Two World Views Two World Views in Lawin Law

Historical and Contemporary Historical and Contemporary Legal Decisions Surrounding Legal Decisions Surrounding Aboriginal Title and RightsAboriginal Title and Rights

UBCIC Aboriginal Title and Rights UBCIC Aboriginal Title and Rights Position Paper (1978)Position Paper (1978)

The Sovereignty of our Nations comes from the The Sovereignty of our Nations comes from the Great Spirit. It is not granted nor subject to the Great Spirit. It is not granted nor subject to the approval of any other Nation. As First Nations we approval of any other Nation. As First Nations we have the sovereign right to jurisdiction rule within have the sovereign right to jurisdiction rule within our traditional territories. Our lands are a sacred our traditional territories. Our lands are a sacred gift. The land is provided for the continued use, gift. The land is provided for the continued use, benefit and enjoyment of our people, and it is our benefit and enjoyment of our people, and it is our ultimate obligation to the Great Spirit to care for ultimate obligation to the Great Spirit to care for and protect it.and protect it.

An Elder Speaking About the Law of An Elder Speaking About the Law of the Land (1975) “The Land is the the Land (1975) “The Land is the

Culture” - UBCICCulture” - UBCIC

http://www.archive.org/download/LandistheCulture/Land_is_the_Culture_001.wmv

Aboriginal TitleAboriginal Title The Supreme Court of Canada said that The Supreme Court of Canada said that

Aboriginal Title protects the relationship between Aboriginal Title protects the relationship between Indigenous Peoples and their territories.Indigenous Peoples and their territories.

Aboriginal Title is more than the right to practice Aboriginal Title is more than the right to practice specific activities (hunt, fish) on the land. It is a specific activities (hunt, fish) on the land. It is a right to the land itself. right to the land itself.

Aboriginal Title exists from the fact that Aboriginal Title exists from the fact that Indigenous People were the Original People on Indigenous People were the Original People on the land now known as Canada. the land now known as Canada.

Aboriginal Title Includes:Aboriginal Title Includes: The right to make decisions about the land.The right to make decisions about the land.

Economic development opportunities that evolve Economic development opportunities that evolve to reflect modern uses of land. to reflect modern uses of land.

A group interest in the land held by Indigenous A group interest in the land held by Indigenous Nations, not by individual people.Nations, not by individual people.

An understanding that Aboriginal Title is “Sui An understanding that Aboriginal Title is “Sui Generis,” which means it is unique from all other Generis,” which means it is unique from all other types of property interests. types of property interests.

Indigenous SovereigntyIndigenous Sovereignty Indigenous Sovereignty is the inherent right and Indigenous Sovereignty is the inherent right and

responsibility of Indigenous Nations to care for responsibility of Indigenous Nations to care for and protect traditional lands and resources, to and protect traditional lands and resources, to govern themselves, and to enter into govern themselves, and to enter into relationships with other Nations of Peoples, relationships with other Nations of Peoples, guided by their own laws and legal traditions.guided by their own laws and legal traditions.

Indigenous Nations, with their own laws, Indigenous Nations, with their own laws, territories, economies, and societies were already territories, economies, and societies were already here when newcomers arrived. here when newcomers arrived.

Indigenous Law and ExpressionIndigenous Law and Expression Indigenous laws and systems of land ownership Indigenous laws and systems of land ownership

are unique to each Nation’s customs, and oral are unique to each Nation’s customs, and oral traditions.traditions.

Each Nation has its own expressions of laws.Each Nation has its own expressions of laws.

Laws are not written into statutes, rules, and Laws are not written into statutes, rules, and regulations. Laws are understood through regulations. Laws are understood through custom, legend, ceremony and oral tradition. custom, legend, ceremony and oral tradition.

Indigenous Law Is Realized As:Indigenous Law Is Realized As: Land and water are respected and Indigenous Land and water are respected and Indigenous

people have a responsibility to conserve people have a responsibility to conserve resources for future generations.resources for future generations.

Laws about land, living and the supernatural Laws about land, living and the supernatural world are expressed and recorded through song, world are expressed and recorded through song, dance, story, carving and/or ceremony.dance, story, carving and/or ceremony.

Laws are carried forward through Indigenous Laws are carried forward through Indigenous languages and speeches at feasts, longhouses, languages and speeches at feasts, longhouses, potlatches, and collective ceremonial gatherings. potlatches, and collective ceremonial gatherings.

Indigenous Law vs Western LawIndigenous Law vs Western Law

Indigenous laws and relationships to land differ Indigenous laws and relationships to land differ from Western notions of land as “property.”from Western notions of land as “property.”

Land is Land is notnot a possession or commodity to exploit a possession or commodity to exploit or sell.or sell.

““Our Land is Our Culture” (UBCIC) affirms that Our Land is Our Culture” (UBCIC) affirms that Indigenous relationships to land are inseparable Indigenous relationships to land are inseparable from Indigenous culture and must be reflected in from Indigenous culture and must be reflected in law. law.

Indigenous Homeland Indigenous Homeland

‘‘Ownership’ for Indigenous people involves Ownership’ for Indigenous people involves understanding the connection to their homeland. understanding the connection to their homeland. The connection to homeland is demonstrated The connection to homeland is demonstrated through cultural practices and Indigenous through cultural practices and Indigenous language. language.

Homeland is not simply ‘land’ but everything in Homeland is not simply ‘land’ but everything in one’s world: land, water, air, stars, people, one’s world: land, water, air, stars, people, animals and the spirit world. animals and the spirit world.

Philip Paul discusses colonization and Philip Paul discusses colonization and the differences between native and the differences between native and non-native attitudes to land (1975) non-native attitudes to land (1975)

– UBCIC– UBCIC

http://www.archive.org/download/LandistheCulture_0/The_Land_is_the_Culture_002.wmv

Royal Proclamation, 1763Royal Proclamation, 1763 Royal Proclamation 1763, required British/French Royal Proclamation 1763, required British/French

Governments (colonial governments) to negotiate Governments (colonial governments) to negotiate treaties with Indigenous Nations before treaties with Indigenous Nations before newcomers could take interest in the lands. newcomers could take interest in the lands.

It affirmed that Aboriginal Title to land and It affirmed that Aboriginal Title to land and resources exists as they are the Original People of resources exists as they are the Original People of the land.the land.

Canadian Federal and Provincial Governments Canadian Federal and Provincial Governments have ignored the laws of the Royal Proclamation have ignored the laws of the Royal Proclamation in BC, by not signing treaties.in BC, by not signing treaties.

Constitution Act, 1867Constitution Act, 1867 Under Section 91 (24) of the Constitution Act, Under Section 91 (24) of the Constitution Act,

1867, the Federal Government became legally 1867, the Federal Government became legally responsible to make decisions about “Indians, responsible to make decisions about “Indians, and lands reserved for the Indians.”and lands reserved for the Indians.”

All other lands and resources became the All other lands and resources became the responsibility of each Province.responsibility of each Province.

To this day, the Indian Act and Section 91 (24) To this day, the Indian Act and Section 91 (24) remain under Federal jurisdiction. remain under Federal jurisdiction.

Indian Act, 1876Indian Act, 1876 Federal legislation first passed in 1876 to manage Federal legislation first passed in 1876 to manage

and control Indigenous People.and control Indigenous People.

Intended to replace early treaty making policy Intended to replace early treaty making policy and assume control over Indigenous land.and assume control over Indigenous land.

Allowed the Government to remove Indigenous Allowed the Government to remove Indigenous People from their traditional land onto reserves.People from their traditional land onto reserves.

Outlawed Indigenous forms of governance and Outlawed Indigenous forms of governance and land ownership.land ownership.

TreatiesTreaties In Canada, with the exception of BC, treaties were In Canada, with the exception of BC, treaties were

signed between the Federal Government/British signed between the Federal Government/British Crown and Indigenous Nations.Crown and Indigenous Nations.

These treaties were in recognition of Indigenous These treaties were in recognition of Indigenous Rights and Title to land as outlined by the Royal Rights and Title to land as outlined by the Royal Proclamation, 1763.Proclamation, 1763.

The only treaties signed in BC are the “Douglas The only treaties signed in BC are the “Douglas Treaties” on Vancouver Island, and “Treaty 8” in Treaties” on Vancouver Island, and “Treaty 8” in North-eastern BC. North-eastern BC.

Sir James DouglasSir James Douglas Governor of Governor of

Vancouver Island Vancouver Island 1851-63 and 1851-63 and Governor of BC Governor of BC 1858-64.1858-64.

Signed the Signed the “Douglas Treaties.” “Douglas Treaties.”

Canadian Laws Canadian Laws Against Indigenous PeopleAgainst Indigenous People

Terra NulliusTerra NulliusThe argument made by Governments in legal The argument made by Governments in legal

disputes that Aboriginal Title to land did not exist disputes that Aboriginal Title to land did not exist because the land was “empty” or “vacant.”because the land was “empty” or “vacant.”

The argument that Indigenous Nations were The argument that Indigenous Nations were primitive and uncivilized, and were not capable of primitive and uncivilized, and were not capable of managing or having laws to govern the land. managing or having laws to govern the land.

Canadian Laws Canadian Laws Against Indigenous PeopleAgainst Indigenous People

Doctrine of DiscoveryDoctrine of DiscoveryThat Aboriginal Title was simply extinguished when That Aboriginal Title was simply extinguished when

newcomers came upon the land lived on and newcomers came upon the land lived on and governed by Indigenous People, because it had governed by Indigenous People, because it had been “discovered.”been “discovered.”

Doctrine of Adverse PossessionDoctrine of Adverse PossessionThe Province extinguished Aboriginal Title by The Province extinguished Aboriginal Title by

declaring other interests in the land and declaring other interests in the land and resources.resources.

Canadian Laws Canadian Laws Against Indigenous PeopleAgainst Indigenous People

Passage of TimePassage of TimeThat Aboriginal Title “died of old age.” It did not That Aboriginal Title “died of old age.” It did not

exist anymore because it was in the past and too exist anymore because it was in the past and too much time had passed for Aboriginal Title and much time had passed for Aboriginal Title and Rights (as declared in Royal Proclamation) to be Rights (as declared in Royal Proclamation) to be valid. valid.

All of these arguments were used in law to avoid All of these arguments were used in law to avoid having to sign treaties with Indigenous People.having to sign treaties with Indigenous People.

Chief Saul Terry on the relationship Chief Saul Terry on the relationship between Canada and First Nations. between Canada and First Nations.

- UBCIC- UBCIC

http://www.archive.org/download/ChiefSaulTerryspeakingfortheNoSideontheCharlottownconstitutionalreferendum/V376001.wmv

Indian ReservesIndian Reserves Indian Reserves are land set aside for Indigenous Indian Reserves are land set aside for Indigenous

People that Canada holds in trust.People that Canada holds in trust.

Indigenous People do not own reserve lands. Indigenous People do not own reserve lands.

At the time of the Indian Act, 1876, Indigenous At the time of the Indian Act, 1876, Indigenous People were not allowed to leave reserve lands, People were not allowed to leave reserve lands, and it was illegal for them to hire lawyers to try and it was illegal for them to hire lawyers to try and acquire their lands back.and acquire their lands back.

Tahltan Indians, Cassiar District. Tahltan Indians, Cassiar District. Map of Reserves 1, 2, 10.Map of Reserves 1, 2, 10.

Chief Simon Baker on reserves and Chief Simon Baker on reserves and Aboriginal Title (1977) – UBCICAboriginal Title (1977) – UBCIC

http://ubcic.bc.ca/files/Audio/McKenna-cBride/Background/Ac4-aClip48.mp3http://ubcic.bc.ca/files/Audio/McKenna-cBride/Background/Ac4-aClip48.mp3

Fiduciary RelationshipFiduciary Relationship The Federal Government has a Fiduciary Duty to The Federal Government has a Fiduciary Duty to

Indigenous Peoples’ interest in land.Indigenous Peoples’ interest in land.

The Crown, as fiduciary, must act and make The Crown, as fiduciary, must act and make decisions in the best interest of Indigenous decisions in the best interest of Indigenous People.People.

Other examples of fiduciary relationships are Other examples of fiduciary relationships are “client and lawyer” or “patient and doctor.”“client and lawyer” or “patient and doctor.”

Calder v. Attorney-General of BC, Calder v. Attorney-General of BC, 1973 Supreme Court of Canada1973 Supreme Court of Canada

Dr. Frank Calder, Nisga’a, defended that Nisga’a Dr. Frank Calder, Nisga’a, defended that Nisga’a People have an Aboriginal Right to the resources People have an Aboriginal Right to the resources of the Nass watershed because of their Aboriginal of the Nass watershed because of their Aboriginal Title.Title.

Supreme Court of Canada landmark decision that Supreme Court of Canada landmark decision that determined Aboriginal Title exists on the basis of determined Aboriginal Title exists on the basis of the fact “that when settlers came, the Indians the fact “that when settlers came, the Indians were there, organized in societies and occupying were there, organized in societies and occupying the land as their forefathers had done for the land as their forefathers had done for centuries” centuries” (UBCIC, 2007).(UBCIC, 2007).

Dr. Frank Calder, Nisga’aDr. Frank Calder, Nisga’a

Doug Sanders on Land Claims, Calder Doug Sanders on Land Claims, Calder Case, and Treaties.Case, and Treaties.

http://www.archive.org/download/ExcerptfromTheLandisthecultureacaseforBCIndianlandclaimsclip008/The_Land_is_the_Culture_008.wmv

Constitution Act, 1982Constitution Act, 1982 Canada formally removed itself as a British colony Canada formally removed itself as a British colony

and became entirely self-governing by replacing and became entirely self-governing by replacing British North America Act with the Constitution British North America Act with the Constitution Act of 1982.Act of 1982.

Section 35Section 35 of the Constitution protects of the Constitution protects Aboriginal Title, Rights, and Treaty rights:Aboriginal Title, Rights, and Treaty rights:

““The existing Aboriginal and Treaty rights of The existing Aboriginal and Treaty rights of Aboriginal peoples of Canada are herby Aboriginal peoples of Canada are herby recognized and affirmed.”recognized and affirmed.”

Purpose of Section 35 of the Purpose of Section 35 of the Constitution is:Constitution is:

To ensure Indigenous Peoples survive as unique To ensure Indigenous Peoples survive as unique Peoples with their own culture and traditions.Peoples with their own culture and traditions.

To address the history of injustice against To address the history of injustice against Indigenous People through the denial of Indigenous People through the denial of Aboriginal Title, Rights and Treaty Rights.Aboriginal Title, Rights and Treaty Rights.

To protect the “cultural security and continuity” To protect the “cultural security and continuity” of Indigenous societies. of Indigenous societies.

Delgamuukw v. British ColumbiaDelgamuukw v. British Columbia1997 Supreme Court of Canada1997 Supreme Court of Canada

The Supreme Court of Canada landmark decision The Supreme Court of Canada landmark decision in Delgamuukw v. British Columbia ruled for the in Delgamuukw v. British Columbia ruled for the first time that Aboriginal Title first time that Aboriginal Title continuescontinues to exist. to exist.

Aboriginal Title was Aboriginal Title was notnot extinguished by the extinguished by the assertion of Canadian sovereignty or Provincial assertion of Canadian sovereignty or Provincial laws.laws.

Aboriginal Title is protected by Section 35 of the Aboriginal Title is protected by Section 35 of the Constitution Act, 1982.Constitution Act, 1982.

Gitksan Wet’suwet’en Gitksan Wet’suwet’en Territories in BCTerritories in BC

Oral Tradition as EvidenceOral Tradition as Evidence In Delgamuukw v. British Columbia, the Gitksan In Delgamuukw v. British Columbia, the Gitksan

and Wet’suwet’en Nations introduced their oral and Wet’suwet’en Nations introduced their oral traditions as evidence to show their ownership traditions as evidence to show their ownership and jurisdiction to their lands.and jurisdiction to their lands.

The Supreme Court acknowledged that oral The Supreme Court acknowledged that oral tradition (knowledge shared through story, song, tradition (knowledge shared through story, song, dance and ceremony, and is not written) is valid dance and ceremony, and is not written) is valid evidence in court.evidence in court.

Oral Tradition must be given equal weight in Oral Tradition must be given equal weight in court as written documents. court as written documents.

““If the culture, identity and spirit of If the culture, identity and spirit of Indigenous Peoples are to survive, Indigenous Peoples are to survive, the land must be maintained with the land must be maintained with respect and understanding among all respect and understanding among all peoples in these lands.”peoples in these lands.”

- UBCIC - UBCIC Our Culture Lives in the Land.Our Culture Lives in the Land.