12 Aboriginal Title
- Understand what Aboriginal title means and how it is determined.
- Identify why Aboriginal title is important when dealing ethically with Indigenous people.
Since time immemorial, Indigenous Peoples have lived on and managed the territory that has become Canada. Throughout history, from the arrival of the Europeans to 1973, the colonial, federal, and provincial governments took steps to control and use the land for their purposes. They did this through documents such as the Royal Proclamation or the Deed of Surrender. There have been significant legal cases to establish that Indigenous Peoples have the title to the territory known as Canada.
For more information on the Aboriginal Title court cases, please go to: The Constitution Act, 1982, and Court Cases from the 1970s to the 2010s.
For most Aboriginal people, the land is their connection to culture, sustenance, and identity. Most of their land was taken from them, but now that Canada has adopted UNDRIP and ruled in favour of Indigenous peoples in several court cases regarding land rights, Indigenous peoples have established Aboriginal title. Aboriginal title “refers to the inherent Aboriginal right to land or a territory. The Canadian legal system recognizes Aboriginal title as […] a unique collective right to the use of and jurisdiction over a group’s ancestral territories” (Hanson, 2009a). Please see Proving Aboriginal Title to understand how far Indigenous Peoples in Canada have moved forward on proving this.
Here is an overview of how Aboriginal title (AT) is established, according to Thomas Milne in a 2017 article about Tsilhqot’in Nation v. British Columbia:
- The Test for AT: AT is based on “occupation” prior to the assertion of sovereignty. Delgamuukw affirms a “territorial use–based approach” to establishing AT, where the claimant group must show its occupation possesses the following three characteristics:
- sufficient occupation of the land claimed to establish title at the time of assertion of sovereignty,
- continuity of occupation (where present occupation is relief on), and
- exclusive historic occupation.
- What Rights Does AT Confer?: AT confers the right to the benefits associated with the land: to use it, enjoy it and profit from its economic development. As well, it includes ownership rights similar to those 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; the right to proactively use and manage the land; and, the right to control the land.
- Breach of the Duty to Consult: Before AT is declared, the honour of the Crown requires the Crown to consult and accommodate the interests of the potential AT holders.
- Provincial Laws of General Application: Provincial laws that regulate AT lands are constitutionally limited by s. 35 which acts as a limit on provincial jurisdiction.
Tsilhqot’in Nation Passes the Test
In the Tsilhqot’in Nation v. British Columbia case, the ruling was that there was a requirement to have consent and cooperation in dealing with the First Nation.
The Tsilhqot’in Nation were the first to receive Aboriginal title through the legal system (CBC News, 2014). In their case, they argued that forestry clear-cutting without consulting was not allowed because the First Nation’s rights were tied to a vast territory where they hunted, fished, and lived. The Province refused to acknowledge their rights of territory, as they claimed that their rights were only to their old village sites.
The Supreme Court unanimously ruled that the Tsilhqot’in hold Aboriginal title to over 1,700 square kilometres, which was about half of the claim area. Where title is found, the government and others seeking to use the land must obtain the consent of the Aboriginal title holders. This is the first time Aboriginal title was granted to a piece of land.
This ruling will impact the consultation process around resource extraction, as there are large parts of British Columbia not covered by the treaty. This case will help ensure that no company can come into First Nations territory to log, mine, or explore for oil and gas without seeking agreement.
Being informed about Aboriginal title will help businesses understand that Indigenous people legally occupy and own their territories and that there needs to be informed consultation and consent where title is found.