What’s the Deal with Treaties

• What does Equality mean to you?

• Does Equality mean treating everyone the same?

Questions

• What is aboriginal title?• How does it conflict with Crown title?• What is a treaty?• Why has the land question in BC not been

resolved? Why did it take until 1991 to set up a process for negotiations?

• What are the items for negotiation? Why are these issue difficult to resolve?

• What are the alternatives to treaty negotiations?• What are the legal reasons for treaties?

Delgamuukw• On December 11, 1997 the Supreme

Court of Canada released its decision in Delgamuukw v. British Columbia. The decision marked the first time that the Supreme Court had ruled that the concept of Aboriginal title existed.

The Supreme Court laid out a number of principles relating to the following issues:

– Use of oral history to prove Aboriginal title. – The test for proving Aboriginal title – The content of Aboriginal title – Government's ability to infringe Aboriginal title – The province's ability to extinguish Aboriginal

title – The governments' duty in negotiations

•First Nations have traditionally recorded their histories orally. •First Nations histories that have never been written down.

Use of oral history to prove Aboriginal title

• The songs, stories, ceremonies and dances that form the heart of First Nations history, law and governance have been handed down from generation to generation.

• In Delgamuukw, the Supreme Court said that oral history could now be used to prove Aboriginal title.

The test for proving Aboriginal title

• The Delgamuukw decision does not grant Aboriginal title to any First Nation it outlined a test for proving it.

• The Supreme Court test has three parts: – Pre sovereignty occupancy – Continuity between present day and

pre sovereignty occupation – Exclusive possession of traditional

lands

The test for proving Aboriginal title

• Pre sovereignty occupancy • First Nations must prove that they occupied their territories at the

time when the British asserted sovereignty over their lands.• The Court set 1846 as the valid date for British Columbia. • To prove pre sovereignty occupancy, First Nations may use any of

the following: – Oral history – Archaeological and anthropological evidence – Traditional use studies – Evidence of houses or dwellings – Evidence of traditional resource use – In most cases, due to displacement and the various activities that have

taken place on the land since colonization, this evidence may be difficult to obtain.

The test for proving Aboriginal title

• Continuity • To pass the second part of the test, First Nations must

prove that their people have maintained a substantial connection with their territories from sovereignty to the present day.

• Some of these uses might include: – Trap lines – Fishing spots – Hunting grounds – Camps – Spiritual locations – Places used for specific cultural or governance activities.

The test for proving Aboriginal title

• Exclusive Possession of Traditional Lands • The third part of the test requires First Nations to

show that, prior to British sovereignty, First Nations controlled their territories by excluding or attempting to exclude others from using the land.

• Ways of meeting this test include: – Demonstration of traditional protocols – Demonstration of the joint use of territories, for

hunting for example. • The courts will only recognize aboriginal title if a

First Nation meets this three point test.

The content of Aboriginal title

• Aboriginal title applies to lands held collectively by a First Nation, with the underlying legislative jurisdiction held by the federal government.

• If a First Nation is found to have Aboriginal title, it has the exclusive use and occupation of the land over which the title applies. The Court said that land must be used in a manner consistent with the special connection of the people with the land. – For example, a First Nation cannot develop a

shopping mall on a hunting territory without surrendering their Aboriginal title over the land in question.

Government's ability to infringe Aboriginal title

• Infringement refers to the government's ability to restrict Aboriginal title or the use of Aboriginal title lands.

• The Crown may only infringe Aboriginal title provided that it can demonstrate that the infringement is in the best interests of "society" or that it is required for the regulation of resources.

The province's ability to extinguish Aboriginal title

• Only the federal government had the authority to extinguish Aboriginal title. This point is significant because it categorically dismisses the possibility of provinces unilaterally extinguishing Aboriginal title.

The governments' duty in negotiations

• The Supreme Court's often quoted phrase "let us face it, we are all here to stay" refers specifically to the Crown's duty to negotiate with First Nations. The Court urged governments to negotiate with First Nations and it placed

a duty on governments to negotiate in good faith.