are full of settlers on essentially stolen and/or unceded land. Unceded refers to land occupied by settlers without treaty negotiations taking place. While Indigenous peoples still live in what is known as “Canada,” they do not necessarily enjoy the same rights and title to the land that they did prior to colonization. This lesson will cover Indigenous land claims (or titles) and explore how the current government structures in “Canada” interact with Indigenous land rights.
Let’s say you’re not Indigenous to the land you are occupying right now. If you are in Vancouver, the lands in this region are claimed as traditional by the Musqueam, Squamish, Tsleil-Waututh, and other Coast Salish nations. The land is not only tradition, but it is ancestral, meaning the land was handed down from generation to generation. Lastly, the land in Vancouver is unceded, which means that the land was never handed over to the federal or provincial government, and no treaties were signed.
When giving a land acknowledgement, it is crucial to mention if the land is unceded, traditional, and/or ancestral and reflect on how your presence on that land contributes to colonization and violence against Indigenous peoples.
Here is an example of a land acknowledgement used widely at UBC: “I would like to acknowledge that we are gathered today on the traditional, ancestral, and unceded territory of the Musqueam people.”
Themes of Indigenous Land and Title Rights
In Canada, Indigenous rights, including land rights, stem from a few sources, including inherent, pre-existing rights, the Royal Proclamation of 1763, and Section 35 of the Constitution Act. These Indigenous rights include (but are not limited to):
- Aboriginal title (ownership rights to land).
- Rights to occupy and use lands and resources, such as hunting and fishing rights, which have been interpreted by the courts to be cultural rights.
- Self-government rights.
We acknowledge that land rights are not all-encompassing of Indigenous rights, and though our focus in this training is purely on land & title rights, we must recognize the broad spectrum of inherent, Indigenous rights that exist. For more information, please see the UN Declaration on the Rights of Indigenous People (Links to an external site.).
Note that in this presentation, we will be using the term “Aboriginal” as interchangeable with “Indigenous”. While this term is recognized to be outdated in many current contexts, “aboriginal” is the legal term used in some of the policies and/or practices that will be cited.
Theme 1 – Aboriginal Title
Under property law, “title” refers to “legal basis of the ownership of property, encompassing real and Personal Property and intangible and tangible interests therein” (title, 2008). Aboriginal title refers to “the inherent Aboriginal right to land or a territory” (Hanson, Aboriginal Title, 2009). There is a disconnect between the “Canadian” or European concept of title and the way various Indigenous groups from all over Turtle island view the concept of title (Hanson, Aboriginal Title, 2009). In the eyes of the colonizers, “title” refers to ownership of a piece of land. However, Indigenous peoples in “Canada” may view “title” as not only being allowed to exist on an area of land, but having stewardship of that land. Due to this disconnect, some Indigenous communities in Canada refuse to enter the treaty or title negotiation process because it means accepting a Canadian legal concept that is antithetical to their way of knowing.
In Canada, Indigenous peoples have a sui generis claim to land, which means that the Canadian government acknowledges that Indigenous peoples have a right to their lands as a result of long occupation and pre-existing relationship with their home territories. The right was not given, but exists nonetheless. Historic treaties and the modern day treaty process (Comprehensive Land Claims) seek to address Aboriginal title.
Theme 2 – Right to Use & Occupy the Land
Indigenous peoples have the right to use and occupy their land. Under Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (Links to an external site.) ():
- Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
- Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
- States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the Indigenous peoples concerned.
Indigenous peoples also have the right to not be forcibly removed from their lands under Article 10. (Links to an external site.)
The Canadian government did not sign onto UNDRIP initially (it was accepted by the UN General Assembly in 2007), but in 2010, it pledged support to the document (Hanson, UN Declaration on the Rights of Indigenous Peoples, 2009). While the government has pledged its support to the document, there are doubts from First Nations that the government’s commitment is actually one of action.
Theme 3 – Right to Self-Government
The right to self-government is also outlined in UNDRIP in Article 4 (Links to an external site.):
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
Self-governance is something that First Nations may bargain for during the modern treaty process, but is not given by virtue of entering the treaty process. If you are interested in learning more about treaties please see the Supplementary Materials.
Global Themes in Indigenous Land & Title Rights
Now let’s think a bit more broadly about land and title rights. On a global scale, the UN Declaration on the Rights of Indigenous peoples is the framework in place worldwide, and no matter where you go, this is the international standard. However, there are a few countries that either abstained from supporting UNDRIP, or accepted it and then denied that there are Indigenous peoples in their country.
As of 2020, the countries that have not pledged support for UNDRIP are: Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, and Samoa. Also, 10 Pacific Island states were absent during voting, so it is unclear whether or not they support UNDRIP. These 10 states are: Fiji, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, and Vanuatu.
In addition to the nations above, your students may end up working in a country that agreed to UNDRIP but does not recognize anyone in their country as Indigenous, like China, who does not recognize Tibetans, Uyghurs, and Mongols as Indigenous (Davis, 2014).
You have now completed all of the instructor trainings. Congratulations! You are now equipped with knowledge, tools, and resources to help you implement Modules 1 – 3 into your classroom. Remember, you can always refer back to these materials.
Bell, C. & Henderson, W. (2019, December 11). Rights of Indigenous Peoples in Canada. In The Canadian Encyclopedia. Retrieved from https://thecanadianencyclopedia.ca/en/article/aboriginal-rights
Davis, M.C. (2014). China & the UN Declaration on the Rights of Indigenous Peoples: The Tibetan Case. University of Hong Kong Faculty of Law Research Paper, No. 2014/044. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2544388
Donovan & Company. (2007). The British Columbian Treaty Making Process: Strategic Perspectives. First Peoples Law. Available at https://www.aboriginal-law.com/~aborig/uploads//documents/PDFs/events%20and%20pubs/The%20British%20Columbia%20Treaty%20Making%20Process-Strategic%20Perspectives.pdf
Government of Canada. (2020, July 30). Comprehensive claims. Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1100100030577/1551196153650
Hall, A. J. (2019, August 30). Royal Proclamation of 1763. In The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/article/royal-proclamation-of-1763
Hanson, E. (n.d.). Aboriginal Title. Indigenous Foundations UBC. Retrieved from https://indigenousfoundations.arts.ubc.ca/aboriginal_title/
Hanson, E. (n.d.). UN Declaration on the Rights of Indigenous Peoples. Indigenous Foundations UBC. Retrieved from https://indigenousfoundations.arts.ubc.ca/un_declaration_on_the_rights_of_indigenous_peoples
Indigenous Foundations UBC. (n.d.). Aboriginal Rights. Retrieved from https://indigenousfoundations.arts.ubc.ca/aboriginal_rights/
Indigenous Foundations UBC. (n.d.). Land & Rights. Retrieved from https://indigenousfoundations.arts.ubc.ca/land__rights/
Lehman, J. & Phelps, S. (2008). Title [property law]. In West’s Encyclopedia of American Law (2nd ed). Gale Group. Retrieved from https://legal-dictionary.thefreedictionary.com/title
Tŝilhqot’in National Government. (n.d.). Tŝilhqot’in Rights & Title: Tŝilhqot’in Nation v. British Columbia, 2014. Retrieved from https://www.tsilhqotin.ca/tsilhqotin-rights-title/
UBC Life team. (2017, August 30). What is a land acknowledgement? UBC Student Services. Retrieved from https://students.ubc.ca/ubclife/what-land-acknowledgement
United Nations. (n.d.). United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
United Nations Declaration on the Rights of Indigenous Peoples