Concept of Aboriginal Title in Canada
Discuss the concept of Aboriginal Title and its limitations and strengths for Indigenous peoples’ aims in relation to Canada.
The Concept of Aboriginal Title
The Aboriginal title can be defined as a distinctive concept of the common law of Canada that fills the gap between the imported European land and the Aboriginal land systems. The concept is not derived from the French civil law, the English common law or the Aboriginal customer law (Slattery 11). Instead, it controls the association between the two systems independently. It is a sui generis concept because it does not relate to any pre-existing legal concepts. The unique trait of the title can be explained by the unique history of the North American Aboriginal lands during the formative period extending into the 19th century. We can divide the history into four basic phases: the first phase entails the period before European contact when Aboriginal individuals lived as independent political entities with international territorial titles. The next phase includes the contact period when European states established exploratory voyages and gave out Charters containing territorial claims. Another phase is the initial settlement period when the European colonialists established their colonies. The period also marked the conclusion of the inter-European treaties, which delimited the boundaries of exclusive colonial spheres.
The final phase involves the imperial expansion period. Crown suzerainty was extended over Aboriginal nations, and constitutional frameworks that embraced both the Aboriginal and settler communities were developed during this period (Slattery 12). Before the settling of Europeans in North America, indigenous groups existed as independent entities with international titles to lands. However, the North American map like that of Europe was no static. Over time, the boundaries between the Aboriginal groups of people shifted and the groups started to migrate in response to some factors such as population pressure, internal conflicts, altered soil conditions, dwindling game reserves, famine, epidemic, and war. People occupied the parcels of land that were originally vacant. The identities of the Aboriginal groups also changed as communities collapsed or dissolved and new ones developed. The arrival of the Europeans magnified the situation as diseases, trade opportunities, alliances, and novel technologies upset existing balances of authority and stimulated other forms of conflict and competition. For instance, recognized conflicts of Iroquois against their Aboriginal counterparts in the 17th century was partly exacerbated by the European fur trade.
The introduction of firearms and horses in the Western plains gave rise to more mobile and new lifestyles among the Western Indians, which are often perceived to exemplify the Indian traditional culture. The early territorial claims introduced by European authorities had a tittle basis in reality and did not have any impact on the indigenous Americans’ territorial rights (Slattery 13). Furthermore, the advent of the Europeans did not have a legal impact of confining the Aboriginal groups to the parcels of land they possessed during the contact or bar them from owning new parcels. The area was mostly vacant and open to change and movement and the title of Aboriginal groups rested on long-standing agreements with other groups or possession. The territory was gained and lost by abandonment, agreement, or appropriation.
Nevertheless, the situation gradually changed as the colonial authorities concluded agreements among themselves, solving their territorial disputes inter se. While the treaties did not bind the indigenous people that were not parties, they designated exclusive European spheres of power in America. They reduced the opportunities for broader international contacts among Aboriginals (Slattery 14). The implication was particularly true in 1763, the period following the Paris Treaty, when Spain and France withdrew from the northern and eastern sectors of North America, enabling Britain to conduct its imperial enterprises in the regions freely. Henceforth, the British Crown and other successors, Canada, and the U.S. asserted exclusive rights to uphold relations with Aboriginal groups that occupied the territories in questions, to conclude agreements with them, obtain cessions for the lands they owned, and to obtain suzerainty over them.
The Attributes of Aboriginal Title
The fundamental characters of the Aboriginal title were specified in the famous case of Delgamuukw and British Columbia. It pertained to claims by hereditary chiefs of the Gitksan and Wet’suwet’en residents to separate parcels of land including 58000 square kilometres in Columbia (Slattery 15). Originally, their claim related to land ownership and jurisdiction. However, it turned into claims for Aboriginal rights and title in the Supreme Court. The Court decided that the title is a distinctive right that does not relate to the categories recognized by the French civil and the English common laws. The title must be viewed from both non-Aboriginal and Aboriginal perspectives. It has three critical features that set it apart from other titles held under civil or common laws. First, it is inalienable. Nobody can sell or transfer it to other parties. However, The Crown may award the title to another party.
Another distinctive attribute of Aboriginal title pertains to its source. The title emerged from the Aboriginal people’s original occupation of Canada and the association between the pre-existing Aboriginal law systems and the incoming common law (Slattery 16). In effect, the title stems from land possessions before the establishment of the Crown. The final trait is its communal nature. The title is a communal right that all the members of the Aboriginal nation hold.
Limitations for Indigenous People’s Aims in Relation to Canada
There are some inherent limits on land uses associated with Aboriginal title, which create some legal uncertainties. The first uncertainty relates to the scope of justified or permitted limitations on the title (Newman 12). In principle, the Canadian Supreme Court has reaffirmed that governments can place justified limits on the rights of Aboriginal people, and has articulated the position with some legal tests. However, the test in the case of Tsilhqot’in differed from that in Delgamuukw, raising some questions regarding the stability of the legal test. Governments have not been ready to indicate that some efforts are being made to justify the limits on Aboriginal title or rights. The scope of what limits they cannot or can impose remains untested in the courts. The uncertainty means that the shape of the Aboriginal title is not precise. A full understanding of the title rights also requires people to understand their limits. Thus, this is significant uncertainty regarding the impacts of the title.
Most people would assume that Aboriginal title claims pertain to tracts of land that were occupied by Aboriginal communities. Of course, the title claims may extend past the exact areas occupied by minority communities, especially in areas where the colonial powers penned communities into smaller areas compared with the past (Newman 14). In Delgamuukw, the court articulated that Aboriginal rights and title claims would relate to the lands occupied at the time of European assertion. It was a specific adaptation compared with the general test of Aboriginal rights, which states that the Aboriginal rights should be identified at the time of contact while the Aboriginal title should be identified at the time of European assertion. In that instance, the way the court specified continuity with the initial occupation allowed for some flexibility, but also seemed to reflect the view that the Aboriginal communities should only claim titles to the lands they have continued to occupy. The uncertainty may create confusion regarding land ownership. Some people have migrated to other areas far from the regions they formerly lived. The test as stated, may imply that they could go back and reclaim their prior pieces of land, which may give rise to overlapping claims with some First Nations.
Another uncertainty relates to the test of the Aboriginal title. The decision in Tsilhqot’in left some uncertainties regarding the test we can apply to determine Aboriginal title (Newman 15). The court expressed some uncertainty regarding the test. While specifying a legal test based on the exclusive occupation at the time of European assertion, along with continuity as a third aspect, the court explicitly said that the test could not be a test. Legal tests should have mandatory components to enhance legal certainty. In the case of Tsilhqot’in, the Supreme Court added a language that undermined the definitiveness of the legal test it stated. It did so, obviously, to carter to the complex considerations of the intercultural nature of the issue. However, the move undermined uncertainty about the components of the test. Furthermore, the test for Aboriginal title has changed in various ways, which creates uncertainty on whether people would similarly understand the components in the future. For instance, when making its decision in Tsilhqot’in in 2014, the court did not comply with its first approach in Marshall in 2005.
The fourth uncertainty pertains to the subsurface mineral rights’ ownership. The characteristics of the Aboriginal title were developed in courts (Newman 16). It does not share the same attributes with other forms of ownership, like fee simple, which is considered the usual form of title in Canadian and English-common low jurisdictions. The primary difficulty is that the courts did not delineate most of its traits. The courts have not spoken directly concerning the ownership of subsurface minerals in Aboriginal title lands. Legal tests should have mandatory components to enhance legal certainty. In the case of Tsilhqot’in, the Supreme Court added a language that undermined the definitiveness of the legal test it stated. It did so, obviously, to carter to the complex considerations of the intercultural nature of the issue. However, the move undermined uncertainty about the components of the test. Furthermore, the test for Aboriginal title has changed in various ways, which creates uncertainty on whether people would similarly understand the components in the future. In Tsilhqot’in, the court ruled that Aboriginal title conferred the same rights as those of the fee simple, including the rights to own and enjoy the economic benefits of land, own, enjoy and occupy the land, and make decisions on how to use it.There was a paragraph in Delgamuukw, which suggested that some statuses seemed to presume that mineral rights were included in the Aboriginal title. However, some scholars and legal experts have argued that the reasoning in the case does not support the inclusion of mineral rights in the Aboriginal title (Newman 17). Besides, Tsilhqot’in, did not mention anything on mineral rights. Therefore, we cannot determine whether the Aboriginal title rights can be compared to fee simple in the historic period when it included mineral rights or as it operates in the contemporary society where the mineral rights are held and controlled by the Crown.
The final uncertainty relates to remedies in case someone commences a land-based project on land subject to Aboriginal title claim. Almost all of British Columbia is subject to outstanding claims (Newman 18). Therefore, with some exceptional cases, the construction of any project is done on lands that can be assigned to Aboriginal title. In this case, the court’s ruling in Tsilhqot’in, raised some risks concerning developments in British Columbia. In paragraph 92, after establishing title, the Crown may reassess original conduct concerning its obligation to execute its fiduciary duties faithfully to the group holding the title. For instance, in case the Crown performs a land-based project without establishing Aboriginal title, it may be forced to cancel it later if it is determined that the project would infringe Aboriginal title. The word “may” is critical in the paragraph. It means that the Crown is not obliged to cancel any land-based project after determining the Aboriginal title. Although someone would expect the court to devise practical remedies to avoid harming third parties, the Canadian Court, in this case, managed to write a non-reassuring statement without further explanations.
Strengths of Aboriginal Title
The main strength of the title is that it is a true property right that can be maintained against the entire world, including the Crown. The title is not held at the Crown’s pleasure, nor can it be extinguished by unilateral Crown acts under the royal prerogatives (Slattery 23). When it is extinguished by valid legislation, it can benefit from the common law that requires just compensation. The royal prerogative includes specific powers held under the common law by the Crown. They can be exercised apart from the parliament. A prerogative authority should be distinguished from other powers given to the crown by statute. The legal attribute of a Crown act like letters patent, or an order-in-council depends on the source of authority to enact it. In case the power is awarded by the common law, the act is considered a prerogative instrument. If the power is granted by legislation, the act can be considered a statutory instrument.
Before the court’s ruling in Delgamuukw, many state authorities did not appreciate that the title embodied an interest in land and all the natural resources on it. Elsewhere at the treaty table, the title was limited to a right to use land for specific purposes like berry-picking, fishing, and hunting (Slattery 24). However, the court declined the position of the Crown that the title was confined to a bundle of traditional practices or roles that existed before the European excursion. People now understand that the title includes more than the right to use land. It includes exclusive use of land and its resources, as stated in Paragraph 117, 122, and 138 of the decision in Delgamuukw. The Aboriginal title can be compared to the right to exclusive land ownership, occupation, and use.
In addition to allowing the minority groups to occupy and use the land, the title allowed the First Nation community to control or govern how Aboriginal land is used. It clearly states that Aboriginal land rights are communal (Dewar 4). They embody mechanisms and rules through which decisions are made about parcels of land owned communally. We now understand that First Nations with the Aboriginal land title have the right to regulate how their land and resources are to be allocated and used. The inherent powers of self-government concerning land occupation and use are implicit in the court’s analysis in Delgamuukw. The British Columbian Supreme Court also affirmed them in its decision in Campbell.
The Court in Delgamuukw, expressly provided that the Crown must bear the burden of infringement of the title or any treaty. According to the court, the Crown must allocate resources according to the interests of the Aboriginal title holders (Dewar 12). It should make efforts to minimize infringements and pay the necessary compensations to the minority groups. It also obliges the Crown to consult the Aboriginal groups and make attempts to accommodate the Aboriginal title in its operations. The infringement provisions apply to the existing treaties and aboriginal rights.
In summary, Aboriginal rights and identity, are distinctive concepts of the Common law of Canada that coordinates the association between the European-based and indigenous systems of land ownership and use. Aboriginal title was derived from the occupation of Canada by minority groups before the advent of the Crown. It is communal and can only be alienated to the Crown. It provides the minority groups with an exclusive right to own and use their lands for a broad range of activities. However, the Aboriginal title also presents some legal uncertainties that have been identified in this assignment.
Works Cited
Dewar, Jonathan. “First Nations data sovereignty in Canada.” Statistical Journal of the IAOS Preprint, (2019): 1-23.
Newman, Dwight. “The Top Ten Uncertainties of Aboriginal Title after Tsilhqot’in” Fraser Institute, (2017): 1-34.
Slattery, Brian. “The Nature of Aboriginal Title.” Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision (Vancouver, BC: Fraser Institute, 2000) (2000): 11-33.
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