The Evolution of Aboriginal Land Rights in British Columbia

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Colonialism and the Emergence of Land Rights

European colonisation of the North American continent had a profound effect on native populations. A combination of armed conflict and disease immediately decimated these groups, however disruption of traditional lifestyles and societal marginalisation meant that the outlook for survivors was equally grim. Central in this process was the acquisition of native lands, and general exile of Aboriginal groups to reservations. In the late 20th and early 21st century, these injustices started to be addressed legally, however operating in a modern political environment has its challenges. Today Aboriginal Land Rights are being granted to more and more communities, allowing them to control the use of land that has been historically their own for hundreds of years.

Relevant Court Cases

The Constitution Act of 1982

The patriation of the constitution had two important effects on the fate of Aboriginal communities in British Columbia - Section 91 (s. 91) placed Aboriginal affairs in the hands of the federal government and Section 35 (s. 35) solidified existing Aboriginal rights[1]. The constitution created a standard that the government could be held against by any citizen of Canada and is the basis of all subsequent legal challenges brought forwards by Aboriginal groups.

Signing of the Constitution Act of 1982

R v. Sparrow (1990)

Less than a decade after the constitution was signed, the prosecution of Ronald E. Sparrow for fishing with nets larger than prescribed by his tribe’s license, highlighted ambiguities in its treatment of Aboriginal groups. Sparrow’s argument was that s. 35 of the Charter grants interjurisdictional immunity to Aboriginal groups and that by virtue of s. 52, the fishing restriction is invalid[2]. However the court ruled that s. 35 does not grant immunity, but that the government has a responsibility to justify regulations that will negatively affect any rights protected by s. 35. Determining when infringing on Aboriginal rights is justified is assessed with the Sparrow Test [2]

  1. Is the government acting to pursue a valid legislative object?
  2. Are the government’s actions consistent with its fiduciary duty towards Aboriginal Peoples?

While many things came from R v. Sparrow, the Sparrow test and the understanding that s. 35 can be constitutionally violated have the most bearing on the history of Aboriginal land rights. For a closer look at how this ruling immediately impacted the relationship between Aboriginal groups and federal government please reference Rudin[3] (1998).

Delgamuukw v. British Columbia (1997)

This was the first major case regarding Aboriginal Title since the patriation of the constitution, and concerned the Delgamuukw tribes and their claim to lands in central British Columbia[4]. At the crux of this case was the tribes’ ability to demonstrate they deserved Aboriginal Title and thus protection under s. 35 of the constitution. Aboriginal Title allows a community “exclusive use and occupation of the land[1].” A large part of the tribes’ initial evidence for this came in the form of oral histories which held no weight in European style court, and were dismissed by the trial judge [4]. Throughout the history of Aboriginal land rights, it is apparent that cultural differences hindered the progress of Aboriginal groups. These subjects are the topic of a panel held at the University of British Columbia titled - Aboriginal Oral History in the Courtrooms: More than a matter of evidence[5]. Delgamuukw v. British Columbia’s landmark status is due to the three-point test it established to determine eligibility for Aboriginal Title. The test is as follows …

  1. The land must have been occupied prior to sovereignty
  2. If present occupation is used to demonstrate occupation before sovereignty there must be continuity between present and pre-sovereignty occupation
  3. Occupation must have been exclusive

The case was ultimately retried after the court found inconsistencies in the evidence from earlier trials and the test for Aboriginal Title wasn’t used[4].

Tsilhqot’in Nation v. British Columbia (2014)

History

Emblem of the Tsilhqot'in Nation

In 1982 the province of British Columbia used its jurisdiction over natural resources to sell land in the interior to a corporate logging interest[6]. This land was part of the Tsilhqot’in ancestral territory, however since they had not gained Aboriginal Title to it, the forest was still Crown Timber. Nearly 20 years later the legal battle that ensued changed the face of Aboriginal Land Rights.

Ruling

The supreme court ruled in favour of Tsilhqot’in, granting indigenous peoples Aboriginal Title over specific tracts of land for the first time in Canadian legal history[7]. This ruling was largely determined by way of the three-step test from Delgamuukw v. British Columbia.

Effects

There were three major effects of the Tsilhqot’in ruling [6]

  1. It refined the three-step test for Aboriginal title to include, among other things, stipulations based on the character and lifestyle of the groups claiming title.
  2. It nullified inter-jurisdictional immunity as a legal defense but maintained that provincial laws regarding Aboriginal affairs will be ultra vires (out of their jurisdiction)
  3. It specified the bounds of Aboriginal Title protection, namely that interference with the title requires express consent rather than simply consultation.

Impact on modern day events

The Enbridge Pipeline is a contemporary example that incorporates much of the history of this issue. The pipeline crosses through native lands and brings with it the possibility of environmental disaster[8]. Because of this the pipeline threatens the violate rights enshrined by s. 35, and because of the nature of the project it fails the Sparrow test. Ultimately however, the failure of the Enbridge Pipeline in court comes down to their insufficient consultation with the Aboriginal groups involved [8]. A fundamental lack of understanding about the history of Aboriginal rights is displayed in the company’s defense of its hasty consultation, citing its “world-class spill response” [8] system as sufficient to quell any concerns from native groups. This paternalistic sentiment was admonished by the courts and eventually led to the precedent used today that states…

“Consultation, to be meaningful, requires that affected First Nations be consulted as policy choices are developed on how to deal with potential adverse effects of government action or inaction. Hobson’s choices are no longer sufficient[8].”

This statement demonstrates how far Aboriginal land rights have come since R v. Sparrow, when it was first accepted that governments had to justify themselves when violating s. 35 rights of Aboriginal groups. Each landmark case outlined here is a step towards the comprehensive consultation framework observed today.

References Cited

  1. 1.0 1.1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
  2. 2.0 2.1 R. v. Sparrow, 1 SCR 1075. (S. Ct. 1990). Retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do
  3. Rudin, J. (1998). One Step forward, Two Steps Back - The Political and Institutional Dynamics behind the Supreme Court of Canada's Decisions in R. v. Sparrow, R v. Van der Peet and Delgamuuku v. British Columbia. Journal of Law and Social Policy , 13, 67-94. Retrieved April 8, 2017.
  4. 4.0 4.1 4.2 Delgamuukw v. British Columbia, 3 SCR 1010. (S. Ct. 1997). Retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do
  5. University Press. (2012, February 27). Retrieved April 09, 2017, from https://www.youtube.com/watch?v=LhGhvhqyy38
  6. 6.0 6.1 Tsilhqot’in Nation v. British Columbia, 2 SCR 257. (S. Ct. 2014). Retrieved from https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do
  7. Bankes, N. (2015). The implications of the Tsilhqot'in (William) and Grassy Narrows (Keewatin) decisions of the Supreme Court of Canada for the natural resources industries. Journal of Energy & Natural Resources Law, 33(3), 188-217. doi:10.1080/02646811.2015.1030916
  8. 8.0 8.1 8.2 8.3 Coastal First Nations v. British Columbia, BCSC 24. (S. Ct. 2016). Retrieved from http://www.mandellpinder.com/coastal-first-nations-v-british-columbia-environment-2016-bcsc-34-case-summary/
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