Aboriginal Title in Canada: Has the Supreme Court Moved Beyond the “Wandering Tribes” Approach? Research Seminar Series, TC Beirne School of Law, University of Queensland November 7, 2014 Ghislain Otis Ph.D University of Ottawa

Tsilhqot’in v. British Columbia, June 26, 2014 Basic Facts A grouping of six indigenous communities sharing common culture and history challenge a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory. The indigenous claimants seek a declaration prohibiting commercial logging on the land. They claim Aboriginal title to the land at issue and both the federal and provincial governments oppose the title claim. The Supreme Court of British Columbia holds that occupation has been established for the purpose of proving title to sites or territory within the claim area, as well as to a small area outside that area The Supreme Court of Canada upholds this ruling and grants a declaration of Aboriginal title over the area. It was the first time in Canadian legal history that the Court granted such a declaration.

Reaction to the Judgment The ruling was greeted with great enthusiasm by indigenous leaders across Canada who see it as a ‘game changer’ with respect to indigenous land claims in Canada. As a result, they now make a much more optimistic appraisal of their land rights in both negotiations with governments and litigation. Notices of eviction have been served on railway, mining and logging companies in British Columbia A declaration of ‘indigenous sovereignty over natural resources’ has been proclaimed by the Atikamekw people in Québec There is a widespead perception that the descendants of nomadic hunters and gatherers now have a much reinforced basis for their aboriginal title claims to extensive parts of Canada. This presentation aims to assess the validity of such perception.

THE PROPERTYLESS AND WASTEFUL HUNTER- GATHERER OF NORTH AMERICA Background

The Hunter and Gatherer in Colonial Legal Theory Locke held that “vacant land’ was land that was “uncultivated” and “unimproved”. Therefore, the state can grant rights to that land without the consent of the Indians De Vattel (1758) also argued that “When the nations of Europe discover lands which the savages have no special need of, and are making no present or continuous use of, they may lawfully take possession of them and establish colonies in them” Kant (1795). The uncivilised hunting and gathering peoples of North America lack a constitution, government and property because they have not made the transition to a life of agriculture. In their pre-constitutional state of nature they have a “lawless freedom of hunting, fishing and herding”

Hunters and Gatherers and Colonial Policy in Canada The vast majority of Indigenous Peoples in Canada were nomadic or semi-nomadic hunters-gatherers at the time of contact and assertion of sovereignty. In its dealing with indigenous peoples, the Crown was willing to negociate treaties but always assumed that indigenous peoples could not claim exclusive use and control of their vast ‘hunting grounds’ to the detriment of European settlement and colonisation. The fact that they were hunters -gatherers with virtually ‘infinite excess land’ was a key factor in justifying non-indigenous settlement in Indian Country as a more ‘productive’ and legitimate use of land. Reserves were created over a tiny proportion of traditional indigenous territories which otherwise were open to non-indigenous use and settlement. Beyond the limits of the reserves, only limited traditional harvesting activities could take place subject to the Crown’s right to take up land for settlement or resource extraction.

Hunters and Gatherers in the Colonial Common Law: Low on the Scale of Social Organisation Re Southern Rhodesia, 1919 A.C. 211, (Lord Sumner, at 233) ‘The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. …On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law.’

The Calder Case and Common Law Indian Title in Canada: Indigenous Peoples are ‘Organised Societies’ and Their Land is Not Vacant The Calder Case of 1973, SCR 313, at 328 recognised common law aboriginal title for the first time (J. Hall) “… 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 and it does not help one in the solution of this problem to call it a “personal or usufructuary right”. The Court recognises that Indian land is not ‘vacant’ but fails to determine the nature and extent of Indian title interests recognised at common law.

Modern Treaties and Hunters and Gatherers: Land not Vacant but Without an Owner Following the ruling in Calder, the Crown announced a policy of negotiating ‘comprehensive land claims’ in order to achieve legal certainty as to title to land and resources. Government policy is not to recognise exclusive aboriginal rights to own, use and manage land and resources over the traditional territory of the indigenous parties. Indigenous land is not ‘vacant’ but it remains ‘without an owner’. The first modern treaty was the James Bay and Northern Quebec Agreement which was concluded with the Cree and the Inuit (1975). Both the Cree and the Inuit were nomadic hunters-gatherers. The Agreement grants exclusive rights to use and occupy the land in a very small fraction of indigenous traditional lands and limited harvesting rights in the rest of such lands.

DO HUNTERS-GATHERERS OWN THEIR TRADITIONAL LAND? Constitutional Recognition

The Constitutional Recognition of Aboriginal Rights in 1982 Constitution Act, 1982 Part II - Rights of the Aboriginal Peoples of Canada 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. The constitution introduces the generic notion of « aboriginal rights » but is silent on the nature and extent of such rights. It does not define what aboriginal title is. This is left to be determined through negotiation or litigation. From then on, Parliament could no longer unilaterally extinguish aboriginal rights.

Judicial Definition of Indigenous Rights to Land: Affirming the Common Law Principle of Ownership The Supreme Court has applied a basic test of equivalence of claimed indigenous rights to ‘modern’ common law rights Both the aboriginal and common law perspectives must be considered but only claims that correspond to recognised common law rights can be upheld. In Marshall\Bernard, (2005) 2 S.C.R. 220, the Court writes: 51 In summary, the court must examine the pre-sovereignty aboriginal practice and translate that practice into a modern right. The process begins by examining the nature and extent of the pre-sovereignty aboriginal practice in question. It goes on to seek a corresponding common law right. In this way, the process determines the nature and extent of the modern right and reconciles the aboriginal and European perspectives.

Aboriginal Title: the Search for a Pre-colonial Owner (Delgamuukw, Marshall etc.) In order to prove aboriginal title, the group must show that its ancestors behaved like ‘owners’ of the land and considered themselves to be the ‘owners’ of the land. So it must be established that they made sufficient and exclusive use of the land at the time of the assertion of sovereignty. It must be showed that the pre-colonial group had exclusive control of the land which requires the intention and the ability to forcibly exclude unauthorised users of the land. Aboriginal title is akin to fee simple in that it confers on an indigenous people the exclusive right to control the land and its resources including the subsoil. It entitles the collective to use the land for any purpose, including commercial or industrial development, but control of the land cannot be alienated. The right of future generations to use and benefit from the land must also be preserved.

The Impact on Hunters and Gatherers: Can they Own their Traditional Territory? (Marshall/Bernard) 58 ‘It follows from the requirement of exclusive occupation that exploiting the land, rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity was sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal hunting and fishing rights exercised in a particular area will translate to a hunting or fishing right. … Their forebears had come back to the same place to fish or harvest each year since time immemorial. However, the season over, they left, and the land could be traversed and used by anyone. These facts gave rise not to aboriginal title, but to aboriginal hunting and fishing rights.’

The Impact on Hunters and Gatherers (continued) Many nomadic hunters-gatherers had no permanent settlements and made seasonal use of the land and its resources. It is believed that some did not apply any doctrine equivalent to common law exclusive ownership. It is very likely that proving exclusivity at the time of the assertion of sovereignty will be an impossible task for several communities connected to precolonial groups of hunters- gatherers. This is shown by the large number of overlapping claims to extensive geographical areas, either before the courts and in treaty negotiations.

HAS THE SUPREME COURT MOVED BEYOND THE ‘WANDERING TRIBES APPROACH’? Tsilhqot’in v. British Columbia

The Central Issue : Is Regular and Exclusive Use of Land for Hunting and Gathering ‘Sufficient’ to Ground Title? Prior to colonisation, the T silhqot’in were settled in villages, managed lands for the foraging of roots and herbs, hunted and trapped. The aboriginal title claim is confined to approximately five percent of what the Tsilhqot’in regard as their traditional territory and there are no adverse claims from other indigenous groups. No claim is made to privately owned land. The central issue is not whether the Tsilhgot’in had title to all of their traditional territory but whether regular and exclusive use of areas for the purpose of hunting and gathering outside settlements is ‘sufficient’ to ground aboriginal title to these areas.

A Culturally Sensitive Approach to ‘Occupation’ The court holds that possession must be defined in accordance with the indigenous perspective: ‘The intensity and frequency of the use may vary with the characteristics of the Aboriginal group asserting title and the character of the land over which title is asserted. Here, for example, the land, while extensive, was harsh and was capable of supporting only 100 to 1,000 people. The fact that the Aboriginal group was only about 400 people must be considered in the context of the carrying capacity of the land in determining whether regular use of definite tracts of land is made out.’ (par. 37) The court also underlines that ‘The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic. ‘

Continued ‘There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.’ (par. 42)

But they Must Still Behave Like an Owner: The Reaffirmation of ‘Exclusivity’ The Court underscores the evidence showing that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it. So the requirement of exclusivity was satisfied. The Court reaffirms the requirement of exclusity: ‘Regular use without exclusivity may give rise to usufructuary Aboriginal rights; for Aboriginal title, the use must have been exclusive.’ (par. 47) Thus the Court has left intact its previous jurisprudence on seasonal use of the land as an obstacle to aboriginal title

So What are the Non-Owners’ Rights? If an indigenous people is unable to meet the requirements for aboriginal title, it can still have rights that the Supreme Court has described as « more restricted » than aboriginal title (Marshall\Bernard, par. 59). They are independent of title and may therefore result from non-exclusive pre-contact use of given resources in a given area. No generic characterisation of the indigenous land use is accepted. Harvesting rights are derived from specific pre-contact practices that are shown to be integral parts of a people’s distinctive culture Practices that became prevalent after contact cannot be recognized as aboriginal rights (commercial use of resources for example). Only « logical evolutions » of specific pre-contact practices are accepted (from wigwam to bungalow) They are site-specific and may be species-specific (Gladstone, Lax Kwa’aalams) They are non-exclusive and do not entail control of the land.

The Frozen Rights Approach (Lax Kw'alaams Indian Band v. Canada (Attorney General, [2011] 3 SCR 535) [55] Counsel for the Lax Kw’alaams argues that, even if pre-contact trade had been limited to eulachon grease (which they deny), the modern right should not be “frozen” but should be generalized and “evolved” to include all other fish species and fish products. [56] However, such an “evolution” would run counter to the trial judge’s clear finding that the ancestors of the Lax Kw’alaams fished all species but did not trade in any significant way in species of fish or fish products other than eulachon. Extension of a modern right to all species would directly contradict her view that only the “species-specific” trade in eulachon grease was integral to the distinctive culture of the pre-contact society. A general commercial fishery would represent an outcome qualitatively different from the pre- contact activity on which it would ostensibly be based, and out of all proportion to its original importance to the pre-contact Tsimshian economy.

Wandering Tribes Cannot Own the Land They are Trapped in Precolonial Economies Under the SCC jurisprudence, nomadic peoples who did not or could not apply a concept of exclusivity have much less rights than those who can prove that they ‘owned’ the land. There is a persistent misunderstanding of hunters- gatherers and their connection to the land. Their relationship to the land was full and dynamic even if not exclusive.

The Two-Tier Approach and Distributive Issues Limited harvesting rights are more easily reconciled with non-indigenous use of land and resources and governments retain greater control of Crown land management They are limited to specific resources traditionally used for food, ceremonial and subsistence purposes Granting commercial harvesting or resource extraction rights to third parties remains possible Aboriginal title, on the other hand, gives an indigenous group exclusive control of the soil and subsoil. It is incompatible with concurrent non-indigenous use. Its economic value and its effect on potential non-indigenous interests is thus far greater. It restricts government authority to a far greater extent. Therefore, a restrictive approach to non-exclusive rights is an effective way of balancing indigenous and non-indigenous interests.

The Need for a Fair and Decolonised Treatment of Hunter and Gatherer Culture When exclusivity cannot be established, the great divide between aboriginal title and limited harvesting rights remains. Thus, despite its culturally sensitive approach in Tsilhqot’in, the Supreme Court has not corrected what can be regarded as a central flaw in its approach to aboriginal rights. Greater respect for indigenous perspective on land tenure is needed if hunters-gatherers are to be treated justly. Non-exclusive use of land does not justify the Court’s restrictive and fragmented perspective on aboriginal rights to land and resources that fall short of full ownership A more comprehensive approach to land rights must recognise land as a holistic foundation for life and economic development for indigenous peoples. A new approach based on holistic characterisation of ‘connection to land’ is needed instead of discrete and isolated uses of specific resources

Conclusion Despite its importance, the Supreme Court’s judgment in Tshilqhot’in has not moved the law beyond the wandering tribes approach. The Court has yet to recognise that indigenous relationship to land has always adapted to new circumstances, opportunities or needs. It is time to move beyond the essentialistic ‘frozen rights’ approach which is authoritarian and hampers indigenous development and self-sufficiency. Distributive issues and the balancing of indigenous and non-indigenous interests should be addressed at the ‘justification’ stage, that is, when determining whether an infringement of aboriginal righs is justified under the test developed by the Supreme court ( a compelling and substantial public purpose, consultation, proportionality and compensation)