Indigenous Title and Rights

Traditional territories

An Indigenous people’s traditional territory is a specific expression of rights to land.  However, Indigenous relations with land are not consistent with the idea of “ownership” or “property.”  Nor is it consistent with the concept of “occupying” land.  Brian Thom, University of Victoria, emphasises how traditional territories can be “drawn” in different ways.  “[D]elineating territories based strictly on land use and occupancy does not take into account broader relationships between people and place.  Property, language, residence and identity are categories also appropriate to Coast Salish territorial boundaries, while ideas and practices of kin, travel, descent and sharing make boundaries permeable”^[1]  For example, the geographical extent of traditional territories are reflected in maps of language groups in BC, such as the First Peoples’ Cultural Council, which produced an interactive map on-line.

Property rights

A claim to a traditional territory also implies property rights (as the term is used in Canadian law).  To help make sense of what seems like a contradiction between having rights to property but not owning property, it is helpful to consider the concept of traditional territory through a property rights regime of use, control, and disposition rights.

The concept of a traditional territory is often associated with use rights, such as the right to access traditional lands for hunting, fishing, and trapping to support livelihoods.  These uses of land then define areas of occupation (i.e., the test of sufficiency of occupation).  The physical territory corresponds with the regular use of traditional hunting areas and traplines, as well as the routes used to traverse these areas and the seasonal settlements sites.  Likewise, a claim to a traditional territory infers the right to access and use the land.

Control rights play an important role regarding claims to Indigenous land title.  To claim a traditional territory as a Nation’s own, the Nation has to demonstrate the intention and capacity to retain exclusive control over the land (i.e., the test of exclusivity).   To control land is to restrict others from entering or allowing others to access the land and granting permission to use its resource.  In their argument before the Supreme Court of British Columbia^[2] (and upheld by the Supreme Court of Canada^[3]), the Tsilhqot’in presented the following evidence to establish exclusivity:

• Entered into treaties or bonds of peace from time to time;
• Used scouts and runners to check for intruders and warn others;
• Non-Tsilhqot’in paid a toll to enter and rent if a person wanted to settle in the area;
• Fur traders and explorers offered “presents” to the Tsilhqot’in to foster a positive economic relationship and be permitted to pass through; and,
• Instilled fear among non-Tsilhqot’in through the use of military practices, such as the practice of “killing as many opponents as possible but at the same time, deliberately allowing one or two badly wounded opponents the opportunity to escape death. Upon their return, these badly wounded individuals would present the best evidence possible of the fierceness of Tsilhqot’in warriors” (para. 920).

The points above illustrate that the notion of property rights apply to Indigenous Nations.

We turn next to disposition rights, which include the right to sell land (as well as lease, subdivide or bequeath).  This right to sell property corresponds with the general sense of “ownership.”  While selling land (and the real estate market) is well established in Canadian society, this concept is antithetical to Indigenous relations with land.  Whereby, we can talk about Indigenous rights to land (use and control rights) without implying ownership.

Shared and overlapping boundaries

In his discussion of territorial boundaries, Thom states, “The very maps that indigenous people hope will reconcile their claims with the jurisdiction and property claims of the state may in fact subvert indigenous notions of territory and boundaries.”^[4]  Thom’s argument centres on fluid kin and linguistic relations that are founded upon sharing among the Coast Salish, resulting in ambiguous, permeable boundaries.  Consequently, capturing territorial boundaries as polygons on maps is difficult and, at best, leads to messy-looking sets of overlapping territories.

The question of who shares with whom is related to control rights.  Thom identifies two rules for inclusion:  kinship is the primary mechanism; private knowledge about land and resources is the second.^[5]  “Territory, from this perspective of dwelling, is not so much a commodity of real-estate or a base area of jurisdiction, as it is a way of ordering kin relations and relationships of sharing.”^[6]  Consequently, as Thom argues, the notion of “overlap” is a product of Western thinking and imposed through Canadian legal doctrine regarding tests of occupation and exclusivity.

Calder (1973)

• Acknowledged the existence of Indigenous title.

Calder et al. v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), [1973] SCR 313

Chief Frank Calder was a member of the Nisga’a.  The Nisga’a claimed that title over their ancestral lands was never fully extinguished and took their case to the Supreme Court of Canada.  Although the Nisga’a lost the case, the Court, for the first time, acknowledged the existence of Indigenous title.  The Court, however, could not decide if title was still valid or had been extinguished.

Guerin (1984)

• The Crown must act in the best interest of Indigenous peoples (fiduciary duty).
• Indigenous title is a sui generis right.

Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 SCR 335

This case concerned the Musqueam and the Crown’s agreement to lease their reserve lands to a golf club.  The Musqueam agreed to lease the lands but sued the Crown for damages based on the terms of the agreement.  In making their decision, the Court established that the Crown has an enforceable fiduciary duty to Indigenous peoples; that is, the Crown must act in the best interest of Indigenous peoples.  The Court also established that this duty of the Crown is special because, the Court agreed, that Indigenous title is a sui generis right, which means that title is “of one’s own kind, peculiar.”  The reference to “of its own kind” establishes this legal right as distinct from and is not equivalent to legal rights established under common law of Canada.  One can also express the relationship between the Crown and Indigenous peoples in reverse terms, as follows:  the special nature of Indigenous title legally requires the Crown to act in the best interests of Indigenous peoples.  This relationship serves to legally protect Indigenous rights.  In this case, the Court also affirmed that Indigenous rights are pre-existing and inalienable (i.e., can only be alienable to the Crown).  As for the decision itself, the Crown found that the government did not act in Musqueam’s best interest and awarded damages to the Musqueam.

Sparrow (1990)

• Upheld the Constitutional grounds of Indigenous rights, determined that this right had not been extinguished.
• Established a set of criteria to interpret what constitutes an Indigenous right (the “Sparrow” test) and the extent to which the government can limit those rights.

R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 SCR 1075

This case involved Ronald Edward Sparrow, a member of the Musqueam and commercial fisherman, who was charged with illegal fishing.  In his defence before the Supreme Court, Sparrow argued that Section 35 of the Constitution Act, 1982 protected his right to fish.  The questions before the Court concerned whether Sparrow’s right to fish was extinguished, whether his right was infringed, and whether this infringement was justified.  This case was the first to test of Section 35 of the Act, which states “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”  The Court upheld the Constitutional grounds of Indigenous rights, determined that this right had not been extinguished, and affirmed Sparrow’s ancestral right to fish.  As an outcome of this case, the Court established what became known as the “Sparrow Test,” which is a set of criteria to interpret what constitutes an Indigenous right under Section 35 and the extent to which the government can limit those rights.  Although this decision affirmed Indigenous rights, the Court stated that the government can justify legally infringing these rights.

Van der Peet, (1996)

• An Indigenous right must be an element of a practice, custom, or tradition integral to the distinctive culture of the Indigenous group asserting the right.
• Established ten criteria to determine what activity is protected as an Indigenous right under section 35 of the Constitution Act, 1982 (the “Integral to a Distinctive Culture” test).

R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 SCR 507

This case affirmed that an Indigenous right must be an element of a practice, custom, or tradition integral to the distinctive culture of the Indigenous group asserting the right.  Beyond the Indigenous right to catch fish for sustenance and ceremonial purposes, at issue in this case was whether selling fish was protected as an Indigenous practice, custom, or tradition.  The court ruled that selling fish that was caught for food was not an “existing” Indigenous right.  That is, Indigenous peoples have the right to fish, but this ancestral right does not include exchanging fish for money or other goods.  To decide this case, the justices established ten criteria to determine what activity is protected as an Indigenous right under section 35 of the Constitution Act, 1982.  These criteria, now known as the “Integral to a Distinctive Culture” test, have been criticised for narrowly defining Indigenous rights and for emphasising practices, customs, and traditions of pre-European contact.  This case established that oral history is a type evidence equal to other types of evidence.

Delgamuukw (1997)

• Indigenous title continues as an “existing aboriginal right”
• Title is a distinct right to the land itself that can be proven, including the use of oral testimony as legal evidence.
• Established criteria to demonstrate Aboriginal title.
• Established that the government has a duty to consult.

Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010

This case concerned the effort of the Gitxsan and Wet’suwet’en to establish existing ownership of their traditional territories, as a counter to the argument that title was “extinguished” when BC joined Confederation.  The case is significant for its comprehensive account that Indigenous title is not merely a right sui generis but continues as an “existing aboriginal right,” as per section 35 of the Constitution Act, 1982.  The Court clarified the definition, content, and extent of how title is more than the use of land, but is a distinct right to the land itself that can be proven, including the use of oral testimony as legal evidence.  The Court established criteria to demonstrate Aboriginal title based on three conditions:  occupation of the land prior to sovereignty; continuity since pre-sovereignty occupation; and, exclusive occupation.  As the case moved its way through the system, the courts also established that the government has a duty to consult with Indigenous peoples about any projects that may infringe upon Indigenous rights.  Indigenous title is not equivalent to fee simple.  The right to title is held communally and can only be transferred to the Crown.

Haida Nation (2004)

• Established the Crown’s duty to meaningful consultation.

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511

In 1999, a long-standing Tree Farm License was to be transferred by the provincial government to a forestry company (Weyerhauser Co.).  The Haida Nation took the province to court, arguing that the transfer decision was made unilaterally—without consultation or consent, even though the Haida Nation had claimed title to the area previously.  In addressing the case, the Court established the Crown’s duty to meaningful consultation and to accommodate interests when actions may affect Indigenous rights.  This duty to consult is an “honour of the Crown.”

Tsilhqot’in (2014)

• Established a specific case of Indigenous title.
• Title includes the right to decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use and manage the land, including its natural resources.
• The Crown, in the public interest, may infringe upon Indigenous title.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] 2 SCR 257

Like in Haida Nation, this case involves a forest licence to cut trees on land claimed previously as the traditional territory of an Indigenous group, in this case, Xeni Gwet’in band of the Tsilhqot’in.  The lower court decisions had determined that, at best, Indigenous title was limited.  In the end, the Supreme Court determined that the Tsilhqot’in held title over 1,750 km2.  This case builds upon many of the important principles established in the Delgamuukw case.  Whereas the Court established that Indigenous title exists in Delgamuukw, in Tsilhqot’in, the Court established a specific case of Indigenous title.  The decision clarified that title includes the right to decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use and manage the land, including its natural resources.  Several important qualifications must be noted, however.  First, underlying control or “ownership” is retained by the Crown.  Second, although meaningful consultation is required before Indigenous rights might be infringed, the consent of the Indigenous group to the activity is not required.  Critically, the Court affirmed that the Crown, in the public interest, may infringe upon Indigenous title.  Finally, although the Tsilhqot’in were recognised as having title to a large area, this area is only 40% of the area claimed at trial and only about five percent of their traditional territory.

Yahey (Blueberry River First Nations) (2021)

• First case to determine cumulative effects of industrial development infringed Indigenous title and rights.
• Reinforced the need for the province to ensure a comprehensive duty to consult and accommodate.

Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

In this case, the Blueberry River First Nations argues that the Province of British Columbia authorised industrial development without regard for Blueberry’s treaty rights.  These developments included oil and gas extraction, logging, hydroelectric dams, and other resource-based projects.  Further, Blueberry argued that these industrial developments had cumulative effects with significant adverse impacts on the meaningful exercise of their treaty rights, breached the Treaty, and infringed their rights to hunt, fish, and trap without interference.  This case is the first in Canadian legal history that determined cumulative effects of industrial development infringed Indigenous title and rights.  The decision also informs the need for consent by a nation before a project is approved and reinforces that need for the province to ensure a more comprehensive duty to consult and accommodate with Indigenous Nations in the decision-making process.