Aboriginal rights are rights held by Indigenous peoples, not by virtue of Crown grant, legislation or treaty, but by reason of the fact that Indigenous peoples were once independent, self-governing of most of the lands now making up Canada. Before Canada was a country, Britain recognized that Indigenous people living here had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire land from First Nations, and that was typically done through treaties. In most parts of Canada, the British Crown established treaties with First Nations before Confederation. The new Dominion of Canada continued this policy of making treaties before the west was opened for settlement, but in BC, this process was never completed.
When BC joined Confederation in 1871, only 14 treaties on Vancouver Island had been signed, and aboriginal title to the rest of the province was left unresolved. It wasn't until 1970 that Indigenous peoples were able to pursue aboriginal rights in the Supreme Court of Canada. With the exception of Treaty 8 and negotiations with the Nisga'a Nation, most First Nations had to wait until 1993 to pursue their aboriginal rights through the BC treaty negotiations process.
Aborignal rights are inherent and protected under the Constitution Act, 1982. Section 35 of the Constitution Act, 1982, affirmed that aboriginal title, and the rights that go along with it, exist whether or not there is a treaty. However, Section 35 does not define those rights, and uncertainty about how and where these rights apply can discourage investment and economic development in BC. Treaties provide certainty and will clarify aboriginal rights and title, ownership of BC's land and resources.
Continued uncertainty about how and where aboriginal rights apply can discourage investment and economic development in BC. Through the give and take of negotiations, treaties will define aboriginal rights and title, thereby resolving ownership of BC's land and resources.
The BC treaty negotiations process is open to all BC First Nations.
Achieving certainty is an important goal of the treaty negotiations and reconciliation. A new relationship requires a better understanding and therefore greater certainty.
Certainty in a treaty means ownership and the rights, responsibilities and authorities of all parties are clear and predictable. The process for reviewing and amending the treaty must also be fair and predictable.
In all types of negotiations, certainty can be achieved without finality. The challenge is to develop predictable procedures for dealing with issues without extinguishing or impairing those aboriginal rights not specifically dealt with in a treaty. In the past, the Government of Canada required First Nations to “cede, release and surrender” their aboriginal rights in exchange for treaty rights. This is referred to as an “extinguishment model". First Nations in the BC treaty negotiations process reject this approach as fundamentally inconsistent with their inherent rights and survival as Indigenous peoples.
The parties have explored an approach to certainty known as the 'non-assertion model': the First Nation agrees to not assert any governance-related right other than those exhaustively set out in the governance agreement (for more information see Annual Report 2003 p. 10).
Although there has been progress, much work is still required by treaty tables to close the gap in vision on the certainty issue.
What certainty really means is "predictability"—the familiarity that develops from a history of working together. Through interim measures agreements, aboriginal and non-aboriginal communities can start building mutually beneficial governance arrangements, business relationships, land management processes and other cooperatives relationships.
Landmark Court Cases
Since the early 1970's aboriginal rights have evolved and been defined by the Canadian courts.
In Calder v. British Columbia (1973), for the first time in the Canadian legal system, the Supreme Court of Canada acknowledged the existence of aboriginal title. Although the Supreme Court Justices were split on whether or not aboriginal title had been extinguished, Calder paved the way for case law surrounding aboriginal title, the federal comprehensive claims and specific claims policies to facilitate the negotiations of land claims. Calder also set the basis for the Nisga'a Treaty, the first modern treaty in BC, and first treaty in Canada that included self-government provisions.
In Guerin v. The Queen (1984), the Supreme Court of Canada established that the Canadian government’s fiduciary duty to First Nations stems from the unique relationship (sui generis). The Court ruled that the Crown had neglected its fiduciary duty to the Musqueam.
In R. v. Sparrow (1990) the Supreme Court of Canada took the same approach as those judges in Calder who said that the Nisga’a still had title. They said that unless legislation had a “clear and plain intention” to extinguish aboriginal rights, it did not have that effect. Applying this test to fisheries legislation, the Court concluded that a century of detailed regulations had not extinguished the Musqueam people’s aboriginal right to fish for food and ceremonial purposes. This case, however, dealt with aboriginal fishing rights, not rights in land.
In Delgamuukw v. British Columbia (1997), the Supreme Court of Canada ruled in the Delgamuukw that aboriginal title is a right to the land itself –not just the right to hunt, fish and gather — and that when dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights may be affected. However, there was no decision as to whether the plaintiffs have aboriginal title to the lands they claimed. The court said the issue could not be decided without a new trial.
Delgamuukw confirmed that aboriginal title was never extinguished in BC and therefore still exists; it is a burden on Crown title; and when dealing with Crown land the government must consult with and may have to accommodate First Nations whose rights are affected.
Haida and Taku
Two cases provide broad guidelines for the negotiation and definition of Aboriginal title in BC.
In Haida v. British Columbia (2004) and Taku River Tlingit First Nation v. British Columbia (2004), the Supreme Court of Canada ruled that due to the Honour of the Crown, the government has a duty to consult and possibly accommodate Aboriginal interests even where title has not been proven. This established a general framework for the duty to consult and accommodate Indigenous peoples across Canada.
The duty to consult arises from the need to address Aboriginal rights prior to those rights being addressed through a treaty or court decision. In Haida and Taku, the court ruled that First Nations do not have a veto over what can be done however, the consultative process must be fair and honourable, and government is entitled to make decisions even in the absence of consensus.
This decision affirmed that the goal of treaty making is to reconcile Aboriginal rights with other rights and interests and it is not a process to replace or extinguish rights. The courts stated, "[r]econciliation is not a final legal remedy in the usual sense." It said "just settlements" and "honourable agreements" are the expected outcomes.
Marshall and Bernard
In R. v. Marshall (2005) and R. v. Bernard (2005) the Supreme Court of Canada set limits on aboriginal title, adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the aboriginal group and its historical relationship to the land in question. Traditional practices must translate into a modern legal right, and it is the task of the court to consider any proper limitations on the modern exercise of those rights. As with the treaty right, an aboriginal practice cannot be transformed into a different modern right.
The court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title. However, the court did not rule out the possibility that nomadic and semi-nomadic peoples could prove aboriginal title. The court also emphasized that there must be continuity between the persons asserting the modern right and a pre-sovereignty group.
In Tsilhqot’in Nation v. British Columbia (2014) the Supreme Court of Canada, for the first time, declared Aboriginal title to a specific area in BC.
Given the importance of the Tsilhqot’in decision, the Treaty Commission had Blake, Cassels & Graydon LLP provide a legal opinion, by lawyers Marvin R.V. Storrow, QC, legal counsel in some of the seminal section 35 Aboriginal law cases in Canada, and Roy Millen, who clerked with Chief Justice McLachlin and is a leading practitioner in Indigenous law. This was published in the 2014 Annual Report, pages 25-27.
Negotiation vs. Litigation
Canadian courts have repeatedly urged the parties to resolve aboriginal title through negotiation, not litigation. Canadian courts have emphasized that their role is to provide “a framework to facilitate negotiations and reconciliation of Indigenous interests with those of the broader public.” (Tsilhqot’in, 2014. P.118) While litigation is undoubtedly valuable in some cases, it is inherently adversarial and therefore a difficult means of achieving reconciliation. The final results are imposed by the courts, not via consensus among the parties. Litigation is costly, generally narrowly focused, time consuming and ultimately leaves the question of how aboriginal rights and title apply – unanswered.
For example, Delgamuukw was in the courts for thirteen years. While the case resulted in some clear and strong statements concerning Aboriginal title, it did not define how Aboriginal title applied for the First Nations involved as the court decided a new trial was required.
The BC Court of Appeal ruling in the Haida case reiterates the need to negotiate: “Of course as both this Court and the Supreme Court of Canada have said many times, a negotiated settlement, by treaty or otherwise[.]is always better than a judgment after litigation pursued to the end. (Justice Lambert)
Further, Tsilhqot’in also illustrates that while the treaty negotiations process takes time, the litigation process has not proven to be a faster route to reconciliation.
International Treaty Law and Self-Determination
Modern treaty making is not unique to Canada. In New Zealand the Treaty of Waitangi was signed in 1840 with the Maori people. Although this treaty is considered the founding document of New Zealand, there are still treaty settlement negotiations ongoing to resolve long-standing disputes about the treaty and renew the relationship between the Maori and the Government of New Zealand. Australia is also currently embarking on treaties with the Torres Strait Islander and aborigine peoples. Furthermore, a succession of U.S. presidents have reaffirmed that a government-to-government relationship exists between the United States and Native American / Indian Nations.
Under international treaty law, nations must respect Indigenous people's right to self-determination. The International Bill of Rights of the United Nations declares that self-determination is the right of a people to freely determine their political status and freely pursue their economic, social, and cultural development and to dispose of and benefit from their wealth and natural resources. The United Nations Declaration on the Rights of Indigenous Peoples further emphasizes the right to self-determination.
The United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) was adopted by the General Assembly on September 13 2007, by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions. In May 2016, Canada removed its objector status to the UN Declaration, and announced its full support with qualification to the UN Declaration. To various degrees the other member states have withdrawn their objector status.
In November 2019, the government of British Columbia passed the Declaration on the Rights of Indigenous Peoples Act (Declaration Act or DRIPA), becoming the first province or territory in Canada to implement the UN Declaration. The Declaration Act was developed with the First Nations Leadership Council, as directed by Indigenous leaders in BC. It sets out a process to ensure provincial laws are consistent with the rights defined in the UN Declaration, an action plan to achieve the objectives, and annual reporting on progress. The Declaration Act also includes a provision for the provincial government to enter into agreements with Indigenous governments for joint decision-making and consent.
In June 2021, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPA) received Royal Assent and was passed in the House of Commons. The legislation affirms and upholds the rights of Indigenous peoples as recognized by section 35 of the Constitution Act, 1982 and the UN Declaration. UNDRIPA affirms that “the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration” and develop a national action plan. DRIPA further emphasizes that “all relations with Indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government” in its preamble.
Self-determination is at the heart of the BC negotiations process and is one of the primary rights of the UN Declaration. The 1991 Report of the British Columbia Claims Task Force, which stands as the foundation of the BCTC and the blueprint for the negotiations process, describes reconciliation as “the establishment of a new relationship based on mutual trust, respect and understanding — through political negotiations” [Task Force Report Recommendation 1]. It further states that “recognition and respect for First Nations as self-determining and distinct nations with their own spiritual values, histories, languages, territories, political institutions and ways of life must be the hallmark of this new relationship” [Task Force Report, pages 7-8].