In 2014 in the case of Tsilhqot’in Nation v. British Columbia  the Supreme Court of Canada rendered its decision on one of the most fascinating legal question relating to indigenous people. Who owned the land of Canada when Canada became a country and claimed sovereignty over the land? Who owns that land now that has never been ceded to the government of Canada? Exactly this issue has become important again in the recent case involving Wet’suwet’en First Nation and CoastalGasLink Pipeline.

As the Royal Proclamation of King George said in 1763, only the English Crown could buy land from Indigenous people and it had to purchase the land. It could not acquire it by conquest. In time the government of Canada replaced the English crown. That was why the government of Canada was eager after Confederation in 1867 to enter into treaties with First Nations so that it could establish a solid root of title so that it could in turn grant unchallengeable titles to people immigrating here from Europe. It is a fundamental principle of English common law that no one can transfer a better title than he or she has. All titles are transferred with all defects attached.

Soon after Confederation, Canada started negotiating  with First Nations the numbered Treaties, as they are called, in central Canada and gradually moved west. For example, Treaty No. 1  was negotiated and entered into in August 1871 at Lower Fort Garry. A few of the Canadian communities sharing the obligations and benefits of Treaty No. 1 include: Winnipeg, Brandon, Portage La Prairie, Selkirk, Lundar, Grand Beach, Emerson, Winkler, the holy city of Steinbach, and many more. Treaty No. 3 includes Buffalo Point where we have a cottage. Canada has negotiated treaties with most First Nations in Manitoba. Unfortunately British Columbia does not have many treaties, because development of Canada spread west much faster than the Treaty making process could keep up. As a result much of B.C. is not covered by Treaties, but Indigenous people did live in those areas when Canadians arrived. This has left an awful vacuum in much of the country, particularly in BC. After all it  is more than 150 years since the treaty making process began. That is unfortunate now when companies like CoastalGasLink want to develop. With whom does it make a deal?

For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence to a commercial group on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  Sounds a lot like the Wet’suwet’en case doesn’t it? The federal and provincial governments opposed the Tsilhqot’in title claim. 31 years later, the case ended up in the Supreme Court of Canada. The trial itself lasted a number of years!

In the end, the Supreme Court granted a declaration to the Tsilhqot’in of Aboriginal title over the area requested and granted  a declaration that British Columbia breached its duty to consult that it said was owed to the Tsilhqot’in Nation.

Even though the claimant to aboriginal title has the onus of proving that title, the court held the onus of proof had been discharged in that case. It held that the Tsilhqot’in First Nation had established Aboriginal title to the claimed area at issue.

 The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  The court held that aboriginal title flows from the original occupation by Indigenous people in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be proved by that it that was sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of that appeal, the court must look to the Aboriginal culture and practices, and compare them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  In other words how did people prove ownership in Canada when the west was settled?  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the indigenous group exercised effective control at the time of assertion of European sovereignty or Canadian sovereignty.

While the Tsilhqot’in population was small there was evidence that the parts of the land to which it claimed title were regularly used by the Tsilhqot’in–i.e. there was sufficient occupation to base a claim for aboriginal title (ownership).  The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supported an inference of continuous occupation.  And from the evidence that prior to the assertion of sovereignty by the Canadian government the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, the court concluded that the Tsilhqot’in treated the land as exclusively theirs.   The Supreme Court said it was not necessary for the First Nation to prove there was a specific, intensively occupied areas can support Aboriginal title.  The trial judge had sifted through mountains of evidence to support the claim. The court even acknowledged that some of the evidence was conflicting, but the preponderance of evidence supported the Tsilhqot’in claim.

The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.

Where a claim of aboriginal tittle is asserted by a group of indigenous people, prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups.  This is very important for groups such as the Wet’suwet’en First Nation in its case. Yet, interestingly, these issues were not even considered by the court in the injunction case. Presumably this was because it was “only” an injunction case and not a full fledged hearing to determine the legitimacy of the claim for aboriginal title.

The level of consultation and accommodation required of the government varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

Perhaps the reason the CoastalGasLink was not required to consult was that they were not aware of the assertion of ownership by Wet’suwet’en.

In any event this leaves open the question of whether or not the Wet’suwet’en First Nation owns the land on which the pipeline is proposed. If it does, the government of BC cannot on its own grant valid permits for construction on that land without the consent of the owner.