Two World Views in Law Historical and Contemporary Legal Decisions Surrounding Aboriginal Title and Rights

UBCIC Aboriginal Title and Rights Position Paper (1978) The Sovereignty of our Nations comes from the Great Spirit. It is not granted nor subject to the approval of any other Nation. As First Nations we have the sovereign right to jurisdiction rule within our traditional territories. Our lands are a sacred gift. The land is provided for the continued use, benefit and enjoyment of our people, and it is our ultimate obligation to the Great Spirit to care for and protect it.

An Elder Speaking About the Law of the Land (1975) “The Land is the Culture” - UBCIC Land_is_the_Culture_001.wmv

Aboriginal Title  The Supreme Court of Canada said that Aboriginal Title protects the relationship between Indigenous Peoples and their territories.  Aboriginal Title is more than the right to practice specific activities (hunt, fish) on the land. It is a right to the land itself.  Aboriginal Title exists from the fact that Indigenous People were the Original People on the land now known as Canada.

Aboriginal Title Includes:  The right to make decisions about the land.  Economic development opportunities that evolve to reflect modern uses of land.  A group interest in the land held by Indigenous Nations, not by individual people.  An understanding that Aboriginal Title is “Sui Generis,” which means it is unique from all other types of property interests.

Indigenous Sovereignty  Indigenous Sovereignty is the inherent right and responsibility of Indigenous Nations to care for and protect traditional lands and resources, to govern themselves, and to enter into relationships with other Nations of Peoples, guided by their own laws and legal traditions.  Indigenous Nations, with their own laws, territories, economies, and societies were already here when newcomers arrived.

Indigenous Law and Expression  Indigenous laws and systems of land ownership are unique to each Nation’s customs, and oral traditions.  Each Nation has its own expressions of laws.  Laws are not written into statutes, rules, and regulations. Laws are understood through custom, legend, ceremony and oral tradition.

Indigenous Law Is Realized As:  Land and water are respected and Indigenous people have a responsibility to conserve resources for future generations.  Laws about land, living and the supernatural world are expressed and recorded through song, dance, story, carving and/or ceremony.  Laws are carried forward through Indigenous languages and speeches at feasts, longhouses, potlatches, and collective ceremonial gatherings.

Indigenous Law vs Western Law  Indigenous laws and relationships to land differ from Western notions of land as “property.”  Land is not a possession or commodity to exploit or sell.  “Our Land is Our Culture” (UBCIC) affirms that Indigenous relationships to land are inseparable from Indigenous culture and must be reflected in law.

Indigenous Homeland  ‘Ownership’ for Indigenous people involves understanding the connection to their homeland. The connection to homeland is demonstrated through cultural practices and Indigenous language.  Homeland is not simply ‘land’ but everything in one’s world: land, water, air, stars, people, animals and the spirit world.

Philip Paul discusses colonization and the differences between native and non-native attitudes to land (1975) – UBCIC The_Land_is_the_Culture_002.wmv

Royal Proclamation, 1763  Royal Proclamation 1763, required British/French Governments (colonial governments) to negotiate treaties with Indigenous Nations before newcomers could take interest in the lands.  It affirmed that Aboriginal Title to land and resources exists as they are the Original People of the land.  Canadian Federal and Provincial Governments have ignored the laws of the Royal Proclamation in BC, by not signing treaties.

Constitution Act, 1867  Under Section 91 (24) of the Constitution Act, 1867, the Federal Government became legally responsible to make decisions about “Indians, and lands reserved for the Indians.”  All other lands and resources became the responsibility of each Province.  To this day, the Indian Act and Section 91 (24) remain under Federal jurisdiction.

Indian Act, 1876  Federal legislation first passed in 1876 to manage and control Indigenous People.  Intended to replace early treaty making policy and assume control over Indigenous land.  Allowed the Government to remove Indigenous People from their traditional land onto reserves.  Outlawed Indigenous forms of governance and land ownership.

Treaties  In Canada, with the exception of BC, treaties were signed between the Federal Government/British Crown and Indigenous Nations.  These treaties were in recognition of Indigenous Rights and Title to land as outlined by the Royal Proclamation,  The only treaties signed in BC are the “Douglas Treaties” on Vancouver Island, and “Treaty 8” in North-eastern BC.

Sir James Douglas  Governor of Vancouver Island and Governor of BC  Signed the “Douglas Treaties.”

Canadian Laws Against Indigenous People  Terra Nullius The argument made by Governments in legal disputes that Aboriginal Title to land did not exist because the land was “empty” or “vacant.” The argument that Indigenous Nations were primitive and uncivilized, and were not capable of managing or having laws to govern the land.

Canadian Laws Against Indigenous People  Doctrine of Discovery That Aboriginal Title was simply extinguished when newcomers came upon the land lived on and governed by Indigenous People, because it had been “discovered.”  Doctrine of Adverse Possession The Province extinguished Aboriginal Title by declaring other interests in the land and resources.

Canadian Laws Against Indigenous People  Passage of Time That Aboriginal Title “died of old age.” It did not exist anymore because it was in the past and too much time had passed for Aboriginal Title and Rights (as declared in Royal Proclamation) to be valid. All of these arguments were used in law to avoid having to sign treaties with Indigenous People.

Chief Saul Terry on the relationship between Canada and First Nations. - UBCIC ChiefSaulTerryspeakingfortheNoSideonthe Charlottownconstitutionalreferendum/V wmv

Indian Reserves  Indian Reserves are land set aside for Indigenous People that Canada holds in trust.  Indigenous People do not own reserve lands.  At the time of the Indian Act, 1876, Indigenous People were not allowed to leave reserve lands, and it was illegal for them to hire lawyers to try and acquire their lands back.

Tahltan Indians, Cassiar District. Map of Reserves 1, 2, 10.

Chief Simon Baker on reserves and Aboriginal Title (1977) – UBCIC

Fiduciary Relationship  The Federal Government has a Fiduciary Duty to Indigenous Peoples’ interest in land.  The Crown, as fiduciary, must act and make decisions in the best interest of Indigenous People.  Other examples of fiduciary relationships are “client and lawyer” or “patient and doctor.”

Calder v. Attorney-General of BC, 1973 Supreme Court of Canada  Dr. Frank Calder, Nisga’a, defended that Nisga’a People have an Aboriginal Right to the resources of the Nass watershed because of their Aboriginal Title.  Supreme Court of Canada landmark decision that determined Aboriginal Title exists on the basis of the fact “that when settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries” (UBCIC, 2007).

Dr. Frank Calder, Nisga’a

Doug Sanders on Land Claims, Calder Case, and Treaties. ExcerptfromTheLandisthecultureacaseforBCIndianlandclaimsclip008/ The_Land_is_the_Culture_008.wmv

Constitution Act, 1982  Canada formally removed itself as a British colony and became entirely self-governing by replacing British North America Act with the Constitution Act of  Section 35 of the Constitution protects Aboriginal Title, Rights, and Treaty rights: “The existing Aboriginal and Treaty rights of Aboriginal peoples of Canada are herby recognized and affirmed.”

Purpose of Section 35 of the Constitution is:  To ensure Indigenous Peoples survive as unique Peoples with their own culture and traditions.  To address the history of injustice against Indigenous People through the denial of Aboriginal Title, Rights and Treaty Rights.  To protect the “cultural security and continuity” of Indigenous societies.

Delgamuukw v. British Columbia 1997 Supreme Court of Canada  The Supreme Court of Canada landmark decision in Delgamuukw v. British Columbia ruled for the first time that Aboriginal Title continues to exist.  Aboriginal Title was not extinguished by the assertion of Canadian sovereignty or Provincial laws.  Aboriginal Title is protected by Section 35 of the Constitution Act, 1982.

Gitksan Wet’suwet’en Territories in BC

Oral Tradition as Evidence  In Delgamuukw v. British Columbia, the Gitksan and Wet’suwet’en Nations introduced their oral traditions as evidence to show their ownership and jurisdiction to their lands.  The Supreme Court acknowledged that oral tradition (knowledge shared through story, song, dance and ceremony, and is not written) is valid evidence in court.  Oral Tradition must be given equal weight in court as written documents.

“If the culture, identity and spirit of Indigenous Peoples are to survive, the land must be maintained with respect and understanding among all peoples in these lands.” - UBCIC Our Culture Lives in the Land.