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Primer for new Canadians: Evolving legal landscape shaped struggle for Aboriginal title and treaty rights back to Confederation

Archives Canada (F. Dally)
Aboriginal chiefs in 1867 from left: Na - nah, Dog Creek; Quil - quailse, Alkali Lake; Se - as - kut, Shuswap; Timpt khan, Babine Lake; Silkosalish, Lilloeet; Kam - eo - saltze, Soda Creek; Sosastumpi, Bridge Creek. Standing from left: Ta - o'task, Canoe Creek; William, Williams Lake.Photo from Archives Canada (F. Dally).

As most Canadians know, Indigenous people occupied the land known as British Columbia for thousands of years prior to European contact. But how did they lose and then start to regain their legal rights? And how are they encountering new legal resistance in recent years?

I’ve written this short essay to offer some insights to new Canadians. It might also be useful to Canadian-born residents unfamiliar with this history.

We’ll start from the mid-19th century. By then, the Hudson’s Bay Company had been active on Vancouver Island for several years.

In 1849, Britain decided to create the Colony of Vancouver Island, which included the Gulf Islands. It was leased to the Hudson’s Bay Company for 10 years. Then in 1853, Britain followed up by creating the Colony of the Queen Charlotte Islands. Officials in Victoria governed the area, which is now known as Haida Gwaii.

The British Parliament then created the Colony of British Columbia in 1858. It absorbed Haida Gwaii into this new entity. This colony extended from the coastal mainland to the Rockies while excluding regions north of the Nass and Finlay rivers.

Next, in 1866, the Crown created a new Colony of British Columbia. This amalgamated the Colony of Vancouver Island with the Colony of British Columbia.

British Columbia could be admitted into Canada under section 146 of the Constitution Act, 1867. This allowed the federal government to approve the British Columbia Terms of Union under an order-in-council on May 16, 1871. It took effect July 20, 1871.

Feds assumed authority over Aboriginal people

Under Section 91 of the Constitution Act, 1867, the federal government retained jurisdiction over such areas as postal service, military, currency, criminal law, banking, and issues relating to Indigenous people.

Under Section 92 of the Constitution Act, 1867, the province had control over a wide range of subjects, including health, education, and management and sale of the public lands.

However, Indigenous people claimed that in the absence of treaties, they had never given up their title to their traditional territories. They staunchly defended their land rights. And over the years, their legal representatives pointed to King George III’s Royal Proclamation in 1763, which laid out the rules for how colonial administrators would interact with First Nations people.

In addition, the Royal Proclamation established principles and a process for how the government would acquire land, as well as guidelines for negotiating treaties. First Nations leaders have long maintained that this was not addressed under the Terms of Union in 1871.

The B.C. government’s response back then was that Indigenous issues were a federal concern. In the meantime, the province felt that under Section 92, it was entitled to sell public land and license companies to extract resources.

To deal with the growing outrage among First Nations, the federal government introduced the Indian Act. It took effect in 1876. The goal was to assimilate First Nations people. Over the years, it was repeatedly amended, quashing legal and cultural rights.

In 1879, the federal government continued down this road by creating an Indian residential school policy. Churches were contracted to administer these schools. Ottawa had an explicit goal of obliterating Indigenous languages and culture and separating children and youths from their parents.

Sir James Douglas
Colonial governor Sir James Douglas negotiated treaties with First Nations on Vancouver Island.

Douglas treaties confer rights

Long before that, the second governor of the Colony of Vancouver Island and the Colony of the Queen Charlotte Islands, Sir James Douglas, negotiated 14 Douglas Treaties with some Indigenous people on southern Vancouver Island and in the area around Port Hardy. Douglas agreed that those who signed the treaties and their descendants would retain village sites. Indigenous people negotiated the liberty to hunt over unoccupied lands and carry on with fisheries as they had done in the past.

These treaties were negotiated orally and were later written down. Douglas maintained that those who agreed to treaties had given up their land to the Crown forever—which Indigenous people have tried to challenge since then.

In the early 1880s, the Nisga’a people in northwestern B.C. began petitioning the provincial government for their land rights, sending delegations to Victoria. That didn’t sway the authorities.

Then from 1927 to 1951, the Indian Act prohibited Status Indians from hiring lawyers or seek advice and fundraise for land claims.

In 1965, a Supreme Court of Canada decision called Regina v. White and Bob led to a recognition by the courts and governments that the Douglas Treaties conferred treaty rights to signatories and their descendants. The case concerned two Indigenous hunters, Clifford White and David Bob, who maintained that game laws did not apply to them on Vancouver Island. That’s because their treaty rights superseded these laws.

In 1969, the government of Pierre Trudeau unveiled the White Paper, which explicitly aimed to assimilate Indigenous people by removing their legal status under the Indian Act. This prompted a furious reaction in Indigenous communities, forcing the government to back down.

Nisga’a ruling led to land-claims process

A key turning point came in 1973 with the Supreme Court of Canada’s Calder decision. In this case, Frank Calder and other Nisga’a elders sued the B.C. government. They claimed that title to their lands in northwestern B.C. had not been extinguished when B.C. joined Canada in 1871.

Canada’s highest court ruled in Calder that Aboriginal title existed when King George III issued the Royal Proclamation in 1763. This marked the first time that the Canadian legal system had admitted that Aboriginal title existed on its own and did not arise as a result of colonial law.

However, the court was deadlocked on whether the Nisga’a had a valid claim to their traditional territory. Three of the judges ruled that even though Aboriginal title had existed, it was extinguished when B.C. joined Canada in 1871. Three other judges ruled that Aboriginal title had not been extinguished. The seventh judge dismissed the case for technical reasons.

“While the Nisga’a did not win their case and the ruling did not settle their land question, it did pave the way for the federal government’s Comprehensive land claims process, which sets up a process for Aboriginal groups to claim title to their territory,” wrote Tanisha Salomons on UBC’s Indigenous Foundations web page. “The province of British Columbia, however, refused to acknowledge Aboriginal title until 1990, when the British Columbia Claims Task Force was established.”

Supreme Court
Justices at the Supreme Court of Canada building (above) in Ottawa have played a major role in defining Aboriginal title and treaty rights.

Musqueam achieve two big wins

Another major turning point came in 1982 when Canada repatriated the constitution. Under Section 35 of the Constitution Act, 1982, existing aboriginal and treaty rights of Aboriginal peoples of Canada were recognized and affirmed. Aboriginal was defined to include “the Indian, Inuit and Métis peoples of Canada”.

The definition of treaty rights includes “rights that now exist by way of land claims agreements or may be so acquired”. Aboriginal rights, on the other hand, were not defined in the Constitution Act, 1982.

The next major court ruling came in 1984 in Guerin v. The Queen, which established that the Crown had a fiduciary duty to First Nations.  This meant that the Crown was required to act in the best interest of a First Nation. The case concerned the lease of the land for the Shaughnessy Golf and Country Club on Musqueam Indian Band land.

The Musqueam were also at the centre of another monumental Supreme Court of Canada decision in 1990. It concerned the Aboriginal fishing rights of Ron Sparrow. He was arrested for violating federal law restricting Aboriginal people to “food fishing” with small nets. The Musqueam argued that restrictions on their fishing rights, which they had never given up, infringed on their Aboriginal rights under Section 35 of the Constitution Act, 1982.

As a result, the Supreme Court of Canada ruled that only conservation of natural resources could justify an infringement. This case, known as the Sparrow decision, set the stage for the rewriting of fisheries regulations pertaining to Indigenous people.

Court creates tests for Aboriginal rights

Another significant ruling on Aboriginal rights came in 1996 in a case involving Stó:lō First Nation member Dorothy Van der Peet. She had been charged with selling salmon that she had caught under a food-fishing licence. Under the law, this allowed her to use the catch for food and ceremonial purposes.

In the Van der Peet case, the Supreme Court of Canada expanded on the Sparrow ruling to include a test for determining an Aboriginal right under Section 35. The court ruled that governments must take into account the perspective of Aboriginal peoples. Furthermore, these rights must be practices, customs, and traditions that have continuity from prior to contact with European settlers. Plus, claims of Aboriginal rights needed to be adjudicated on a specific rather than a general basis.

Two other decisions, known as Marshall 1 and Marshall II, affirmed hunting, fishing and gathering rights promised to Indigenous peoples under 18th-century treaties.

The courts were slower to define the Aboriginal rights of Métis people. One major case, R. v Powley, concerned the arrest of two men, Steve and Roddy Powell, who had shot a moose without a licence in 1993. The two claimed a constitutionally protected Métis right under Section 35.

In 2003, the Supreme Court of Canada articulated a “Powley test” to define Métis rights. The decision noted that the term Métis “does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs and recognizable group identity separate from their Indian or Inuit and European forebears.”

“A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life,” the court stated.

Two major land decisions in B.C.

The most comprehensive ruling involving Aboriginal title came in the Supreme Court of Canada’s Delgamuukw v British Columbia decision in 1997. It acknowledged that title existed after B.C. joined Canada. Moreover, it is a collective right and includes a cultural relationship to the land. Plus, it acknowledges jurisdiction over how the land is used. Therefore, title is more than simply occupation of the land.

In Delgamuukw, the court ruled that the Crown can justifiably infringe upon Aboriginal title under certain circumstances. It also affirmed the legal validity of oral history.

Meanwhile in 2004, the Supreme Court of Canada issued a leading decision on the Crown’s duty to consult Aboriginal groups prior to resource extraction on unceded territory. In Haida Nation v. British Columbia (Minister of Forests), the court stated that “the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.”

“The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith,” the court declared. “The content of the duty varies with the circumstances and each case must be approached individually and flexibly.”

It added: “The effect of good faith consultation may be to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.”

The court also stated that third parties “cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate”.

Political authority fragments

Ten years later, the Supreme Court of Canada issued a landmark ruling by recognizing that the Tsilhqot’in Nation has Aboriginal title over part of its traditional territory. In Tsilhquot’in Nation v. British Columbia, the court stated that Aboriginal title right can be justifiably infringed by the government for a “compelling and substantial public purpose”.

There was a mixed reaction to the ruling. While many celebrated, lawyers Bruce McIvor and Kate Gunn noted that it has a disturbing jurisdictional implication.

“In Tsilhqot’in the Supreme Court made the first declaration of Aboriginal title in Canadian history,” they wrote. “However, the Court also reduced Indigenous Peoples’ ability to rely on the federal government’s exclusive legislative authority when provinces seek to enact legislation affecting Aboriginal title and rights. According to the Court, provinces are now entitled to attempt to justify infringements of Aboriginal title and rights.”

The two lawyers stated that this and another 2014 Supreme Court of Canada ruling, Grassy Narrows First Nation v. Ontario (Natural Resources), ran contrary to many Indigenous Peoples’ understanding about their relationship with the Crown. Until that time, they were “entitled to look to Canada to fulfil the Crown’s obligations”, according to McIvor and Gunn.

“For Indigenous Peoples, the decisions mean they must now deal with the prospect of provincial governments attempting to justify decisions that infringe Aboriginal and Treaty rights,” McIvor and Gunn declared. “For the provinces, it means fulfilling the onerous obligations imposed by the Supreme Court for decisions affecting the rights of Indigenous Peoples.”

In effect, the division of powers in Sections 91 and 92 of the Constitution Act, 1867, are not as clear-cut as they appeared to be for the first 147 years of Canada’s existence.

UNDRIP embedded in B.C. legislation

In B.C., the Declaration on the Rights of Indigenous Peoples Act took effect on November 29, 2019. It meant that B.C. had become the first Canadian jurisdiction to adopt standards in the United Nations Declaration on the Rights of Indigenous Peoples.

Under the Declaration Act, the province must release annual reports on progress on implementation developed in consultation with Indigenous Peoples in B.C. Last year, it published its first Declaration Act Action Plan.

Not everyone, however, is impressed with how governments are dealing with the UNDRIP. Kahnawake Mohawk policy analyst Russell Diabo, for instance, has accused the Trudeau government of co-opting national Indigenous organizations and First Nations governments.

Furthermore, Diabo has insisted that the federal goal is to convert Indian Act bands into “fourth-level ethnic governments”.

“So, in summary, if First Nations want to opt out of the Indian Act, they now have three options,” Diabo wrote in First Nations Strategic Bulletin. “The first option is to sign a legally binding modern treaty—in areas of Canada where there are no historic land treaties—which, as described above, is a fast-track to the termination of sovereignty.

“The second is to sign a self-government agreement, which will also fast-track them to the termination of sovereignty by subjecting them to the federal and provincial powers under the Canadian Constitution,” he continued. “Moreover, under this option, as noted above, the ‘self-governing’ First Nation will be considered a fourth order of government—below not only the federal and provincial governments, but also with less power than municipal governments. Or, the final option: assimilation into Canada’s property and tax systems through the federal First Nations Land Management Act and the First Nations Fiscal Management Act.”

White Paper 2.0

In effect, Diabo has declared that the federal government is implementing a “White Paper 2.0 termination plan”. According to him, UNDRIP legislation provides the cover.

“Since the Conservative Harper government, a First Nations Private Ownership Initiative (proposed legislation) is being worked on by the federal bureaucracy to privatize former reserve lands into private property (fee simple) as the next step following the development of First Nations Land Codes (under the FNLMA),” Diabo wrote in 2020. “The Trudeau government has renamed this privatization land scheme as the Indigenous Land Title Initiative, but it is still a private property policy.”

A caveat…

This short history of the evolving legal landscape does not address the horrors of the smallpox epidemic of 1862. Nor does it deal with the devastating long-term effects of the Indian residential school system. It does not speak of the dreadful response of governments, police agencies, and the media for decades to missing and murdered Indigenous women and girls.

Moreover, this essay doesn’t report on the findings of the Royal Commission on Aboriginal Peoples or Truth and Reconciliation Commission of Canada or National Inquiry Into Missing and Murdered Indigenous Women and Girls final reports. For more information on this or on specific legal cases, click the links above.

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We would like to acknowledge that we are gathered on the traditional and unceded territories of the Coast Salish peoples of the xʷməθkwəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and Səl̓ílwətaɬ (Tsleil-Waututh) Nations. With this acknowledgement, we thank the Indigenous peoples who still live on and care for this land.