Aboriginal title is an inherent right, recognized in common law, that originates in Indigenous peoples’ occupation, use and control of ancestral lands prior to colonization. Aboriginal title is not a right granted by the government; rather, it is a property right that the Crown first recognized in the Royal Proclamation of 1763. It has been subsequently recognized and defined by several Supreme Court of Canada decisions. Furthermore, subsection 35(1) of the Constitution Act, 1982 recognizes and affirms “existing Aboriginal and treaty rights.” However, Canadian sovereignty over lands is not dependent upon an agreement with First Nations with regard to Aboriginal title, and reconciling the Canadian legal understanding of Aboriginal title with Indigenous understanding remains a great challenge.
For centuries prior to the arrival of Europeans, Indigenous peoples lived on and managed the lands that became Canada. Their occupation, use of and jurisdiction over these lands is known as Aboriginal title. It is a communal property right belonging to Indigenous communities and is not held by any specific individual in that group. Supreme Court cases such as Calder (1973), Delgamuukw (1997) and Tsilhqot’in (2014) have clarified questions on Aboriginal title and set certain limitations upon it.
Upon arrival in North America, Europeans asserted their power over the peoples they encountered and, by extension, over the lands on which Indigenous peoples resided. Such practices often led to conflict. It soon became clear that negotiating agreements of peace and friendship and purchasing the lands from Indigenous peoples were better ways of maintaining good relations.
The Crown acknowledged the usefulness of this method in the Royal Proclamation of 1763. While asserting its overarching sovereignty in North America, the Crown recognized the existence of Aboriginal title and acknowledged it must be purchased by the Crown prior to settlement. The 1869 Deed of Surrender and subsequent transfer of Rupert’s Land to Canada from the Hudson’s Bay Company contained a similar recognition. Subsequently, from the late 18th to the early 20th century, the colonial and national governments of Canada took steps through treaties to have the Aboriginal title to these lands surrendered in return for certain payments and promises. (See also Numbered Treaties.)
In this period, Aboriginal title was understood to be a usufructuary right (meaning the right to use the property of another) dependent upon the goodwill of the Crown. The Judicial Committee of the Privy Council maintained this position in the case of St. Catherine’s Milling and Lumber Co. v. the Queen (1888). The Privy Council stated that Aboriginal title rested with the Crown, not with Indigenous peoples. This limited view of Aboriginal title prevailed until the Calder case overturned this decision in 1973.
In British Columbia, this narrow perspective proved especially problematic. Some claimed that the colony of British Columbia was not subject to either the Royal Proclamation or the Deed of Surrender. The Government of British Columbia argued that Aboriginal title had been extinguished (surrendered) by colonial legislation prior to the province’s entry into Confederation. ( See also British Columbia and Confederation.) British Columbia’s government therefore concluded that Aboriginal title did not exist in the province and, as a result, no treaties for the surrender of Aboriginal title were completed, with the exception of the small pre-Confederation Vancouver Island treaties and those tracts of northern British Columbia included in Treaty 8. The refusal of British Columbia to permit negotiations for Aboriginal title in the province explains why nearly all of the significant legal decisions related to Aboriginal title — including the Calder case (1973), the Delgamuukw case (1997), the Bernard case (2005) and the Tsilhqot’in case (2014) — have originated in disputes within that province.
In Canadian law, Aboriginal title is sui generis (meaning of its own kind or unique), in that the land title originates in an Indigenous group’s occupation of its ancestral lands prior to the European assertion of sovereignty. As such, it is different from other forms of property rights because it is a communal right belonging to specific Indigenous communities. In that regard, Aboriginal title may not be sold or purchased by individuals; it may only be voluntarily surrendered to the Crown by an Indigenous community through agreements such as treaties. It includes both surface and subsurface resources, such as mineral rights and oil and gas developments. (See also Resource Rights and Resource Management.)
For an Indigenous community to have its Aboriginal title to a particular area of land recognized, the Supreme Court ruled in the Delgamuukw case (1997) that it must demonstrate: occupation of the land in question prior to sovereignty, a continuity between present and pre-sovereignty occupation (if present occupation is relied on as proof of occupation pre-sovereignty), and exclusive occupation. The Supreme Court also decided that: “Aboriginal title is… more than the right to engage in specific activities which may be themselves Aboriginal rights.” In other words, Aboriginal title is not only concerned with the use of the land in traditional activities; rather, title provides Indigenous communities with the right to use the land in modern ways, except in cases where the use is “irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s Aboriginal title.”
In the Tsilhqot’in case (2014), the Supreme Court recognized the Tsilhqot’in people held Aboriginal title to 1,750 km 2 of traditional territory. In the decision, the court clarified that Indigenous occupation does not necessarily have to be intensive, such as in the establishment of a village or farm, but may be bound up in other historical Indigenous practices, such as seasonal migration or management of hunting, fishing or trading rights. In these ways, an Indigenous community’s Aboriginal title may apply to an extensive territory.
However, Aboriginal title does not negate the Crown’s sovereign title to the land. Instead, Aboriginal title is a “burden” — a legal acknowledgment of that title — upon the Crown’s underlying title. The governance of those areas where Aboriginal title is recognized, and the implications of this title for private property rights, have not yet been thoroughly defined.
Following the Calder case (1973), the Canadian government developed a comprehensive claims process to negotiate modern treaties so that it might resolve problems related to Aboriginal title. The James Bay and Northern Québec Agreement of 1975 was among the first of the modern treaties to be completed in this process. Other claims have been negotiated in Labrador, the Northwest Territories, Nunavut and Yukon territory. In British Columbia, the province’s treaty commission is in the process of negotiating comprehensive agreements with dozens of First Nations. Negotiations also continue in areas where historic treaties and agreements may not have settled questions related to Aboriginal title.
The impact of the Tsilhqot’in case (2014) on the comprehensive claims process remains uncertain. Each agreement has distinct characteristics based upon the lands and aspirations of the First Nation. The process, especially in British Columbia, remains slow, and fundamental questions related to extinguishment of Aboriginal title and the status of reserve lands are unresolved. Under the terms of most historic treaties, First Nations do not hold Aboriginal title to reserve lands; rather, reserves are protected by the federal government under subsection 91(24) of the Constitution Act, 1867. But under the terms of the Nisga’a Comprehensive Agreement, for example, the Nisga’a may retain Aboriginal title to Nisga’a lands.. For some First Nation leaders, this uncertainty is a concern as reserve lands have special protections from provincial and municipal authorities that may not apply to lands held under Aboriginal title.
Most Indigenous peoples define Aboriginal title somewhat differently than Canadian governments. In their understanding, the land was provided to them by the Creator and as such, it belongs to them and to their past and future generations. For this reason, Indigenous peoples have argued that they retain inherent land rights to traditional territories. It is not owned, but rather the people and the land exist in a reciprocal relationship. In this regard, Indigenous scholars note that Aboriginal title cannot be surrendered but only shared. Summarizing the Indigenous viewpoints, the Royal Commission on Aboriginal People (1996) concluded that Aboriginal title does not include: “the right to alienate or sell land to outsiders, to destroy or diminish lands or resources, or to appropriate lands or resources for private gain without regard to reciprocal obligations.” In this understanding, the “cede, release, yield up and surrender” clause found in the Numbered Treaties did not constitute a surrender of Aboriginal title, but rather an agreement upon the conditions by which the land would be shared.
Reconciling the Canadian legal understanding of Aboriginal title with Indigenous understanding remains a great challenge. The idea that Aboriginal title would be a proprietary right to the land stands in contrast to Indigenous concepts of land ownership. Moreover, some people reject the notion that Canadian sovereignty over lands is not dependent upon an agreement with First Nations with regard to Aboriginal title. They associate such a claim with the doctrine of discovery, a legal theory that a growing chorus of voices, including the Assembly of First Nations and the Truth and Reconciliation Commission of Canada, have demanded that the government renounce.
