Aboriginal Title

… a core concept in Governance and Institutions and Atlas100

Concept description

Wikipedia (reference below) defines aboriginal title as “a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism.”

Wikipedia notes that the concept is relevant in many countries and that:

“Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions. Many commentators believe that the doctrine is applicable in all common law legal systems.

“Aboriginal title is also referred to as indigenous title, native title (particularly in Australia), original Indian title (particularly in the United States), and customary title (particularly in New Zealand). Aboriginal title jurisprudence is related to indigenous rights, influencing and influenced by non-land issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.”

Indigenous and Northern Affairs Canada (INAC, reference below) defines aboriginal title as “a legal term that recognizes an Aboriginal interest in the land” which is “based on the long-standing use and occupancy of the land by today’s Aboriginal peoples as the descendants of the original inhabitants of Canada.”

INAC also notes (second reference below) that:

“In 1997, the Supreme Court of Canada ruled in the Delgamuukw case that Aboriginal title is a property right to the land itself – not just the right to hunt, fish and gather. Aboriginal title is a communal right; an individual cannot hold Aboriginal title. Aboriginal title to the land is based on an Aboriginal group’s traditional use and occupancy of an area. Proof of Aboriginal title requires an examination of an Aboriginal group’s traditional use and occupation of an area and is site and fact specific.”

Aboriginal title in relation to fee simple ownership

Rob Millar (reference below) writes:

“When an individual purchases land in BC, he or she owns it in “fee simple.” Fee simple is the most substantial interest in land that exists in law, giving the owner absolute rights of ownership and exclusive rights to use and occupy the land. Although essentially equivalent to absolute ownership, land held in fee simple is still held “in tenure on the Crown’s underlying title.” This means that fee simple ownership, because it is granted by the Crown, relies on the validity of the Crown’s interest in the land in the first place, and any encumbrances on the Crown’s underlying title also apply to the fee simple interest itself.

“Aboriginal title is similar to fee simple in that it confers exclusive use and occupation of the land. It also provides the group holding title with the rights to decide land usage and to benefit economically from its use. One primary difference between fee simple and Aboriginal title, as mentioned in previous parts of this series, is that Aboriginal title is a communal right held by the group as a whole. Consequently, uses of Aboriginal title land are restricted to those that will not deprive future generations of the benefit of the land. Another key element is that unlike land held in fee simple, which is generally transferrable, Aboriginal title lands may only be transferred to the Crown.

“Can Aboriginal title and fee simple ownership exist at the same time, over the same property? Since each type of ownership entails an exclusive right to the land in question, simultaneous ownership through Aboriginal title and fee simple seems problematic – if not impossible. However, Canadian courts have laid out a framework for resolving conflicts between the two types of ownership. …

“The interaction between private property and Aboriginal title is not something the Supreme Court of Canada has addressed directly. What we do know is that Aboriginal title does not exist in a vacuum – rather, it is part of a broader Canadian legal landscape and needs to be considered alongside interests of other stakeholders, including property owners.”

Aboriginal title in Canada after the Tsilhqot’in decision

The 2014 decision by the Supreme Court of Canada (see Tsilhqot’in Decision of the Supreme Court of Canada, 2014) ruled in favour of the Tsilhqot’in Nation, granting Aboriginal title to 1700 km2 of land traditionally inhabited by the Tsilhqot’in.

Harry Swain and James Baillie (reference below) have written about the potential economic impact of the Tsilhqot’in decision:

“The possible scope for assertion of Aboriginal title on unceded land is far-reaching. Major projects already in Aboriginal place might be the subject of claims asserted by various groups. As one possible example, the territories affected by the vast reservoirs of the Peace and Columbia River systems include unceded lands where Aboriginals dwelt. On the reasoning in Tsilhqot’in an investor, whether government or private, wishing to initiate a project on Aboriginal title land or land as to which Aboriginal title is or may be asserted, has the following options unless the investor, and its bankers, are prepared to take the risk of proceeding without resolution of the issues:

  • Agreement between the relevant Aboriginal group or groups and the relevant Crown (remember, the Crown must be a party to the agreement) that Aboriginal title does not exist in the challenged land. We doubt that this alternative would be available as a practical matter, other than in rare cases. Even if the parties were prepared to reach such an agreement, it could subsequently be attacked, for example as to whether the correct Crown or Aboriginal group was involved or whether the group(s) was (were) properly bound by the agreement. Here the questions raised above as to the governance processes of the particular group would be relevant;
  • Fighting a court action as to the existence of Aboriginal title, with the Aboriginal group’s legal expenses perhaps being paid by government. We comment sufficiently above on the costs and difficulties of any such litigation; or
  • Arriving at a negotiated agreement with the Aboriginal group or groups.

“In almost all situations, the third alternative – negotiation – will be preferred. This was true before Tsilhqot’in; it will probably prove to be even more true after Tsilhqot’in. All concerned governments, Aboriginal groups, and private sector investors would far prefer negotiation to the alternatives. Yet large commitments of resources and time on treaty negotiations have produced few successes. One of the co-authors of this comment (HS), has been involved in some of these negotiations. He attributes the lack of success to a number of factors, including their inherent complexity and the high stakes for the Aboriginal claimants. On each side, governmental and Aboriginal, the negotiating teams are typically too small, inadequately resourced (except where the Aboriginal side has the benefit of an Okanagan order (see note 12) or equivalent), subject to personnel changes, with limited authority and frequently amended instructions. The personal incentives applying to government and Aboriginal negotiators and their advisors may not conduce to celerity. The Aboriginal teams may be deeply distrustful of the government teams because of well-founded historical grievances; sometimes the groups even distrust their own leaders. Effective governance implies a scale or size of community appropriate to the subjects in question, but governments often select Aboriginal counterparties too small to exercise the wide powers accorded to self-governing entities in comprehensive claims negotiations and fail to adapt their negotiating mandates adequately to the circumstances of the particular group. And the governments, which are legally necessary parties to the negotiations, are sometimes fronting for private sector investors, with resultant communication problems. It is a wonder negotiations ever succeed.

“Tsilhqot’in further reinforces the desirability of negotiated agreements and the undesirability of litigation as an alternative. Yet we are concerned that, at least in the short term (which could be lengthy) while negotiating cultures evolve, Tsilhqot’in could prove to be a serious impediment to the development of portions of Canada that have significant tracts of unceded land. Investors confronted with the decision-making environment created by Tsilhqot’in might well decide at the threshold not to proceed, favouring some other jurisdiction with their time and money. In any event, substantial delay is predictable with any project involving unceded land where Aboriginal title exists or might credibly be asserted and a negotiated agreement proves elusive.

“We might move to a new paradigm, with Aboriginal groups rather than governments or distant corporations having a much greater share of the economic rents in projects on title land. This might be desirable on social policy grounds, and even fitting retribution for the abuses of the Aboriginal population that clearly have occurred in Canada. But relying on the legal approach to property rights, coupled with the uneven distribution of valuable resources, would exacerbate income disparities among First Nations. And the costs, not only in income transfers but also in economic opportunities foregone, could be considerable. The judge-developed rules concerning Aboriginal title could, in effect, impose significant efficiency limits and distributional quandaries on the economy as a whole. …

“Aboriginal title vividly illustrates the authority which the Charter of Rights conferred on the courts. The inefficiencies involved in having such an important topic addressed on a piece-meal, case-by-case basis through immensely complex, expensive and protracted court proceedings can hardly be overstated. In this context, the Court’s decision is remarkable. It carries very great weight, as a unanimous decision delivered by the Chief Justice herself. As it relates to the principal ingredients of the decision, such as exclusivity being the test for Aboriginal occupation to establish Aboriginal title, the tone is didactic: explaining the Court’s conclusions as if they were established law, requiring only the necessity for clear communication. Yet, on the topic of exclusivity, the previous law was far from settled, as evidenced by the British Columbia Court of Appeal decision in favour of a site-specific test for Aboriginal occupation.

“On questions other than those essential to the decision, the Court’s conclusions are far less specific. Indeed, as noted throughout this case comment, the issues left outstanding are far-reaching and seem to us almost certain to lead to further forays into this area by the courts, including the S.C.C. We share the hope of the Court that these issues can be effectively addressed by negotiation, but we mention above our concern that a negotiating culture sufficient to deal with them may take a long time to develop. Perhaps governmental interventions to improve the negotiating environment can improve the situation.

“One final comment. Because of section 35(1), the S.C.C.is the ultimate adjudicator on these issues. It is called on to deal with complex issues of public policy of a type ordinarily reserved for legislative process. Short of a constitutional amendment, or the Court reversing itself, its judgments on these issues cannot be altered. It seems to us perfectly appropriate given this enormous responsibility that considerations such as economic implications and political outcomes should be relevant to the judicial process, even if far from determinative. It is troubling to us that no reference is made in the Court’s decision to such possible implications. The decision reads as a technical treatise on the law, with didactic overtones. Just as we hope that the constituencies affected by the Court’s decision are in the process of adaptation to a negotiating mode, we also hope that the Court itself is on a learning curve towards more clearly taking into account the far-reaching consequences of its decisions.”

Paths to addressing Aboriginal title in the post-Tsilhqot’in world

In a Privy Council Office seminar on aboriginal law and policy, Harry Swain (reference below) reviewed the evolution of the concept of Aboriginal title and suggested a way forward:

“The Court shines an intense but narrow beam of light into the shadows of its own creation. That’s what happens with case law, rather than the broad debate that normally precedes statute law.

“Thus much is left open – an invitation, if ever there were, for Parliament to cease averting its eyes and getting on with its duty. Among the open questions:

  • Control of land necessarily implies a governance regime: not necessarily full-bore self-government, but at the least we would seem to have a nascent constitutionally-protected third order of government. This kernel of an idea cries out for statutory expansion, if only to give clear authority and direction to public servants, and to lay the groundwork for a 21st-century system of intergovernmental relations with First Nations.
  • There are strong implications for the rest of Canada, too. Aboriginal title is alive and well all over the Maritime Provinces, and possibly in old New France as well.
  • Subsurface rights go with aboriginal title, apparently. Immobile groundwater would surely be included, though no court has said so. What about lakes? Flowing water?
  •  Is reserve land aboriginal title land? The argument could be made that it is the residue of a much larger territory that was ceded at the time of treaty. In BC and the Maritimes, in the absence of treaties ceding land, the argument is particularly compelling.
  • Do treaty lands have some characteristics of aboriginal title lands (has the bar been raised for treaty infringement)? There is nothing in s.35 to suggest that treaty rights are lesser rights and not protected equally from infringement.
  • What shall we do about potential conflicts between self-government rights on aboriginal territory lands and the Charter? Leave it to the courts on a case-by-case, piecemeal basis?
  • What shall we do about third-party interests granted in innocence on aboriginal title land, or on land which may become aboriginal land?

“However, one does not have to enter the realm of legal speculation to recognize that things are going to have to change. There has been a huge tilting of the negotiating table in favour of (some) First Nations – for resource project revenues and jobs, for treaty negotiations, for undisturbed peace and quiet despite the wishes of trophy hunters and of forestry and mining companies. There will be a shift of resource rents away from provinces, though this may be no big deal; even in BC, direct resource revenues are less than eight percent of the budget. More ominously, there will be a slowdown in resource development in BC and elsewhere until decisions get taken on who the proper title holder is in each case; overlaps are resolved; firms, governments and financial institutions come to grips with radically reshaped land tenure; and the governance of aboriginal title land is resolved. Serious disinvestment is already happening. The CEO of a large forest company in BC told me last year that he has been moving every investment dollar he can out of Canada. It is already clear that new pipelines, railroads, roads, mines, forestry, farming, oil and gas exploitation, fishing, dams and power lines will not go ahead on timelines relevant to private sector investment, and may not go ahead at all. Moreover, the federal government, piling on, has committed to implement the UN Declaration on the Rights of Indigenous Peoples, a document rife with broad and aspirational language. What, for example, is “free, prior and informed consent”? Each oft-repeated UNDRIP word requires arduous definition.

“There is a huge job for Parliament, hitherto ignored, in the defining details of a land use regime consistent with Supreme Court decisions, and possibly with UNDRIP. We don’t have time to leave it to the courts. We are where we are because the respectful dialogue between Parliament and the Court has not taken place, with the result that the law in this area is increasingly judge-driven. We need to rebalance judicial and legislative roles in Canadian democracy in some areas if we are to maintain legitimacy. At the moment, we are distinctly not on the road to “peace, order, and good government.” …

“And there is a large and demanding legislative agenda, going well beyond the issues highlighted in the Liberal platform. Quite apart from Tsilhqot’in issues, the federal government should continue to elaborate alternatives to the Indian Act, but without the degree of continuing Ottawa control that has characterized some recent attempts, notably on education. More fundamentally, the federal government should consider legislating the terms under which holders of s.35 rights will gain priority for negotiation. These terms might include a description consistent with Tsilhqot’in – in other words, very different from current practice – as well as some practical conditions of scale, governance, and institutional stability. I suggest that these and other ideas could be the proper subject for political rather than bureaucratic leadership. What about a special joint committee of the House and Senate, appropriately staffed, with a travel budget and no cast-iron deadlines, to engage directly with First Nations, and maybe the Métis and Inuit peoples, with a view to drafting legislation that would further reconciliation and command broad support? These profoundly political questions ought to be dealt with by Parliamentarians rather than unelected officials, and might incidentally give depth to the nation-to-nation idea.

“These are things that in my view need to be undertaken with a sense of urgency, if the resource-based sectors of the Canadian economy are to continue their substantial contribution to the nation. Even so, we must accustom ourselves to a lengthy slow-down in the pace of resource-based economic development. Beyond this, of course, are some enduring dilemmas: the proper balance between collective and individual rights, the idea of a constitutionally-protected regime of de facto separate but unequal rights, even the creation of a shared vision of what a wonderful future might look like – noting that nothing is ever static, and that a social imaginary has to include a design for resilience and change. There is even the grand dream of Brian Slattery, now being seriously pursued by my friends at the University of Victoria Law School, of integrating indigenous law with the civil and common law bases of Canadian law.

“We are halfway into a thousand-year collision between Europeans, mostly, and the indigenous peoples of Canada: in other words, probably at the point of maximum confusion. Old colonial certainties have collapsed and a hundred old and new ideas are contending. I hope, as you grapple with the ambitious agenda of the new government, that you can arrange matters so that the urgent does not drive out the important.”

Sources

Wikipedia, Aboriginal title, at https://en.wikipedia.org/wiki/Aboriginal_title, accessed 10 February 2017.

Indigenous and Northern Affairs Canada, Terminology, at http://www.aadnc-aandc.gc.ca/eng/1100100014642/1100100014643, accessed 10 February 2017.

Indigenous and Northern Affairs Canada, Aboriginal Title, at https://www.aadnc-aandc.gc.ca/eng/1100100028608/1100100028609, accessed 10 February 2017.

Rob Miller (2014), Impacts of Tsilhqot’in Part VI: Effect of Aboriginal Title on Private Property, at http://www.millertiterle.com/what-we-say-article/aboriginal-title/, accessed 11 February 2017.

Harry Swain and James Baillie (2015), Commentaries: Tsilhqot’in Nation v. British Columbia: Aboriginal Title and Section 35, to appear in Canadian Business Law Journal, University of Victoria, Centre for Global Studies, at https://www.uvic.ca/research/centres/globalstudies/publications/publicationsdb/pubs/tsilhqotin-nation-v-british-columbia.php, accessed 2 October 2016 and uploaded to the Atlas at http://www.atlas101.ca/pm/wp-content/uploads/2016/10/Swain-and-Baillie-Tsilhqotin-case-review-2015.pdf. See also Harry Swain and James Baillie (2015), Quagmire in our native land – Parliament must act to mitigate the disastrous consequence of judge-made law, Financial Post, 4 February 2015, at http://business.financialpost.com/fp-comment/quagmire-in-our-native-land, accessed 2 October 2016.

Harry Swain (2016), Paths to reconciliation in the post-Tsilhqot’in world, Privy Council Office seminar on aboriginal law and policy, Ottawa, 4 April 2016, uploaded to the Atlas by permission of the author at http://www.atlas101.ca/pm/wp-content/uploads/2016/04/Harry-Swain-2016-Paths-to-reconciliation.pdf. 

Topic, subject and Atlas course

Indigenous Governance in Governance and Institutions and Atlas100.

Page created by: Ian Clark, last modified 11 February 2017.

Image: Miriam Katawazi, Vancouver Ecosocialists, at http://ecosocialistsvancouver.org/article/supreme-court-decision-acknowledges-aboriginal-title-over-tsilhqotin-first-nation-land, accessed 10 February 2017.