When Canada was being settled the Dominion Government, or Federal Crown, assumed the responsibility of purchasing lands directly from Aboriginal Peoples and negotiating treaties. When Canada was formed upon Confederation, this role of the Federal Crown was incorporated into Canada’s Constitution Act of 1867 and provided it, and not the provinces, with authority over “Indians and lands reserved for Indians”. The Dominion (federal) government began to negotiate treaties across Canada, but failed to do so in British Columbia.
Title over lands and natural resources was vested in the provinces with an important limitation: Provincial title was subject to “any other interests other than that of the Provinces”. As early as 1880, Courts have confirmed that provincial Crown Title was subject to Aboriginal Title, which means that the Provinces obtain clear and complete title when Aboriginal Title is addressed.
In 1982, the protection of Aboriginal Rights and Aboriginal Title was entrenched in Canada’s Constitution Act, 1982, in section 35. Courts have interpreted section 35 of the Constitution Act as sanctioning challenges to government legislation and regulations where power is being exercised in a manner that affects Aboriginal Rights and Title or Treaty Rights, and providing an opportunity to reconcile Aboriginal and Crown title.
In 1997 Canada’s highest court confirmed that Aboriginal Title was not extinguished in BC. The court also held that Aboriginal Title is a right to occupy the lands, is an interest in the land itself (not just a collection of rights to hunt, fish, trap), and is held collectively. The Supreme Court of Canada confirmed that Aboriginal Title pre-dates Canadian sovereignty, and is derived from aboriginal peoples’ historic use and occupation of the lands. The court also identified an “inescapable economic component”, as well as an “inherent limit”. This “inherent limit”, or sustainability limit, reflects the traditional First Nations’ respect for nature and the world. Canadian Aboriginal law provides a unique opportunity to apply sustainability principles into the long-term management of the land and marine environments.
Only a small portion of the lands in British Columbia are subject to treaties. In many cases, this leaves First Nations with limited or no access to lands that once sustained their vibrant cultures, and without access to an economic land base. This dispossession, taken together with the history of residential schools, Canadian laws outlawing both cultural practices and the freedom to bring litigation to challenge the taking of aboriginal lands without first addressing Aboriginal Title and social pressures to leave traditional ways behind and assimilate into Canadian society, has resulted in socio-economic conditions far below national averages.
True reconciliation of Aboriginal Peoples may only be achieved if efforts are made at the individual level — each person taking steps to understand other cultures and other ways of being with the land, and taking active steps to make the world a better place for all peoples.
Terri-Lynn Williams Davidson General Counsel, Haida Nation
‘OCCUPIED’ IMAGE WAS CREATED BY RENOWNED ARTIST ROBERT DAVIDSON, CM, OBC.