1. Native Studies 120
The Land

2. Land – Defined - Aboriginal
"The President in Washington sends word that he wishes to buy our land. But how can you buy or sell the land? The idea is strange to us. If we do not own the freshness of the air and the sparkle of the water, how can you buy them?”
Chief Seattle, Chief of the Suquamish Indians allegedly wrote to the American Government in the 1800's
The land, then, was a living “person” with a spirit.
As a result, the land could not be “owned.”

3. Land – Defined - European
Public or private landed property; real estate.
So, according to European culture, land is a thing to be “owned” by individuals.

4. The Calder Case
The Calder case involved the Nisga people of British Columbia and the Supreme Court of Canada.
There were two questions to be addressed:
Did the Nisga people have title (ownership) to the land in the 1850s when Europeans first arrived to settle?
If so, had this title been extinguished?

5. The first court to hear the case dismissed it.
On appeal, the judge stated that Aboriginal rights did not exist because Nisga society had been too “primitive” for the Crown to recognize.
The case was appealed yet again, this time to the Supreme Court of Canada. The results of this appeal were as follows:

6. The Nisga had possessed rights in the form of a title to the land at the time of European arrival.
In terms of the question of whether the title continued to exist, 3 judges believed that European law could not have extinguished the title, 3 disagreed, and 1 did not take part in the decision. The Nisga lost their claim 4:3.

7. The Calder Case was important to future, similar cases in that it acknowledged that Aboriginal people had rights in this land before Europeans arrived; it gave importance to pre-contact life in this country.

8. Aboriginal Rights in the Maritimes
In order for Aboriginal people in the Maritimes to prove that they have title to the land, they must demonstrate that:
Their ancestors belonged to an organized society
They occupied the specific land in question, to the exclusion of other societies
They were occupying these lands at the time when Europeans asserted their sovereignty

9. The Royal Proclamation of 1763
Issued by King George III in 1763
The proclamation outlawed private purchase of Native American land, which had often created problems in the past.
All future land purchases were to be made by Crown officials "at some public Meeting or Assembly of the said Indians".
British colonists were forbidden to move beyond the line and settle on native lands, and colonial officials were forbidden to grant lands without royal approval.
The proclamation gave the Crown a monopoly on all future land purchases from Aboriginals.

10. Types of Land in Canada: Private Land
When Canada was established, ownership of all land in the provinces was given to the Provincial Government.
The government gave some land to settlers in fee simple – that is, without any restrictions on ownership, future sale or inheritance. This became what is now known as private land. Lands purchases by the federal government for parks, military bases and other purposes also became Private Land.
The Provincial government can expropriate private land for public purposes, if they think that it is necessary. This means that they can force the owners to sell for a fair market price. Thus there is no such thing under Canadian law as absolute ownership of land.

11. Indian Land Another type of land is called “Indian Land.”
This land title has been owned and issued by the provincial government, but used by Aboriginal.
The right to occupy and use, but NOT own land is called a usufructuary right.

12. Crown Land
All land in the province that is not Indian land or private land is called Crown Land, and is owned by the provincial government.

13. What Happened?
European settlers wanted the land being used by the Micmac and Maliseet.
Why?
Because this land was often located near major bodies of water, where Europeans would want to build port cities.

14. Reading Assignment
Read the following sections and complete the reading assignment:
Aboriginal Systems of Government pgs
Aboriginal Rights pg. 205
The Canadian Government pg