Aboriginal Rights and Title
A condensed version of my Research into Aboriginal Rights and Title
As many Canadians as possible should be letting their respective Government Representatives know their opinions on the Enbridge Northern Gateway Pipeline Project. However, the final decision could come down to the Supreme Court of Canada. How the Court interprets the Laws of Canada in respect to Aboriginal Rights and Title while following the precedents set out by former Supreme Court decisions will most likely determine the outcome.
Which leads me to ask several Questions. See: First Nations vs Enbridge
Aboriginal title can be distinguished from other Aboriginal rights in that:
Aboriginal rights refer to practices, traditions and customs that distinguish the unique culture of each First Nation and were practiced prior to European contact. The rights of certain peoples to hunt, trap and fish on ancestral lands are examples of Aboriginal rights.Aboriginal title is based in history
Aboriginal title, as currently defined by the courts, is a right in the land itself – not just the right to hunt, fish and gather from it.
Aboriginal rights are unique because they are protected by the Canadian Constitution. In 1982, the Canadian Constitution was amended to recognize and affirm already existing Aboriginal rights, but did not define them or identify where they may exist. Aboriginal title is now beginning to receive judicial definition.
Over the last 35 years, a number of court decisions have made reference to Aboriginal title. In the 1973 Calder decision, the Supreme Court of Canada confirmed the existence of Aboriginal title as a concept in Canadian common law. In this case, the Nisga’a Nation claimed Aboriginal title to its traditional lands in BC.
….In 1997…the Supreme Court of Canada provided its first comprehensive statements on, and established a legal test for, Aboriginal title. The court said:
- Aboriginal title is a collective right by an Aboriginal group to the exclusive use and occupation of land for a variety of purposes, which need not be activities that the group has traditionally carried out on the land;
- Aboriginal title is an Aboriginal right protected under section 35 of the Canadian Constitution;
- Aboriginal title lands must not be used in a way that is irreconcilable with the nature of the group’s attachment to the land; and,
- In order for the Crown to justify an infringement of Aboriginal title, it must demonstrate a compelling and substantive legislative objective, it must have consulted with the Aboriginal group prior to acting, and in some cases, compensation may be required.
Many claims to Aboriginal rights and title remain outstanding across Canada. These claims will be resolved either through negotiations with First Nations, or they will be decided by the courts on a case-by-case basis. While case law has established the existence of Aboriginal title conceptually and has provided guidance on the definition of Aboriginal title, most of today’s claims regarding Aboriginal rights and title are resolved through negotiation processes, such as the BC treaty process or the Comprehensive Claims process. Negotiated agreements give First Nations and federal and provincial/territorial governments the opportunity to define their relationships and establish fair agreements that work for all Canadians.
Supreme Court rulings tend to be in favor of First Nations.
The Court issued a unanimous 9-0 ruling in favour of Mikisew in what has become a Landmark decision of that Court. Among other things the Supreme Court of Canada found that:
- oral promises form part of Treaty 8
- Mikisew had rights under Treaty 8 to hunt, trap and fish in a national park
- the obligation to consult arises upon the Crown obtaining either real or constructive knowledge that a right might be infringed
- First Nations are entitled to a process of consultation separate and apart from the “public process”
- First Nations are entitled to be provided information as the nature and extent of the impact and are to be given adequate time to review this information with their own experts prior to having to engage in a consultation process with the Crown
- the Crown cannot delegate its substantive consultation obligations onto self interested third party project proponents
- the Crown cannot simply tell first nations to go exercise their rights elsewhere
- the honour of the Crown requires the Crown to give priority to First Nation rights and interests
- First Nation concerns must be “seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action
Of particular significance is the ruling, “the honour of the Crown requires the Crown to give priority to First Nation rights and interests”.
ABORIGINAL TITLE: THE SUPREME COURT OF CANADA DECISION
IN DELGAMUUKW v. BRITISH COLUMBIA
General interpretive principles stated in the Court’s groundbreaking 1990 decision, Sparrow v. R.,(8) and refined in subsequent rulings through 1996(9) include the following:
- The Crown must justify any proven legislative infringement of an existing Aboriginal right;
- Aboriginal rights cases are to be adjudicated by the application of principles to facts specific to each case rather than on a general basis;
The Supreme Court of Canada’s Delgamuukw decision was expected to have significant, if undetermined, repercussions on the future negotiation and settlement of comprehensive land claims based on Aboriginal title, land use policy and Aboriginal title litigation in those regions of the country where traditional Aboriginal lands have not been ceded by treaty. These include not only most of British Columbia, but also, for example, parts of Quebec and Atlantic Canada.
Delgamuukw continues to represent a momentous affirmation of the existence and constitutionally protected status of Aboriginal title in Canada. It seems important, however, to underscore the fact that the Court did not rule on the merits of the Gitxsan and Wet’suwet’en Aboriginal title claim. The effects of its decision are therefore more directive than conclusive. Delgamuukw provided government, Aboriginal claimants, and the lower courts with comprehensive new guidelines for the future settlement or litigation of the Gitxsan and Wet’suwet’en and other comprehensive land claims.
In practical terms, the various parties’ responses to the Delgamuukw decision remain to be fully played out in terms of policy developments, negotiation processes and the frequency of recourse to the judicial system. Given the history of land claim negotiations, the fact that the Court recommended that ongoing land claim disputes be resolved through negotiation offers no assurance that its guidelines will in fact facilitate the negotiation process or preclude litigation in relation to individual claims. On the other hand, the Delgamuukw ruling provided a compelling impulse to the parties to reaffirm the treaty process through negotiation.
In short, the Delgamuukw decision established an unprecedented theoretical framework that represents the basis for developing the law of Aboriginal title in Canada, rather than the culmination of the law’s development. The law of Aboriginal title will continue to evolve as principles of the Delgamuukw framework are implemented.
The BCTC reported that the federal and provincial governments had agreed to the following statement on Aboriginal and Crown title:
- The parties agree to the negotiation of treaties respecting the following principles:
- The parties recognize that Aboriginal title exists as a right protected under section 35 of the Constitution Act, 1982.
- Where Aboriginal title exists in British Columbia, it is a legal interest in the land and is a burden on Crown title.
- Aboriginal title must be understood from both the common law and Aboriginal perspective.
- As acknowledged by the Supreme Court of Canada, Aboriginal people derive their Aboriginal title from their historic occupation, use and possession of their tribal lands.
- The parties agree that it is in their best interest that Aboriginal and Crown interests be reconciled through honourable, respectful and good faith negotiations.
For Further clarity, See: Indigenous Foundations – UBC