Indigenous Rights and Title in Canada

[jacee]

Always a hot topic here at mlw, and I thought a fresh and focused thread would be useful today, with the Supreme Court ruling today on Aboriginal title

This is a great summary of previous Supreme Court rulings:

Five landmark cases in Canadian jurisprudence on aboriginal rights

CALDER 1973

... marked the first time the Supreme Court held that aboriginal land rights survived European settlement and would remain valid unless extinguished by treaty or other means.

... The decision triggered federal attempts to begin land claim negotiations

SPARROW 1990

... the first to delve into the issue of Aboriginal rights since the passage of the 1982 Constitution Act, which entrenched in the constitution existing Aboriginal rights and title. The judges elaborated on the definition of those rights, holding that government could only infringe on them if it had a "compelling and substantial" rationale, and only if it took into account its fiduciary obligation to take Aboriginal rights into account.

DELGAMUUKW (1997)

The crown jewel of Aboriginal jurisprudence, the case confirmed that Aboriginal rights to land, and the Crown's obligations, are unique compared to all other forms of property ownership in Canada because the rights are grounded in Aboriginal occupation that predates the British assertion of sovereignty. It also found that aboriginal and common law perspectives should be given equal weight, and urged "reconciliation" between the assertion of Crown sovereignty and the fact of pre-existing Aboriginal peoples. Title, the court said, involved the right to exclusive use and occupation of the land, but stated that these rights could be "infringed" by the Crown say, by allowing a mine to be constructed as long as sincere efforts were made to do such things as consult and accommodate the rights-holders. The level and intensity of required consultation and accommodation was dependent on both how significant the infringement is, and the strength of the claim to title. The court also accepted the validity of oral history testimony,

HAIDA (2004)

In a case involving the Haida Nation, the court spelled out more clearly how the "Honour of the Crown" requires the provincial government to consult and accommodate in good faith on resource development in areas where Aboriginal title and rights are asserted but not established. However, as with Delgamuukw, the court declared that the obligations do not give First Nations veto power...

And today's ruling addresses:

WILLIAM (2014)

The court will rule Thursday on whether Chief Roger William, on behalf of the Xeni Gwet'in First Nation and other members of the six-band Tsilhqot'in First Nation, have Aboriginal rights and title to 1,750 square kilometres or perhaps just a fraction of that area.

I think it's important to have these discussions, to understand what it really means to be Canadian, in a country of three founding peoples and three legal traditions: Aboriginal Law, French Civil Code and British Common Law.

And here it is, today's decision:

supreme-court-expands-aboriginal-title-rights-in-unanimous-ruling/

All Supreme Court decisions can be found here:

http://scc-csc.lexum.com/scc-csc/en/nav.do

Edited October 3, 2014 by jacee

[overthere]

Link does not work.

Thanks for trying though, this is an important decision either way.

Title, the court said, involved the right to exclusive use and occupation of the land, but stated that these rights could be "infringed" by the Crown say, by allowing a mine to be constructed as long as sincere efforts were made to do such things as consult and accommodate the rights-holders. The level and intensity of required consultation and accommodation was dependent on both how significant the infringement is, and the strength of the claim to title. The court also accepted the validity of oral history testimony

Teh strength of the claim to title was important here, and also critical was that the rights to fish hunt and occupy did not mean that First Nations automatically had exclusive rights to completely control land or its development.

[Rue]

The William decision was unanimous Jacee.

Now lawyers will pour over it but it makes things a bit clearer and could spell some future legal problems with the proposed pipeline in BC.

It basically has come down on the side of aboriginals to no real surprise to lawyers. In this particular case the aboriginal peoples were "semi nomadic", meaning they would move around on the land they were claiming rights to.

The court appeared to apply a 3 pronged test and asked; i-were aboriginals occupying the land in dispute; ii-did they demonstrate continuity of habitation, i.e., was their occupation uniterupted; iii=did they have exclusivity to the land.

The Supreme court unanimously said yes to all 3 questions which appear to be based on looking at the particular facts of the case.So it appears this 3 pronged test will be used in future land disputes but how the court will look at the specific facts of each case and apply these questions remains unknown. We have a test but it still lives it open to discrepancy depending on each fact situation.

Its far too early to fathom the extent of its implications but I would say it continues the legal assumption the Supreme Court of Canada will give benefit of the doubt to and give wide interpretation in favour of aboriginal rights to land.

Yes this could come into direct conflict with proposed business and resource extraction activities of provincial or federal businesses.

It gives another argument for aboriginals to use to prevent exploitation of land for resource extraction where aboriginals live on that land.

Again I don't like the way the media is calling it land title rights. Its more land occupation rights.It recognizes the fact that since aboriginals occupy and use the land their right to continue doing that is not superceded by businesses wanting to use the land as well.Its a misnomer to call it land title. They haven't granted ownership, they have simply continued o recognize their right to continue using the land as they always have without others violating that right. Again its not "owning" the land, its the right to benefit from living on that land.

No one is giving a deed to the land. They are saying honour the aboriginal use of the land, it pre-existed your business proposal and can't just be set aside because you want to engage in a profit activity on that same land.

[jacee]

The William decision was unanimous Jacee.

Now lawyers will pour over it but it makes things a bit clearer and could spell some future legal problems with the proposed pipeline in BC.

It basically has come down on the side of aboriginals to no real surprise to lawyers. In this particular case the aboriginal peoples were "semi nomadic", meaning they would move around on the land they were claiming rights to.

The court appeared to apply a 3 pronged test and asked; i-were aboriginals occupying the land in dispute; ii-did they demonstrate continuity of habitation, i.e., was their occupation uniterupted; iii=did they have exclusivity to the land.

The Supreme court unanimously said yes to all 3 questions which appear to be based on looking at the particular facts of the case.So it appears this 3 pronged test will be used in future land disputes but how the court will look at the specific facts of each case and apply these questions remains unknown. We have a test but it still lives it open to discrepancy depending on each fact situation.

Its far too early to fathom the extent of its implications but I would say it continues the legal assumption the Supreme Court of Canada will give benefit of the doubt to and give wide interpretation in favour of aboriginal rights to land.

Yes this could come into direct conflict with proposed business and resource extraction activities of provincial or federal businesses.

It gives another argument for aboriginals to use to prevent exploitation of land for resource extraction where aboriginals live on that land.

Again I don't like the way the media is calling it land title rights. Its more land occupation rights.It recognizes the fact that since aboriginals occupy and use the land their right to continue doing that is not superceded by businesses wanting to use the land as well.Its a misnomer to call it land title. They haven't granted ownership, they have simply continued o recognize their right to continue using the land as they always have without others violating that right. Again its not "owning" the land, its the right to benefit from living on that land.

No one is giving a deed to the land. They are saying honour the aboriginal use of the land, it pre-existed your business proposal and can't just be set aside because you want to engage in a profit activity on that same land.

True, it is Aboriginal title, which is a different thing than what we call 'property title'.

In development and use of the land, the 'duty of the Crown to consult and to accommodate Aboriginal rights' exists to varying degrees, depending on the strength and nature of the Aboriginal claim - their pre-contact use and occupation of the land. Aboriginal Title is the strongest claim.

Certainly this and other rulings have caused "conflict" with business uses of land.

However, my sense of the business community is that they welcome such rulings that give more clarity going forward: They want to know what the rules are, what they have to do, and get on with planning and implementing their projects, following whatever laws and policies are required.

"Conflict", where it has occurred, was a result of lack of legal clarity and lack of government leadership, imo.

This will help.

Also ... autonomy for Indigenous Ppeoples of Canada - getting out from under federal control and dependency - will be facilitated by their right to participate in and benefit from developments on their traditional lands.

.

Edited June 26, 2014 by jacee

[hitops]

Also ... autonomy for Indigenous Ppeoples of Canada - getting out from under federal control and dependency - will be facilitated by their right to participate in and benefit from developments on their traditional lands.

Benefit from? If you mean get cash from, then yes. Benefit from? Not likely, over many decades of many example of free handouts, very little benefit has resulted. One more source of free unaccountable cash will not change that, it will probably just make it worse.

Autonomy over land will not result in less dependency. Many native groups have autonomy in many ways......and at the end of the day they still only survive with massive taxpayer handouts. If you gave full autonomy without handouts from the rest of us, native standard of living would plummet to Somalian levels.

They don't want to move forward socially. If they did, they would have done it already the same way every other Canadian does it (without any kind of land claims) - by their labor and discipline. What they really want is to be a mini-Saudi Arabia, rent-collectors from natural resource wealth. That hasn't worked in Saudi Arabia very well - the entire country is run by foreigners because the Saudis are incapable of doing anything except sitting and collecting. Whether rich like them, or poor like the natives, the basic calculus remains the same. If you don't require any kind of personal effort or accountability, you won't get a well-developed, productive people. You will get a dependent, weak people, which is exactly what we have in both places.

Don't believe me? A huge political problem in Saudi right now is trying to get Saudis to do any real, productive work, known as the 'Saudiization' program by the King. They have never done it, and have no idea how. Being rich and having dominion over your own territory doesn't fix that if you have no need to be more than landlords.

Edited June 26, 2014 by hitops

[Smallc]

You know what I like about this ruling - it says that federal and provincial laws still apply on un ceded land, lending strong eight to the notion that's it's already under the control of the Crown and that aboriginal people are under the Crown.

[cybercoma]

You know what else is interesting? The decision implies that they are nearly equal to the government in decision making about their lands. That the government must prove a pressing need if it is to develop without consent and that it has a fiduciary responsibility to the First Nations when it does that.

[overthere]

Certainly this and other rulings have caused "conflict" with business uses of land.

However, my sense of the business community is that they welcome such rulings that give more clarity going forward: They want to know what the rules are, what they have to do, and get on with planning and implementing their projects, following whatever laws and policies are required.

There are two faces to such rulings. On one hand, it could be a strong lever to guarantee aboriginal economic participation and control over their traditional territory, assuming they can get an aboriginbal title certified. On the other hand, it could be a crushing blow to development in those places that want develpopment. Just owning or controlling the land does not guarantee prosperity. Large whacks of capital will be invested where the investors have a return. If it looks like too much hassle or not enough return, resource companies just go invest somewhere else. There are always plenty of candidate projects globally. I hope the former applies, but it is far from certain.

[overthere]

You know what else is interesting? The decision implies that they are nearly equal to the government in decision making about their lands. That the government must prove a pressing need if it is to develop without consent and that it has a fiduciary responsibility to the First Nations when it does that.

Section 35 and the many treaties already provide for the fiduciary responsibility to First Nations.

There has been a defacto recogintion of self government for 2o years, for those many First Nations who want much more control of their resources. The feds have in many ways stepped away from the relentless paternalism that has failed for a century or two. Self government has not solved everybodys woes, for sure, but it suits many First Nations far better than the alternative.

All this takes time, but overall things are moving along considering many First Nations are missing a generation or two of leadership.

[Smallc]

You know what else is interesting? The decision implies that they are nearly equal to the government in decision making about their lands. That the government must prove a pressing need if it is to develop without consent and that it has a fiduciary responsibility to the First Nations when it does that.

In unceded land certainly. No one should have claimed otherwise.

[August1991]

Its far too early to fathom the extent of its implications but I would say it continues the legal assumption the Supreme Court of Canada will give benefit of the doubt to and give wide interpretation in favour of aboriginal rights to land.

IOW, if I can prove that I am a direct descendant of Mozart, I am entitled to receive royalties for the use of his music today.

====

Make no mistake: This decision has nothing to do with "property rights" in any efficient legal sense and everything to do with rent-seeking, and modern politics.

Edited June 26, 2014 by August1991

[guyser]

IOW, if I can prove that I am a direct descendant of Mozart, I am entitled to receive royalties for the use of his music today.

Do you have a treaty with Mozarts govt that you could show us?

[eyeball]

You know what else is interesting? The decision implies that they are nearly equal to the government in decision making about their lands. That the government must prove a pressing need if it is to develop without consent and that it has a fiduciary responsibility to the First Nations when it does that.

I wonder what would happen in the case where a First Nation's decision impacts a non - 1st Nations person/community? Myself, I'd take it to the next level and assert my right's as an Earthling. I guess part of establishing that would involve something akin to the right to be forgotten that is evolving through different societies - a right to be overlooked and ignored by national governments. Inclusion should be an option that is up to an individual's discretion. I'm sure it will take a few hundred years to evolve but a good first step would be if Ottawa could come up with some sort of citizenship reform that seeks to even revoke it from those that were born with it. Here's hoping. I'd love to explore the limbo-land that would create.

The best thing about today's ruling is how it liquefies the ground underlying the misplaced concreteness weighing down the state. It's a beautiful thing.

[Rue]

I concur with Overthere's comments. To SmallC I would say this and I concede I am speculating at this early time, but to comment directly to what you said, certainly one legal interpretation will be what you have said yes, that any land not part of a pre-existing and uncontinued pattern of aboriginal use is up for grabs from the crown.

I personally do not think its as doomsday as some are predicting in terms of preventing development. I think however in regards to the pipeline in BC it does appear to open some new legal arguments aboriginals could use against the pipeline.

However there is nothing in these decisions that says if you can get consent from aboriginals you can't exploit the land they access.

Will it open up a new legal pretext for negotiations with aboriginals or simply make negotiations impossible now? Its hard to say.

In the past aboriginal leaders have looked the other way on certain agreements where their land was misused. To be fair, not all aboriginal leaders have acted in the best interest of their people. Some of course have pocketed large bribes and acted in corupt self serving ways like politicians of all walks of life have been known to do.

It seems to be if we could help develop and educate more leaders in the aboriginal community with education in sciences, medicine, law and business it would be a win win. They would be in a better position to understand what they negotiate and so better represent their peoples' best interests. That is easier said than done.

In theory, exploitation of land if done with proper environmental safe guards is a win win. It provides revenue for both the aboriginal people and profit for the businesses seeking to exploit the land.

Yes in some cases it may prove a barrier to econmic development. The same barriers to economic development could also be argued to prevent pollution and permanent environmental damage.

Its a fine balancing act. Entrepeneurs will find a way to negotiate with native peoples. They always do. Never under-estimate the minds of creative risk takers or aboriginals who understand the rules of the land. I think they create a necessary tension needed to deal with such development issues. I see them as like management and union. That tension in my personal opinion is not necessarily a bad thing. I would argue it can provide a valuable checks and balances exercise or as some call it a due diligence like process to assure the best results are achieved for all.

Edited June 26, 2014 by Rue

[Smallc]

The land is already crown. That was made quite clear.

[Argus]

You know what else is interesting? The decision implies that they are nearly equal to the government in decision making about their lands.

Not about their lands but about lands they are claiming they once occupied...

Edited June 27, 2014 by Argus

[jacee]

Reactions to the SCoC ruling ...

First Nations 'ecstatic' over historic Supreme Court ruling:

Aboriginal people across Canada celebrate Tsilhqot'in First Nation's win in Supreme Court ruling

Energy group says historic Supreme Court ruling brings clarity

british-columbia/ruling-over-land-in-bc-has-ripple-effects-across-canada

"They just cant keep making decisions without our consent and trying to start a coal mine in the headwaters of three major salmon-bearing rivers does not have our consent.

land-claims-court-ruling-reshapes-resource-sector-nationwide/

The Supreme Court is thorough:

In case anybody's thinking they'll put a rush on projects to get them going before a band gets a court hearing on their title ...

The government might have to retroactively cancel permission for a project if it was approved without consent prior to aboriginal title being established, the paragraph adds. Furthermore, legislation enacted before title is established may also be rendered inapplicable if it infringes on aboriginal title.

...

And at risk will be those projects that werent properly consultative ... If youve gone out and done a project where you just frankly have not followed those processes and governments have not followed and met their obligations, well, those projects would be at risk.

Edited June 27, 2014 by jacee

[jacee]

You know what I like about this ruling - it says that federal and provincial laws still apply on un ceded land,

Development only with consent, or with a much stricter test before the province or feds can approve developments on Aboriginal title land without consent.

http://o.canada.com/news/national/supreme-court-grants-aboriginal-land-claims

The case involved provincial forestry licenses that were granted in the claimed territory.

Justice McLachlin found that the province which argued that the licenses should be granted due to economic need as well as because of the requirement to attack the Mountain Pine Beetle infestation hadnt met the compelling and substantial test.

lending strong eight to the notion that's it's already under the control of the Crown

Canada has sovereignty over lands, but not absolute control - consent is needed, or a compelling and substantial need for Crown uses of Aboriginal title land.

and that aboriginal people are under the Crown.

That doesn't follow.

Sovereignty over lands is different than sovereignty over peoples. Indigenous Peoples never ceded or surrendered their sovereignty as peoples, and cannot be forced to.

They have rights to self determination and self governance.

And see here:

http://www.mapleleafweb.com/forums/topic/23721-white-people-cant-live-here-six-nations-racism/page-20#entry976231

Edited June 27, 2014 by jacee

[Smallc]

It's like this jacee - aboriginal people have the right I vote in Canafian federal elections, a right only extended to Canadians. Combine that with the reality that we now know the Crown has sovereignty over all of their lands, even the lands they haven't ceded and it becomes pretty clear.

[jacee]

It's like this jacee - aboriginal people have the right I vote in Canafian federal elections, a right only extended to Canadians. Combine that with the reality that we now know the Crown has sovereignty over all of their lands, even the lands they haven't ceded and it becomes pretty clear.

Canadian citizenship was (finally) extended to Indigenous Peoples, but they didn't give up any Aboriginal rights in accepting it.

I can see that you don't accept all of the responsibilities of being Canadian.

Is that because you are not?

.

[Smallc]

I've never said once that things shouldn't be honoured. My argument is that they're outdated and help no one, and you and I disagree on where the line is on what honour means.

[scribblet]

IMO this will have major implications for our economy, and it's not good.

How many people are aware of the major Algonquin land claim in Ontario which includes Algonquin Park and Ottawa. Right now they are saying nothing will be affected and private property will not be appropriated - sure.. wait a few years down the road, the fun is only just beginning.

http://www.lawtimesnews.com/201303252694/commentary/inside-queens-park-cottagers-miffed-at-lack-of-consultation-on-massive-land-deal

For those whose livelihoods the agreement may affect, however, the overriding issue is the unknown.
Somehow, having the Ontario government tell people to trust it just isn’t carrying any weight. But that’s no surprise. In the meantime, meegwetch for reading this far. (That means thank you in Algonquin.)

[Smallc]

This is only about unceded land, not contested land.

[jacee]

I've never said once that things shouldn't be honoured. My argument is that they're outdated and help no one, and you and I disagree on where the line is on what honour means.

I agree with the law.

"help no one"

In your opinion ...

Your attitudes are the paternalistic attitudes of the 1800's: "WE know what's best for THEM."

You need updating.

Edited June 27, 2014 by jacee

[jacee]

This is only about unceded land, not contested land.

Not true.

Link please.

.