OTTAWA—Who owns the land, really?
That question is at the centre of the dispute over the Coastal GasLink pipeline: the Wet’suwet’en hereditary chiefs say it can’t pass through the nation’s territory without their permission, but Canada’s legal framework does not acknowledge Wet’suwet’en ownership of the territory they claim.
At least not yet.
On Sunday, ministers from the British Columbia and federal governments stood with a Wet’suwet’en hereditary chief to hail a “milestone” proposal to recognize the nation’s “title.”
The government has long said an important element of its reconciliation agenda is the recognition of land rights and title for all Indigenous nations that wish to pursue them.
But what does that actually mean for the relationship between First Nations and the Crown? And how might it reshape how decisions are made — on resource development and other issues — across Canada?
What, in other words, are we talking about when we talk about “Aboriginal title?”
So, what does it mean to recognize “Aboriginal title?”
“You’re just returning or recognizing what’s already theirs,” said John Borrows, Canada research chair in Indigenous law at the University of Victoria.
For millennia, Indigenous nations governed, traded, hunted, fought and travelled throughout the territory that is now called Canada. Then European colonizers arrived and declared themselves sovereign. Sometimes there were treaties to formalize this claim — in which Indigenous peoples formally ceded territory — but oftentimes the colonizers simply considered the land open for settlement.
Just because the Crown asserted sovereignty, however, didn’t mean it was necessarily so. According to Borrows, the courts have found that Indigenous land rights “survived the assertion of sovereignty,” and have not been subsequently wiped out by provincial or federal laws.
The Crown’s claim over large tracts of land in places like B.C. has been chipped away by a series of court cases that have gradually ruled Indigenous claims to the same land are not inferior to claims from the settler government, Borrows said.
Those cases includes the landmark Tsilhqot’in decision in 2014, in which the Supreme Court of Canada affirmed a B.C. Indigenous nation’s “Aboriginal title” for the first time. “The idea here is that (title) is a pre-existing right that has not been extinguished,” Borrows said.
Does recognizing “Aboriginal title” make land into private property?
Borrows explained that courts have outlined how Aboriginal title has an “inherent limit.” Because it refers to land that is owned collectively by an Indigenous nation, rather than individually, “you have to preserve that land for future generations,” he said. “You can’t sever the historic relationship with the land.”
Eugene Kung, a staff lawyer with West Coast Environmental Law, added that Aboriginal title land can only be transferred to the government — not to individuals or a corporation.
Otherwise, the concept of Aboriginal title — which is enshrined in Section 35 of the Constitution — is very much like the popular conception of private property, said Robert Janes, principal at JFK Law in Victoria, B.C.
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“It means that they are entitled to the economic benefits of the land, and they are entitled to decide what happens to the land,” Janes said.
So, does recognizing title give Indigenous nations a veto over resource projects?
No — at least according to the most recent case law. In the Tsilqot’in decision, the Supreme Court laid out rules for the government to justify “overriding” an Indigenous group’s wishes for what happens on its land.
To do so, it must show that it has followed its “duty to consult” and accommodate concerns of the Indigenous group; that the overriding of title was done for a “compelling and substantial objective”; and that it is consistent with the Crown’s obligations to the Indigenous group. Incursions on Aboriginal title “cannot be justified if they would substantially deprive future generations of the benefit of the land.”
“It’s a test that involves basically overriding a group’s constitutionally protected rights, so it’s not an easy thing to do,” said Kate Gunn, a lawyer with First Peoples Law in Vancouver, which works as legal counsel for the Unist’ot’en clan of the Wet’suwet’en.
Borrows added that “as long as (the Crown) acts in an honourable way … then it’s possible to put something on that land that the First Nation does not agree with.”
Let’s say title has been recognized. Then what?
The legitimate use of the land by governments and corporations becomes a complicated question with no easy answers, Kung said.
“We’re all here, we’re not going anywhere,” he said. “This needs to be resolved.”
When you hear politicians like Justin Trudeau say reconciliation is hard work, this is what they’re talking about. If the Wet’suwet’en accept the governments’ proposed deal to recognize ownership of their traditional land, negotiations will begin over how that land will be governed.
How, for instance, will an Indigenous nation’s laws work, and how will they be reconciled with provincial, federal and municipal laws within the territory. Questions of governance will also arise, Gunn says, when a nation that has a traditional leadership structure, like the Wet’suwet’en hereditary chiefs, exists alongside the elected band councils created by the Indian Act.
The bottom line is that, in places like Wet’suwet’en territory — where the Indigenous nation never signed a treaty or ceded land to the Crown — “the underlying ownership” of the land remains a complicated question, said Kung.