What’s the Deal with Treaties
• What does Equality
mean to you?
• Does Equality mean
treating everyone the
same?
Questions
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What is aboriginal title?
How does it conflict with Crown title?
What is a treaty?
Why has the land question in BC not been
resolved? Why did it take until 1991 to set up a
process for negotiations?
• What are the items for negotiation? Why are
these issue difficult to resolve?
• What are the alternatives to treaty negotiations?
• What are the legal reasons for treaties?
Delgamuukw
• On December 11, 1997 the Supreme
Court of Canada released its decision in
Delgamuukw v. British Columbia. The
decision marked the first time that the
Supreme Court had ruled that the concept
of Aboriginal title existed.
The Supreme Court laid out a number of principles
relating to the following issues:
– Use of oral history to prove Aboriginal title.
– The test for proving Aboriginal title
– The content of Aboriginal title
– Government's ability to infringe Aboriginal title
– The province's ability to extinguish Aboriginal
title
– The governments' duty in negotiations
•First Nations have
traditionally recorded
their histories orally.
•First Nations histories
that have never been
written down.
Use of oral history to prove
Aboriginal title
•
The songs, stories, ceremonies and dances
that form the heart of First Nations history,
law and governance have been handed down
from generation to generation.
• In Delgamuukw, the Supreme Court said that
oral history could now be used to prove
Aboriginal title.
The test for proving Aboriginal title
• The Delgamuukw decision does not
grant Aboriginal title to any First
Nation it outlined a test for proving
it.
• The Supreme Court test has three
parts:
– Pre sovereignty occupancy
– Continuity between present day
and pre sovereignty occupation
– Exclusive possession of
traditional lands
The test for proving Aboriginal title
• Pre sovereignty occupancy
• First Nations must prove that they occupied their territories at the
time when the British asserted sovereignty over their lands.
• The Court set 1846 as the valid date for British Columbia.
• To prove pre sovereignty occupancy, First Nations may use any of
the following:
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Oral history
Archaeological and anthropological evidence
Traditional use studies
Evidence of houses or dwellings
Evidence of traditional resource use
In most cases, due to displacement and the various activities that have
taken place on the land since colonization, this evidence may be difficult
to obtain.
The test for proving Aboriginal title
• Continuity
• To pass the second part of the test, First Nations must
prove that their people have maintained a substantial
connection with their territories from sovereignty to the
present day.
• Some of these uses might include:
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Trap lines
Fishing spots
Hunting grounds
Camps
Spiritual locations
Places used for specific cultural or governance activities.
The test for proving Aboriginal title
• Exclusive Possession of Traditional Lands
• The third part of the test requires First Nations to
show that, prior to British sovereignty, First
Nations controlled their territories by excluding
or attempting to exclude others from using the
land.
• Ways of meeting this test include:
– Demonstration of traditional protocols
– Demonstration of the joint use of territories, for
hunting for example.
• The courts will only recognize aboriginal title if a
First Nation meets this three point test.
The content of Aboriginal title
• Aboriginal title applies to lands held collectively
by a First Nation, with the underlying legislative
jurisdiction held by the federal government.
• If a First Nation is found to have Aboriginal title,
it has the exclusive use and occupation of the
land over which the title applies. The Court said
that land must be used in a manner consistent
with the special connection of the people with
the land.
– For example, a First Nation cannot develop a
shopping mall on a hunting territory without
surrendering their Aboriginal title over the land in
question.
Government's ability to infringe Aboriginal title
• Infringement refers to the government's ability to
restrict Aboriginal title or the use of Aboriginal title
lands.
• The Crown may only infringe Aboriginal title
provided that it can demonstrate that the
infringement is in the best interests of "society" or
that it is required for the regulation of resources.
The province's ability to extinguish
Aboriginal title
• Only the federal government
had the authority to
extinguish Aboriginal title.
This point is significant
because it categorically
dismisses the possibility of
provinces unilaterally
extinguishing Aboriginal title.
The governments' duty in negotiations
• The Supreme Court's often quoted phrase "let us face it,
we are all here to stay" refers specifically to the Crown's
duty to negotiate with First Nations. The Court urged
governments to negotiate with First Nations and it placed
a duty on governments to negotiate in good faith.