Aboriginal Title and Rights
From BC Guide to Watershed Law & Planning
An increasing number of court cases recognize that British Columbia’s First Nations have rights to land, resources and powers of self-government. These rights are not granted to them by the provincial or federal governments; they are rights that the First Nations had as nations at the time of contact with the British, and which have never been taken from them.
These rights have given First Nations peoples a powerful legal tool with which to have a say over what happens in their traditional territories.
History of Aboriginal Title and Rights
When the British came to that part of North America which is now British Columbia, they found many different groups of native peoples, with a wide range of cultures, languages, traditions and laws.
Initially there was no doubt that these native communities – now called First Nations – were the owners of, and law makers for, their respective territories. The earliest explorers negotiated with the First Nations by necessity for access to their land. Indeed, the British claim to the west coast of North America was in part based on the claim that Captain John Meares, a British explorer, purchased from Chief Maquinna, of the Nootka First Nation, an area of land.
As the colonies of Vancouver Island and New Caledonia (later to merge into what is now British Columbia) grew the courts of the colony by-in-large recognized the ability of the natives to govern themselves, only becoming involved in disputes between settlers and natives. Governor James Douglas, the head of the two colonies, signed treaties with a handful of First Nations, thereby recognizing their status as nations, before running out of money with which to sign further treaties.
However, relatively early on the colony of British Columbia lapsed into the fiction that the native peoples of British Columbia had no laws, no nations, and therefore that B.C. had been unoccupied in a legal sense when it was colonized. This meant that for the most part there were no treaties signed in British Columbia, and native peoples were assumed to be under the jurisdiction of the colonial government. The First Nations asserted their rights to treaties vocally, but were ignored.
Indeed, these rights were ignored so completely that the colonial government never took legal steps to remove them, although it did confine First Nations peoples to reservations and took various steps to integrate them into settler society. After British Columbia became part of Canada in 1871, law-making powers over “Indians and Indian Lands” belonged to the federal government, and the provincial government no longer could extinguish aboriginal rights in the province. The federal government also took no steps to remove these rights, other than to place limits on the abilities of First Nations to litigate these issues in court.
The federal government eased its restrictions on litigation on First Nations rights in the 1950s. First Nations began raising these issues with politicians, arguing them in the courts and educating the public on them.
In 1982 the Constitution Act, 1982 became law, updating Canada’s constitution. In large part due to lobbying by Canada’s First Nations, section 35 of the Act provided: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
The Current Law of Aboriginal Rights
In interpreting section 35 of the Constitution Act, 1982, the Canadian courts have affirmed that many of the rights of First Nations to their land, to use resources and to govern themselves were never extinguished in law.
Very generally, First Nations may have rights to:
- Aboriginal Title – In an area where the First Nation historically had exclusive occupation and possession of land, they may have rights approaching ownership of those lands.
- Resource Rights – Where a First Nation’s use of a particular resource was an “integral part of their culture”, and the right to use that resource has not been extinguished, the First Nation may have a continued right to use those resources.
- Self-Government – First Nations peoples may have an ongoing right to govern themselves. Where the ability to pass laws on a particular subject-matter was “integral” to the culture of that First Nation, there may be an expanded power of self-government.
- Treaty Rights – A treaty between Canada and a First Nation may guarantee these or other rights.
The Guide has separate pages that discuss each of these types of rights.
Each of these types of rights may only be infringed by the federal or provincial governments under certain circumstances. See the Guide’s Infringements of Aboriginal Rights page for more information.
The Courts have also sometimes required the government to consult with a First Nation, and accommodate any concerns they may have, in order to ensure that any impact on unproven aboriginal rights will be kept to a minimum. See the Consultation and Accommodation page of the Guide for more information.
Aboriginal rights can only be asserted by a First Nation or First Nations people. Occasionally an environmental group will attempt to object to a decision citing a lack of consultation with a First Nation. The courts have not been responsive in these cases.
First Nations law is a complicated and changing field of law. These pages will give you a rough idea of how it works. However, for legal advice on a particular problem please consult a lawyer.
Related Guide Pages:
- Aboriginal Title
- Aboriginal Resource Rights
- First Nations Governments
- Aboriginal Self-Government
- The Role of Treaties
- Infringements of Aboriginal Rights
- First Nations Consultation and Accommodation
For more information about Aboriginal Title and Rights:
- Assembly of First Nations.
- The Resources page of the Union of B.C. Indian Chiefs documents much of the historic treatment of First Nations in BC.
- Aboriginal Rights in B.C. – A Fact Sheet published by Indian and Northern Affairs Canada.
- Landmark Cases page of BC’s Ministry of Aboriginal Relations and Reconciliation.
- Aboriginal Law and Legislation.