Legal Aspects of Land Use and Occupancy DR. M.A. (PEGGY) SMITH, R.P.F. SFMN Traditional Land Use Mapping Workshop January 15-16, 2009, Saskatoon It s all about the land and who gets to decide how it s used
Marshall C.J. Worcester v. State of Georgia, 1832 in Lester 1977 The tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brace and high-spirited as they were fierce, and ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity of either abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred. PRIMITIVE/ NEOLITHIC Govt of Yukon CIVILIZED Flicker: Stop the Tar Sands Whitefeatherforest.com Global Forest Watch Grassy Narrows
Different Views of Land PAST FEDERAL POLICIES
Federal policies pre 1970s (Butt & Hurley 2006) 1927-1951 Indian Act prohibited use of Band funds for claims against government 1947-1969 Various recommendations to address land claims, including establishment of Claims Commission and 69 White Paper recommendation to abolish Indian Act, limit federal government responsibility for Indians & settle specific claims upholding treaties & repairing broken promises (Lester 1977) Federal policies pre & post Calder 1973 Dealt only with claims registered by Aboriginal peoples with recognized rights, that is those who had entered into agreements (treaties) with the Crown What about those without agreements, including Métis? Calder 1973: a split decision, but 3 judges agreed that Nisga a had Aboriginal title which had not been extinguished 1973 Statement on Claims of Indian & Inuit People specific & comprehensive Comprehensive extinguishment requirement
Historic treaties and modern day land claims SUPREME COURT OF CANADA DECISIONS
Recent Supreme Court of Canada Decisions CASE DATE OUTCOME Calder 1973 Recognition of Nisga a ownership or Aboriginal title ; led to land claims Nowegijick 1983 Treaties must be liberally interpreted CONSTITUTION ACT, 1982, s. 35, Aboriginal & treaty rights Guerin 1984 Ottawa must recognize existence of inherent Aboriginal title & fiduciary relationship based on title Sioui 1990 Provincial laws cannot overrule treaty rights Supreme Court of Canada Decisions (cont d) CASE DATE OUTCOME Sparrow 1990 Existing rights in s. 35(1) of Constitution Act defined as any unextinguished rights ( treaty rights in Constitution defined as rights that now exist by way of land claims or may be so acquired Van der Peet 1996 Rights based in historic use Delgamuukw 1997 Aboriginal title, duty to consult; oral evidence given equal weight with historic written evidence in land claim cases; accommod n of Aboriginal interests; inescapable economic component compensation Source: Anderson & Bone 2003: 6
Supreme Court of Canada Decisions (cont d) CASE DATE OUTCOME Marshall 1999 Mi kmaq have right to catch & sell fish to earn a moderate living Powley 2003 Métis hunting rights acknowledged Haida 2004 Crown has duty to consult, not private sector; rights need not be proven in Court; asserted Taku River Tlingit 2004 EA provided meaningful consultation time, consider n of FN interests Mikisew 2005 Duty to consult applies to treaty areas, not just Aboriginal title areas (Treaty #8) Sappier & Gray 2006 Mi kmaq have right to harvest timber on Crown land for personal use Source: Anderson & Bone 2003: 6 Aboriginal Title Set out by Supreme Court of Canada in Delgamuuk w A sui generis (unique) form of land ownership, specific to Aboriginal peoples in Canada, a right to land itself Rooted in historic occupation & use of land Existed prior to European settlement, recognized in Royal Proclamation, 1763 Change to more specific rights when agreements (i.e. treaties) negotiated with Crown extinguishment
Application to Treaties Treaties sacred & still in effect exchange of solemn promises Interpretation & regulations which affect treaties approached in manner maintaining integrity of Crown no sharp dealings Interpretation differences to be resolved in favour of Aboriginal peoples Onus of proving extinguishment rests with Crown with evidence of clear & plain intent on part of government to extinguish Same principles of minimal infringement & justification apply BIG QUESTION: Does Aboriginal title still apply to treaty lands? Application to Métis Aboriginal rights are communal, grounded in existence of historic & present community, exercisable by virtue of an individual s ancestrally-based membership in present community Métis community with some degree of continuity & stability established through evidence of shared customs, traditions & collective identity, as well as demographic evidence Verification of a claimant s membership in relevant contemporary community
The Sparrow Test Is there an existing Aboriginal or treaty right? Has there been an infringement of the right? Can the infringement be justified? Justification Is there a valid legislative objective to regulation or development? Does regulation/development honour special trust relationship (fiduciary duty) of the Crown to Aboriginal peoples Is infringement minimal? Were Aboriginal people affected by regulation/development consulted prior to?
Justification (cont d) What is a valid legislative objective? of compelling & substantial importance to the community as a whole (R. vs Gladstone, 1996) Development of agriculture, forestry, mining & hydroelectric power General economic development of interior BC Protection of environment or endangered species Building of infrastructure & settlement of foreign populations to support above aims When does Crown exercise its duty? Duty arises when Crown: knows of potential existence of an Aboriginal right or title considering conduct that might adversely affect right or title
Purpose of Duty to Consult Reconciliation Obligation to treat Aboriginal peoples fairly & honourably (no sharp dealing ) & to protect them from exploitation Should trigger negotiations between Crown & AP Requires government to change its plans or policies in order to accommodate Aboriginal concerns, if consultation shows necessity Principles of the Duty Consultation: more than minimum acceptable standard Carried out in good faith Intent: to substantially addressing concerns of Aboriginal peoples whose lands are at issue Case specific each community negotiates with the Crown
Burden of Proof Occupancy Delgamuukw 1997 (Thom 2001) Prove occupancy at time of sovereignty (of Crown) Continuity with present & pre-sovereignty occupation rooted in past Demonstrated through physical evidence on ground (houses, enclosed fields, regular use of resources) & Aboriginal laws which govern the territory Occupancy exclusive to group claiming land QUESTIONS OF CLARIFICATION
Can Crown use lands & resources however it chooses? (Pape & Salter) No Crown cannot cavalierly run roughshod over Aboriginal interest where claims affecting these interests are being seriously pursued in the process of treaty negotiation & proof. It must respect these potential, but yet unproven, interests. Does Provincial title trump Aboriginal rights & title? (Pape & Salter) No Provincial title is subject to the land-related rights of Aboriginal peoples. Aboriginal peoples do not have a veto over Crown decisions, but Crown has a duty to be responsive to Aboriginal claims, & must change its plans in order to preserve Aboriginal interests.
Is the honour of the Crown duty the same as a fiduciary duty? (Pape & Salter) No Honour of the Crown means different duties in different circumstances. The honour of the Crown gives rise to a fiduciary duty. In case of no treaties, Crown needs to determine, recognize & respect rights. In case of treaties, where rights have been defined, Crown needs to recognize and respect rights. ABORIGINAL PERSPECTIVES
Aboriginal Perspectives: Inherent Right As the Original Peoples of this Land, we have never reached any agreement or treaty with Canada concerning the occupation, settlement, sovereignty and jurisdiction that Canada claims over Land to which we hold absolute Original Title. Despite federal & provincial assertions of jurisdiction and sovereignty, our absolute Original Title to the Lands and Resources and our Right of Self-Determination remains strong and unbroken. Source: Union of BC Indian Chiefs http://www.ubcic.bc.ca/resources/implementation.htm Aboriginal Perspectives: Inherent Right Canada has held the racist view that Aboriginal people are primitive and are incapable of political, legal, historic or economic thought Canada has put a lot of energy towards making sure Aboriginal people never get involved in the development of legal principles of Aboriginal rights and title, especially in the courts and parliament. Don Ryan, Wet suwet en (cited in Thom, 2001)
Conclusion Differing interpretations in meaning of Aboriginal title/original title leads many Aboriginal peoples to insist on control over their territories, even in the face of negotiated agreements Extinguishment of Aboriginal title through negotiations including historic treaties is unacceptable to many Aboriginal peoples Supported by UN Special Rapporteur (Amnesty Int l 2005) THE CHALLENGE: How to reconcile Canadian law and Aboriginal customary law? Way Forward: Reconciliation (RCAP 1996) Honour of the Crown Federal/provincial cooperation to negotiate rights Justice system that acknowledges selfdetermination Aboriginal Use, Occupancy & Governance Implementation of customary law Full use & occupancy New forms of economic development NEW FORMS OF LAND STEWARDSHIP, SHARED OWNERSHIP & BENEFIT-SHARING = CONSOCIATION (Asch 1990) & SUSTAINABLE DEVELOPMENT
Readings & References Asch, M. 1990. Consociation and the resolution of Aboriginal political rights: The example of the Northwest Territories, Canada. Culture 10(1): 93-102. Butt, E. and M.C. Hurley. 2006. Specific Claims in Canada. PRB 06-18E. Parliamentary Information and Research Service, Library of Parliament, Ottawa, ON. http://www.parl.gc.ca/information/library/prbpubs/prb0618-e.htm. Jan. 13/09. Diabo, Russell. 1999. Implementing Delgamuuk w Conference Transcripts. http://www.ubcic.bc.ca/files/pdf/023_rdiabo.pdf. Hurley, M.C. 1998, rev. 2000. Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw vs. British Columbia. Report BP-459E. Parliamentary Information and Research Service, Government of Canada. http://www.parl.gc.ca/information/library/prbpubs/bp459- e.htm#b.%20%20aboriginal%20title%20in%20canada%20(par.%20109-139)(txt) Indian Affairs and Northern Development. 2007. General Briefing Note on the Comprehensive Land Claims Policy of Canada and the Status of Claims. Comprehensive Claims Branch, Claims & Indian Government Sector. http://www.ainc-inac.gc.ca/al/ldc/ccl/pubs/gbn/gbn-eng.pdf/ Lester, G.S. 1977. Primitivism versus civilization: A basic question in the law of Aboriginal rights to the land pp. 351-374 in Brice-Bennet, C. (ed.) Our Footprints are Everywhere. Labrador Inuit Assoc., Nain, Labrador (Nfld.). McDonald, M.J. 2003. Aboriginal Forestry in Canada pp. 230-256 in Anderson, R.B. and R.M. Bone, Natural Resources and Aboriginal People in Canada: Readings, Cases and Commentary. Captus Press, Concord, ON. Readings & References Pape & Salter. A Guide to the Supreme Court of Canada s decision in Taku River Tlingit First Nation v. B.C. http://www.miningwatch.ca/updir/trt-scc_guide.pdf Slattery, Brian. 2007. The Generative Structure of Aboriginal Rights (Draft). http://osgoode.yorku.ca/osgmedia.nsf/0/f2be82bd572dc57f852573210066f453/$file/generative%20str UCTURE%20OF%20ABORIGINAL-RIGHTS_CIRCULATION%20CO%E2%80%A6.pdf Thom, B. 2001. Aboriginal rights and title in Canada after Delgamuukw: Parts I and II. Native Studies Review 14(1&2): 1-26 & 1-42. Usher, P. 1992. Reclaiming the land-aboriginal title, treaty rights and land claims in Canada. Applied Geography 12(2): 109-132. http://tinyurl.com/4k9ryc. Full judgments of the Supreme Court of Canada can be found at http://scc.lexum.umontreal.ca/en/.