1. Common law aboriginal title Summary of Jurisprudence, Framework for analysis and Take Away Points

2. Three areas: 1) Self-Governance 2) Rights 3) Land Rights Class is largely focused on common law aboriginal title. Key point to remember reading the material is the use of language- First nations, Aboriginal peoples, indigenous peoples and Indians all have legal meaning.

3. Jurisprudence: Background Historical framework- Johnson v. M’Intosh (1823): low on the social scale to be the beneficiaries of their own rights. 1763 Royal Proclamation: – The proclamation established that no one other than the British Crown could validly acquire lands from Aboriginal peoples. Simultaneously, Aboriginal peoples could only negotiate with the Crown for their lands. – This is the key source of the Crown’s current fiduciary obligation toward Aboriginal peoples.

4. Background St. Catherine’s Milling: – Ontario Government and the Canadian government were in litigation about logging rights over an area of land. – The first case to determine that the Indians had merely a personal and usufructory right. – A way of understanding it is Use rights: rights of easements (re. Harrison)

5. Background 1919: Re. Southern Rhodesia: – “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.”

6. Background Modern Jurisprudence: Calder: found that Aboriginal title existed, but had ben extinguished. We just do not know what it is. ““Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying land as their forefathers had done for centuries. That 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.”

7. Background Guerin v. The Queen, 1984, SCC – Aboriginal Title is sui generis- meaning special. – One element of this special relationship is that there exists a fiduciary relationship between Aboriginal peoples and the Crown.

8. 1982: Constitution Constitution Act, 1982 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Definition of "aboriginal peoples of Canada" (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. S. 35 becomes the framework for litigation, negotiation and treaty negotiations.

9. Background R v. Sparrow, 1990, SCC – Prosecution for illegal fishing by members of Musquem Band – Held to have constitutional right to fishing activities. – “Existing aboriginal rights” means those rights which were in existence when the Constitution Act 1982 came into effect.

10. Background Mabo’s Case, Australia, 1992 – "The common law of this country would perpetuate insjustice if it were to continue to embrace...terra nullius.” (Partner-decisions): R v. Van Der Peet & R. v. Gladstone, 1996, SCC – More illegal fishing prosecutions. – Held broader circumstances for justifying infringement. – Purposive approach to understanding s. 35; rights are not to be a relic.

11. Delgamuukw Issue: Delgamuukw suing on his own and on behalf of 52 chiefs of 70 houses of the Gitksan & Wet’suwet’en peoples. Issues: what is the content of aboriginal title and how is a claim established Held: Re-trial ordered.

12. Delgamuukw Use this case to organise our thinking about Aboriginal title. From Delgamuukw we will answer the following questions: – What is the nature of aboriginal title? – What is the content of aboriginal title? – How do we prove aboriginal title? IN ADDITION we have to pay attention to infringement of aboriginal title.

13. Legal Issue: Central question for the court in Delgamuukw is that we have: – “a set of interrelated and novel questions which revolve around a single issue – the nature and scope of the constitutional protection afforded by s. 35(1) to common law aboriginal title.” (Found on page 409).

14. Page 410: Answer and (point first writing) from Delgamuukw: “Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s aboriginal title. This inherent limit…flows from the definition of Aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from fee simple.”

15. Our job is to un-pack that dense phrase:

16. Part a) Nature of Aboriginal Title: 4 key characteristics of Aboriginal title: 1) Sui Generis 2) Inalienable 3) Communal 4) Open-ended

17. Part a) Nature of Aboriginal Title: 1) Sui Generis (Special) Starting point for Canadian jurisprudence is St. Catherines, which described aboriginal title as a personal and usufructuary right. What the privy council sought to capture was that aboriginal title is sui generis- and different to other fee simple forms of proprietary interests. It is now understood that the 1763 Royal Proclamation is not the source of aboriginal title, rather it affirmed its existence. Aboriginal title arises due to the prior occupation of aboriginal peoples. In Guerin the court recognized that aboriginal title “legal right derived from the Indians’ historic occupation and possession of their tribal lands.” (page 411).

18. Part a) Nature of Aboriginal Title: 2) Inalienable This means that title can not be transferred, sold or surrendered, EXCEPT to the Crown. The court also clarified that it is only personal in this sense, it does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a license to occupy and use.

19. Part a) Nature of Aboriginal Title: 3) Communal Aboriginal title can not be held by individual aboriginal persons. Decisions with respect to that land are made collectively by that community.

20. Part a) Nature of Aboriginal Title: 4) Open-ended: “… if not inconsistent with nature of relation.” We do not want rights to be considered a relic (Van der Peet & Gladstone).

21. Part b) Content of Aboriginal Title Per Lamer CJ. “Arrives at the conclusion that the content of aboriginal title can be summarized by two propositions…” (This is Lamer’s answer to the question posed in class, “What should Aboriginal title be?…”)

22. Part b) Content of Aboriginal Title Proposition 1: “Aboriginal title encompasses the right to use the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, cultures and traditions which are integral to distinctive aboriginal cultures.” (page 412)

23. Part b) Content of Aboriginal Title Uses are not restricted. The first proposition is based on: i) Canadian jurisprudence to aboriginal title. ii) Relationship between reserve lands and lands held pursuant to aboriginal title iii) The Indian Oil and Gas Act (This is just to acknowledge that there is a legislative framework relevant to Delgamuukw decision).

24. Part b) Content of Aboriginal Title Proposition 2: “Inherent limit: Lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to aboriginal title.” (page 413)

25. Part b) Content of Aboriginal Title Limit is a manifestation of the sui generis nature of aboriginal title. Sui generis is based on prior occupation manifested in two ways: – 1) fact of physical occupation. – 2) because aboriginal title originates in part from pre-existing systems of aboriginal law. Doctrine of equitable waste.

26. Part b) Content of Aboriginal Title From a plain reading of s.35(1) of the constitution it is apparent that the constitution does not create aboriginal rights and aboriginal title. The relationship between constitutionally protected aboriginal rights and title. – Aboriginal title is merely one manifestation of a broader-based conception of aboriginal rights. – This is important because it affirms the collective nature of aboriginal title, and does not fragment aboriginal rights. – Spectrum of degree of connection with the land.

27. Part c) Proof of Aboriginal Title Up to the point of Delgamuukw, the court had recognised two elements to s.35: – 1) the occupation of land – 2) the prior social organization and distinctive cultures of aboriginal peoples on that land. Aboriginal rights (activities) had thus far been emphasised; Delgamuukw now requires that the court look at part 1.

28. Part c) Proof of Aboriginal Title Aboriginal Rights test: – Van Der Peet: “Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organization and distinctive cultures of aboriginal peoples on that land.”

29. Part c) Proof of Aboriginal Title OR the TEST for Aboriginal Title 3 part test (pg 418): i.Sufficient ii.Continuous iii.Exclusive

30. Part c) Proof of Aboriginal Title I) The land must have been occupied prior to sovereignty. Why does the court use this time frame?

31. Part c) Proof of Aboriginal Title I) The land must have been occupied prior to sovereignty. Why does the court use this time frame? – Aboriginal title crystallized at the time sovereignty was asserted. – Occupation is evidence of aboriginal title. – Date of sovereignty is a certain date. What type of occupancy?

32. Part c) Proof of Aboriginal Title ii) Continuity of present & pre-sovereignty. Evidence of pre-sovereignty occupation may be difficult to find; current occupation may be one form of proof; Oral evidence. What if the aboriginal group can not establish un-broken chain of continuity? – “Substantial maintenance of the connection.” (pg 421)

33. Part c) Proof of Aboriginal Title iii) At sovereignty, that occupation must have been exclusive. What are some elements of this exclusivity?

34. Part c) Proof of Aboriginal Title iii) At sovereignty, that occupation must have been exclusive. Exclusivity vests in the community. Exclusivity may look different, but there must be “intention and capacity to retain control.” If the exclusivity requirement is not met, the Aboriginal group may be able to show that they have Aboriginal rights in the area.

35. Part c) Proof of Aboriginal Title Further information about proof of occupancy is found in R. v. Bernard and R. v. Marshall.

36. IN ADDITION we have to pay attention to infringement of aboriginal title. The TEST of Justification 1) The infringement must be in furtherance of legislative objective that is compelling and substantial. 2) Is the infringement consistent with the special fiduciary relationship between the Crown and aboriginal peoples.

37. The TEST of Justification 1) “furtherance of legislative objective” The focus is on reconciliation of aboriginal prior occupation with the assertion of sovereignty of the crown. “…aboriginal societies exist within, and are part of, a broader social, political and economic community, over which the Crown is sovereign…” (pg 424)

38. The TEST of Justification 2) “Special fiduciary relationship.” “The theory underlying is that the fiduciary relationship between the Crown and aboriginal peoples demands that aboriginal interests be placed first…” (page 424)

39. The TEST of Justification Connected to the duty to consult: – Haida Nation, SCC, 2004. In case book. – Grassy Narrows, SCC, 2014. Not in case book. Will be spoken about on Monday. Duty to consult as a facet of the Honour of the Crown is the subject of Monday’s class.

40. Conclusion of Delgamuukw Lamer CJ: Encourages negotiations as the way to navigate Aboriginal title disputes. The basic purpose of s.35(1) is: – “[R]econciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”

41. Part c) Proof of Aboriginal Title R v. Bernard ; R. v. Marshall, SCC, 2005 – Confirmed that nomadic and semi- nomadic groups could establish title to land, provided they establish sufficient physical possession. – Occupancy is a question of fact. – We must look at the

42. Looking forward: Tsilhqot’in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. FACTS: – B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory. The band sought a declaration prohibiting commercial logging on the land. – Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land https://scc-csc.lexum.com/scc-csc/scc- csc/en/item/14246/index.do https://scc-csc.lexum.com/scc-csc/scc- csc/en/item/14246/index.do

43. Looking forward: Tsilhqot’in Issue: Claim for common law aboriginal title. Analysis: – The task is to identify how pre- sovereignty rights and interests can properly find expression in modern common law terms. – Applied Delgamuukw test. Held: Granted Aboriginal title over area claimed.

44. Looking forward: Tsilhqot’in Incremental changes to the legal test: – Evidence: the borders of the land itself may change. – Sufficiency of occupation: not adverse possession, but occupation can not be completely subjective. – Inherent limits: encumbered for future generations.

45. Tsilhqot’in: Excerpts “[22] Second, in these cases, the evidence as to how the land was used may be uncertain at the outset. As the claim proceeds, elders will come forward and experts will be engaged. Through the course of the trial, the historic practices of the Aboriginal group in question will be expounded, tested and clarified. The Court of Appeal correctly recognized that determining whether Aboriginal title is made out over a pleaded area is not an “all or nothing” proposition (at para. 117): – The occupation of traditional territories by First Nations prior to the assertion of Crown sovereignty was not an occupation based on a Torrens system, or, indeed, on any precise boundaries. Except where impassable (or virtually impassable) natural boundaries existed, the limits of a traditional territory were typically ill-defined and fluid.... [Therefore] requir[ing] proof of Aboriginal title precisely mirroring the claim would be too exacting. [para. 118] “

46. Tsilhqot’in: Excerpts “[38] To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. As just discussed, the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group’s purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation. The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic.”

47. Tsilhqot’in: Excerpts “[73] Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro- actively use and manage the land. [74] Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes — even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.”

48. Lecture 4: Honour of the Crown 24 th November 2014

49. Honour of the Crown How is land which is subject to un-proven aboriginal title, or the subject of treaty negotiations to be dealt with pending legal resolution?

50. Duty to Consult Haida Nation v BC, SCC 2004 FACTS: Tree farm licenses issued to private companies by the BC provincial government. ISSUE: What duty if any does the government owe the Haida people? More concretely, is the government required to consult with them about decisions to harvest forests and to accommodate their concerns BEFORE they have proven their title to land?

51. Duty to Consult: from Haida Nation The duty to consult is based on the Honour of the Crown – is guided by a framework of reconciliation. The historical roots of the honour of the crown require that it be understood generously. Fiduciary Obligation: – Compensation and consultation

52. Duty to Consult: from Haida Nation Scope of Duty – Depends on claim’s strength. – Meaningful process of accommodation. – Does not mean Aboriginal groups have veto; nor is there a duty for the Crown to agree. Trigger for Duty – Automatically triggered when government has knowledge of real or asserted Aboriginal or treaty rights.

53. Duty to Consult The Honour of the Crown is non-delegable. The Crown may delegate procedural aspects of consultation to third parties. Currently we see the duty to consult in industry based activities.

54. Algonquins of Ontario Honour of the Crown & duty to consult in context of treaty negotiation Who are the Algonquins of Ontario?

55. Algonquins of Ontario Never had a treaty 1772: First petitioned for recognition and protection 1983: Most recent petition for treaty 1991: Accepted for negotiation by Ontario 1992: Joined by Canada 1994: Statement of Shared Objectives (re-aff’d 2006) – Consultation files process since 2006 2009: Consultation Process Interim Measures Agreement 2012: Draft Preliminary Agreement in Principle [Does not include Quebec-side Algonquins]

56. Algonquins of Ontario Claim area: 9 million acres Seeking: – 117, 000 acres  provincial Crown land only – $300 million – And other partnership and management rights

57. Duty to Consult & Existing Treaties: Grassy Narrows & “Honour of the Crown” Grassy Narrows FN v Ontario, 2014 SCC 48 FACTS: Ontario issued clear-cut forestry operations license to large pulp and paper manufacturer for land included in Treaty 3 area. Issued on basis of ‘take up’ clause in treaty. Grassy Narrows FN challenges Ontario’s authority. – Treaty 3: surrender of lands, in return for reserves, annuity payment, goods and right to harvest non-reserve lands … unless/until ‘taken up’ for settlement, mining, lumbering or other purposes. ISSUES: Does Ontario have authority to ‘take up’ treaty land, or is federal approval instead/also required? What are the conditions for valid ‘take up’?

58. Duty to Consult: from Grassy Narrows For non-treaty unsurrendered land  federal government has jurisdiction over any surrender, but provinces have ‘beneficial ownership’ of any land surrendered; For treaty surrendered land  provinces have jurisdiction to ‘take up’ and manage; – But governed by terms of treaty and s. 35 – ‘Take up’ invokes honour of Crown and duty to consult + accommodate  Haida Nation & Mikisew cases Province needs to comply  treaties clearly contemplate some impact on harvesting rights – If ‘take up’ goes too far, can argue infringement of treaty rights  Mikisew case Then need to comply with s. 35 justification framework Will apply where taking up leaves “no meaningful right” to harvest

59. “Honour of the Crown” 1899 treaty with Thebatthi (Chipewyan) Seeking settlement of treaty implementation and violations A look at the negotiation process