What's in a name? A lot if you’re talking Aboriginal title

If the Tsilhqot’in ruling’s implications on Aboriginal title can help bring First Nations into a more equal partnership with the rest of Canada, then all Canadians have something to be thankful for. 

Elizabeth Grant
2 July 2014

First Nations groups in Canada declared a significant victory last week, after the Supreme Court granted British Columbia’s Tsilhqot’in First Nation title to an area of land outside of their reserve totalling over 1000 square miles. Many see the Tsilhqot’in (pronounced Chil-co-teen) ruling as something that will have an impact all over Canada, and it is certain to have a major effect on Canadian resource development, much of which takes place on land where there are territorial claims.

Aboriginal title refers to the unique, collective ownership by a First Nation of a land or territory, ownership recognized on the basis of ancestral use. By contrast, reserves are much smaller tracts of land held in trust by the Crown for the exclusive use of a First Nations band. Band members have the right to live on reserve lands, but as the 1876 Indian Act that helped to establish First Nations reserves states, reserves belong to the Ministry of Indian (now Aboriginal) Affairs.

The concept of title in (what is now) Canada dates back to 1763, when the British Crown issued The Royal Proclamation, a document that stated North America belonged to King George III, but outlined Aboriginal title as a form of co-existing claim. Such title could only be extinguished by treaty with the British crown: meaning that while the Crown could negotiate with First Nations to obtain full ownership of a piece of land, private settlers could not do the same thing. If the concept of the King owning everything except Aboriginals sort of owned some of it too seems a bit fishy and vague, that’s because it was.

The resultant difficulties in clarifying and establishing what exactly title meant under the Crown and later the Canadian legal system must be seen in the context of the vastly divergent attitudes towards land ownership and property held by colonizers and First Nations. While Europeans viewed private property ownership as a natural thing to which one would aspire, and a way to participate in society, First Nations generally saw themselves as belonging to the land. Property ownership was in every way a foreign (even distasteful) concept to Aboriginals, and so it cannot be underestimated how much this difference in worldviews may have skewed attempts to negotiate in good faith, let alone negotiations where good faith was not present.

Under the auspices of resolving issues of outstanding title, treaties stating the nature and limits of title were signed between Crown representatives and Aboriginal leaders from the eighteenth continuing even into the twentieth century. Often, these treaties had the effect of curtailing or voiding title, and thus a tribe’s ability to continue using the land as they had long done—an effect that many have argued Aboriginal signatories did not fully appreciate at the time of negotiation.

The 1888 decision in the case of St. Catherine’s Milling and Lumber Co. v. the Queen was, for nearly a century, the authoritative ruling on Aboriginal title in the Canadian courts. Crucially, the ruling described title as something that had been granted to Aboriginals at the pleasure of the Crown, rather than being an acknowledgment of a claim based on historic occupation. Further, it meant that the Crown could extinguish title at whim.

Things began to change with the decision in the case of Calder v. British Columbia in 1973. Here the judges of the court were split on whether or not Aboriginal title remained in existence, but they all agreed that the Nisga’a tribe title under consideration had existed at some point.

The 1997 ruling of Delgaamukw v British Columbia established a test for use in determining if a claim of Aboriginal title remained active, and under what conditions the Crown may be permitted to infringe upon the title. This decision also went some way towards clarifying what title means: not simply land use and occupation, title also confers some authority to the Aboriginal community that holds it to determine how the land will be used. Finally, the decision acknowledged the presence of a cultural relationship to the land, as well the historic and practical relationships.

Now after years spent making its way through the courts, the Tsilhqot’in case has resulted in a decision that goes even further. The test for determining the status of Aboriginal title claims in 1997 was deemed by the Tsilhqot’in trial judge to be overly strict, and apt to unjustly reduce the reach of Aboriginal title to pieces of land likened in size by the judge to ‘postage stamps.’ Despite this, procedural considerations at that stage prevented the judge from making an official declaration of title.

The Supreme Court’s ruling in this case is not only the first official declaration of title in Canadian history, the court has also reset the grounds on which title may be established, declaring it to be regular and exclusive use of the land claimed for title, prior to Canadian sovereignty. As part of their case, the Tsilhqot’in argued that they have been present in the contested area for over 250 years. Significantly, despite the fact that the six Aboriginal bands that make up the Tsilhqot’in were semi-nomadic, their consistent use of the same territory and practice of defending it from outsiders satisfied the Supreme Court.

The Tsilhqot’in case began in the 1980s, when a forestry company attemped to begin logging operations on two pieces of land where the Xeni Gwet’in band (part of the Tsilhqot’in First Nation) were claiming Aboriginal title. In 1989, the Tsilhqot’in launched action against the government, who had issued the forestry licenses.

In 1992, members of the 3000-strong Tsilhqot’in First Nation attempted to prevent the construction of a bridge to be used as part of the proposed forestry activity in the area by staging a blockade. Then-British Columbia premier Mike Harcourt eventually promised to obtain the consent of the Xeni Gwet’in before any further logging would be permitted in the area. Two years later, a portion of the contested land was made into a provincial park. The ruling of June 26, 2014 affects the remaining land claimed for title—itself only 5% of what the Tsilhqot’in consider to be their traditional territory.

Up until this decision, the government has had a duty to consult First Nations associated with an area proposed for resource development, even where title had not yet been established. The June 26 ruling found that the provincial government of British Columbia failed to uphold this obligation to consult when it granted the original logging licences in 1983. According to Pamela Palmater, a lawyer with the Centre for Indigenous Governance at Ryerson University and a member of the Mi’kmaq First Nation, the new ruling means ‘…it’s not just about the duty to consult anymore, this really changes it to a requirement to get consent over all unceded territory in this country.’

Chief Justice Beverly McLachlin states in the ruling that ‘This is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is a right to proactively use and manage the land.’

Despite this, Chief Justice McLachlin has included provisions for the government to act in opposition to First Nations’ wishes, but to do so they must prove that it is in the public interest, and that their actions are justifiable under the Constitution.

Furthermore, when title is established it will have retroactive application—meaning that resource development projects undertaken before title was declared and without consent may be cancelled.

Calgary lawyer Allisun Rana represents a number of British Columbia First Nations whose land covers a massive shale gas deposit that companies such as TransCanada Liquified Natural Gas would like to exploit. She credits the Supreme Court with recognizing the need for stronger direction and greater clarity throughout Canada’s courts in the face of myriad legal actions attempting to stop resource development on First Nations land: ‘They see a lot of [these Aboriginal cases opposing resource development] and again, again, First Nations have to return to the court. If this doesn’t tell governments what they should be doing, nothing will.’

That said, it is important to note that First Nations do not uniformly oppose resource development. Some coastal British Columbia First Nations have made agreements around liquefied natural gas developments—many others, however, continue to oppose the same projects.

The key is that Aboriginal communities must now be meaningfully brought into the process, and treated with respect by government and industry. The Grand Chief Stewart Phillip of the Union of British Columbia Indian Chiefs summed up the change this ruling will have on the landscape of relations between First Nations, industry and government, stating “Gone are the days of easy infringement and drive-by consultations.”

Tensions surrounding such ‘easy infringement’ have been especially high in the case of Enbridge’s proposed Northern Gateway project—a two-track pipeline to carry crude oil from Edmonton Alberta to British Columbia’s Pacific coast, covering what the project’s own website describes as ‘…a route that runs 1,177 rational and respectful kilometers.’ That’s approximately 730 well-behaved miles that also happen to cross four territorial claims.

In anticipation of the federal government’s June 17 decision to officially give their approval to the Northern Gateway Pipeline, Grand Chief Phillip and two other top First Nations leaders condemned the government’s disinterested approach to dialogue with their communities, saying such heavy-handed tactics to push the project through would ‘poison the well’ with respect to other, more positively-received projects being considered by First Nations.

The June 26 Supreme Court ruling now means that government will have to prove that such projects are indisputably in the public interest and Constitutionally justifiable—a far greater challenge than securing a unanimous vote from Cabinet.

The Supreme Court’s decision will have a particularly potent effect in British Columbia, where no land treaties were ever signed between the government and First Nations. In addition to a belief that the measure of legal respect finally being afforded to First Nations in Canada may motivate more bands to assert their interests, many lawyers working across the country believe that the ruling will find direct application further east as well.

Quebec Aboriginal rights lawyer James O’Reilly has represented a variety of First Nations in Quebec—including the Cree and Innu. According to him, land claims are currently being negotiated by nine separate groups in Quebec and—despite the fact that the ruling is not expected to apply to more developed areas that are no longer used traditionally—he believes that up to 40% of Quebec’s contested territory could be determined by this ruling.

Canada’s Atlantic provinces were the first areas settled by the British. There the British were outnumbered by First Nations who included Mi’kmaq and the Maliseet, and so often focused on signing ‘peace and friendship treaties’—the primary purpose of which was to tamp down hostilities between First Nations and colonizers. In 1999 the Supreme Court ruled that these treaties had no application for settling land issues on unceded land. Bill Gallagher, a former treaty rights negotiator and author of Resource Rulers believes that the June 26 ruling is likely to set precedent for these claims as well.

Gallagher stresses the significance of the Tsilhqot’in ruling across the country, saying that industries looking to exploit resources on First Nations territory are advancing their economic interests through exploiting ‘…the traditional territories of the most disadvantaged communities in the country. And they have been massively empowered by this ruling…’

Chief Roger William of the Xeni Gwet’in band has been involved in the Tsilhqot’in case since the beginning, fighting to protect the areas the Tsilhqot’in known as the Trapline Territory and Tachelach’ed. His reaction to the Supreme Court ruling expressed not only thanks but relief that their engagement in good faith with Canada’s highest court on this matter had been met with respect:

‘First Nations across this country have taken legal action, entered into treaty, practised their language and demonstrated use of the land and through this they have supported us—we thank you.’

If the Tsilhqot’in ruling can help bring First Nations into a more meaningful, equality-based partnership with the rest of Canada, then all Canadians have something to be thankful for. 

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