Aboriginal Land Title – Some History and Facts
November 22, 2024
Image Source: https://indigenousfoundations.arts.ubc.ca/aboriginal_title/
Romeo Leblanc the 25th Governor General (1995-1999) made the following observation:
“We owe the aboriginal peoples a debt that is four hundred years old. It is their turn to become full partners in developing an even greater Canada. And the reconciliation required may be less a matter of legal texts than of attitudes of the heart.”
Too many of the disputes between Canada and Indigenous people have been left to the courts to arbitrate. While the vast majority of those disputes in recent years have been decided in favour of the indigenous people it remains unfortunate that we cannot find a more appropriate way to resolve historic differences and establish a new and better pathway.
In liberal democracies like Canada there can be an over-reliance on the law as a source of authority. While we have had good, learned judges, particularly with the higher courts, make solid seemingly objective decisions that have helped create a body of law regarding indigenous relations that is evolving, it remains that our system of civil law is nothing more than man-made decisions we use to guide us. Those decisions (Including those issued by the Supreme Court) can be as biased and self-serving as any other. In fact, some court decisions rendered in the early part of the twentieth century with respect to Aboriginal rights and land title reflected the prevalent and racists views that indigenous people were primitive and incapable of understanding legal matters. This lead to decisions that provided flawed precedents that stood as the authority on indigenous affairs.
With the formation of Canada in 1867 we adopted the lands presumably “owned” by the Crown as well as the system of civil law that prevailed in Britain. With respect to the rights of Indigenous people and especially their right of ownership over the land they occupied, it was assumed that despite the change in sovereignty the determination of Aboriginal title ought to account for any prevailing indigenous law and customs with regard to land ownership. Notwithstanding, it is clear that the in some instances the courts, at all levels right up to the Supreme Court of Canada, assumed the non-existence of indigenous law. For example, the courts assumed that nomadic or semi-nomadic people, lacked any form of sophisticated law and therefore were unlikely to be able to establish any proprietary interest in the land they occupied. These assumptions were typically made without any evidence being presented or without representation from the indigenous parties affected.
Before contact with Europeans the land that is now Canada was occupied by many different groups of Indigenous people. Disputes often arose with respect to the boundaries of claimed territories and these disputes often were resolved by treaty creating agreement with respect to land ownership and other economic matters. One of the best examples of such treaties is the Great Law of Peace, a complex agreement amongst the first Five Nations of the Iroquois confederacy (later joined by the Tuscarora to establish the Six Nations). This law was likely established around 1451 CE, although some suggest it emerged in the early 12th century. The purpose of this agreement was to establish peace amongst these 5 indigenous Nations and stop wars competing for territory.
This is but one example out of many examples of sophisticated indigenous law. In addition, there is strong evidence that most indigenous groups considered Europeans to be interlopers whose main interest was in harvesting limited resources. It was common practice for an indigenous group to accept some form of tribute, including favourable trading terms, in exchange for allowing Europeans to have access to those wanted resources. This is reflected in the agreement we refer to as the “Two Row Wampum” which established an understanding of coexistence between the Dutch and a delegation of the Haudenosaunee. It reflects a peaceful coexistence that allowed the Dutch to settle on indigenous land with the understanding that there would be no interference with the indigenous societies. The same concept underpinned the so-called Silver Covenant Chain with the British and was reflected in a series of Treaties known as the Peace and Friendship treaties. The latter understanding established by those treaties with the British was founded in part on the basis that the British intended to establish Forts and Trading Posts but had little or no interest in settling. It is why the issue of land ownership is absent from those treaties except where the local indigenous groups acknowledged the right of the British to establish a Fort or trading post.
While it would take a significant undertaking to codify all the existing indigenous laws and customs that predated contact it seems clear on these few examples that indigenous society in North America was far more sophisticated than later presumed. It is also clear that the indigenous people identified with their land and had a clear understanding that the land was communal property. As we will argue over the course of this article, this pre-contact establishment of Aboriginal title is and must be the prevailing construct we use today when adjudicating. It is rather simple. The indigenous people believed they owned a given territory and had the exclusive right to use that territory as they saw fit.
The notion of Aboriginal title only became complicated after the arrival of the Europeans and even then, did not become much of an issue until the big pushes to take over the land for colonization. In Canada, the first significant attack on the proprietary interests of the indigenous people came at the conclusion of the Seven Years War and the signing of the Paris Peace Treaty (1763) under which the French gave up all its territories in mainland North America. The historic importance of this treaty is far reaching as it sowed the seeds for dissension between the British and their American colonists and was the beginning of the end for British cooperation with indigenous groups.
However, before we explore those consequences there is an obvious question that arises as a result of what land the French lay claim to that they were then giving up to the British. The French had never conquered any indigenous groups in North America. Nor had France acquired land from those groups through treaties. Rather over time France merely declared sovereignty over parts of North America they believed they controlled. That declaration then became the basis for the British to similarly assert their sovereignty over the same land.
Thus, the very foundation of the Crown’s claims of a superordinate proprietary interest in all the land that makes up modern day Canada is very shaky. Nevertheless, as a result of the Paris Treaty, British King Charles III issued the Royal Proclamation of 1763 to, amongst other things, set out guidelines for European settlement of Aboriginal territories in what is now North America. The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it had been first bought by the Crown and then sold to the settlers.
The Proclamation asserted Crown title over all land not held privately. That ownership dictated that the proprietary and beneficial ownership of the land was held by the Crown. Aboriginal title existed as a burden on that ownership and required the Crown to extinguish the indigenous interest in the use of the land by either treaty, purchase or act of parliament. Therefore, despite the indigenous beliefs that the land was a communal resource that they had sovereignty over, the British simply assumed that the Crown’s interests in the land were superordinate to any claim an indigenous group might make.
Legal scholars assert the Royal Proclamation represents an important first step toward the recognition of existing Aboriginal rights and title, including the right to self-determination. In this regard, the Royal Proclamation is sometimes called “the Indian Magna Carta.” However, its importance can be overstated. It ought to be clear from Civil law that Aboriginal title is not established by the proclamation but rather clearly predates that document and is supported by the existence of indigenous laws and customs that clearly establish proprietary ownership over the land.
However, the Royal Proclamation it can be argued established a line in the sand. Going forward from that point the Crown recognized that indigenous groups had claims to given parcels of land, and it became incumbent upon the Crown to negotiate treaties with those indigenous groups in order to make that land available to settlers or for other purposes (such as building the national railway).
While it seems that the Proclamation protected indigenous interests and hindered settlers from acquiring land through direct means (buying parcels from the indigenous groups) or by adverse possession (so-called squatters rights) it did however make their ownership subordinate to the Crown. In effect the proprietary interest in the land was vested in the Crown. Indigenous people had a personal and usufructuary right to the land meaning they could enjoy the continued traditional use of the land but did not have effective ownership. The Crown’s had the right to extinguish Aboriginal title through treaty, purchase or act of parliament but in effect the legal construct reduced indigenous people to mere tenants on the land they had previously been sovereign over.
Today most indigenous groups defer to the right of the Crown to the proprietary interest in the land. Regardless, there remains significant debate regarding the nature of Aboriginal Title and the rights that accompany it. In the next article we will discuss specifically how the law has evolved toward a clearer understanding of what Aboriginal Title means.
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