Aboriginal Title

“Aboriginal Title” are First Nations rights to the exclusive use and enjoyment of land that approach outright ownership of the land.  According to the Courts aboriginal title is a type of aboriginal right – one of the strongest types. 

If you search through the written laws of Canada you will not find a description of what aboriginal title is, or who holds it.  The concept arises out of the judge-made common law, although aboriginal title, along with all “aboriginal and treaty rights of aboriginal peoples”, is now protected by section 35 of the Constitution Act, 1982. 

The Supreme Court of Canada, in a court case known as “Delgamu’ukw v. British Columbia”, set out how Aboriginal Title works in the Canadian legal system.  The Court identified a number of features of aboriginal title.  Aboriginal title:

·          Arises out of the actual occupation of an area by a First Nation before the British assertion of sovereignty over B.C. in 1846;

·          Is “inalienable”, meaning that it cannot be bought or sold (although it can be turned over to the federal government);

·          Is held communally.  Aboriginal Title does not belong to one person, but to the entire First Nation claiming it;

·          Includes the right to exclusive use by the First Nation of the land for a variety of purposes which do not need to be linked to traditional use of the land; and

·          Cannot authorize land-use that would destroy the connection between the First Nation and the land.  For example, the First Nation cannot authorize the strip mining of a hunting ground, as the connection with the hunting ground would be destroyed.

A First Nation will probably not have aboriginal title over all lands that fall within their territory.  There may be areas where they possess resource use rights that fall short of the rights of exclusive use guaranteed by aboriginal title. 

Proof of Aboriginal Title

In order to demonstrate that it has aboriginal title over an area, a First Nation will need to show that the First Nation exclusively occupied the land prior to the British assertion of Sovereignty (1846 in British Columbia).  A few notes:

·          Occupation does not necessarily mean residency, but can include: “the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources…”

·          Exclusive occupation means that the one First Nations used the land at the time of sovereignty, and excluded all others from occupying the land.  This does not preclude some form of joint-aboriginal title if two First Nations worked co-operatively to keep all other Nations out of an area of joint-territory. 

·          Occupation at the time of sovereignty can be proved by the current occupation of the land.  However, in this case the First Nation will need to prove that that a connection between the First Nation and the land has continued – largely (although not necessarily entirely) uninterrupted – from 1846 to present.

·          Other evidence that the Courts will consider includes the oral histories of the First Nations, as well as their traditional laws related to possession of land. 

If a First Nation can establish aboriginal title over a piece of land, it will have the primary ability to make decisions about that land, in the same way that any property owner could (subject only to the restriction that their use of the land cannot destroy their connection to that land).  The federal and provincial governments can only restrict or otherwise interfere with the use of aboriginal title where the infringement of the right will be justified under tests that the courts have adopted. 

Even before aboriginal title has been established, governments have a duty to consult with First Nations over actions that are likely to infringe upon as-yet-unproven claims to aboriginal title.  See the Guide page on aboriginal consultation for more information.

It is, as yet, unclear what will happen if aboriginal title is proven in respect of an area that is currently privately owned.  It may be that in some cases First Nations will have a residual ability to use or control the private land, or it may be that the aboriginal title has been extinguished.  If you are dealing with a complicated case like this, you may wish to consult a lawyer.  

In theory, a strong claim of aboriginal title can give First Nations a powerful tool with which to determine how a piece of land will be used.  Despite the potential, however, few First Nations have started the expensive lawsuits necessary to prove their claims of aboriginal title.  The process of actually proving a claim can be long and difficult.  Many First Nations have chosen to try to negotiate treaties instead of to litigate their claims.  At this stage that barrier limits an otherwise powerful tool. 

Related Guide Pages:

·          Aboriginal Rights and Title

·          Aboriginal Resource Rights

·          Aboriginal Self-Government

·          The Role of Treaties

·          Infringements of Aboriginal Rights

·          Consultation with First Nations

 

For more information about Aboriginal Title:

·          Delgamu’ukw: A Lay Person’s Guide – A publication by the BC Treaty Commission summarizing the leading case on aboriginal title from the Supreme Court of Canada.  See also the Supreme Court’s Decision in Delgamu’ukw v. British Columbia.

·          Aboriginal Law and Legislation – A website devoted to aboriginal law issues.

·          The Delgamu’ukw Decision – The perspective of the Gitxsan Chiefs’ Office on the Delgamu’ukw decision.  The Gixtsan were one of the two First Nations claiming aboriginal title in the Delgamu’ukw case.