Tag Archives: Aboriginal title

A legal Quagmire


Until recently, purported Wet’suwet’en hereditary chiefs, who oversee 22,000 s.q. km of territory in British Columbia, have refused to allow the company Coastal GasLink access to their lands. According to the judgment of Madam Justice Church of the B.C. Supreme Court in the Coastal GasLink Pipeline Ltd. v. Huson, 2019  case that went to her court on the issue of granting an injunction to CoastalGasLink to stop them from blockading access to the land there is significant doubt as to whether or not the elected Chiefs and Councils  have the jurisdiction to decide whether or not the pipeline can be built on Wet’suwet’en land. This is what she said in her judgment in that case:

“The evidence before me indicates significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project, including disagreements amongst the Wet’suwet’en people as to whether traditional hereditary governance protocols have or have not been followed, whether hereditary governance is appropriate for decision-making that impacts the entire Wet’suwet’en nation and the emergence of other groups, such as the Unist’ot’en, which purports to be entitled to enforce Wet’suwet’en law on the authority of Chief Knedebeas and more recently the WMC, which apparently seeks to challenge the authority of the hereditary chiefs to make decisions for the Wet’suwet’en nation as a whole and the manner in which the traditional governance processes have occurred.”

The WCM is Wet’suwet’en Matrilineal Coalition that has 5 board members  representing each of the five Wet’suwet’en clans. Each of the board members is either a hereditary chief or wing chief.

Sadly the case is a mishmash and I have a lot sympathy with the judge in that case who had to sort through the maze of conflicting facts. It really was not an application to the court to determine Aboriginal title. It was rather an application for an injunction which is determined on the basis of affidavit evidence and not evidence at a trial that becomes very difficult (when it is not impossible). The judge does not listen to witnesses, but only reads their written statements in affidavit form. Often there is no cross examination.

One of the major problems with this case is who speaks for the Wet’suwet’en people? The pipeline project has the support of 20 elected First Nation Councils along the proposed route, but the Wet’suwet’en chiefs say the authority of these groups only applies to reservations – not traditional territory.

We have to remember that the Indian Act provides for each recognized First Nation to have a Chief and Council and a reserve.  In return usually the First Nation ceded land to Canada so that Canada could have the ceded land for the development it wanted. In that way, it would have a solid root of title to pass on to European immigrants.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday’way Aboriginal title case. I commented on that case earlier in this blog. In that case they provided the court with voluminous detailed historical evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. At least that is the position of the Wet’suwet’en Hereditary Chiefs. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves. In the injunction case Justice Church acknowledged that this was the position of the Hereditary Chiefs but did not say whether or not she agreed with it.

By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.

Indigenous peoples hold rights to lands in Canada that extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system. But what that actually means in practice is often far from clear, and inevitably, in cases of dispute, requires a court, and often that means ultimately the Supreme Court of Canada, to make a ruling, as it did in the Tsilhqot’in  case that I have  also commented on in this blog. It was another of the landmark cases that went to all the way to the Supreme Court.

The Wet’suwet’en people, like most First Nations in British Columbia,  never entered into a treaty agreement with Canada whereby they disposed of all of all of their territory. As a result they take the position that Canada can’t claim it’s their land unless they have a purchase receipt with the crown. That is consistent with the Royal Proclamation of King George of England in 1763 that really is the basis of Canadian aboriginal law. Only the king (now Canada) could buy land from First Nations and if it did, then that land is owned by the Crown (the government of Canada) who can of course use that as basis for land grants to anyone it chooses, such as immigrants to Canada. Without such an acquisition from the First Nations by the Crown, the origin claims of the original owners must prevail.

I recognize that it is difficult for developers in such circumstances to figure out with whom it must consult. On the other hand, look at the corporate structure of Coastal GasLink and its international partners. That makes the Wet’suwet’en organization look like the simplicity of child’s play in comparison. But it is not enough to say that 20 Chiefs and Council have approved of the project. It is more complicated than that. In fact, it’s a legal quagmire. There is more than one such quagmire in this case.

Tsilhqot’in: If Aboriginal title is Established

In the Tsilhqot’in case, the Supreme Court found that the First Nation had successful established its claim to aboriginal title to the land in question. In other words, the First Nation owned the land when Europeans/Canadians first encountered them. It was not empty land free for the taking.

Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982. In order to interfere with that ownership right, this requires the government to demonstrate both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.  The honour of the Crown demands this on the part of our government.

This means the government must act in good faith in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty imposes an obligation of proportionality into the justification process: the government authorized incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  According to the Supreme Court, this s. 35 Constitutional framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.  In a day of reconciliation this is very important.    I think this is a rational balancing of rights and responsibilities in such cases. Don’t you?

In the Tsilhqot’in case it was successfully argued that the issuance by the Province of B.C. of the logging licences affecting the land in 1983 and onwards, before title was declared was unconstitutional.  The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests before issuing such a license.  The Province did neither and therefore breached its duty owed to the Tsilhqot’in.

However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.

I think similar issues might arise in the Wet’suwet’en case. We’ll see if I’m fright.

Aboriginal Title: Tsilhqot’in Nation v. British Columbia


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.


Delgamuukw v. British Columbia


Since the Constitution Act of Canada was enacted in 1982 a number of important cases have gone all the way to the Supreme Court on the issue of Indigenous land claims and rights. Some of those cases bear heavily on the issues that Wet’suwet’en First Nation faces today.

Interestingly, one of those cases was Delgamuukw v. British Columbia which also included the Wet’suwet’en and their neighbours the Gitxsan or Gitksan. I have already commented on the Gitksan people earlier in this blog. See https://themeanderer.ca/gitxsan

In fact as I mentioned in that earlier post it was seeing them at  the Gitksan village in BC many years ago that first got me interested in Indigenous issues. Today, the Gitksan are also supporting their neighbours the Wet’suwet’en. It really is a small world.

In the case of Delgamuukw v. British Columbia the Supreme Court recognized traditional governance forms of First Nations including the hereditary chief and clan system on traditional territories. That has become an important issue in the current Wet’suwet’en melee because of the disagreement between 5 of the Chiefs and Councils who have signed Benefits Agreements with the CoastalGasLink and the Hereditary Chiefs who are opposed to their pipeline. The Hereditary Chiefs are arguing in this current case that the Elected Band Councils and their Chiefs are more like municipal councils with jurisdiction only over reserve lands. The Court noted this in the injunction case but did not say whether or not it agreed with this assertion. Whether that claim is right or not is one of the many uncertainties in the current case.

In Delgamuukw v. British Columbia the Supreme Court upset the law as it was until that time. The trial judge had rejected the claim by the Wet’suwet’en and Gitksan that they had an aboriginal right  over traditional  lands in northern B.C. that had never been ceded to the Crown because it could not provide satisfactory evidence to support their claims. The Supreme Court overturned that decision, pointing out that the court should have paid more attention to the oral tradition of the Wet’suwet’en and Gitksan people. In order to do that the Supreme Court acknowledged that the ordinary laws of evidence must be adapted to place oral history on an equal footing with other types of evidence, instead of being classed as hearsay as courts had previously done. This made a huge difference in cases of Indigenous rights because invariably they depended on oral history.

In the Delgamuukw case the court also said, in accordance with the Royal Proclamation of 1763, that aboriginal title to land can only be surrendered to the Crown. Added to that, such land is communally held, not privately as other land. This is also a controversial issue I will comment on later in this blog. To prove that it has Aboriginal title a First Nation must prove by oral history, or otherwise, that the land was exclusively occupied prior to sovereignty.

This case considered the nature of Aboriginal title.  Aboriginal title is a right in land that allows a group to use the land in almost any way deemed fit.  The use need not be an Aboriginal right per se(e.g. the right to hunt).  Title land can be used in many ways, but not in a way that is irreconcilable with the original connection with the land (e.g. cannot strip mine a land that was used as a hunting ground).  Aboriginal title can only be surrendered to the Crown.  In other words, only the federal government can extinguish aboriginal title, not provinces. in the current case the Wet’suwet’en assert that they were never conquered and never ceded their rights in the land to the Crown and that therefore they own it.

Royal Proclamation


Many Canadians have been heard to say, the protesters of the pipeline must obey the rule of law. The rule of law is the basis of Canadian society. I agree. But what does that mean? It means everyone–the Indigenous people, white settlers, businesses, must obey the law. Lets not just pick on the Indigenous people. Canada is a country governed by law. That is what the rule of law means.

But this is complex. It is not enough to say that protesters must obey injunctions. Everyone must obey the law, even the majority who control the government of Canada or British Columbia.

To understand the point I want to make you have to look at some very old law–the Royal Proclamation of King George of England in 1763

There was a deep conflict in North America in the 18th century. One big issue was who would control the expansion of European-Americans into Indian Country? The governments of the United States after 1776, and Britain after its victory over France in the Seven Years War that began in 1756 and ended in 1763, jostled over who would get that control.

In 1763 just after the end of the Seven Years War, and before the American Revolution, the British Monarch, King George, issued a Royal Proclamation in which he asserted his absolute claim to exclusive authority to acquire by purchase (not conquest) aboriginal title in the lands that he reserved for Indian peoples as their hunting reserves. That land included most of North America and all the land west of the Mississippi River.

By this proclamation, that is still valid law in Canada, the British sovereign monopolized the exclusive authority to transfer lands from Indigenous people (Indians as he called them) to non-indigenous people. No private deals could be made! By this act, the British crown usurped the right to control and regulate the westward expansion of Anglo-American settlements. Really, the British King said he and he alone had the authority to decide who would own North America. Talk about hubris! However, by this Proclamation, King George also acknowledged that the land in North America (including in 1763 much of what is now the United States) was owned by the original inhabitants and ownership (title) could only be acquired by purchase! And only the crown could buy.

Americans of course, were loath to accept this and it was this proclamation and later taxes imposed on the Americans that led to their revolt against British rule. Indigenous people who had lived on this continent for millennia, never acknowledged that the British King had this authority. But they liked the acknowledgement that no one could acquire ownership of land after that time except the Crown and then only through purchase from indigenous people.

This Royal Proclamation is the basis for English (and later Canadian) authority over much of North America.  It really was the basis of law in Canada. The English realized that their claims over North America had a dubious foundation. The Royal Proclamation was intended to make that foundation sound. It was the foundation for empire–the British Empire–in North America.

The United States saw no need for such a basis for their expansion. They were content to rely on conquest. Canada never did that. It really did not do a lot of conquering. It took the position that it was governed by the rule of law.  Canada saw how the Americans were spending vast fortunes in its Indian wars and did not want to replicate that here. In one year 25% of the entire American federal government budget was spent on Indian wars.

It is important to recognize that the English government and its laws, which were later assigned to Canada after 1867, deliberately provided that land not purchased by the Crown from Indigenous People belonged to the inhabitants–the indigenous people.

That is still the basis of Canadian law in the wild territories. And this is still important today in understanding issues such as the melee over Wet’suwet’en land and pipelines over it.

Why is this relevant?  Because the Wet’suwet’en never ceded their territory except over those 6 parcels of land now included in those 6 First Nation Reserves established as such under the Indian Act. That means that no one has acquired those lands. The original owners, whoever they are, continue to own those lands. With ownership comes the right to say what can and what cannot be done on that land. What gives the Province of British Columbia the right to issue permits for developments, such as pipelines, over that land? What this means is that this is not ancient history; this is law.