I have mentioned that the B.C. Treaty Process is always controversial because there is always a significant difference between what Indigenous Peoples see as their “Original Title” to the land and its resources and the Canadian and B.C. legal notion of ‘Aboriginal Title. This issue prevents further negotiation from continuing.
In this article, I will explain Aboriginal Tittle in Canadian law, and an Indigenous perspective and why reconciling the Canadian legal understanding of Aboriginal title with Indigenous knowledge remains a significant challenge.
What Is “Aboriginal Title” In Canadian Law
Under the Canadian law, the Aboriginal title is sui generis, or unique collective right to the use of and jurisdiction over a group’s ancestral territories. The land title originates in a First Nation community’s occupation of its ancestral lands before the European assertion of sovereignty.
As such, Aboriginal Title and Rights are separate from rights afforded to Canadian citizens under the common law. In that regard, the Aboriginal Title may not be sold or purchased by individuals; it may only be voluntarily surrendered to the Crown by a First Nation community through treaty agreements. Some First Nations do not agree with these definitions, as they consider Canadian purposes of limiting the scope of Aboriginal Title, making it easier to extinguish.
In B.C., this narrow perspective proved especially controversial. Some claimed that the colony of British Columbia was not subject to the Royal Proclamation. The British Columbian government argued that Aboriginal Title had been extinguished by colonial legislation before the province entered the Canadian Confederation. As a result, no treaties for the surrender of the Aboriginal Title were completed. The 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 for private property rights, have not yet been thoroughly defined.
First Nation Perspectives of Aboriginal Tittle and Land
First Nation peoples across Canada and B.C. have maintained a solid connection to the land. Even though there is vast cultural variation between First Nations, most groups held similar beliefs that governed their relationship with and responsibility to the ground.
Most First Nation communities did not believe that pieces of land could or should be owned by particular individuals. Humans, along with all other living beings, belonged to the ground. The land provided for humanity, and in turn, society bore a responsibility to respect and care for it. Many First Nation peoples understand this as a reciprocal relationship with the land because they do not own the lands.
Aboriginal Tittle: A Great Challenge
Reconciling the legal understanding of Aboriginal title with First Nation understanding remains a significant challenge. For example, the First Nations believe that Aboriginal Title cannot be surrendered but only shared. The concept of private property ownership is an idea introduced by the European settlers.
The idea that Aboriginal title would be a proprietary right to the land stands in contrast to Indigenous concepts of land ownership. Thus, Canadian sovereignty over lands is not dependent upon an agreement with First Nations concerning Aboriginal title, and reconciling the Canadian legal understanding of Aboriginal title with Indigenous knowledge remains a significant challenge.
Bibliography
Crowe, Keith. “Comprehensive Land Claims: Modern Treaties”. The Canadian Encyclopedia, 11 July 2019, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/comprehensive-land-claims-modern-treaties. Accessed 23 November 2021.
Dyck, Lillian E., et al. A Commitment Worth Preserving: Reviving the British Columbia Treaty Process. Canada Senate, Ottawa, Ont., 2012.
McNeil, Kent. “The Meaning of Aboriginal Title.” In Michael Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Vancouver: UBC Press, 1997. 135-154.
Woolford, Andrew. “Negotiating Affirmative Repair: Symbolic Violence in the British Columbia Treaty Process.” Canadian Journal of Sociology, vol. 29, no. 1, 2004, pp. 111.
Green, Arthur, et al. British Columbia in a Global Context. Geography Open Textbook Collective, 2014.
Hanson, Eric. “Aboriginal Title.” Indigenous Foundations. First Nations and Indigenous Studies UBC, 2009. Accessed 23 November 2021.
This is an opinion article; the views expressed by me. Follow him on Twitter: @hkpltw And @Terry_Terence97
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