LEGAL ASPECTS OF ABORIGINAL RIGHTS

Paul Tennant’s Questions:

- Did pre-existing title exist?

- Was title extinguished?

Some Other Issues to Consider:

- Legal Positivism Versus Natural Law.

- Communal Versus Individual Rights.

- Consultation.

The Royal Proclamationof 1763

A crucial starting point for considering the legal context of Aboriginal Rights is the Royal Proclamation of October 1763.

As Paul Tennant notes, the proclamation continues to be published along with the revised statutes of Canada (Appendix No. 1; The Royal Proclamation, October 7, 1763,” Revised Statutes of Canada 1970 [Ottawa, Queen’s Printer 1970], 123-9 (cited hereafter as Proclamation).

“The proclamation recognizes Indians as “Nations or Tribes”; it extends British Sovereignty and protection over Indians to the west of the existing colonies; it asserts that the Indians are not to be interfered with; and it acknowledges the Indians as continuing to own the lands with they have used and occupied.” p. 10

As Tennant notes, according to the document there is no contradiction between British sovereignty and continuing Indian land ownership.

The nations or tribes are clearly recognized as “in possession of” the lands they have used and occupied.

Evidence for Indian ownership is provided in procedures for the sale of Indian lands:

“If at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians.”

THE CALDER CASE/The Nisga’a Land Claim

• The Nisga’a asked Berger to go to court in an attempt to get a judicial decision declaring that their “aboriginal title had never been lawfully extinguished.

• The province argued that the Royal Proclamation did not apply and therefore had not created Indian title.

• Further it argued that even if there had been such title it had been extinguished implicitly, by land legislation passed before 1871.

The Nisga’a lost this round of argument, which was held in the Supreme Court of B.C. (Calder et al. v. Regina, 1969).

B.C. Chief Justice H.W. Davey stated that the:

Nisga’a “were undoubtedly at the time of settlement a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property”.

Davey viewed the proclamation as the only possible source of aboriginal title and interpreted the proclamation as not applying to British Columbia.

The Nisga’a instructed Berger to appeal the case to the Supreme Court of Canada. The decision of the Supreme Court of Canada was mixed.

On the issue of “pre-existing Indian title” the six judges who ruled on this matter, ruled unanimously against the province, in favour of the Nisga’a

Three of the judges accepted the proclamation as extending to the Pacific and as affirming pre-existing aboriginal title as a legal right.

The other three, concluded that the proclamation did not apply to B.C. but never the less, argued that title existed:

As one judge put it, “The fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means.”

As Tennant notes, the courts recognition that the Nisga’a had held title to their land when the colonial government came into existence in 1858 was an important moral victory for the Nisga’a.

The judges split regarding current title. Three judges argued that there was no evidence that title had been explicitly extinguished.

The other three judges argued that implicit extinguishment had occurred.

The decision was a tie, and thus in practical terms the N had lost.

However, the details of this case were thought to be foreshadowing of future cases. The province had clearly lost the argument that pre-existing title did not exist. The fact that three jurors felt that title still existed, prompted the federal government to agree to negotiate where title had not been explicitly extinguished.

THE GUERIN/MUSQUEUM GOLF

COURSE CASE

The Guerin case, was a case brought forward by Delbert Guerin who was chief of the Musqueum Indian Band. The Band sued the Department of Indian Affairs for breach of trust regarding their dealings with the Musqueum Golf Course.

The case was originally brought to the Federal court in 1975. The case worked its way through several layers of courts until the Supreme Court of Canada. The final decision regarding this case was given in November 1984 by the Supreme Court of Canada.

As Tennant puts it, the Supreme Court of Canada reaffirmed the argument that had first appeared in the Calder case, that aboriginal interest in the land in B.C. is a “pre-existing legal right” that is based on aboriginal practice and not from British or Canadian legislation.

THE MEARES ISLAND/Nuu’Chah’Nulth versusMacMillan Bloedel Case

Three weeks after the Guerin case, the Nuu’Chah’Nulth Indians and others blockaded a logging road on Meares Island, and therefore prevented MacMillan Bloedel from continuing its logging operations.

The Nuu’Chah’Nulth lost in the B.C. Supreme Court, but then won when the case was taken to the B.C. Court of Appeals.

In 1985 the B.C. Court of appeals granted an injunction to halt logging on Meares Island.

Part of the original ruling of the BC Supreme Court was that

“halting logging would have ‘potentially disastrous consequences’ across the province, and that clear-cut logging on Meares Island would cause no unacceptable harm to any Indian interest …”

On this point the judgement of the court of appeal contrasted dramatically,

As one judge put it:

“The proposal is to clear-cut the area. Almost nothing will be left. I cannot think of any native right that could be exercised on lands that have recently been logged. ... I am of the view that the claim to Indian title cannot be rejected at this stage of the litigation.

The main message of this court ruling was that there was substance to Indian claims. Previous governments and courts had failed to deal with these claims. And, that the province should negotiate with Indians.

Following the Meares Island case, injunctions were granted to Native groups against a number of natural resource development projects. As Tennant notes, the injunctions prompted the major resource development corporations to begin considering whether their own interests would not be better served by the provinces negotiating with the Indians.

THE 1982CONSTITUTION ACT

In 1982, the Canadian constitution was repatriated or officially brought home to Canada. As Douglas Sanders notes, the Constitution Act, 1982, contains three sections on aboriginal peoples.

The most significant section 35 which recognizes and affirms existing aboriginal and treaty rights.

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this act, “aboriginal peoples of Canada” includes the Indian, Inuit, and Metis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Tennant notes that this section leaves open for the courts the question of whether unextinguished title is a continuing aboriginal right.

Section 35 of the constitution is important for a case known as the Sparrow Case.

THE SPARROW CASE

This case arose when Ronald Sparrow, a Musqueum, was charged with contravening federal regulations while fishing in the Lower Fraser River. The location was not part of a reserve, nor did any treaty apply.

In 1986, the Court of Appeal ruled unanimously that section 35 (1) meant that an aboriginal right to fish for food continued to exist in non-treaty areas of the province.

As described in Tennant, the Appeal Court based its decision on the fact that the Indians’ right “to fish for food in their traditional fishing grounds ... has always been recognized.”

This was a further blow to the provincial government who had intervened in the case to argue that no aboriginal right could still exist in B.C.

In 1990, the Supreme Court of Canada upheld this ruling and recognized aboriginal food fishing rights. These rights are only subject to conservation considerations.

THE DELGAMUUKW/Gitksan--Wet’suwet’en Case

One of the most important recent cases is Delgamuukw v. The Queen, which was brought by the Gitksan and Wet’suwet’en people to try to force the province to negotiate a treaty.

As Sanders notes, 51 hereditary chiefs claimed “ownership” and “jurisdiction” over traditional territories. The trial lasted 374 days, from May 1987 to June 1990. Judgement was issued in March, 1991.

In this case, lawyers acting on behalf of the provincial government, again made the argument that B.C. Indians have been treated fairly.

In 1991, Chief Justice Allan McEachern, rejected the existence of present day aboriginal title and right to self-government.

In his decision, he echoed the comments of previous judges and politicians in declaring that traditional aboriginal life was primitive and brutish. He depicts the G/W as primitive peoples who had neither law nor government.

In 1993, the B.C. Court of Appeal partially reversed the McEacheran judgement in Delgamuukw. The court in its ruling argued that a limited form of aboriginal title (non-exclusive use and occupancy) continues to exist in non-treaty areas.

As Tennant notes, this is the first time that any court in Canada has recognized present-day aboriginal title.

Tennant further notes, that the court denied aboriginal right to self-government.

This latter ruling was been appealed to the Supreme Court of Canada, and a judgement was handed down in late 1997.

First of all, it should be noted that the decision did not decide the Gitksan-Wet’suwet’en land claim -- but instead sent the case back to the trial court for a new trial.

The G-W will have to undertake a new court challenge to establish whether they have aboriginal title to the land they claim.

However, the Supreme Court broke new ground in explaining the law in relation to aboriginal title.

The court explained that aboriginal title was different from aboriginal rights.

Aboriginal rights are rights to do something (hunt, fish) whereas aboriginal title are rights to the land itself.

The Court explained that where a First Nation has aboriginal title, it has the right to exclusive use and occupation of the land.

In such cases it is not restricted to traditional uses -- as long as “new uses” are not incompatible with the traditional uses that the FN identified as part of its claim.

The court also stated that Aboriginal title will have to be established on a case by case basis. The nature of rights and title will vary from FN to FN.

FNs must demonstrate that it had exclusive use and occupation of the land at the time that British sovereignty was established. (1846 in B.C.)

Also, some degree of continuity of connection with the land must be shown.

The Court argued that oral history is important and should be given “independent weight” and “placed on an equal footing” with historical documents.

The Court also ruled that Aboriginal rights are not absolute. Aboriginal title may be infringed by the P or F crown under certain circumstances.

Aboriginal Rights and Title Based on the Delgamuukw Case

ORDINARY LANDOWNERSHIP

ABORIGINALTITLE

Who can ownThe land?

An individual orgroup

A common group; there areno individual rights toaboriginal title

Can the ownerSell the land?

Yes May sold only to the federalCrown

What limits arethere on land use?

Zoning, and otherprovincial andmunicipal laws

Use must not impairtraditional use of the land byfuture generations

What laws protectthe land?

Common law andprovincial statutes

Common law and theCanadian constitution

Haida versus B.C. and Weyerhaeuser, 2002.

In 2002, a case initiated by the Haida reached, and was decided upon by the Court of Appeal for British Columbia.

The B.C. Ministry of Forests had replaced T.FL. 39 in 1995 for MacMillan Bloedel, and in 2000 when the T.F.L. was transferred to Weyerhaeuser who had bought out MacMillan Bloedel.

In addition to these replacements, the Haida had also objected to a replacement that had occurred in 1981.

The Haida claimed that they had aboriginal title and rights on the land covered by the T.F.L and that this was a legal encumbrance upon the crown that should have prevented them from replacing the T.F.L. without consulting and accommodating the Haida

The Crown and Weyerhaeuser argued that there was no obligation to consult with the Haida about logging on the Queen Charlotte Islands until the Haida had legally proved their title and rights in court.

The original court, the B.C. Supreme Court, accepted this line of argumentation.

However, the B.C. court of appeal were to draw a different conclusion. The decision of the Court of Appeal was written by Justice Lambert.

In terms of conclusions about the evidence the original court stated the following:

(a) The Haida people have inhabited the Queen Charlotte Islands continuously from at least 1774 to the present time.

(b) At the time of the assertion of British sovereignty in 1846, and likely for many years before then, the Haida were the only Aboriginal people who lived on the Queen Charlotte Islands.

(c) From 1846 to the present time, the Haida have been the only Aboriginal people living on the Queen Charlotte Islands.

(d) The Haida have never been conquered, they have never surrendered their Aboriginal rights by treaty, and their Aboriginal rights have not been extinguished by federal legislation.

(e) For more than 100 years, the Haida have claimed to possess Aboriginal title to all of the lands comprising the Queen Charlotte Islands.

(f) From a time which is uncertain, but which pre-dates 1846, up to the present time, the Haida have used large red cedar trees from the old-growth forests of the Queen Charlotte Islands for the construction of canoes, houses, and totem poles, and have also used red cedar for carving masks, boxes, and other objects of art, ceremony, and utility.

(g) Since before 1846, the Haida have utilized red cedar trees obtained from old growth forests on both coastal and inland areas of what is now Block 6 of T.F.L. 39.

(h) Red cedar has long been, and still is, an integral part of the Haida culture.

(i) Old growth red cedar timber has been, and will in the future continue to be harvested from Block 6, pursuant to T.F.L. 39.

(j) For a number of years, the Haida have expressed their objections to the Crown, to the rate at which the old-growth forests of Haida Gwaii are being logged off, the methods of logging being used, and the environmental effects of the logging on the land, watersheds, fish, and wildlife.

(k) Since the decision of the Court of Appeal in Delgamuukw on June 25, 1993, the Province has known that there was no blanket extinguishment of Aboriginal rights in British Columbia.

(l) Since at least 1994, the Province has known that the Haida objected to T.F.L. 39 being replaced without their consent and without the reconciliation of their title with Crown title.

(m) Since 1994, and probably much earlier, there has been available to the Province a significant body of evidence that indicates the Haida people exclusively occupied and used both coastal and inland areas of the Queen Charlotte Islands, including some of the coastal and inland areas of Block 6, since before the assertion of sovereignty in 1846, and evidence that indicates the importance of red cedar in the Haida culture.

(n) Since the Court of Appeal's decision on November 7, 1997, in Haida Nation v. British Columbia Minister of Forests [1998] 1 C.N.L.R. 98, the Province has known that, if the Haida proved their claim of Aboriginal title, their title would constitute an encumbrance on the timber on Block 6.

The original court dismissed the case because the Haida had not proved title. But they suggested that the Crown is under a moral if not a legal duty to consult with Aboriginals.

The B.C. Court of Appeal took into consideration the results of a similar case that had concluded shortly before the present one began – The Taku River Tlingit Case.

In the Taku case the judge decided that there was an obligation on the Crown to consult the aboriginal people who had claimed title and rights – even if they had not yet proved these in court.

In the view of the B.C. Court of Appeal the roots of the obligation to consult:

[33] In my opinion, the roots of the obligation to consult lie in the trust-like relationship which exists between the Crown and the aboriginal people of Canada. That trust-like relationship was reflected in the Royal proclamation of 1763:

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, 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.

[34] The trust-like relationship is now usually expressed as a fiduciary duty owed by both the federal and Provincial Crown to the aboriginal people. Whenever that fiduciary duty arises, and to the extent of its operation, it is a duty of utmost good faith.

The B.C.C.A cited a number of previous cases to document this fiduciary obligation including Guerin and Delgamuukw (amongst others).

The B.C.C.A distinguished between the ability to deliver a conclusive determination of whether title and rights have been infringed upon legally, and the fiduciary duty to consult.

Conclusion

The BC.CA concluded that:

Both the provincial government and Weyerhaeuser had an obligation to consult the Haida people in 1999 and 2000 about accommodating the aboriginal title and aboriginal rights of the Haida people when consideration was being given to the renewal of TFL 39 and Block 6.

[49] In this case, the obligation to consult and to seek an accommodation arose from these circumstances:

a) The Provincial Crown had fiduciary obligations of utmost good faith to the Haida people with respect to the Haida claims to aboriginal title and aboriginal rights;

b) The Provincial Crown and Weyerhaeuser were aware of the Haida claims to aboriginal title and aboriginal rights over all or at least some significant part of the area covered by T.F.L. 39 and Block 6, through evidence supplied to them by the Haida people and through further evidence available to them on reasonable inquiry, an inquiry which they were obliged to make; and

c) The claims of the Haida people to aboriginal title and aboriginal rights were supported by a good prima facie case in relation to all or some significant part of the area covered by T.F.L. 39 and Block 6.

[50] In reaching the conclusion that the Haida people had a good prima facie case to a claim for aboriginal title and aboriginal rights, I rely on these findings of the chambers judge made following his assessment of the evidence:

[47] In my opinion, there is a reasonable probability that the Haida will be able to establish Aboriginal title to at least some parts of the coastal and inland areas of Haida Gwaii, and that these areas will include coastal areas of Block 6. As to inland areas of Block 6, I would describe the Haida's chance of success at this stage, as being a reasonable possibility. Moreover, in my view, there is a substantial probability that the Haida will be able to establish the Aboriginal right to harvest red cedar trees from various old-growth forest areas of Haida Gwaii, including both coastal and inland areas of Block 6, regardless of whether Aboriginal title to those forest areas is proven.

[48] I am also of the opinion that a reasonable probability exists that the Haida would be able to show a prima facie case of infringement of this last-mentioned right, by proof that old-growth cedar has been and will continue to be logged on Block 6, and that it is of limited supply.

[52] In my opinion, the obligations to consult and seek an accommodation with the Haida people were enforceable, legal and equitable duties at the relevant times in 1999 and 2000 of the Crown Provincial, MacMillan Bloedel, and its successor, Weyerhaeuser. The chambers judge has found as a fact that the Haida people were not consulted when the replacement of T.F.L. 39 and its transfer to Weyerhaeuser occurred, and that the Haida people objected to the replacement and to the transfer. No accommodation with the Haida people was sought by the Crown, by MacMillan Bloedel, or by Weyerhaeuser. In my opinion, the Crown Provincial and Weyerhaeuser were in breach of these enforceable, legal and equitable duties to the Haida people.

Thus the provincial government, and the forest company have a legal duty to consult and to accommodate the First Nation. This duty stems from the probability that the First Nation (the Haida) have title and rights in the TFL area, and from the fiduciary obligations that the government has to ensure the interests of the First Nation are protected.

The court decided, however, that it does not follow that the replacement of the TFL and its transfer to Weyerhaeuser are either invalid or void.

The court stated, however:

[60] However, I would grant a declaration to the petitioners that the Crown Provincial and Weyerhaeuser have now, and had in 1999 and 2000, and earlier, a legally enforceable duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown and Weyerhaeuser to manage T.F.L. 39 and Block 6 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.

The court also stated that the plaintiffs might bring similar issues to the court in the future, and that the nature of consultation and accommodation would likely have an impact on the details of any future decisions.

This case has since been appealed to the Supreme Court of Canada, and a decision is expected sometime in the next year.