If you are interested in learning more about Indigenous land and title rights, you can find some additional case studies, examples, and readings below.

Court Cases

The way Indigenous land rights are framed today is largely due to a number of precedent-setting court cases. Before diving into the details of land & title rights in BC and Canada, let’s explore the impacts of some of these cases.

R v Calder (1973) – Canada Theme 1

• This case marked the first time that the Canadian courts recognized that aboriginal title to land had existed. While the court did not explicitly say whether or not Indigenous peoples still have a right to their traditional land(s), it was a major milestone in recognizing the Indigenous title right.

R v Guerin (1984) – Canada Theme 2

• This case ruled that aboriginal title was a sui generis right. This means that Indigenous Nations have a unique collective right to the use of their ancestral territories.

Delgamuukw vs British Columbia (1997) – Canada & BC Theme 1

• This case set a precedent by allowing oral testimony as proof of historical land claims. It was also the first time that the court explicitly said that “aboriginal title is a right to the land itself.”

Tŝilhqot’in vs British Columbia (2014) – Canada & BC Theme 1/3

• This was the first time that the court ruled a first nation held title to land outside of a reserve. The court also confirmed that because the Tŝilhqot’in have title to the land, they have the right to manage the land according to their laws and governance structures.

It is important to recognize that, as shown by these court cases, aboriginal title right is not something the Canadian government is eager to recognize beyond the titles that exist on reserves. In fact, the government has been hesitant to recognize aboriginal title out of uncertainty for what it means for the nation. Currently, the apparent move is toward the “recognition framework” (Government of Canada, 2018). There is a large degree of uncertainty about what it would look like to recognize all aboriginal titles, so the government has, for the most part, left it up to the courts to decide.

Treaties

Treaties (both modern and historical) define the way that the Canadian government views the rights of Indigenous peoples. The Royal Proclamation of 1763 stated that “Indigenous people reserved all lands not ceded by or purchased from them” (Hall, 2019). However, treaties have actually served to extinguish aboriginal rights. In fact, “many have argued that at the time the treaties were negotiated, Aboriginal signatories did not understand the treaties as limiting or extinguishing their title” (Hanson, Aboriginal Title, 2009).

In Canada, the term “historical treaties” refers to treaties that were negotiated prior to 1923. These include the numbered treaties, the Robinson and Douglas treaties, the Upper Canada land surrenders, the Peace & Neutrality treaties, and the Peace & Friendship treaties. If you’re curious to learn more about those treaties, see this page (Government of Canada, 2020).

Historic Treaties and Treaty First Nations in Canada

Historical treaties required a First Nation to “cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and her successors forever all their rights, titles and privileges whatsoever to the lands included within the following limits…” (Donovan & Company, 2007).  Members of these nations would then be forced to reside on reserves, and, in return, could receive annual payments from the government and retain their hunting and fishing rights.

Since the 1973 Calder decision, Canada has entered a new era of treaty negotiations. Modern treaties, also known as Comprehensive Land Claims, outline the relationship between the First Nation(s) in question and the provincial and/or federal government. It is optional for First Nations to enter the modern treaty process. Modern treaties may include (Government of Canada, 2020):

• Consultation and participation requirements
• Ownership of lands
• Wildlife harvesting rights
• Financial settlements
• Participation in land use and management in specific areas
• Self-government
• Resource revenue sharing and measures to participate in the Canadian economy
• Preparations for when the agreement takes effect (such as implementation planning)

For more information about the specifics of modern treaties, visit this site (Government of Canada, 2015).

In BC, there were much fewer historical treaties negotiated than the rest of the country. The province has its own body that deals with the modern treaty negotiation process, called the BC Treaty Commission. The commission works with the Federal Government and the First Nations Summit throughout the treaty process.

The Treaty Process

So why would First Nations enter the treaty process? Why would they be reluctant to enter the process?

Benefits include clear land ownership, cleat plans for land use and governance, a sum of money, or other benefits. Risks include requirements of the first nation to give up unresolved title to their land, they may lose hunting, fishing, or other cultural rights, they may lose governance right, and the process is long.

Figure 1.

Interactive Map of Historic Treaties and Treaty First Nations in Canada

Additional Readings & Resources

• Assembly of First Nations. (n.d.). Land and Claims. https://www.afn.ca/policy-sectors/lands-claims/
• BC Treaty Commission (https://www.bctreaty.ca)
  • BC Treaty Commission. (2022). Why Treaties? https://www.bctreaty.ca/why-treaties*
    *from the BC Government perspective
• First Nations Summit. (n.d.). First Nations – Crown Treaty Negotiations in BC. https://fns.bc.ca/treaty-negotiation-process-in-bc
• Hanson, E. (n.d.). Constitution Act, 1982 Section 35. Indigenous Foundations UBC. https://indigenousfoundations.arts.ubc.ca/constitution_act_1982_section_35/

Sources

Delgamuukw v. British Columbia, 1997 SCR 23799. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do

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. (2015). Comprehensive Claims. Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1100100030577/1551196153650

Government of Canada. (2020). Treaties and Agreements. Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231

Government of Canada. (2013, November 17). Historic Treaties and Treaty First Nations in Canada Infographic. Retrieved from https://www.rcaanc-cirnac.gc.ca/eng/1380223988016/1544125243779

Salomons, T. (n.d.). Calder Case. Indigenous Foundations UBC. https://indigenousfoundations.arts.ubc.ca/calder_case/

Salomons, T. & Hanson, E. (n.d.). Guerin Case. Indigenous Foundations UBC. https://indigenousfoundations.arts.ubc.ca/guerin_case/

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/