Lawyers specializing in Indigenous law need not worry about work ever drying up for them in Canada. Reconciliation with First Nations is not just about apologizing for past harms – it’s a legal obligation and one that is still evolving, one court case at a time.
The fundamental question of whether Indigenous rights and title exist has been answered by the Supreme Court of Canada in a succession of landmark cases: They do exist, and they predate Confederation.
But that raises a host of other legal questions, yet to be answered by the courts, like the status of private fee simple land in cases where First Nations have proven title.
And the formal enshrining of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) at the provincial and federal levels might also create new legal questions for the courts to resolve.
University of British Columbia chancellor Steven Point, a member of the Sto:lo First Nation and a former B.C. provincial court judge, B.C. lieutenant-governor and B.C. treaty commissioner, thinks issues of self-governance and sovereignty are among the outstanding questions to be resolved by the courts and First Nations themselves.
“I’m not quite sure that we’re there yet in terms of defining what Indigenous people believe is the right to self-government,” Point said. “The Supreme Court has not really addressed in any comprehensive way the nature of self-government, and what authorities and jurisdictions there are.”
Tom Isaac, a partner at Cassels, Brock & Blackwell, and author of the book Aboriginal Law, said the one big question the courts will need to settle on the road to reconciliation is whether Indigenous title supersedes private property rights.
“That is just massive, and that’s playing out in B.C. courts right now,” Isaac said.
If a First Nation is able to prove title to land that was never ceded, but which is now owned by a non-Indigenous person, corporation or municipality as fee simple property, what then? How can there ever be true reconciliation if a First Nation has proven it has rights and title to land that someone else now owns?
In the Williams (Tsilhqot’in) case, private land was specifically excluded when the court affirmed title on specific lands. But that was because the Tsilhqot’in Nation excluded private lands in its claim. That doesn’t preclude other First Nations from claiming private land in their title claims.
The question of private land in Indigenous title claims has begun to play out in the courts with cases like Giesbrecht vs. B.C., in which the Kwikwetlem First Nation claimed title to lands in the Coquitlam watershed, including fee simple land (the Colony Farm lands) owned by the Metro Vancouver regional district.
Another case is Cowichan Tribes vs. Canada, which is a land claim that includes the City of Richmond, including private fee-simple lands. There are an estimated 200 private properties within the claim area.
“Aboriginal title, as currently set out by the Supreme Court of Canada (SCC), is inherently at odds with fee simple interests,” Isaac and Arend Hoekstra write in a Cassels Insights brief.
They point out that the Supreme Court has defined aboriginal title as “an exclusive right to the use and occupation of land, i.e., to the exclusion of both non-aboriginals and members of other aboriginal nations.”
Point said the inclusion of private property in land claims is always a starting position. First Nations don’t expect to courts to order private land turned over as part of a title decision.
“Leaders aren’t naive enough to think they’re going to get everything they ask for, but they have to start somewhere,” he said.
But until the Supreme Court of Canada resolves the question, some level of uncertainty will remain over the question of the status of private land in title claims.
UNDRIP could add additional uncertainties, depending on how the provincial and federal governments go about enshrining it within Canadian law. Article 26 of UNDRIP, for example, states: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
How that gets interpreted and implemented in modern-day Canada, when so much of the country is already occupied, developed or otherwise used by non-Indigenous people, is something courts could end up having to wrestle with.
“I’m quite confident that the government is unable to fully implement that legislation,” Isaac said. “UNDRIP cannot be fully implemented at law in Canada by its very nature.”
Point agreed that B.C.’s own adoption of UNDRIP could present challenges, but ultimately he said: “It’s going to work out,” and credits the John Horgan government for moving ahead on it.
Isaac said there are other outstanding legal uncertainties that still need to be defined. What constitutes proper accommodation, for example, when a treaty or Indigenous right is infringed, justifiably or otherwise?
“We have very little case law and guidance on accommodation,” Isaac said.
One treaty infringement case is Yahey vs. B.C. The Blueberry River First Nations, a signatory to one of the few treaties ever signed with B.C. First Nations – Treaty 8 – argues that the cumulative effect of decades of industrial development, including the Site C dam, constitutes a breach of treaty rights, because it prevents them from pursuing many of the activities, like hunting, fishing and trapping, that were supposed to be guaranteed by treaty.
The case has been tried by the BC Supreme Court, which is expected to render a decision sometime this year.
In this case, the Blueberry River First Nations are not seeking accommodation or compensation, but a permanent injunction against all further industrial activities in their traditional territories.
Indigenous law and key court cases and statutes
Royal Proclamation (1763)
The Royal Proclamation of King George III referred to Indigenous people as “nations” and acknowledged rights and title, which could only be extinguished through treaties with the Crown.
Indian Act (1876)
The Indian Act made First Nations wards of the state, created reserves for status Indians, forced a band council governance system on First Nations, banned the West Coast potlatch system and powwow and sun-dance ceremonies among Prairie First Nations, made attendance at residential schools compulsory and denied status to women who married non-status men, which was contrary to the matrilineal system common to many Indigenous people. There have been a number of amendments to the act.
Section 35, Canadian Constitution Act (1982)
This section of the Canadian Constitution, which affirms existing Indigenous and treaty rights, was added to the new Canadian Constitution Act on the insistence of Indigenous groups. It affirmed, but never defined, Indigenous rights, which were left to the courts to define.
Calder vs. B.C. (1973)
In a landmark court decision, the Supreme Court of Canada recognized, for the first time, that Indigenous rights predated colonization. The Nisga’a First Nation had claimed title to its traditional lands. The Nisga’a lost their case, but the court’s recognition that Indigenous title existed at the time of the Royal Proclamation set the stage for the first modern-day treaty, which in 2000 gave Nisga’a title to a portion of their traditional claimed territory and the right to self-government.
R. vs. Sparrow (1990)
Based on a fishing dispute involving a member of the Musqueam First Nation, the court ruled that Indigenous rights, including rights to fish, are constitutionally protected and cannot be infringed without justification.
Delgamuukw vs. B.C. (1997)
A rights and title claim by the Gitksan and Wet’suwet’en, the decision affirmed Indigenous title exists and is protected under Section 35(1) of the Canadian Constitution, but unlike the later Tsilhqot’in decision, it stopped short of affirming title over specific lands. A second trial would be needed to establish title to specific land, which was never held. The B.C. and federal governments have recently signed a memorandum of understanding with the Wet’suwet’en to develop an agreement that recognizes their rights and title.
Haida Nation vs. B.C. (2004)
After the Haida disputed a timber tenure transfer from one forestry company to another, the court ruled the Crown has a duty to consult First Nations on the exploitation of lands to which there is a claim of rights and title.
William (Tsilhqot’in) vs. B.C. (2014)
A major decision that built on previous cases like Delgamuukw, it marked the first time the court recognized Indigenous title to specific lands and ordered the province to transfer jurisdiction and title to the Tsilhqot’in First Nation. The court acknowledged the Tsilhqot’in had proven title to a portion of claimed traditional territory, and rights to non-title land, based on exclusive and continuous occupation and use.
UNDRIP
The United Nations Declaration on the Rights of Indigenous Peoples has been adopted by the B.C. government and last week the Senate approved a bill to pass it at the federal level. The bill requires that Canada takes “all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” UNDRIP includes the right to self-determination, Indigenous control of education and political systems and legal protection of traditional lands and use of resources.
(Editors note: The original story has been updated to correct the date of the Royal Proclamation)
– Nelson Bennett
