19 The Nature of Aboriginal Title

Aboriginal title is difficult to define, as each Indigenous group with title receives different rights as a result of it. The best explanation is that it is a right to occupation and land that has arisen as a result of Indigenous peoples being the first peoples to occupy the territory (Hogg, 2010).

In the 1973 decision Calder et al. v. Attorney-General of British Columbia, the Supreme Court of Canada recognized Aboriginal title as pre-existing confederation. In 1982, Canada’s new constitution was enacted and included the following section:

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

This section did not create Aboriginal rights or title, but affirmed their existence. The Supreme Court of Canada case R. v. Sparrow confirmed in 1990 that not only do these rights exist, but they are constitutionally protected.

“Aboriginal title” sounds similar to “title in property,” and so it is tempting to simplify the definition by calling it ownership over a vast swath of land. In B.C., a “fee simple” interest in land is what we conventionally call real property ownership. However, Aboriginal title is decidedly not conventional property ownership. Instead, it has the following characteristics:

1. Aboriginal title exists because Indigenous peoples were in Canada first.
2. Indigenous peoples have special rights that are not available to other Canadians to use the land for traditional purposes.^[1] For example, if the Indigenous group traditionally hunted in a territory pre-sovereignty, they have special rights to continue using that territory for hunting.
3. Aboriginal title is “inalienable” (meaning it cannot be sold by or taken from someone), unless sold to the government.
4. Aboriginal title is a communal right held by a nation.
5. Aboriginal title is constitutionally protected, whereas other property interests are not. (Hogg, 2010)

Courts have noted that modern tools may be used for traditional purposes (such as hunting with guns), but that the activity must substantially be a traditional one (see Delgamuukw v. British Columbia, 1997). An extreme example would be that an Indigenous band may not claim Aboriginal title over an area of land if they wish to flood the land to build a hydroelectric dam. Instead, Aboriginal title would be surrendered to the federal or provincial government (called “the Crown”), and then the government would release the land back to the band with the Aboriginal title to the land forever gone.

The Numbered Treaties had the effect of extinguishing Aboriginal Title across most of Canada. Many Indigenous groups convincingly argue that this title was never extinguished and that the Numbered Treaties were a “right-of-way” or land-sharing agreement. However, courts have upheld that Aboriginal title was extinguished on these lands.^[2]

B.C., on the other hand, is mostly free of treaties, so Aboriginal title exists across most of the province (less Northeast B.C. and Vancouver Island). Therefore, many developments in the law surrounding Indigenous rights and title have occurred in British Columbia. Northwest B.C. especially has a long history of litigation, protests, and extensive treaty negotiations.