Concept of individual property essential component of English law. Aboriginal concept of property very different
Sikyea argued aboriginal right to hunt. Courts completely ignored and spent more time considering whether the duck he shot was wild or domesticated. They conclude it was wild and convict him
If it was not distinctive, it is not an Aboriginal right (presumably we look to the Charter instead for basic rights of all people)
Aboriginal Rights to Treaty Rights
From Aboriginal Rights to Modern Treaty Rights in British ColumbiaGeorge Nicholson, LLB.
Goal of this Presentation• Why do Aboriginal people have special rights under the Constitution?• What is the content of Aboriginal rights and Aboriginal title?• What becomes of Aboriginal rights after a modern Treaty?
Part OneReal Property Law Primer forAboriginal Rights “Property and Law were born and die together.” – Jeremy Bentham, English Philosopher “This we know - the Earth does not belong to man - man belongs to the Earth.” - Chief Seattle
Examples of Land Interests• Crown, Radical or Ultimate Title: expressions sometimes used to refer to the rights and jurisdiction of a sovereign or crown that sits atop all other interests• Fee Simple: the most common form of individual land ownership in Canada. Example - most people who own their own home• Life Estates: an interest where a person will be granted property for as long as they live. Example – a will that leaves property to a widow for life and then to children• Easements: lesser interests for a specific purpose that do not give rise to ownership but are rights an owner must honour (servitude or a burden). Example – a hydro right of way• Covenants: A condition that an interest holder promises to abide by, often as a condition of sale. Example – a buyer of a condominium in a senior’s housing complex promises only to subsequently grant their property to another senior
Acquiring an Interest in LandWays you can acquire an interest in land include:• Purchase• Transfer from an estate, with or without a will• Gift• Grants from the Crown• Through continual use, such as: ▫ Adverse Possession (Squatter Rights) ▫ Prescription (similar but for easements) ▫ One way includes proving use since “time immemorial,” which for the Courts is 1189
Continual Use Interest in Land Lot A is owned by Albert. Albert sells his land to Bertha. When Bertha buys the land, she sees that, for whatever reason, the Certificate of Title and survey do not show a right of way for the road. She begins to deny the use of the road to the owners of Lots B, C, and D. The owners of B, C, and D prove to the courts that they and others have been using this as a road for over twenty years. The courts rule, based on the doctrine of Prescription, that when Bertha bought Lot A from Albert, the right of way was a pre-existing burden on Bertha’s land.
Part TwoAboriginal Rights in the Common Law “ The doctrine of Aboriginal rights exists… because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status.” – Chief Justice Lamer in R. v. Van der Peet, para 30.
Historical Treaties and Early Policy• Canada signed treaties numbered 1 to 11 with First Nations between 1871 and 1921 across all of Canada except the majority of British Columbia• Canada’s Royal Proclamation included language that “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds”• The Courts would later accept and cite letters from Governor Douglas that included comments that the Canadian colonizers would respond negatively to mistreatment of local First Nations by the government in regards to their land rights
St. Catherine’s Milling Case, 1888Facts:• St. Catherine’s Milling and Lumber was a company that was seeking to log in the Wabigoon Lake area of Ontario• The First Nations in the area, various Ojibway, were signatories to Treaty #3 with Canada• Canada issued a licence to St. Catherine’s later arguing that they had jurisdiction over the lands because of the past and continuing Indian interests.• Ontario challenged Canada’s jurisdiction, arguing that jurisdiction of the lands transferred to the Province with Treaty #3.
St. Catharine’s Milling Case (cont.)Held:• For the Province of OntarioReasons:• All un-granted lands in a Province belong to the provincial Crown subject only to Indian rights of occupancy• Aboriginal rights in the land are of a personal and usufructuary nature (distinguished away from by the SCC later)• Once the Aboriginal rights are extinguished, by Treaty for example, then the lands no longer fall under the federal jurisdiction as lands for Indians.
Post-St. Catherine’s and Pre-Calder• Aboriginal rights were presumed to be “personal or usufructuary” meaning they were not a right to the land but a right to use it in certain ways• Aboriginal rights were presumed to be extinguished if not throughout Canada, throughout most of Canada as per the historical treaties• Claims to Aboriginal rights were largely ignored by the courts. See for example Sikyea v. the Queen (1964) S.C.C.
The Calder or Nisga’a Case, 1973Facts:• Frank Calder, a hereditary chief of the Nisga’a, asked the courts to clarify if the Nisga’a still held Aboriginal rights and title in their traditional territory.• At the time, the Nisga’a were not signatories to a treaty of any kind.Issue:• Did Aboriginal title continue to exist in British Columbia?
The Calder Case (cont.)Held:• 3-3-1• Justice Judson, on behalf of 3 judges, ruled that Aboriginal title existed but was extinguished by the implementation of the Indian Act and the Reserve system.• Justice Hall, on behalf of 3 judges, ruled that Aboriginal title existed and continued to exist in BC• Justice Pigeon ruled against the Nisga’a on a technicality• Technically a loss but received as a win by the Nisga’a and Canada.
The Calder Case (cont.)Reasons of Justice Hall (eventually affirmed by courts):• The concept of property does not have to be rendered in only traditional English terms• The Crown had clear precedents that during colonization, they would by default honour the rights of existing habitants• As evidenced by historical treaties, the Royal Proclamation, and other historical documents, the Crown showed, even after the Indian Act, every intention of honouring the rights of Canada’s Aboriginal people including providing fair compensation to them when acquiring land• The provincial government did not have the authority to extinguish Aboriginal rights in BC
Post-Calder• Canada established its comprehensive claims policy within a few years and began to negotiate modern treaties with First Nations in BC• Canada, BC, and the Nisga’a began negotiations that eventually resulted in the Nisga’a Final Agreement, the first treaty in BC in nearly 100 years
The Constitution Act, 1982• S. 35(1) – “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”• The SCC would later rule that this provision does not create aboriginal rights but elevates the existing common law rights to constitutional status• In accordance with s. 54, Canada’s constitutions become the supreme laws of Canada and override any other laws
The Sparrow Case,1990Facts:• Ronald Sparrow, a member of the Musqueam First Nation, was fishing pursuant to a community fish licence granted to the Band• The length of his drift net exceeded the length allowed by the licence• Mr. Sparrow argued that he was fishing pursuant to an Aboriginal right which now, according to the Constitution Act, 1982, superseded the fisheries regulationsIssue:• What is the content and the constitutional status of Aboriginal rights?Held:• Mr. Sparrow’s conviction was overturned and a re-trial was ordered
Sparrow Case (cont.)Reasons:• Aboriginal rights continue to exist and now enjoy constitutional protection.• The Musqueam have an Aboriginal right to fish for food, social, and ceremonial purposes. (FSC)• When Aboriginal rights were raised to constitutional status, they did so with all their existing characteristics and limitations under the common law• Aboriginal rights could have been extinguished prior to 1982.• Aboriginal rights can be infringed by the Crown if they can justify the infringement, which involves examining their objective and balancing the Crown’s power or authority along with their fiduciary duty to Aboriginal people
Sparrow (cont.)Reasons (cont.)• Aboriginal rights should be permitted to evolve over time• In regards to the Musqueam fishing rights, the conservation of fisheries is potentially a valid reason for infringing their Aboriginal right, because sustaining fisheries is within the interest of the First Nation as well. However, because of their constitutional right, Musqueam should receive priority treatment over non-Aboriginal fishermen after conservation concerns have been met.
The Van der Peet Trilogy, 1996• Around the same time the Courts released decisions in the Van der Peet case, the NTC Smokehouse case, and the Gladstone case, all of which considered claims for an Aboriginal right to sell fish or aquacultureFacts:• Dorothy Van der Peet, a member of the Sto:lo First Nation, sold 10 salmon to a non-Aboriginal person for $50.• She was charged with fisheries violations and claimed an Aboriginal right to sell the fish.• The Sto:lo did not successfully prove they engaged in significant trade activities pre-contact• The courts accepted proof that the Sto:lo engaged in significant trade activities afterwards with the Hudson’s Bay companyIssues:• Do the Sto-Lo have an Aboriginal right to sell fish?Held:• For the Crown. The conviction was upheld
Van der Peet Trilogy (cont.)Reasons:• “It must not be forgotten that the rights it recognizes and affirms are Aboriginal [emphasis original].” para 17• For a “practice, custom or tradition” to give rise to an Aboriginal right, it must have been a “a central and significant part of the society’s culture” para 55• Activities that were not central and could be true of any human society will not normally give rise to an Aboriginal right• It must be a distinctive, not necessarily unique, and integral aspect of their culture• A valid Aboriginal right can have been influenced by European culture, but activities which became central because of European influence cannot subsequently give rise to an Aboriginal right
Van der Peet Trilogy (cont.)Note in regards to claims to “commercial” rights:• Claims to a commercial right to sell fish were similarly rejected by the Courts in NTC Smokehouse but a right to “sell” herring spawn was recognized in the Gladstone case because the Heiltsuk First Nation was able to show significant trade activities even as the first non-Aboriginals encountered them and that these activities were a distinctive component of their culture• The courts did acknowledge a right to “trade and barter” in Van der Peet and a right to “sell” in the Ahousaht case but not a “commercial” right, which it defines as the accumulation of wealth• The most the courts have recognized would seem to amount to a right to sell for a “modest livelihood” not the accumulation of wealth
Pamajewon Case, 1996Facts• Two First Nations passed by-laws in regards to casinos with the intention of allowing them on their lands regardless of provincial licence requirements• Mr. Pamajewon and Mr. Jones both members of the First Nations were charged criminally with operating a gaming house contrary to the Criminal Code• The First Nations did have some historical evidence showing they did traditionally play certain games that resembled gambling• Both First Nations claimed a right to self-governmentIssues:• Does a First Nation have an Aboriginal right to Self- Government, and if so, what is the extent of that right?
Pamajewon Case (cont.)Held:• For the Crown. Convictions upheldReasons:• The framework for testing whether an Aboriginal group has a right to self-government is the same as a claim for any other Aboriginal right• In this case, the FN did not establish that this sort of game playing was “distinctive” or “integral” to their cultureNote:• Previously there was debate among academics whether a First Nation should have powers like a municipality, like a province, or something else• Canada had already released its Inherent Right to Self Government policy which was arguably approved
Summary of Aboriginal Rights• It is a right to conduct site-specific activities• It is based on a ‘practice, custom or tradition’ that was “a central and significant part of the society’s culture.” – Van der Peet at para. 55• The Aboriginal group must have been conducting the activity at the time of first contact• The nature of an Aboriginal right was not frozen in time but instead must be allowed to evolve into a modern version of the right• Self-Government should be approached the same as any other Aboriginal right• There must be a reasonable continuity of the right.
Limitations to Aboriginal Rights• Aboriginal rights could have been extinguished by the Crown prior to 1982 ▫ Only by the federal crown ▫ Only where the federal crown used clear and plain language• Aboriginal rights can be infringed by the Crown ▫ The Crown must have a valid objective ▫ The Crown must balance its power with its fiduciary duty to First Nations• Unlike Aboriginal title, it is not a right to the land itself per se
Adams & Coté Decisions, 1996• In 1996, the courts simultaneously released decisions in Adams and Coté• Both where fishing cases that questioned the fact that the First Nation could not make out a claim to Aboriginal title on the waters where they were claiming a right to fish.• The Crown argued that Aboriginal rights were tied to Aboriginal title which could not be made out on these waters• The SCC clarified that a First Nation could make a claim to an Aboriginal right even though they might not have had the kind of relationship that would give rise to Aboriginal title• Aboriginal rights and Aboriginal title are related but different
The Delgamuukw Case, 1997Facts:• Chief Delgamuukw, a chief of the Git’xan along with several other chief’s sued on behalf of the Git’xan and the Wetsuweten people• They claimed “ownership” and “jurisdiction” of their traditional landsIssues• What is the content of Aboriginal title and how is a claim established?Held• For the First Nations. Re-trial ordered
Delgamuukw (cont.)Reasons• Aboriginal title continues to exist.• It is sui generis (a unique species)• It is communally held• It is inalienable except to the Crown• Unlike Aboriginal rights, it is a right to the land itself• It is a right to “exclusive use” and “occupation” of the lands• It cannot be used in ways that would be inconsistent with the relationship Aboriginal people had with the land
Establishing Aboriginal Title• “It arises where the connection of a group with a piece of land ‘was of central significance to their distinctive culture.’” – para. 137 ▫ Establishing occupation as below will almost always serve to meet this criteria - para. 138• “the land must have been occupied prior to sovereignty.” – para. 143• “if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre-sovereignty occupation.” – para. 143• “at sovereignty, that occupation must have been exclusive.” – para. 143
Content of Aboriginal Title• “Aboriginal title is a species of Aboriginal right.” para. 137• “What Aboriginal title confers is the right to the land itself.” para 138 ▫ It is not just a right to conduct Aboriginal rights• “Aboriginal title encompasses the right to exclusive use and occupation of the land.” para 117• Aboriginal title is communally held• Aboriginal title normally carries with it subsurface rights
Content of Aboriginal Title (cont.)• Aboriginal title is sui generis and should not be compared to traditional English concepts of property law• Aboriginal title normally carries with it a bundle of Aboriginal rights that the First Nation holds exclusively
Limitations on Aboriginal Title• Aboriginal title cannot be used in ways that would be irreconcilable with the relationship Aboriginals have with the land ▫ The example they give is strip mining• Aboriginal title can only be alienated to the Crown ▫ The courts tie this to the limitation above and compare it to doctrine of equitable waste where a person with a life estate cannot commit wanton damage of the property. Alienation is still possible but the Crown must ensure there is some beneficial interest too all beneficiaries, perhaps even present and future• Aboriginal title can still be infringed, including for such things such as the “development of foreign populations” and hydro power, para 165.
Use Aboriginal Rights and TitleAbstract sample - Based on wherethe First Nation used to hunt andfish at the time of contact, the FirstNation has Aboriginal Rights tothose activities in the redboundary.Here, the First Nation hasAboriginal title in the blueboundary. These were lands thatwere of “central significance” to theFirst Nation, including for example,where they lived. The First Nationhas a kind of ownership here andalso has a number of Aboriginalrights that the First Nation holdsexclusivelyThese Aboriginal rights and titlewere a pre-existing “burden” on thecrown’s title
The Haida Case, 2004Facts• BC was in the process of considering a renewal of the Tree Farm Licence that covered the Haida Gwai• Delgamuukw had already stated that the Crown has an obligation to consult with First Nations in regards to decisions that may affect their Aboriginal rightsIssue• Does BC still have a duty to Consult a First Nation in regards to an unproven Aboriginal right that has already been infringed?Held• For the Haida First Nation
Haida (cont.)Reasons• The Haida have a significant prima facie case for Aboriginal title on parts of the island• The Haida, who successfully proved having a strong traditional relationship with the trees, have a strong prima facie case for Aboriginal rights to the forests on the island• BC must consult a First Nation wherever it has “real or constructive knowledge” that an Aboriginal right, proven or not, could be adversely affected by the crown’s decision• Where the First Nation has a particularly strong claim and/or where the decision could have a “significant adverse impact,” then First Nation consent may be required
Consultation & Accommodation• Not an Aboriginal right per se but attached to Aboriginal rights• Consultation is triggered anytime the Crown has real or constructive knowledge that a Crown action or decision may have an adverse impact on an existing or yet unproven Aboriginal right• Consultation requires at a minimum, sharing sufficient information, providing a reasonable time to evaluate the information, and hearing the concerns expressed by the First Nation• Accommodation is triggered when the adverse impact is particularly significant or when the First Nation claim to the land is particularly strong ▫ Can rise to the level where First Nation consent is required
The Little Salmon/Carmacks Case, 2010Facts• The Little Salmon/Carmacks First Nation were signatories to a Treaty with Canada and the Yukon territorial government• A Non-First Nation individual applied to the territorial government for Crown land to be converted to fee simple land• None of the treaty provisions dealt specifically with whether consultation was necessary or not in this situation• The territorial government made several attempts to contact Little Salmon/Carmacks but they did not respond at first• The territorial government proceeded with the grant
Little Salmon (cont.)Held• For the territorial governmentReasons• The Courts ruled that the treaty did not negate the common law right of Little Salmon to be consulted• The notion that a treaty can represent a “complete code” is not attainable• The purpose of the treaty and s. 35 is to enhance the special relationship the Crown has with Aboriginal people and not to allow it to come to harm• The Crown cannot negotiate away from its obligations under s. 35• However, the courts ruled against Little Salmon because they felt the efforts of the Crown met their consultation obligations with their attempts to contact Little Salmon which were ignored for quite some time.
The Honour of the Crown• The reconciliation of crown sovereignty and Aboriginal interests is an integral part of s. 35• The honour of the Crown involves a spectrum of the Crown’s obligations ▫ At a minimum the Crown must act with honour and integrity when dealing with First Nations, avoiding “even the appearance of sharp dealing” ▫ At the higher end, when managing the assets of First Nations for example, the Crown has a fiduciary duty to Aboriginal people• The Crown cannot contract out of its honour
Land Claims and Past Infringements• The vast majority of developments in British Columbia would qualify as infringements of Aboriginal rights and title• However, the majority of these would be justifiable after the fact• Justification should normally include “fair compensation” for the “inescapable economic component” of Aboriginal rights and title.
Reconciliation • “Aboriginal rights… must be understood by reference to both common law and Aboriginal perspectives.” - Chief Justice Lamer in Delgamuukw at para 112 • “The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.” – Justice Binnie at para 10 • Reconciliation is arguably not just a goal but a legal obligation
Part ThreeModern Treaties “By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation… Ultimately, it is through negotiated settlements, with good faith and give and take on all sides… that we will achieve… the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.” – Chief Justice Lamer, in Delgamuukw v BC
General Approach to Lands• The parties negotiate for First Nations to hold lands in fee simple along with additional rights• BC and Canada are unwilling to expropriate land to use in treaty, so existing fee simple lands are usually off the table• Many Crown lands have other existing interests on them, such as hydro right of ways, forest licences, water licences, subsurface rights, etc. Some of these lands and rights may or may not be on the table• Many Crown lands have special designations, such as parks & conservancies. Some of these may or may not be on the table• Much of the Crown lands in BC are too steep for practical use• Canada and BC usually negotiate transferring existing Indian Reserves, provincial crown lands, and any fee simple lands the parties are able to obtain on a willing seller basis
Statements of Intent• First Nations who enter the BC Treaty Process begin by filing a Statement of Intent (SOI)• The SOI is a map that provides an approximate boundary of the First Nation’s Aboriginal rights• Theoretically, the First Nation’s Aboriginal rights and title are all contained within their SOI• The SOI will be used as the basis for treaty negotiations• First Nations do not have to prove having Aboriginal Rights and Title in their SOI as part of the process
Certainty• Treaties all contain language that attempt to clarify what is to become of Aboriginal rights after the treaty, usually referred to as certainty language• Canada and BC negotiate that treaties constitute a “full and final settlement” of past claims• First Nations express concerns about that sort of finality given the indeterminate time the Treaty is meant to exist for and the incompleteness of the information they can gather about their existing rights
Certainty ModelsExtinguishment Model (Historical Treaties)• The First Nation does “cede, release, and surrender” any Aboriginal rights they had in exchange for the treaty rightsModification Model (Modern Treaties in BC)• The Aboriginal rights are “modified and continue” as defined in the treatyNon-Assertion Model (Tlicho in the NWT)• The Aboriginal rights continue to exist as they do, but the First Nation agrees only to exercise their rights as set out in the treaty and agrees not to assert their rights in Court for as long as the treaty is in effect
Aboriginal Rights to Harvest Rights• The Treaty will define Harvest Areas and various harvesting rights within those areas• These harvesting rights essentially replace their related Aboriginal rights ▫ Hunting Rights -> Treaty Rights under the Wildlife & Migratory Birds Chapters ▫ Fishing Rights -> Fisheries Chapter ▫ Gathering Rights (such as berries, medicines, bushes or fallen trees) -> Gathering Chapter
Treaty Settlement Lands• Lands will be returned to the First Nation in fee simple and be alienable to anyone• Negotiator’s generally refer to these lands as Treaty Settlement Lands (TSL)• TSL essentially replaces Aboriginal title• Treaties will always include at least two categories of land, often referred to as the First Nation lands and a harvest area, for example Tsawwassen Lands and the Tsawwassen Wildlife Harvest Area
Land Managementunder Treaty• The First Nation lands are no longer Indian Reserves• The First Nation does not need to abide by the surrender process of the Indian Act• The First Nation can define their own zoning regulations• The First Nation does not necessarily need permission from any other level of government to proceed with developments ▫ those developments do still need to be consistent with the law, including the Final Agreement
Self-Government• Law-Making provided throughout the Treaty and in the Self- Government chapter ▫ Generally limited to matters internal to First Nations and/or their lands ▫ Matters of national interest, such as criminal law, international law, deliberately left out• First Nation Laws, BC Laws, and Federal Laws are all potentially allowed to co-exist, called a concurrent law model ▫ Treaty provides for their relationship and which laws have priority• Decision making and priority setting will be by the First Nation government and not AANDC• First Nation government has the ability to delegate its powers and create its own institutions• The First Nation government is bound by the Charter of Rights and Freedoms• The First Nation government must also develop a constitution setting out the government structure and various rights for citizens
Status of Lands and Relationship ofLaws• Because the Indian Act no longer applies to First Nations, various aspects of First Nation lands and governance transfer from federal jurisdiction to provincial or provincial laws that previously did not apply may now apply ▫ Examples: Property Laws, including Estates & Wills, Employment Law, Family Law, including divorce and matrimonial property, and Tax laws
Consultation & Accommodationunder Treaty• Consultation is still required in the treaty for any project that triggers an environmental assessment and may impact the treaty rights of the First Nation• First Nation consent for a project is required on treaty settlement lands, but the government can still attempt to expropriate treaty settlement lands• Limitations to expropriation are provided in the treaty and include: • taking the most minimal interest for the shortest amount of time • only expropriating for a public purpose in accordance with legislation• Compensation in the way of cash or other land is still required• Some First Nations fear that by defining clearly where they do and do not have Aboriginal title, as is done in treaty, they are making it easier for developments to occur on neighboring lands which were not included as part of the treaty.
Economic Benefits• Various economic benefits are negotiated as part of a Treaty whether they are an Aboriginal right or not ▫ Commercial fisheries funding ▫ Tree Farm Licences ▫ Resource Revenue Sharing ▫ Economic Development funds ▫ Continued funding for programs and services• These are usually contained in various side agreements to the treaty
Cases (chronological order)• St. Catharines Milling & Lumber Co. v. The Queen (1888) 14 App Cas. 46 (H.L.)• Calder v. Attorney-General of British Columbia,  S.C.R. 313 (S.C.C.)• R. v. Sparrow,  1 S.C.R. 1075 (S.C.C.)• R. v. Van der Peet,  2 S.C.R. 507 (S.C.C.)• R. v. Gladstone,  2 S.C.R. 723 (S.C.C.)• R. v. NTC Smokehouse,  2 S.C.R. 672 (S.C.C.)• R. v. Pamajewon,  2 S.C.R. 821 (S.C.C.)• R. v. Adams,  3 S.C.R. 101 (S.C.C.)• R. v. Coté,  3 S.C.R. 139 (S.C.C.)• Deglamuukw v. British Columbia,  3 S.C.R. 1010 (S.C.C.)• Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511 (S.C.C.)• Beckman v. Little Salmon/Carmacks,  S.C.R. 53 (S.C.C.)All available at www.canlii.org except the St. Chatharines Milling case