{"id":109,"date":"2023-01-27T18:52:34","date_gmt":"2023-01-27T23:52:34","guid":{"rendered":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/__unknown__-3\/"},"modified":"2026-01-01T15:25:00","modified_gmt":"2026-01-01T20:25:00","slug":"indigenous_title_rights","status":"publish","type":"chapter","link":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/indigenous_title_rights\/","title":{"raw":"Indigenous Title and Rights","rendered":"Indigenous Title and Rights"},"content":{"raw":"<div class=\"__UNKNOWN__\">\r\n\r\nIn this learning module, we introduce a basic understanding of Indigenous rights and title through a conventional lens of land use planning.\u00a0 Importantly, rights and title to land have different meanings when considered through Indigenous culture and customs.\r\n\r\nIt is important to think critically about how the foundations of Canadian law impose a way of thinking about land that is not wholly consistent with, and can undermine, an Indigenous perspective of and relation with land.\u00a0 A good example of this inconsistency is the matter of boundaries among traditional territories.\u00a0 Canadian property law is predicated on clear demarcations between mine and yours, between inside and outside.\u00a0 These demarcations are expressed as boundaries as if drawn physically on the land itself.\u00a0 In contrast, the relation of Indigenous peoples with land is inseparable from their way of being\u2014their worldview, culture, and spirituality.\u00a0 In a traditional sense, land is not something that is \u201cowned\u201d or \u201coccupied.\u201d\u00a0 Rather, Indigenous peoples are caretakers of land and water.\r\n\r\n&nbsp;\r\n\r\n<\/div>\r\n<div class=\"textbox textbox--examples\"><header class=\"textbox__header\">\r\n<h2><strong>Title and Rights:\u00a0 Indigenous Perspectives<\/strong><\/h2>\r\n<\/header>\r\n<div class=\"textbox__content\">\r\n<p class=\"import-Normal\"><span lang=\"en-CA\" xml:lang=\"en-CA\">The following on-line resources <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">provide<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\"> an Indigenous perspective on Indigenous <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">title <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">and <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">rights<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">.<\/span><\/p>\r\n\r\n<ul>\r\n \t<li><a href=\"https:\/\/indigenousfoundations.arts.ubc.ca\/land__rights\/\" target=\"_blank\" rel=\"noopener\"><span lang=\"en-CA\" xml:lang=\"en-CA\">Indigenous Foundations<\/span><\/a><span lang=\"en-CA\" xml:lang=\"en-CA\"> (F<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">irst<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\"> Nations Studies Program, <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">University of British Columbia<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">)<\/span><\/li>\r\n \t<li><span lang=\"en-CA\" xml:lang=\"en-CA\"><a href=\"https:\/\/yellowheadinstitute.org\/\" target=\"_blank\" rel=\"noopener\">Yellowhead Institute<\/a> (<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">Faculty of Arts at <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\"><span class=\"js-about-item-abstr\">Toronto Metropolitan University<\/span>)<\/span><\/li>\r\n<\/ul>\r\n<\/div>\r\n<\/div>\r\n&nbsp;\r\n<div class=\"__UNKNOWN__\">\r\n\r\n&nbsp;\r\n\r\n<\/div>\r\n<div class=\"textbox textbox--examples\"><header class=\"textbox__header\">\r\n<h2><strong>Aboriginal Title versus Indigenous Title<\/strong><\/h2>\r\n<\/header>\r\n<div class=\"textbox__content\">\r\n<p class=\"import-Normal\"><span lang=\"en-CA\" xml:lang=\"en-CA\">Although the terms Aboriginal Title and Indigenous Title can be used interchangeably, the following distinction is also used.\u00a0 Aboriginal Title is the common law term used by Canadian courts to define the rights of Indigenous Peoples to their lands.\u00a0 Indigenous Title is determined by Indigenous laws.<\/span><\/p>\r\n&nbsp;\r\n\r\n<\/div>\r\n<\/div>\r\n<div>\r\n\r\n&nbsp;\r\n\r\n<\/div>\r\n<div class=\"__UNKNOWN__\">\r\n<h2 class=\"import-Normal\"><strong>Land r<\/strong><strong>ights versus <\/strong><strong>land <\/strong><strong>title<\/strong><\/h2>\r\nBased on Indigenous legal systems, Indigenous rights derive from elements of distinctive practices, customs, and traditions of an Indigenous Nation.\u00a0 From a common law perspective, Indigenous rights to land are articulated as unique property rights.\u00a0 Such rights include the right to access and use land for hunting and trapping.\u00a0 These rights are <em>sui generis<\/em>.\u00a0 That is, they are recognised as existing prior to the European assertion of sovereignty and to the establishment of property rights under common law in Canada.\u00a0 Indigenous rights are a claim recognisable, protected, and enforceable by Canadian common law.\r\n\r\nIndigenous title is a form of property right specific to land; it is a sub-set of Indigenous rights.\u00a0 Indigenous title, like other Indigenous rights, is a special right recognised as <em>sui generis<\/em>.\u00a0 In other words, Indigenous title to land is not derived from Canadian law.\u00a0 An Indigenous right (to hunt, for example) can exist independently of Indigenous title to land.\r\n\r\nIndigenous rights to land were recognised by the Crown in the <em>Royal Proclamation of 1763<\/em> and in subsequent court decisions (see below).\u00a0 The <em>Constitution Act, 1982<\/em> (s. 35(1)) affirms \u201cexisting Aboriginal and treaty rights.\u201d\r\n\r\nLike other property rights under common law (but not the same as), Indigenous rights to land correspond to their occupation, use, and control of ancestral lands.\u00a0 Indigenous rights to property, under the <em>Constitution Act, 1982<\/em>, do not include disposition rights.\u00a0 Indigenous people cannot sell rights to their land; they can only voluntarily surrender their land to the Crown through agreements (e.g., treaties).\u00a0 Also, Indigenous rights and title to land are often recognised as communal; they are not held by any individual Indigenous person but by Indigenous Nations.\r\n\r\nThe Nisga\u2019a Tribal Council provides a detailed description of Indigenous title to land.\u00a0 See Box 1.\r\n\r\n<\/div>\r\n&nbsp;\r\n<div class=\"textbox textbox--examples\"><header class=\"textbox__header\">\r\n<h2 class=\"textbox__title\"><strong>Box 1.\u00a0 <\/strong><strong>Indigenous (aboriginal) title:\u00a0 Nisga\u2019a Tribal Council<\/strong><\/h2>\r\n<\/header>\r\n<div class=\"textbox__content\">\r\n\r\nThese detailed descriptions are from a booklet the Nisga\u2019a Nation produced for its members to help understand the contents of their Treaty.\u00a0 The information in the booklet is presented in a question-answer format.\r\n\r\n<em>What are the basic features of aboriginal title?<\/em>\r\n\r\nSome of the important features of aboriginal title, according to the Supreme Court of Canada, include:\r\n<ul>\r\n \t<li>Aboriginal title is a <em>sui generis <\/em>(unique) interest that cannot be completely explained by reference to common law rules of real property or to the rules of property found in aboriginal legal systems.<\/li>\r\n \t<li>Aboriginal title has various \u201cdimensions\u201d:<\/li>\r\n<\/ul>\r\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">a) It is inalienable, that is, it cannot be transferred, sold or surrendered to anyone other than the Crown;<\/p>\r\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">b) Its source arises not from the Royal Proclamation of 1763, or by grant from the Crown. Rather it arises from the prior occupation of Canada by aboriginal peoples, and from the relationship between common and pre-existing systems of aboriginal law;<\/p>\r\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">c) Aboriginal title is held communally. In a statement that sounds very much like the Nisga\u2019a common bowl philosophy, the Court\u00a0 says:<\/p>\r\n\r\n<ul>\r\n \t<li><em>Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.<\/em><\/li>\r\n \t<li>The content of aboriginal title can be summarized by two propositions:<\/li>\r\n<\/ul>\r\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">a) Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of aboriginal rights, and<\/p>\r\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">b) Those protected uses must bot be irreconcilable with the nature of the group\u2019s attachment to that land.<\/p>\r\nAboriginal title is more than a \u201cbundle\u201d of aboriginal rights, or practices, cultures and traditions that are \u201cintegral to the group\u2019s distinctive culture.\u201d\u00a0 Rather, aboriginal title is a right to the land itself.\u00a0 Subject to the limits described below, the land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under section 35(1).\r\n\r\nThere is an \u201cinherent limit\u201d on the uses to which the land can be put.\u00a0 Lands subject to aboriginal title cannot be put to such uses as may be \u201cirreconcilable\u201d with the nature of the occupation of that land to aboriginal title in the first place.\u00a0 After pointing out that aboriginal title arises from occupation, which is determined by reference to activities and uses to which the group has put the land, the Chief Justice concluded that there exists a \u201cspecial bond\u201d between the aboriginal group and the land. \u00a0This, he continued, creates an inherent limitation on the uses to which the land can be put.\u00a0 By way of example, he continued, if title is established on the basis that the land was used as a hunting ground, it could not be strip mined, if a group claims land because of its \u201cceremonial or cultural significance\u201d, it may not use the land in such a way as to destroy that relationship by, for example, turning it into a parking lot.\r\n\r\nThe principle seems to be that the uses to which a group puts aboriginal title land are unlimited, except to the extent that the use would prevent the special relationship from continuing into the future.\u00a0 The limitation would seem to depend on the nature of past use, and the compatibility of present or proposed uses with that use in the future.\r\n\r\nHowever, the Chief Justice continued:\r\n\r\n<em>\u2026what I have just said regarding the importance of the continuity of the relationship between an aboriginal community and its land, and the non-economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration.\u00a0 On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited in the way I have described.\u00a0 If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so.<\/em>\r\n\r\n&nbsp;\r\n\r\nAn infringement of aboriginal title is valid only if it is intended to address a legislative objective that is \u201ccompelling and substantial\u201d and if it is consistent wit the special fiduciary relationship between the Crown and aboriginal people.\r\n\r\nThe Chief Justice ruled that objectives such as \u201cthe development of agriculture, forestry, mining, and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims\u201d are all sufficiently compelling and substantial to meet the first test for infringement of aboriginal title.\r\n\r\nThe second test is whether an infringement of aboriginal title is consistent with the fiduciary relationship.\u00a0 Three aspects of aboriginal title are relevant to the reconciliation of aboriginal title with the sovereignty of the Crown:\r\n<p class=\"hanging-indent\" style=\"padding-left: 40px\">a) Aboriginal title encompasses the right to the exclusive use and occupation of land;<\/p>\r\n<p class=\"hanging-indent\" style=\"padding-left: 40px\">b) It encompasses the right to choose to what uses land can be put, subject to the limit described above; and<\/p>\r\n<p class=\"hanging-indent\" style=\"padding-left: 40px\">c) Lands held pursuant to aboriginal title have an inescapable economic component.<\/p>\r\nThe application of these \u201caspects\u201d is unclear\u2014the right to the exclusive use is said to be a limited priority.\u00a0 Moreover, it may not require priority.\u00a0 Consultation may suffice.\r\n\r\nMoreover, compensation \u201cis relevant to the question of justification\u201d as well, although the Court did not go so far as to say that compensation is die for all past infringements of aboriginal title, nor did it rule on how the amount of compensation should be determined.\r\n\r\n&nbsp;\r\n\r\nSource:\u00a0 Nisga\u2019a Tribal Council (1998).\u00a0 <em><a href=\"http:\/\/www.nisgaanation.ca\/sites\/default\/files\/Understanding%20the%20Nisga%27a%20Treaty%201998.pdf\" target=\"_blank\" rel=\"noopener\">Understanding the Nisga\u2019a Treaty<\/a> <\/em>(pp. 9-11).\r\n\r\n<\/div>\r\n<\/div>\r\n&nbsp;\r\n<div class=\"__UNKNOWN__\">\r\n<h3 class=\"import-Normal\" style=\"text-align: left\"><strong><em>Constitution Act, 1982<\/em><\/strong><\/h3>\r\n<p class=\"import-NormalWeb\">Section 35 of the <em>Constitution Act<\/em><em>, 1982<\/em>, presented below, recognises and affirms Indigenous rights. However, the Constitution does not define what is included among these rights.\u00a0 Consequently, defining what Indigenous rights are recognised by the Constitution is an on-going matter before the courts, as evident in the following cases.\u00a0 Likewise, precisely how Indigenous title and rights are reconciled with the Crown\u2019s assertion of title are also the subject of legal debate and have yet to be fully clarified.<\/p>\r\n<p class=\"import-Normal\">Indigenous rights were formally entrenched in Canadian law through the <em>Constitution Act, 1982<\/em><em>.<\/em>\u00a0 Section 35 addresses the \u201cRights of the Aboriginal Peoples of Canada,\u201d as follows.<\/p>\r\n\r\n<table style=\"width: 804px;height: 830px\">\r\n<tbody>\r\n<tr class=\"TableGrid-R\">\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\r\n<p class=\"import-Normal\"><em>Recognition of existing aboriginal and treaty rights<\/em><\/p>\r\n<\/td>\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\r\n<p class=\"import-Normal\"><strong>35. <\/strong>(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.<\/p>\r\n<p class=\"import-Normal\"><\/p>\r\n<\/td>\r\n<\/tr>\r\n<tr class=\"TableGrid-R\">\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\r\n<p class=\"import-Normal\"><em>Definition of \"aboriginal peoples of Canada\"<\/em><\/p>\r\n<\/td>\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\r\n<p class=\"import-Normal\">(2) In this Act, \"aboriginal peoples of Canada\" includes the Indian, Inuit and M\u00e9tis peoples of Canada.<\/p>\r\n<p class=\"import-Normal\"><\/p>\r\n<\/td>\r\n<\/tr>\r\n<tr class=\"TableGrid-R\">\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\r\n<p class=\"import-Normal\"><em>Land claims agreements<\/em><\/p>\r\n<\/td>\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\r\n<p class=\"import-Normal\">(3) For greater certainty, in subsection (1) \"treaty rights\" includes rights that now exist by way of land claims agreements or may be so acquired.<\/p>\r\n<p class=\"import-Normal\"><\/p>\r\n<\/td>\r\n<\/tr>\r\n<tr class=\"TableGrid-R\">\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\r\n<p class=\"import-Normal\"><em>Aboriginal and treaty rights are guaranteed equally to both sexes<\/em><\/p>\r\n<\/td>\r\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\r\n<p class=\"import-Normal\">(4) Notwithstanding any other provision of this Act, the<br style=\"clear: both\" \/>aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.<\/p>\r\n<p class=\"import-Normal\"><\/p>\r\n<\/td>\r\n<\/tr>\r\n<tr class=\"TableGrid-R\">\r\n<td style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\r\n<p class=\"import-Normal\"><em>Commitment to participation in constitutional conference<\/em><\/p>\r\n<\/td>\r\n<td style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\r\n<p class=\"import-Normal\"><strong>35.1 <\/strong>The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the \"<em>Constitution Act, 1867<\/em>\", to section 25 of this Act or to this Part,<\/p>\r\n<p class=\"import-Normal\" style=\"margin-left: 21.8pt\">(<em>a<\/em>) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and<\/p>\r\n<p class=\"import-Normal\" style=\"margin-left: 21.8pt\">(<em>b<\/em>) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.<\/p>\r\n<\/td>\r\n<\/tr>\r\n<tr>\r\n<td style=\"width: 193.333px\"><\/td>\r\n<td style=\"width: 578.8px\"><\/td>\r\n<\/tr>\r\n<\/tbody>\r\n<\/table>\r\n<\/div>\r\n<h2><strong>Traditional territories<\/strong><\/h2>\r\nAn Indigenous people\u2019s traditional territory is a specific expression of rights to land.\u00a0 However, Indigenous relations with land are not consistent with the idea of \u201cownership\u201d or \u201cproperty.\u201d\u00a0 Nor is it consistent with the concept of \u201coccupying\u201d land.\u00a0 Brian Thom, University of Victoria, emphasises how traditional territories can be \u201cdrawn\u201d in different ways.\u00a0 \u201c[D]elineating territories based strictly on land use and occupancy does not take into account broader relationships between people and place.\u00a0 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\u201d[footnote]Thom, B. (2009). \u201cThe Paradox of Boundaries in Coast Salish Territories.\u201d Cultural Geographies 16(2):179\u2010205, p. 179. Brian Thom, University of Victoria, studies property rights and traditional territories of BC\u2019s Indigenous People with a specific focus on the Coast Salish. (Coast Salish is not a traditional Indigenous name; it is generally accepted to use this term to refer to related language groups in southwest British Columbia and northwest Washington State.) The following works by Brian Thom are excellent resources to learn about Indigenous rights to land and traditional territories. Thom, B. (2020). \u201cAddressing the Challenge of Overlapping Claims in Implementing the Vancouver Island.\u201d Anthropologica 62:295\u2013307. Thom, B (2014). \u201cReframing Indigenous Territories: Private Property, Human Rights and Overlapping Claims.\u201d American Indian Culture and Research Journal 38(4):3-28. Thom, B. (2005). Coast Salish Senses of Place: Dwelling, Meaning, Power, Property and Territory in the Coast Salish World [dissertation]. McGill University. Although Thom\u2019s work is focused primarily on the Coast Salish, the insights apply generally to all discussions of traditional territories in BC.[\/footnote]\u00a0 For example, the geographical extent of traditional territories are reflected in maps of language groups in BC, such as the First Peoples\u2019 Cultural Council, which produced an <a href=\"https:\/\/maps.fpcc.ca\/\" target=\"_blank\" rel=\"noopener\">interactive map on-line<\/a>.\r\n\r\n&nbsp;\r\n<h3 style=\"text-align: left\"><strong>Property rights<\/strong><\/h3>\r\nA claim to a traditional territory also implies property rights (as the term is used in Canadian law).\u00a0 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.\r\n\r\n&nbsp;\r\n<div class=\"textbox textbox--key-takeaways\"><header class=\"textbox__header\">\r\n<h2 class=\"textbox__title\"><strong>Learning Module\r\n<\/strong><\/h2>\r\n<\/header>\r\n<ul>\r\n \t<li class=\"textbox__content\"><a href=\"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/property_rights_land_tenure\/\" target=\"_blank\" rel=\"noopener\">Property Rights and Land Tenure<\/a><\/li>\r\n<\/ul>\r\n<\/div>\r\n&nbsp;\r\n\r\nThe 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.\u00a0 These uses of land then define areas of occupation (i.e., the test of sufficiency of occupation).\u00a0 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.\u00a0 Likewise, a claim to a traditional territory infers the right to access and use the land.\r\n\r\nControl rights play an important role regarding claims to Indigenous land title.\u00a0 To claim a traditional territory as a Nation\u2019s own, the Nation has to demonstrate the intention and capacity to retain exclusive control over the land (i.e., the test of exclusivity).\u00a0 \u00a0To control land is to restrict others from entering or allowing others to access the land and granting permission to use its resource.\u00a0 In their argument before the Supreme Court of British Columbia[footnote]<em>Tsilhqot'in Nation v. British Columbia<\/em>, 2007 BCSC 1700 [Paragraphs 915-921][\/footnote] (and upheld by the Supreme Court of Canada[footnote]<em>Tsilhqot\u2019in Nation v. British Columbia<\/em>, 2014 SCC 44 (CanLII), [2014] 2 SCR 257[\/footnote]), the Tsilhqot'in presented the following evidence to establish exclusivity:\r\n<ul>\r\n \t<li>Entered into treaties or bonds of peace from time to time;<\/li>\r\n \t<li>Used scouts and runners to check for intruders and warn others;<\/li>\r\n \t<li>Non-Tsilhqot\u2019in paid a toll to enter and rent if a person wanted to settle in the area;<\/li>\r\n \t<li>Fur traders and explorers offered \u201cpresents\u201d to the Tsilhqot\u2019in to foster a positive economic relationship and be permitted to pass through; and,<\/li>\r\n \t<li>Instilled fear among non-Tsilhqot\u2019in through the use of military practices, such as the practice of \u201ckilling 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\u2019in warriors\u201d (para. 920).<\/li>\r\n<\/ul>\r\nThe points above illustrate that the notion of property rights apply to Indigenous Nations.\r\n\r\nWe turn next to disposition rights, which include the right to sell land (as well as lease, subdivide or bequeath).\u00a0 This right to sell property corresponds with the general sense of \u201cownership.\u201d\u00a0 While selling land (and the real estate market) is well established in Canadian society, this concept is antithetical to Indigenous relations with land.\u00a0 Whereby, we can talk about Indigenous rights to land (use and control rights) without implying ownership.\r\n<h3 style=\"text-align: left\">Shared and overlapping boundaries<\/h3>\r\nOverlapping claims of territory between First Nations have existed since time immemorial.[footnote]Sterritt, N. J. (2014). <a href=\"https:\/\/public.ebookcentral.proquest.com\/choice\/publicfullrecord.aspx?p=3412222\" target=\"_blank\" rel=\"noopener\"><em>Tribal Boundaries in the Nass Watershed<\/em><\/a>. UBC Press.[\/footnote]\u00a0 In his discussion of territorial boundaries, Thom states, \u201cThe 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.\u201d[footnote]Thom, (2009, p. 179).[\/footnote]\u00a0 Thom\u2019s argument centres on fluid kin and linguistic relations that are founded upon sharing among the Coast Salish, resulting in ambiguous, permeable boundaries.\u00a0 Consequently, capturing territorial boundaries as polygons on maps is difficult and, at best, leads to messy-looking sets of overlapping territories.\r\n\r\nThe question of who shares with whom is related to control rights.\u00a0 Thom identifies two rules for inclusion:\u00a0 kinship is the primary mechanism; private knowledge about land and resources is the second.[footnote]Thom (2005).[\/footnote]\u00a0 \u201cTerritory, 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.\u201d[footnote]Thom (2009, p. 185).[\/footnote]\u00a0 Consequently, as Thom argues, the notion of \u201coverlap\u201d is a product of Western thinking and imposed through Canadian legal doctrine regarding tests of occupation and exclusivity.\r\n\r\nSterritt\u2019s documentation and discussion of overlapping territorial claims in the upper Nass River provides important insights about the logic and nature of competing claims.[footnote]Sterritt (2014).[\/footnote] \u00a0Sherritt\u2019s report, which was prepared as part of the Nisga'a settlement of their territorial claim with the Federal and Provincial governments, involves the Gitanyow, the Nisga'a, the Tahltan, and the Tsetsaut.\u00a0 Each Nation has its own legal systems that establish ownership and boundaries, we well as means to resolve disputes.\u00a0 Common forms of dispute resolution include the formation of kinship ties through clan adoption or intermarriage. \u00a0However, in the absence of such mechanisms, conflicts over territorial claims were also addressed through battle and subsequently resolved through peace ceremony\r\n\r\n&nbsp;\r\n<div class=\"__UNKNOWN__\">\r\n<h2 class=\"import-Normal\"><strong>United Nations Declaration on the Rights of Indigenous Peoples<\/strong><\/h2>\r\n<p class=\"import-Normal\">The General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.\u00a0 UNDRIP \u201cestablishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.\u201d[footnote]United Nations,<a href=\"https:\/\/www.un.org\/development\/desa\/indigenouspeoples\/declaration-on-the-rights-of-indigenous-peoples.html\" target=\"_blank\" rel=\"noopener\"> United Nations Declaration on the Rights of Indigenous Peoples<\/a>.[\/footnote]<\/p>\r\n<p class=\"import-Normal\">Initially, Canada was one of four countries that voted against adoption. Fourteen years later, in 2021, Canada adopted UNDRIP by law through the <em>United Nations Declaration on the Rights of Indigenous Peoples Act<\/em>.<\/p>\r\n<p class=\"import-Normal\">The Province of British Columbia enacted UNDRIP in 2019 through the <em>Declaration on the Rights of Indigenous Peoples Act[footnote]<a href=\"https:\/\/www.bclaws.gov.bc.ca\/civix\/document\/id\/complete\/statreg\/19044\" target=\"_blank\" rel=\"noopener\">Declaration on the Rights of Indigenous Peoples Act<\/a> (Declaration Act) (SBC 2019 Chapter 44).[\/footnote]<\/em> (referred to as the <em>Declaration Act <\/em>or as DRIPA).\u00a0 The purpose of the <em>Declaration Act <\/em>is to formally adopt UNDRIP as the Province\u2019s framework for reconciliation.\u00a0 The Declaration Act Action Plan,[footnote]British Columbia, <a href=\"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/__unknown__-12#sdfootnote1anc\" target=\"_blank\" rel=\"noopener\">Declaration Action Plan<\/a>. [\/footnote] in co-operation with Indigenous Peoples, guides the implementation of the <em>Declaration Act<\/em> over the next five years.<\/p>\r\n&nbsp;\r\n<h2><strong>Important court decisions<\/strong><\/h2>\r\n&nbsp;\r\n\r\n<\/div>\r\nCalder (1973)\r\n<ul>\r\n \t<li>Acknowledged the existence of Indigenous title.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1nfn4\" target=\"_blank\" rel=\"noopener\"><em>Calder et al. v. Attorney-General of British Columbia<\/em><\/a>, 1973 CanLII 4 (SCC), [1973] SCR 313<\/p>\r\n<p style=\"padding-left: 40px\">Chief Frank Calder was a member of the Nisga\u2019a.\u00a0 The Nisga\u2019a claimed that title over their ancestral lands was never fully extinguished and took their case to the Supreme Court of Canada.\u00a0 Although the Nisga\u2019a lost the case, the Court, for the first time, acknowledged the existence of Indigenous title.\u00a0 The Court, however, could not decide if title was still valid or had been extinguished.<\/p>\r\n&nbsp;\r\n\r\nGuerin (1984)\r\n<ul>\r\n \t<li>The Crown must act in the best interest of Indigenous peoples (fiduciary duty).<\/li>\r\n \t<li>Indigenous title is a <em>sui generis<\/em> right.<\/li>\r\n<\/ul>\r\n<p class=\"canlii decision solexHlZone mainTitle\" style=\"text-align: left;padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1lpfn\" target=\"_blank\" rel=\"noopener\"><em>Guerin v. The Queen<\/em><\/a>, 1984 CanLII 25 (SCC), [1984] 2 SCR 335<\/p>\r\n<p style=\"padding-left: 40px\">This case concerned the Musqueam and the Crown\u2019s agreement to lease their reserve lands to a golf club.\u00a0 The Musqueam agreed to lease the lands but sued the Crown for damages based on the terms of the agreement.\u00a0 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.\u00a0 The Court also established that this duty of the Crown is special because, the Court agreed, that Indigenous title is a <em>sui generis<\/em> right, which means that title is \"of one's own kind, peculiar.\"\u00a0 The reference to \u201cof its own kind\u201d establishes this legal right as distinct from and is not equivalent to legal rights established under common law of Canada. \u00a0One can also express the relationship between the Crown and Indigenous peoples in reverse terms, as follows:\u00a0 the special nature of Indigenous title legally requires the Crown to act in the best interests of Indigenous peoples.\u00a0 This relationship serves to legally protect Indigenous rights.\u00a0 In this case, the Court also affirmed that Indigenous rights are pre-existing and inalienable (i.e., can only be alienable to the Crown).\u00a0 As for the decision itself, the Crown found that the government did not act in Musqueam\u2019s best interest and awarded damages to the Musqueam.<\/p>\r\n&nbsp;\r\n\r\nSparrow (1990)\r\n<ul>\r\n \t<li>Upheld the Constitutional grounds of Indigenous rights, determined that this right had not been extinguished.<\/li>\r\n \t<li>Established a set of criteria to interpret what constitutes an Indigenous right (the \u201cSparrow\u201d test) and the extent to which the government can limit those rights.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><em><a href=\"https:\/\/canlii.ca\/t\/1fsvj\" target=\"_blank\" rel=\"noopener\">R. v. Sparrow<\/a>, <\/em>1990 CanLII 104 (SCC), [1990] 1 SCR 1075<\/p>\r\n<p style=\"padding-left: 40px\">This case involved Ronald Edward Sparrow, a member of the Musqueam and commercial fisherman, who was charged with illegal fishing.\u00a0 In his defence before the Supreme Court, Sparrow argued that Section 35 of the <em>Constitution Act, 1982 <\/em>protected his right to fish.\u00a0 The questions before the Court concerned whether Sparrow\u2019s right to fish was extinguished, whether his right was infringed, and whether this infringement was justified.\u00a0 This case was the first to test of Section 35 of the Act, which states \u201cThe existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.\u201d\u00a0 The Court upheld the Constitutional grounds of Indigenous rights, determined that this right had not been extinguished, and affirmed Sparrow\u2019s ancestral right to fish. \u00a0As an outcome of this case, the Court established what became known as the \u201cSparrow Test,\u201d 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.\u00a0 Although this decision affirmed Indigenous rights, the Court stated that the government can justify legally infringing these rights.<\/p>\r\n&nbsp;\r\n\r\nVan der Peet, (1996)\r\n<ul>\r\n \t<li>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.<\/li>\r\n \t<li>Established ten criteria to determine what activity is protected as an Indigenous right under section 35 of the <em>Constitution Act, 1982 <\/em>(the \u201cIntegral to a Distinctive Culture\u201d test).<\/li>\r\n<\/ul>\r\n<p class=\"canlii decision solexHlZone mainTitle\" style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1fr8r\" target=\"_blank\" rel=\"noopener\"><em>R. v. Van der Peet<\/em><\/a>, 1996 CanLII 216 (SCC), [1996] 2 SCR 507<\/p>\r\n<p style=\"padding-left: 40px\">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.\u00a0 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.\u00a0 The court ruled that selling fish that was caught for food was not an \u201cexisting\u201d Indigenous right.\u00a0 That is, Indigenous peoples have the right to fish, but this ancestral right does not include exchanging fish for money or other goods.\u00a0 To decide this case, the justices established ten criteria to determine what activity is protected as an Indigenous right under section 35 of the <em>Constitution Act, 1982.<\/em>\u00a0 These criteria, now known as the \u201cIntegral to a Distinctive Culture\u201d test, have been criticised for narrowly defining Indigenous rights and for emphasising practices, customs, and traditions of pre-European contact.\u00a0 This case established that oral history is a type evidence equal to other types of evidence.<\/p>\r\n&nbsp;\r\n\r\nDelgamuukw (1997)\r\n<ul>\r\n \t<li>Indigenous title continues as an \u201cexisting aboriginal right\u201d<\/li>\r\n \t<li>Title is a distinct right to the land itself that can be proven, including the use of oral testimony as legal evidence.<\/li>\r\n \t<li>Established criteria to demonstrate Aboriginal title.<\/li>\r\n \t<li>Established that the government has a duty to consult.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1fqz8\" target=\"_blank\" rel=\"noopener\"><em><span id=\"solexG6-0\" class=\"solexHl solexT0 solexG6 solexLeft solexRight\">Delgamuukw<\/span> <span id=\"solexG7-0\" class=\"solexHl solexT1 solexG7 solexLeft solexRight\">v<\/span>. <span id=\"solexG8-0\" class=\"solexHl solexT2 solexG8 solexLeft solexRight\">British<\/span> <span id=\"solexG9-0\" class=\"solexHl solexT3 solexG9 solexLeft solexRight\">Columbia<\/span><\/em><\/a>, <span id=\"solexG10-0\" class=\"solexHl solexT4 solexG10 solexLeft solexRight\">1997<\/span> CanLII 302 (SCC), [<span id=\"solexG11-0\" class=\"solexHl solexT4 solexG11 solexLeft solexRight\">1997<\/span>] <span id=\"solexG12-0\" class=\"solexHl solexT5 solexG12 solexLeft solexRight\">3<\/span> <span id=\"solexG13-0\" class=\"solexHl solexT6 solexG13 solexLeft solexRight\">SCR<\/span> <span id=\"solexG14-0\" class=\"solexHl solexT7 solexG14 solexLeft solexRight\">1010<\/span><\/p>\r\n<p style=\"padding-left: 40px\">This case concerned the effort of the Gitxsan and Wet\u2019suwet\u2019en to establish existing ownership of their traditional territories, as a counter to the argument that title was \u201cextinguished\u201d when BC joined\u00a0Confederation.\u00a0 The case is significant for its comprehensive account that Indigenous title is not merely a right <em>sui generis <\/em>but continues as an \u201cexisting aboriginal right,\u201d as per section 35 of the\u00a0<em>Constitution Act, 1982<\/em>.\u00a0 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.\u00a0 The Court established criteria to demonstrate Aboriginal title based on three conditions:\u00a0 occupation of the land prior to sovereignty; continuity since pre-sovereignty occupation; and, exclusive occupation.\u00a0 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.\u00a0 Indigenous title is not equivalent to fee simple.\u00a0 The right to title is held communally and can only be transferred to the Crown.<\/p>\r\n&nbsp;\r\n\r\nHaida Nation (2004)\r\n<ul>\r\n \t<li>Established the Crown\u2019s duty to meaningful consultation.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1j4tq\" target=\"_blank\" rel=\"noopener\"><em><span id=\"solexG8-0\" class=\"solexHl solexT0 solexG8 solexLeft solexRight\">Haida<\/span> <span id=\"solexG9-0\" class=\"solexHl solexT1 solexG9 solexLeft solexRight\">Nation<\/span> <span id=\"solexG10-0\" class=\"solexHl solexT2 solexG10 solexLeft solexRight\">v<\/span>. <span id=\"solexG11-0\" class=\"solexHl solexT3 solexG11 solexLeft solexRight\">British<\/span> <span id=\"solexG12-0\" class=\"solexHl solexT4 solexG12 solexLeft solexRight\">Columbia<\/span> (<span id=\"solexG13-0\" class=\"solexHl solexT5 solexG13 solexLeft solexRight\">Minister<\/span> <span id=\"solexG14-0\" class=\"solexHl solexT10 solexG14 solexLeft solexRight solexNohl\">of<\/span> <span id=\"solexG15-0\" class=\"solexHl solexT6 solexG15 solexLeft solexRight\">Forests<\/span>)<\/em><\/a>, <span id=\"solexG16-0\" class=\"solexHl solexT7 solexG16 solexLeft solexRight\">2004<\/span> SCC 73 (CanLII), [<span id=\"solexG17-0\" class=\"solexHl solexT7 solexG17 solexLeft solexRight\">2004<\/span>] <span id=\"solexG18-0\" class=\"solexHl solexT8 solexG18 solexLeft solexRight\">3<\/span> <span id=\"solexG19-0\" class=\"solexHl solexT9 solexG19 solexLeft solexRight\">SCR<\/span> 511<\/p>\r\n<p style=\"padding-left: 40px\">In 1999, a long-standing Tree Farm License was to be transferred by the provincial government to a forestry company (Weyerhauser Co.).\u00a0 The Haida Nation took the province to court, arguing that the transfer decision was made unilaterally\u2014without consultation or consent, even though the Haida Nation had claimed title to the area previously.\u00a0 In addressing the case, the Court established the Crown\u2019s duty to meaningful consultation and to accommodate interests when actions may affect Indigenous rights.\u00a0 This duty to consult is an \u201chonour of the Crown.\u201d<\/p>\r\n&nbsp;\r\n\r\nTsilhqot\u2019in (2014)\r\n<ul>\r\n \t<li>Established a specific case of Indigenous title.<\/li>\r\n \t<li>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.<\/li>\r\n \t<li>The Crown, in the public interest, may infringe upon Indigenous title.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/g7mt9\" target=\"_blank\" rel=\"noopener\"><em>Tsilhqot\u2019in Nation v. British Columbia<\/em><\/a>, 2014 SCC 44 (CanLII), [2014] 2 SCR 257<\/p>\r\n<p style=\"padding-left: 40px\">Like in <em>Haida Nation<\/em>, 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\u2019in.\u00a0 The lower court decisions had determined that, at best, Indigenous title was limited.\u00a0 In the end, the Supreme Court determined that the Tsilhqot\u2019in held title over 1,750 km2.\u00a0 This case builds upon many of the important principles established in the <em>Delgamuukw<\/em> case.\u00a0 Whereas the Court established that Indigenous title exists in <em>Delgamuukw<\/em>, in <em>Tsilhqot\u2019in<\/em>, the Court established a specific case of Indigenous title.\u00a0 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.\u00a0 Several important qualifications must be noted, however.\u00a0 First, underlying control or \u201cownership\u201d is retained by the Crown.\u00a0 Second, although meaningful consultation is required before Indigenous rights might be infringed, the consent of the Indigenous group to the activity is not required.\u00a0 Critically, the Court affirmed that the Crown, in the public interest, may infringe upon Indigenous title.\u00a0 Finally, although the Tsilhqot\u2019in 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.<\/p>\r\n&nbsp;\r\n\r\nYahey (Blueberry River First Nations) (2021)\r\n<ul>\r\n \t<li>First case to determine cumulative effects of industrial development infringed Indigenous title and rights.<\/li>\r\n \t<li>Reinforced the need for the province to ensure a comprehensive duty to consult and accommodate.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/jgpbr\" target=\"_blank\" rel=\"noopener\"><em>Yahey v British Columbia<\/em><\/a>, 2021 BCSC 1287 (CanLII)<\/p>\r\n<p style=\"padding-left: 40px\">In this case, the Blueberry River First Nations argues that the Province of British Columbia authorised industrial development without regard for Blueberry\u2019s treaty rights.\u00a0 These developments included oil and gas extraction, logging, hydroelectric dams, and other resource-based projects.\u00a0 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.\u00a0 This case is the first in Canadian legal history that determined cumulative effects of industrial development infringed Indigenous title and rights.\u00a0 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.<\/p>\r\n&nbsp;\r\n\r\nHaida Nation (2024)\r\n\r\nThe following is an agreement regarding Indigenous Title and rights to land between the Haida Nation and the Province of British Columbia.\u00a0 It is not a court decision.\r\n<ul>\r\n \t<li>The Agreement recognizes that the Haida Nation has Aboriginal title to all of Haida Gwaii.<\/li>\r\n \t<li>The Agreement demonstrates how Indigenous Title and fee simple can co-exist.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\">On April 14, 2024, the Haida Nation and the Province of British Columbia signed the <a href=\"https:\/\/www2.gov.bc.ca\/assets\/gov\/environment\/natural-resource-stewardship\/consulting-with-first-nations\/agreements\/draft_haida_title_lands_agreement_27march2024_bilateral.pdf\"><em>Gaayhllxid\/G\u00edihlagalgang \u201cRising Tide\u201d Haida Title Lands Agreement<\/em><\/a>. \u00a0This Agreement legally recognises the Haida Nation\u2019s title to all Haida Gwaii. \u00a0For the Haida Nation, this Agreement represents a resolution of conflicts over rights to land and court challenges that spanned decades.\u00a0 In addition to agreeing that the Haida Nation owns the land of Haida Gwaii, the Agreement confirms the right of the Haida Nation to benefit economically from and to manage the lands, including a critical role in regulating and governing the lands.<\/p>\r\n<p style=\"padding-left: 40px\">In recognising Haida land title and rights, the Agreement also demonstrates how Indigenous Title and fee simple can co-exist.\u00a0 The following points highlight important aspects of the Agreement regarding the relationship between Haida rights to land and fee simple interests.<\/p>\r\n\r\n<ul>\r\n \t<li style=\"list-style-type: none\">\r\n<ul>\r\n \t<li>In recognition of their Indigenous Title, the Haida Nation is the owner of the lands, not the Crown.<\/li>\r\n \t<li>The Haida Nation agreed to honour all fee simple interests in Haida Gwaii. Effectively, the Haida Nation chose not to enforce their right to possess privately-owned lands on Haida Gwaii.<\/li>\r\n \t<li>Fee simple interests will continue under the Province\u2019s jurisdiction.<\/li>\r\n<\/ul>\r\n<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\">For a comprehensive summary and discussion of the Court case, see <em><a href=\"https:\/\/www.oktlaw.com\/historic-agreement-recognizes-haida-title-to-haida-gwaii\/\">Historic Agreement Recognizes Haida Title to Haida Gwaii<\/a><\/em> by Olthuis Kleer Townsend LLP.<\/p>\r\n&nbsp;\r\n\r\nCowichan Tribes (2025)\r\n<ul>\r\n \t<li>First case to the relationship between Indigenous Title and fee simple ownership of private land.<\/li>\r\n \t<li>Ruled that Crown grants of fee simple interest in the Cowichan Title Lands unjustifiably infringe the Cowichan\u2019s Aboriginal title; that Canada and Richmond\u2019s fee simple titles and interests in the Cowichan Title Lands are defective and invalid.<\/li>\r\n<\/ul>\r\n<p style=\"padding-left: 40px\"><em><a href=\"https:\/\/www.bccourts.ca\/jdb-txt\/sc\/25\/14\/2025BCSC1490.htm\">Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490<\/a><\/em><\/p>\r\n<p style=\"padding-left: 40px\">In this case, the Cowichan Tribes (Quw\u2019utsun mustimuhw) argued that, every summer, they travelled to their permanent village at the Lands of Tl\u2019uqtinus on the south arm of the Fraser River.\u00a0 On this basis, the Cowichan claim Indigenous title to this land and to its surrounding lands and submerged lands. They also sought a declaration of an Aboriginal right to fish the south arm of the Fraser River for food.\u00a0 The Court ruled in favour for both title of a portion of the lands, including private lands held in fee simple, and right to fish the south arm of the Fraser River for food.\u00a0 Current land owners include Canada, the Vancouver Fraser Port Authority, the City of Richmond, and third parties (residents, corporations).\u00a0 Significantly, this decision means that fee simple title and Indigenous title can coexist for the same land.\u00a0 Critically, the decision also means that fee simple title does not displace or overtake Indigenous title.\u00a0 What this will happen in practice is to be determined.\u00a0 The Court provided 18 months for the Cowichan, Canada, and City of Richmond to transition to Indigenous title of the lands.<\/p>\r\n<p style=\"padding-left: 40px\">For a comprehensive summary and discussion of the Court case, see <em><a href=\"https:\/\/www.oktlaw.com\/the-historic-cowichan-decision-aboriginal-title-declared-to-fee-simple-land\/#_ftn6\">The Historic Cowichan Decision: Aboriginal Title Declared to Fee Simple Land<\/a><\/em> by Olthuis Kleer Townsend LLP.<\/p>\r\n&nbsp;","rendered":"<div class=\"__UNKNOWN__\">\n<p>In this learning module, we introduce a basic understanding of Indigenous rights and title through a conventional lens of land use planning.\u00a0 Importantly, rights and title to land have different meanings when considered through Indigenous culture and customs.<\/p>\n<p>It is important to think critically about how the foundations of Canadian law impose a way of thinking about land that is not wholly consistent with, and can undermine, an Indigenous perspective of and relation with land.\u00a0 A good example of this inconsistency is the matter of boundaries among traditional territories.\u00a0 Canadian property law is predicated on clear demarcations between mine and yours, between inside and outside.\u00a0 These demarcations are expressed as boundaries as if drawn physically on the land itself.\u00a0 In contrast, the relation of Indigenous peoples with land is inseparable from their way of being\u2014their worldview, culture, and spirituality.\u00a0 In a traditional sense, land is not something that is \u201cowned\u201d or \u201coccupied.\u201d\u00a0 Rather, Indigenous peoples are caretakers of land and water.<\/p>\n<p>&nbsp;<\/p>\n<\/div>\n<div class=\"textbox textbox--examples\">\n<header class=\"textbox__header\">\n<h2><strong>Title and Rights:\u00a0 Indigenous Perspectives<\/strong><\/h2>\n<\/header>\n<div class=\"textbox__content\">\n<p class=\"import-Normal\"><span lang=\"en-CA\" xml:lang=\"en-CA\">The following on-line resources <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">provide<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\"> an Indigenous perspective on Indigenous <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">title <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">and <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">rights<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">.<\/span><\/p>\n<ul>\n<li><a href=\"https:\/\/indigenousfoundations.arts.ubc.ca\/land__rights\/\" target=\"_blank\" rel=\"noopener\"><span lang=\"en-CA\" xml:lang=\"en-CA\">Indigenous Foundations<\/span><\/a><span lang=\"en-CA\" xml:lang=\"en-CA\"> (F<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">irst<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\"> Nations Studies Program, <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">University of British Columbia<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">)<\/span><\/li>\n<li><span lang=\"en-CA\" xml:lang=\"en-CA\"><a href=\"https:\/\/yellowheadinstitute.org\/\" target=\"_blank\" rel=\"noopener\">Yellowhead Institute<\/a> (<\/span><span lang=\"en-CA\" xml:lang=\"en-CA\">Faculty of Arts at <\/span><span lang=\"en-CA\" xml:lang=\"en-CA\"><span class=\"js-about-item-abstr\">Toronto Metropolitan University<\/span>)<\/span><\/li>\n<\/ul>\n<\/div>\n<\/div>\n<p>&nbsp;<\/p>\n<div class=\"__UNKNOWN__\">\n<p>&nbsp;<\/p>\n<\/div>\n<div class=\"textbox textbox--examples\">\n<header class=\"textbox__header\">\n<h2><strong>Aboriginal Title versus Indigenous Title<\/strong><\/h2>\n<\/header>\n<div class=\"textbox__content\">\n<p class=\"import-Normal\"><span lang=\"en-CA\" xml:lang=\"en-CA\">Although the terms Aboriginal Title and Indigenous Title can be used interchangeably, the following distinction is also used.\u00a0 Aboriginal Title is the common law term used by Canadian courts to define the rights of Indigenous Peoples to their lands.\u00a0 Indigenous Title is determined by Indigenous laws.<\/span><\/p>\n<p>&nbsp;<\/p>\n<\/div>\n<\/div>\n<div>\n<p>&nbsp;<\/p>\n<\/div>\n<div class=\"__UNKNOWN__\">\n<h2 class=\"import-Normal\"><strong>Land r<\/strong><strong>ights versus <\/strong><strong>land <\/strong><strong>title<\/strong><\/h2>\n<p>Based on Indigenous legal systems, Indigenous rights derive from elements of distinctive practices, customs, and traditions of an Indigenous Nation.\u00a0 From a common law perspective, Indigenous rights to land are articulated as unique property rights.\u00a0 Such rights include the right to access and use land for hunting and trapping.\u00a0 These rights are <em>sui generis<\/em>.\u00a0 That is, they are recognised as existing prior to the European assertion of sovereignty and to the establishment of property rights under common law in Canada.\u00a0 Indigenous rights are a claim recognisable, protected, and enforceable by Canadian common law.<\/p>\n<p>Indigenous title is a form of property right specific to land; it is a sub-set of Indigenous rights.\u00a0 Indigenous title, like other Indigenous rights, is a special right recognised as <em>sui generis<\/em>.\u00a0 In other words, Indigenous title to land is not derived from Canadian law.\u00a0 An Indigenous right (to hunt, for example) can exist independently of Indigenous title to land.<\/p>\n<p>Indigenous rights to land were recognised by the Crown in the <em>Royal Proclamation of 1763<\/em> and in subsequent court decisions (see below).\u00a0 The <em>Constitution Act, 1982<\/em> (s. 35(1)) affirms \u201cexisting Aboriginal and treaty rights.\u201d<\/p>\n<p>Like other property rights under common law (but not the same as), Indigenous rights to land correspond to their occupation, use, and control of ancestral lands.\u00a0 Indigenous rights to property, under the <em>Constitution Act, 1982<\/em>, do not include disposition rights.\u00a0 Indigenous people cannot sell rights to their land; they can only voluntarily surrender their land to the Crown through agreements (e.g., treaties).\u00a0 Also, Indigenous rights and title to land are often recognised as communal; they are not held by any individual Indigenous person but by Indigenous Nations.<\/p>\n<p>The Nisga\u2019a Tribal Council provides a detailed description of Indigenous title to land.\u00a0 See Box 1.<\/p>\n<\/div>\n<p>&nbsp;<\/p>\n<div class=\"textbox textbox--examples\">\n<header class=\"textbox__header\">\n<h2 class=\"textbox__title\"><strong>Box 1.\u00a0 <\/strong><strong>Indigenous (aboriginal) title:\u00a0 Nisga\u2019a Tribal Council<\/strong><\/h2>\n<\/header>\n<div class=\"textbox__content\">\n<p>These detailed descriptions are from a booklet the Nisga\u2019a Nation produced for its members to help understand the contents of their Treaty.\u00a0 The information in the booklet is presented in a question-answer format.<\/p>\n<p><em>What are the basic features of aboriginal title?<\/em><\/p>\n<p>Some of the important features of aboriginal title, according to the Supreme Court of Canada, include:<\/p>\n<ul>\n<li>Aboriginal title is a <em>sui generis <\/em>(unique) interest that cannot be completely explained by reference to common law rules of real property or to the rules of property found in aboriginal legal systems.<\/li>\n<li>Aboriginal title has various \u201cdimensions\u201d:<\/li>\n<\/ul>\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">a) It is inalienable, that is, it cannot be transferred, sold or surrendered to anyone other than the Crown;<\/p>\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">b) Its source arises not from the Royal Proclamation of 1763, or by grant from the Crown. Rather it arises from the prior occupation of Canada by aboriginal peoples, and from the relationship between common and pre-existing systems of aboriginal law;<\/p>\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">c) Aboriginal title is held communally. In a statement that sounds very much like the Nisga\u2019a common bowl philosophy, the Court\u00a0 says:<\/p>\n<ul>\n<li><em>Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.<\/em><\/li>\n<li>The content of aboriginal title can be summarized by two propositions:<\/li>\n<\/ul>\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">a) Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of aboriginal rights, and<\/p>\n<p class=\"hanging-indent\" style=\"padding-left: 80px\">b) Those protected uses must bot be irreconcilable with the nature of the group\u2019s attachment to that land.<\/p>\n<p>Aboriginal title is more than a \u201cbundle\u201d of aboriginal rights, or practices, cultures and traditions that are \u201cintegral to the group\u2019s distinctive culture.\u201d\u00a0 Rather, aboriginal title is a right to the land itself.\u00a0 Subject to the limits described below, the land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under section 35(1).<\/p>\n<p>There is an \u201cinherent limit\u201d on the uses to which the land can be put.\u00a0 Lands subject to aboriginal title cannot be put to such uses as may be \u201cirreconcilable\u201d with the nature of the occupation of that land to aboriginal title in the first place.\u00a0 After pointing out that aboriginal title arises from occupation, which is determined by reference to activities and uses to which the group has put the land, the Chief Justice concluded that there exists a \u201cspecial bond\u201d between the aboriginal group and the land. \u00a0This, he continued, creates an inherent limitation on the uses to which the land can be put.\u00a0 By way of example, he continued, if title is established on the basis that the land was used as a hunting ground, it could not be strip mined, if a group claims land because of its \u201cceremonial or cultural significance\u201d, it may not use the land in such a way as to destroy that relationship by, for example, turning it into a parking lot.<\/p>\n<p>The principle seems to be that the uses to which a group puts aboriginal title land are unlimited, except to the extent that the use would prevent the special relationship from continuing into the future.\u00a0 The limitation would seem to depend on the nature of past use, and the compatibility of present or proposed uses with that use in the future.<\/p>\n<p>However, the Chief Justice continued:<\/p>\n<p><em>\u2026what I have just said regarding the importance of the continuity of the relationship between an aboriginal community and its land, and the non-economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration.\u00a0 On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited in the way I have described.\u00a0 If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so.<\/em><\/p>\n<p>&nbsp;<\/p>\n<p>An infringement of aboriginal title is valid only if it is intended to address a legislative objective that is \u201ccompelling and substantial\u201d and if it is consistent wit the special fiduciary relationship between the Crown and aboriginal people.<\/p>\n<p>The Chief Justice ruled that objectives such as \u201cthe development of agriculture, forestry, mining, and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims\u201d are all sufficiently compelling and substantial to meet the first test for infringement of aboriginal title.<\/p>\n<p>The second test is whether an infringement of aboriginal title is consistent with the fiduciary relationship.\u00a0 Three aspects of aboriginal title are relevant to the reconciliation of aboriginal title with the sovereignty of the Crown:<\/p>\n<p class=\"hanging-indent\" style=\"padding-left: 40px\">a) Aboriginal title encompasses the right to the exclusive use and occupation of land;<\/p>\n<p class=\"hanging-indent\" style=\"padding-left: 40px\">b) It encompasses the right to choose to what uses land can be put, subject to the limit described above; and<\/p>\n<p class=\"hanging-indent\" style=\"padding-left: 40px\">c) Lands held pursuant to aboriginal title have an inescapable economic component.<\/p>\n<p>The application of these \u201caspects\u201d is unclear\u2014the right to the exclusive use is said to be a limited priority.\u00a0 Moreover, it may not require priority.\u00a0 Consultation may suffice.<\/p>\n<p>Moreover, compensation \u201cis relevant to the question of justification\u201d as well, although the Court did not go so far as to say that compensation is die for all past infringements of aboriginal title, nor did it rule on how the amount of compensation should be determined.<\/p>\n<p>&nbsp;<\/p>\n<p>Source:\u00a0 Nisga\u2019a Tribal Council (1998).\u00a0 <em><a href=\"http:\/\/www.nisgaanation.ca\/sites\/default\/files\/Understanding%20the%20Nisga%27a%20Treaty%201998.pdf\" target=\"_blank\" rel=\"noopener\">Understanding the Nisga\u2019a Treaty<\/a> <\/em>(pp. 9-11).<\/p>\n<\/div>\n<\/div>\n<p>&nbsp;<\/p>\n<div class=\"__UNKNOWN__\">\n<h3 class=\"import-Normal\" style=\"text-align: left\"><strong><em>Constitution Act, 1982<\/em><\/strong><\/h3>\n<p class=\"import-NormalWeb\">Section 35 of the <em>Constitution Act<\/em><em>, 1982<\/em>, presented below, recognises and affirms Indigenous rights. However, the Constitution does not define what is included among these rights.\u00a0 Consequently, defining what Indigenous rights are recognised by the Constitution is an on-going matter before the courts, as evident in the following cases.\u00a0 Likewise, precisely how Indigenous title and rights are reconciled with the Crown\u2019s assertion of title are also the subject of legal debate and have yet to be fully clarified.<\/p>\n<p class=\"import-Normal\">Indigenous rights were formally entrenched in Canadian law through the <em>Constitution Act, 1982<\/em><em>.<\/em>\u00a0 Section 35 addresses the \u201cRights of the Aboriginal Peoples of Canada,\u201d as follows.<\/p>\n<table style=\"width: 804px;height: 830px\">\n<tbody>\n<tr class=\"TableGrid-R\">\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\n<p class=\"import-Normal\"><em>Recognition of existing aboriginal and treaty rights<\/em><\/p>\n<\/td>\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\n<p class=\"import-Normal\"><strong>35. <\/strong>(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.<\/p>\n<p class=\"import-Normal\">\n<\/td>\n<\/tr>\n<tr class=\"TableGrid-R\">\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\n<p class=\"import-Normal\"><em>Definition of &#8220;aboriginal peoples of Canada&#8221;<\/em><\/p>\n<\/td>\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\n<p class=\"import-Normal\">(2) In this Act, &#8220;aboriginal peoples of Canada&#8221; includes the Indian, Inuit and M\u00e9tis peoples of Canada.<\/p>\n<p class=\"import-Normal\">\n<\/td>\n<\/tr>\n<tr class=\"TableGrid-R\">\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\n<p class=\"import-Normal\"><em>Land claims agreements<\/em><\/p>\n<\/td>\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\n<p class=\"import-Normal\">(3) For greater certainty, in subsection (1) &#8220;treaty rights&#8221; includes rights that now exist by way of land claims agreements or may be so acquired.<\/p>\n<p class=\"import-Normal\">\n<\/td>\n<\/tr>\n<tr class=\"TableGrid-R\">\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\n<p class=\"import-Normal\"><em>Aboriginal and treaty rights are guaranteed equally to both sexes<\/em><\/p>\n<\/td>\n<td class=\"TableGrid-C\" style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\n<p class=\"import-Normal\">(4) Notwithstanding any other provision of this Act, the<br style=\"clear: both\" \/>aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.<\/p>\n<p class=\"import-Normal\">\n<\/td>\n<\/tr>\n<tr class=\"TableGrid-R\">\n<td style=\"border: 0pt none windowtext;width: 193.333px;vertical-align: top\">\n<p class=\"import-Normal\"><em>Commitment to participation in constitutional conference<\/em><\/p>\n<\/td>\n<td style=\"border: 0pt none windowtext;width: 578.8px;vertical-align: top\">\n<p class=\"import-Normal\"><strong>35.1 <\/strong>The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the &#8220;<em>Constitution Act, 1867<\/em>&#8220;, to section 25 of this Act or to this Part,<\/p>\n<p class=\"import-Normal\" style=\"margin-left: 21.8pt\">(<em>a<\/em>) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and<\/p>\n<p class=\"import-Normal\" style=\"margin-left: 21.8pt\">(<em>b<\/em>) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.<\/p>\n<\/td>\n<\/tr>\n<tr>\n<td style=\"width: 193.333px\"><\/td>\n<td style=\"width: 578.8px\"><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/div>\n<h2><strong>Traditional territories<\/strong><\/h2>\n<p>An Indigenous people\u2019s traditional territory is a specific expression of rights to land.\u00a0 However, Indigenous relations with land are not consistent with the idea of \u201cownership\u201d or \u201cproperty.\u201d\u00a0 Nor is it consistent with the concept of \u201coccupying\u201d land.\u00a0 Brian Thom, University of Victoria, emphasises how traditional territories can be \u201cdrawn\u201d in different ways.\u00a0 \u201c[D]elineating territories based strictly on land use and occupancy does not take into account broader relationships between people and place.\u00a0 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\u201d<a class=\"footnote\" title=\"Thom, B. (2009). \u201cThe Paradox of Boundaries in Coast Salish Territories.\u201d Cultural Geographies 16(2):179\u2010205, p. 179. Brian Thom, University of Victoria, studies property rights and traditional territories of BC\u2019s Indigenous People with a specific focus on the Coast Salish. (Coast Salish is not a traditional Indigenous name; it is generally accepted to use this term to refer to related language groups in southwest British Columbia and northwest Washington State.) The following works by Brian Thom are excellent resources to learn about Indigenous rights to land and traditional territories. Thom, B. (2020). \u201cAddressing the Challenge of Overlapping Claims in Implementing the Vancouver Island.\u201d Anthropologica 62:295\u2013307. Thom, B (2014). \u201cReframing Indigenous Territories: Private Property, Human Rights and Overlapping Claims.\u201d American Indian Culture and Research Journal 38(4):3-28. Thom, B. (2005). Coast Salish Senses of Place: Dwelling, Meaning, Power, Property and Territory in the Coast Salish World [dissertation]. McGill University. Although Thom\u2019s work is focused primarily on the Coast Salish, the insights apply generally to all discussions of traditional territories in BC.\" id=\"return-footnote-109-1\" href=\"#footnote-109-1\" aria-label=\"Footnote 1\"><sup class=\"footnote\">[1]<\/sup><\/a>\u00a0 For example, the geographical extent of traditional territories are reflected in maps of language groups in BC, such as the First Peoples\u2019 Cultural Council, which produced an <a href=\"https:\/\/maps.fpcc.ca\/\" target=\"_blank\" rel=\"noopener\">interactive map on-line<\/a>.<\/p>\n<p>&nbsp;<\/p>\n<h3 style=\"text-align: left\"><strong>Property rights<\/strong><\/h3>\n<p>A claim to a traditional territory also implies property rights (as the term is used in Canadian law).\u00a0 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.<\/p>\n<p>&nbsp;<\/p>\n<div class=\"textbox textbox--key-takeaways\">\n<header class=\"textbox__header\">\n<h2 class=\"textbox__title\"><strong>Learning Module<br \/>\n<\/strong><\/h2>\n<\/header>\n<ul>\n<li class=\"textbox__content\"><a href=\"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/property_rights_land_tenure\/\" target=\"_blank\" rel=\"noopener\">Property Rights and Land Tenure<\/a><\/li>\n<\/ul>\n<\/div>\n<p>&nbsp;<\/p>\n<p>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.\u00a0 These uses of land then define areas of occupation (i.e., the test of sufficiency of occupation).\u00a0 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.\u00a0 Likewise, a claim to a traditional territory infers the right to access and use the land.<\/p>\n<p>Control rights play an important role regarding claims to Indigenous land title.\u00a0 To claim a traditional territory as a Nation\u2019s own, the Nation has to demonstrate the intention and capacity to retain exclusive control over the land (i.e., the test of exclusivity).\u00a0 \u00a0To control land is to restrict others from entering or allowing others to access the land and granting permission to use its resource.\u00a0 In their argument before the Supreme Court of British Columbia<a class=\"footnote\" title=\"Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 [Paragraphs 915-921]\" id=\"return-footnote-109-2\" href=\"#footnote-109-2\" aria-label=\"Footnote 2\"><sup class=\"footnote\">[2]<\/sup><\/a> (and upheld by the Supreme Court of Canada<a class=\"footnote\" title=\"Tsilhqot\u2019in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] 2 SCR 257\" id=\"return-footnote-109-3\" href=\"#footnote-109-3\" aria-label=\"Footnote 3\"><sup class=\"footnote\">[3]<\/sup><\/a>), the Tsilhqot&#8217;in presented the following evidence to establish exclusivity:<\/p>\n<ul>\n<li>Entered into treaties or bonds of peace from time to time;<\/li>\n<li>Used scouts and runners to check for intruders and warn others;<\/li>\n<li>Non-Tsilhqot\u2019in paid a toll to enter and rent if a person wanted to settle in the area;<\/li>\n<li>Fur traders and explorers offered \u201cpresents\u201d to the Tsilhqot\u2019in to foster a positive economic relationship and be permitted to pass through; and,<\/li>\n<li>Instilled fear among non-Tsilhqot\u2019in through the use of military practices, such as the practice of \u201ckilling 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\u2019in warriors\u201d (para. 920).<\/li>\n<\/ul>\n<p>The points above illustrate that the notion of property rights apply to Indigenous Nations.<\/p>\n<p>We turn next to disposition rights, which include the right to sell land (as well as lease, subdivide or bequeath).\u00a0 This right to sell property corresponds with the general sense of \u201cownership.\u201d\u00a0 While selling land (and the real estate market) is well established in Canadian society, this concept is antithetical to Indigenous relations with land.\u00a0 Whereby, we can talk about Indigenous rights to land (use and control rights) without implying ownership.<\/p>\n<h3 style=\"text-align: left\">Shared and overlapping boundaries<\/h3>\n<p>Overlapping claims of territory between First Nations have existed since time immemorial.<a class=\"footnote\" title=\"Sterritt, N. J. (2014). Tribal Boundaries in the Nass Watershed. UBC Press.\" id=\"return-footnote-109-4\" href=\"#footnote-109-4\" aria-label=\"Footnote 4\"><sup class=\"footnote\">[4]<\/sup><\/a>\u00a0 In his discussion of territorial boundaries, Thom states, \u201cThe 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.\u201d<a class=\"footnote\" title=\"Thom, (2009, p. 179).\" id=\"return-footnote-109-5\" href=\"#footnote-109-5\" aria-label=\"Footnote 5\"><sup class=\"footnote\">[5]<\/sup><\/a>\u00a0 Thom\u2019s argument centres on fluid kin and linguistic relations that are founded upon sharing among the Coast Salish, resulting in ambiguous, permeable boundaries.\u00a0 Consequently, capturing territorial boundaries as polygons on maps is difficult and, at best, leads to messy-looking sets of overlapping territories.<\/p>\n<p>The question of who shares with whom is related to control rights.\u00a0 Thom identifies two rules for inclusion:\u00a0 kinship is the primary mechanism; private knowledge about land and resources is the second.<a class=\"footnote\" title=\"Thom (2005).\" id=\"return-footnote-109-6\" href=\"#footnote-109-6\" aria-label=\"Footnote 6\"><sup class=\"footnote\">[6]<\/sup><\/a>\u00a0 \u201cTerritory, 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.\u201d<a class=\"footnote\" title=\"Thom (2009, p. 185).\" id=\"return-footnote-109-7\" href=\"#footnote-109-7\" aria-label=\"Footnote 7\"><sup class=\"footnote\">[7]<\/sup><\/a>\u00a0 Consequently, as Thom argues, the notion of \u201coverlap\u201d is a product of Western thinking and imposed through Canadian legal doctrine regarding tests of occupation and exclusivity.<\/p>\n<p>Sterritt\u2019s documentation and discussion of overlapping territorial claims in the upper Nass River provides important insights about the logic and nature of competing claims.<a class=\"footnote\" title=\"Sterritt (2014).\" id=\"return-footnote-109-8\" href=\"#footnote-109-8\" aria-label=\"Footnote 8\"><sup class=\"footnote\">[8]<\/sup><\/a> \u00a0Sherritt\u2019s report, which was prepared as part of the Nisga&#8217;a settlement of their territorial claim with the Federal and Provincial governments, involves the Gitanyow, the Nisga&#8217;a, the Tahltan, and the Tsetsaut.\u00a0 Each Nation has its own legal systems that establish ownership and boundaries, we well as means to resolve disputes.\u00a0 Common forms of dispute resolution include the formation of kinship ties through clan adoption or intermarriage. \u00a0However, in the absence of such mechanisms, conflicts over territorial claims were also addressed through battle and subsequently resolved through peace ceremony<\/p>\n<p>&nbsp;<\/p>\n<div class=\"__UNKNOWN__\">\n<h2 class=\"import-Normal\"><strong>United Nations Declaration on the Rights of Indigenous Peoples<\/strong><\/h2>\n<p class=\"import-Normal\">The General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007.\u00a0 UNDRIP \u201cestablishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.\u201d<a class=\"footnote\" title=\"United Nations, United Nations Declaration on the Rights of Indigenous Peoples.\" id=\"return-footnote-109-9\" href=\"#footnote-109-9\" aria-label=\"Footnote 9\"><sup class=\"footnote\">[9]<\/sup><\/a><\/p>\n<p class=\"import-Normal\">Initially, Canada was one of four countries that voted against adoption. Fourteen years later, in 2021, Canada adopted UNDRIP by law through the <em>United Nations Declaration on the Rights of Indigenous Peoples Act<\/em>.<\/p>\n<p class=\"import-Normal\">The Province of British Columbia enacted UNDRIP in 2019 through the <em>Declaration on the Rights of Indigenous Peoples Act<a class=\"footnote\" title=\"Declaration on the Rights of Indigenous Peoples Act (Declaration Act) (SBC 2019 Chapter 44).\" id=\"return-footnote-109-10\" href=\"#footnote-109-10\" aria-label=\"Footnote 10\"><sup class=\"footnote\">[10]<\/sup><\/a><\/em> (referred to as the <em>Declaration Act <\/em>or as DRIPA).\u00a0 The purpose of the <em>Declaration Act <\/em>is to formally adopt UNDRIP as the Province\u2019s framework for reconciliation.\u00a0 The Declaration Act Action Plan,<a class=\"footnote\" title=\"British Columbia, Declaration Action Plan.\" id=\"return-footnote-109-11\" href=\"#footnote-109-11\" aria-label=\"Footnote 11\"><sup class=\"footnote\">[11]<\/sup><\/a> in co-operation with Indigenous Peoples, guides the implementation of the <em>Declaration Act<\/em> over the next five years.<\/p>\n<p>&nbsp;<\/p>\n<h2><strong>Important court decisions<\/strong><\/h2>\n<p>&nbsp;<\/p>\n<\/div>\n<p>Calder (1973)<\/p>\n<ul>\n<li>Acknowledged the existence of Indigenous title.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1nfn4\" target=\"_blank\" rel=\"noopener\"><em>Calder et al. v. Attorney-General of British Columbia<\/em><\/a>, 1973 CanLII 4 (SCC), [1973] SCR 313<\/p>\n<p style=\"padding-left: 40px\">Chief Frank Calder was a member of the Nisga\u2019a.\u00a0 The Nisga\u2019a claimed that title over their ancestral lands was never fully extinguished and took their case to the Supreme Court of Canada.\u00a0 Although the Nisga\u2019a lost the case, the Court, for the first time, acknowledged the existence of Indigenous title.\u00a0 The Court, however, could not decide if title was still valid or had been extinguished.<\/p>\n<p>&nbsp;<\/p>\n<p>Guerin (1984)<\/p>\n<ul>\n<li>The Crown must act in the best interest of Indigenous peoples (fiduciary duty).<\/li>\n<li>Indigenous title is a <em>sui generis<\/em> right.<\/li>\n<\/ul>\n<p class=\"canlii decision solexHlZone mainTitle\" style=\"text-align: left;padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1lpfn\" target=\"_blank\" rel=\"noopener\"><em>Guerin v. The Queen<\/em><\/a>, 1984 CanLII 25 (SCC), [1984] 2 SCR 335<\/p>\n<p style=\"padding-left: 40px\">This case concerned the Musqueam and the Crown\u2019s agreement to lease their reserve lands to a golf club.\u00a0 The Musqueam agreed to lease the lands but sued the Crown for damages based on the terms of the agreement.\u00a0 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.\u00a0 The Court also established that this duty of the Crown is special because, the Court agreed, that Indigenous title is a <em>sui generis<\/em> right, which means that title is &#8220;of one&#8217;s own kind, peculiar.&#8221;\u00a0 The reference to \u201cof its own kind\u201d establishes this legal right as distinct from and is not equivalent to legal rights established under common law of Canada. \u00a0One can also express the relationship between the Crown and Indigenous peoples in reverse terms, as follows:\u00a0 the special nature of Indigenous title legally requires the Crown to act in the best interests of Indigenous peoples.\u00a0 This relationship serves to legally protect Indigenous rights.\u00a0 In this case, the Court also affirmed that Indigenous rights are pre-existing and inalienable (i.e., can only be alienable to the Crown).\u00a0 As for the decision itself, the Crown found that the government did not act in Musqueam\u2019s best interest and awarded damages to the Musqueam.<\/p>\n<p>&nbsp;<\/p>\n<p>Sparrow (1990)<\/p>\n<ul>\n<li>Upheld the Constitutional grounds of Indigenous rights, determined that this right had not been extinguished.<\/li>\n<li>Established a set of criteria to interpret what constitutes an Indigenous right (the \u201cSparrow\u201d test) and the extent to which the government can limit those rights.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><em><a href=\"https:\/\/canlii.ca\/t\/1fsvj\" target=\"_blank\" rel=\"noopener\">R. v. Sparrow<\/a>, <\/em>1990 CanLII 104 (SCC), [1990] 1 SCR 1075<\/p>\n<p style=\"padding-left: 40px\">This case involved Ronald Edward Sparrow, a member of the Musqueam and commercial fisherman, who was charged with illegal fishing.\u00a0 In his defence before the Supreme Court, Sparrow argued that Section 35 of the <em>Constitution Act, 1982 <\/em>protected his right to fish.\u00a0 The questions before the Court concerned whether Sparrow\u2019s right to fish was extinguished, whether his right was infringed, and whether this infringement was justified.\u00a0 This case was the first to test of Section 35 of the Act, which states \u201cThe existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.\u201d\u00a0 The Court upheld the Constitutional grounds of Indigenous rights, determined that this right had not been extinguished, and affirmed Sparrow\u2019s ancestral right to fish. \u00a0As an outcome of this case, the Court established what became known as the \u201cSparrow Test,\u201d 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.\u00a0 Although this decision affirmed Indigenous rights, the Court stated that the government can justify legally infringing these rights.<\/p>\n<p>&nbsp;<\/p>\n<p>Van der Peet, (1996)<\/p>\n<ul>\n<li>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.<\/li>\n<li>Established ten criteria to determine what activity is protected as an Indigenous right under section 35 of the <em>Constitution Act, 1982 <\/em>(the \u201cIntegral to a Distinctive Culture\u201d test).<\/li>\n<\/ul>\n<p class=\"canlii decision solexHlZone mainTitle\" style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1fr8r\" target=\"_blank\" rel=\"noopener\"><em>R. v. Van der Peet<\/em><\/a>, 1996 CanLII 216 (SCC), [1996] 2 SCR 507<\/p>\n<p style=\"padding-left: 40px\">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.\u00a0 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.\u00a0 The court ruled that selling fish that was caught for food was not an \u201cexisting\u201d Indigenous right.\u00a0 That is, Indigenous peoples have the right to fish, but this ancestral right does not include exchanging fish for money or other goods.\u00a0 To decide this case, the justices established ten criteria to determine what activity is protected as an Indigenous right under section 35 of the <em>Constitution Act, 1982.<\/em>\u00a0 These criteria, now known as the \u201cIntegral to a Distinctive Culture\u201d test, have been criticised for narrowly defining Indigenous rights and for emphasising practices, customs, and traditions of pre-European contact.\u00a0 This case established that oral history is a type evidence equal to other types of evidence.<\/p>\n<p>&nbsp;<\/p>\n<p>Delgamuukw (1997)<\/p>\n<ul>\n<li>Indigenous title continues as an \u201cexisting aboriginal right\u201d<\/li>\n<li>Title is a distinct right to the land itself that can be proven, including the use of oral testimony as legal evidence.<\/li>\n<li>Established criteria to demonstrate Aboriginal title.<\/li>\n<li>Established that the government has a duty to consult.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1fqz8\" target=\"_blank\" rel=\"noopener\"><em><span id=\"solexG6-0\" class=\"solexHl solexT0 solexG6 solexLeft solexRight\">Delgamuukw<\/span> <span id=\"solexG7-0\" class=\"solexHl solexT1 solexG7 solexLeft solexRight\">v<\/span>. <span id=\"solexG8-0\" class=\"solexHl solexT2 solexG8 solexLeft solexRight\">British<\/span> <span id=\"solexG9-0\" class=\"solexHl solexT3 solexG9 solexLeft solexRight\">Columbia<\/span><\/em><\/a>, <span id=\"solexG10-0\" class=\"solexHl solexT4 solexG10 solexLeft solexRight\">1997<\/span> CanLII 302 (SCC), [<span id=\"solexG11-0\" class=\"solexHl solexT4 solexG11 solexLeft solexRight\">1997<\/span>] <span id=\"solexG12-0\" class=\"solexHl solexT5 solexG12 solexLeft solexRight\">3<\/span> <span id=\"solexG13-0\" class=\"solexHl solexT6 solexG13 solexLeft solexRight\">SCR<\/span> <span id=\"solexG14-0\" class=\"solexHl solexT7 solexG14 solexLeft solexRight\">1010<\/span><\/p>\n<p style=\"padding-left: 40px\">This case concerned the effort of the Gitxsan and Wet\u2019suwet\u2019en to establish existing ownership of their traditional territories, as a counter to the argument that title was \u201cextinguished\u201d when BC joined\u00a0Confederation.\u00a0 The case is significant for its comprehensive account that Indigenous title is not merely a right <em>sui generis <\/em>but continues as an \u201cexisting aboriginal right,\u201d as per section 35 of the\u00a0<em>Constitution Act, 1982<\/em>.\u00a0 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.\u00a0 The Court established criteria to demonstrate Aboriginal title based on three conditions:\u00a0 occupation of the land prior to sovereignty; continuity since pre-sovereignty occupation; and, exclusive occupation.\u00a0 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.\u00a0 Indigenous title is not equivalent to fee simple.\u00a0 The right to title is held communally and can only be transferred to the Crown.<\/p>\n<p>&nbsp;<\/p>\n<p>Haida Nation (2004)<\/p>\n<ul>\n<li>Established the Crown\u2019s duty to meaningful consultation.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/1j4tq\" target=\"_blank\" rel=\"noopener\"><em><span id=\"solexG8-0\" class=\"solexHl solexT0 solexG8 solexLeft solexRight\">Haida<\/span> <span id=\"solexG9-0\" class=\"solexHl solexT1 solexG9 solexLeft solexRight\">Nation<\/span> <span id=\"solexG10-0\" class=\"solexHl solexT2 solexG10 solexLeft solexRight\">v<\/span>. <span id=\"solexG11-0\" class=\"solexHl solexT3 solexG11 solexLeft solexRight\">British<\/span> <span id=\"solexG12-0\" class=\"solexHl solexT4 solexG12 solexLeft solexRight\">Columbia<\/span> (<span id=\"solexG13-0\" class=\"solexHl solexT5 solexG13 solexLeft solexRight\">Minister<\/span> <span id=\"solexG14-0\" class=\"solexHl solexT10 solexG14 solexLeft solexRight solexNohl\">of<\/span> <span id=\"solexG15-0\" class=\"solexHl solexT6 solexG15 solexLeft solexRight\">Forests<\/span>)<\/em><\/a>, <span id=\"solexG16-0\" class=\"solexHl solexT7 solexG16 solexLeft solexRight\">2004<\/span> SCC 73 (CanLII), [<span id=\"solexG17-0\" class=\"solexHl solexT7 solexG17 solexLeft solexRight\">2004<\/span>] <span id=\"solexG18-0\" class=\"solexHl solexT8 solexG18 solexLeft solexRight\">3<\/span> <span id=\"solexG19-0\" class=\"solexHl solexT9 solexG19 solexLeft solexRight\">SCR<\/span> 511<\/p>\n<p style=\"padding-left: 40px\">In 1999, a long-standing Tree Farm License was to be transferred by the provincial government to a forestry company (Weyerhauser Co.).\u00a0 The Haida Nation took the province to court, arguing that the transfer decision was made unilaterally\u2014without consultation or consent, even though the Haida Nation had claimed title to the area previously.\u00a0 In addressing the case, the Court established the Crown\u2019s duty to meaningful consultation and to accommodate interests when actions may affect Indigenous rights.\u00a0 This duty to consult is an \u201chonour of the Crown.\u201d<\/p>\n<p>&nbsp;<\/p>\n<p>Tsilhqot\u2019in (2014)<\/p>\n<ul>\n<li>Established a specific case of Indigenous title.<\/li>\n<li>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.<\/li>\n<li>The Crown, in the public interest, may infringe upon Indigenous title.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/g7mt9\" target=\"_blank\" rel=\"noopener\"><em>Tsilhqot\u2019in Nation v. British Columbia<\/em><\/a>, 2014 SCC 44 (CanLII), [2014] 2 SCR 257<\/p>\n<p style=\"padding-left: 40px\">Like in <em>Haida Nation<\/em>, 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&#8217;in band of the Tsilhqot\u2019in.\u00a0 The lower court decisions had determined that, at best, Indigenous title was limited.\u00a0 In the end, the Supreme Court determined that the Tsilhqot\u2019in held title over 1,750 km2.\u00a0 This case builds upon many of the important principles established in the <em>Delgamuukw<\/em> case.\u00a0 Whereas the Court established that Indigenous title exists in <em>Delgamuukw<\/em>, in <em>Tsilhqot\u2019in<\/em>, the Court established a specific case of Indigenous title.\u00a0 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.\u00a0 Several important qualifications must be noted, however.\u00a0 First, underlying control or \u201cownership\u201d is retained by the Crown.\u00a0 Second, although meaningful consultation is required before Indigenous rights might be infringed, the consent of the Indigenous group to the activity is not required.\u00a0 Critically, the Court affirmed that the Crown, in the public interest, may infringe upon Indigenous title.\u00a0 Finally, although the Tsilhqot\u2019in 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.<\/p>\n<p>&nbsp;<\/p>\n<p>Yahey (Blueberry River First Nations) (2021)<\/p>\n<ul>\n<li>First case to determine cumulative effects of industrial development infringed Indigenous title and rights.<\/li>\n<li>Reinforced the need for the province to ensure a comprehensive duty to consult and accommodate.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><a href=\"https:\/\/canlii.ca\/t\/jgpbr\" target=\"_blank\" rel=\"noopener\"><em>Yahey v British Columbia<\/em><\/a>, 2021 BCSC 1287 (CanLII)<\/p>\n<p style=\"padding-left: 40px\">In this case, the Blueberry River First Nations argues that the Province of British Columbia authorised industrial development without regard for Blueberry\u2019s treaty rights.\u00a0 These developments included oil and gas extraction, logging, hydroelectric dams, and other resource-based projects.\u00a0 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.\u00a0 This case is the first in Canadian legal history that determined cumulative effects of industrial development infringed Indigenous title and rights.\u00a0 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.<\/p>\n<p>&nbsp;<\/p>\n<p>Haida Nation (2024)<\/p>\n<p>The following is an agreement regarding Indigenous Title and rights to land between the Haida Nation and the Province of British Columbia.\u00a0 It is not a court decision.<\/p>\n<ul>\n<li>The Agreement recognizes that the Haida Nation has Aboriginal title to all of Haida Gwaii.<\/li>\n<li>The Agreement demonstrates how Indigenous Title and fee simple can co-exist.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\">On April 14, 2024, the Haida Nation and the Province of British Columbia signed the <a href=\"https:\/\/www2.gov.bc.ca\/assets\/gov\/environment\/natural-resource-stewardship\/consulting-with-first-nations\/agreements\/draft_haida_title_lands_agreement_27march2024_bilateral.pdf\"><em>Gaayhllxid\/G\u00edihlagalgang \u201cRising Tide\u201d Haida Title Lands Agreement<\/em><\/a>. \u00a0This Agreement legally recognises the Haida Nation\u2019s title to all Haida Gwaii. \u00a0For the Haida Nation, this Agreement represents a resolution of conflicts over rights to land and court challenges that spanned decades.\u00a0 In addition to agreeing that the Haida Nation owns the land of Haida Gwaii, the Agreement confirms the right of the Haida Nation to benefit economically from and to manage the lands, including a critical role in regulating and governing the lands.<\/p>\n<p style=\"padding-left: 40px\">In recognising Haida land title and rights, the Agreement also demonstrates how Indigenous Title and fee simple can co-exist.\u00a0 The following points highlight important aspects of the Agreement regarding the relationship between Haida rights to land and fee simple interests.<\/p>\n<ul>\n<li style=\"list-style-type: none\">\n<ul>\n<li>In recognition of their Indigenous Title, the Haida Nation is the owner of the lands, not the Crown.<\/li>\n<li>The Haida Nation agreed to honour all fee simple interests in Haida Gwaii. Effectively, the Haida Nation chose not to enforce their right to possess privately-owned lands on Haida Gwaii.<\/li>\n<li>Fee simple interests will continue under the Province\u2019s jurisdiction.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\">For a comprehensive summary and discussion of the Court case, see <em><a href=\"https:\/\/www.oktlaw.com\/historic-agreement-recognizes-haida-title-to-haida-gwaii\/\">Historic Agreement Recognizes Haida Title to Haida Gwaii<\/a><\/em> by Olthuis Kleer Townsend LLP.<\/p>\n<p>&nbsp;<\/p>\n<p>Cowichan Tribes (2025)<\/p>\n<ul>\n<li>First case to the relationship between Indigenous Title and fee simple ownership of private land.<\/li>\n<li>Ruled that Crown grants of fee simple interest in the Cowichan Title Lands unjustifiably infringe the Cowichan\u2019s Aboriginal title; that Canada and Richmond\u2019s fee simple titles and interests in the Cowichan Title Lands are defective and invalid.<\/li>\n<\/ul>\n<p style=\"padding-left: 40px\"><em><a href=\"https:\/\/www.bccourts.ca\/jdb-txt\/sc\/25\/14\/2025BCSC1490.htm\">Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490<\/a><\/em><\/p>\n<p style=\"padding-left: 40px\">In this case, the Cowichan Tribes (Quw\u2019utsun mustimuhw) argued that, every summer, they travelled to their permanent village at the Lands of Tl\u2019uqtinus on the south arm of the Fraser River.\u00a0 On this basis, the Cowichan claim Indigenous title to this land and to its surrounding lands and submerged lands. They also sought a declaration of an Aboriginal right to fish the south arm of the Fraser River for food.\u00a0 The Court ruled in favour for both title of a portion of the lands, including private lands held in fee simple, and right to fish the south arm of the Fraser River for food.\u00a0 Current land owners include Canada, the Vancouver Fraser Port Authority, the City of Richmond, and third parties (residents, corporations).\u00a0 Significantly, this decision means that fee simple title and Indigenous title can coexist for the same land.\u00a0 Critically, the decision also means that fee simple title does not displace or overtake Indigenous title.\u00a0 What this will happen in practice is to be determined.\u00a0 The Court provided 18 months for the Cowichan, Canada, and City of Richmond to transition to Indigenous title of the lands.<\/p>\n<p style=\"padding-left: 40px\">For a comprehensive summary and discussion of the Court case, see <em><a href=\"https:\/\/www.oktlaw.com\/the-historic-cowichan-decision-aboriginal-title-declared-to-fee-simple-land\/#_ftn6\">The Historic Cowichan Decision: Aboriginal Title Declared to Fee Simple Land<\/a><\/em> by Olthuis Kleer Townsend LLP.<\/p>\n<p>&nbsp;<\/p>\n<hr class=\"before-footnotes clear\" \/><div class=\"footnotes\"><ol><li id=\"footnote-109-1\">Thom, B. (2009). \u201cThe Paradox of Boundaries in Coast Salish Territories.\u201d Cultural Geographies 16(2):179\u2010205, p. 179. Brian Thom, University of Victoria, studies property rights and traditional territories of BC\u2019s Indigenous People with a specific focus on the Coast Salish. (Coast Salish is not a traditional Indigenous name; it is generally accepted to use this term to refer to related language groups in southwest British Columbia and northwest Washington State.) The following works by Brian Thom are excellent resources to learn about Indigenous rights to land and traditional territories. Thom, B. (2020). \u201cAddressing the Challenge of Overlapping Claims in Implementing the Vancouver Island.\u201d Anthropologica 62:295\u2013307. Thom, B (2014). \u201cReframing Indigenous Territories: Private Property, Human Rights and Overlapping Claims.\u201d American Indian Culture and Research Journal 38(4):3-28. Thom, B. (2005). Coast Salish Senses of Place: Dwelling, Meaning, Power, Property and Territory in the Coast Salish World [dissertation]. McGill University. Although Thom\u2019s work is focused primarily on the Coast Salish, the insights apply generally to all discussions of traditional territories in BC. <a href=\"#return-footnote-109-1\" class=\"return-footnote\" aria-label=\"Return to footnote 1\">&crarr;<\/a><\/li><li id=\"footnote-109-2\"><em>Tsilhqot'in Nation v. British Columbia<\/em>, 2007 BCSC 1700 [Paragraphs 915-921] <a href=\"#return-footnote-109-2\" class=\"return-footnote\" aria-label=\"Return to footnote 2\">&crarr;<\/a><\/li><li id=\"footnote-109-3\"><em>Tsilhqot\u2019in Nation v. British Columbia<\/em>, 2014 SCC 44 (CanLII), [2014] 2 SCR 257 <a href=\"#return-footnote-109-3\" class=\"return-footnote\" aria-label=\"Return to footnote 3\">&crarr;<\/a><\/li><li id=\"footnote-109-4\">Sterritt, N. J. (2014). <a href=\"https:\/\/public.ebookcentral.proquest.com\/choice\/publicfullrecord.aspx?p=3412222\" target=\"_blank\" rel=\"noopener\"><em>Tribal Boundaries in the Nass Watershed<\/em><\/a>. UBC Press. <a href=\"#return-footnote-109-4\" class=\"return-footnote\" aria-label=\"Return to footnote 4\">&crarr;<\/a><\/li><li id=\"footnote-109-5\">Thom, (2009, p. 179). <a href=\"#return-footnote-109-5\" class=\"return-footnote\" aria-label=\"Return to footnote 5\">&crarr;<\/a><\/li><li id=\"footnote-109-6\">Thom (2005). <a href=\"#return-footnote-109-6\" class=\"return-footnote\" aria-label=\"Return to footnote 6\">&crarr;<\/a><\/li><li id=\"footnote-109-7\">Thom (2009, p. 185). <a href=\"#return-footnote-109-7\" class=\"return-footnote\" aria-label=\"Return to footnote 7\">&crarr;<\/a><\/li><li id=\"footnote-109-8\">Sterritt (2014). <a href=\"#return-footnote-109-8\" class=\"return-footnote\" aria-label=\"Return to footnote 8\">&crarr;<\/a><\/li><li id=\"footnote-109-9\">United Nations,<a href=\"https:\/\/www.un.org\/development\/desa\/indigenouspeoples\/declaration-on-the-rights-of-indigenous-peoples.html\" target=\"_blank\" rel=\"noopener\"> United Nations Declaration on the Rights of Indigenous Peoples<\/a>. <a href=\"#return-footnote-109-9\" class=\"return-footnote\" aria-label=\"Return to footnote 9\">&crarr;<\/a><\/li><li id=\"footnote-109-10\"><a href=\"https:\/\/www.bclaws.gov.bc.ca\/civix\/document\/id\/complete\/statreg\/19044\" target=\"_blank\" rel=\"noopener\">Declaration on the Rights of Indigenous Peoples Act<\/a> (Declaration Act) (SBC 2019 Chapter 44). <a href=\"#return-footnote-109-10\" class=\"return-footnote\" aria-label=\"Return to footnote 10\">&crarr;<\/a><\/li><li id=\"footnote-109-11\">British Columbia, <a href=\"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/__unknown__-12#sdfootnote1anc\" target=\"_blank\" rel=\"noopener\">Declaration Action Plan<\/a>.  <a href=\"#return-footnote-109-11\" class=\"return-footnote\" aria-label=\"Return to footnote 11\">&crarr;<\/a><\/li><\/ol><\/div>","protected":false},"author":1858,"menu_order":8,"comment_status":"closed","ping_status":"closed","template":"","meta":{"pb_show_title":"on","pb_short_title":"Module.Indigenous Title and Rights","pb_subtitle":"LEARNING MODULE","pb_authors":[],"pb_section_license":"cc-by-nc-sa"},"chapter-type":[],"contributor":[],"license":[57],"class_list":["post-109","chapter","type-chapter","status-publish","hentry","license-cc-by-nc-sa"],"part":77,"_links":{"self":[{"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/chapters\/109","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/wp\/v2\/users\/1858"}],"replies":[{"embeddable":true,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/wp\/v2\/comments?post=109"}],"version-history":[{"count":25,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/chapters\/109\/revisions"}],"predecessor-version":[{"id":1382,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/chapters\/109\/revisions\/1382"}],"part":[{"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/parts\/77"}],"metadata":[{"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/chapters\/109\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/wp\/v2\/media?parent=109"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/pressbooks\/v2\/chapter-type?post=109"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/wp\/v2\/contributor?post=109"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/wp-json\/wp\/v2\/license?post=109"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}