Indigenous Land Rights and Governance on Property: (Re)Making Canada | An Open Legal Coursebook

James [sákéj] Youngblood Henderson, Míkmaw Tenure in Atlantic Canada

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[Excerpted from: James [sákéj] Youngblood Henderson, Míkmaw Tenure in Atlantic Canada 18(2) Dalhousie Law Journal 196. Published under a Creative Commons Attribution 4.0 International License (CC BY 4.0)]

Míkmaq Tenure in Prerogative Treaties #

Míkmaq attitudes toward sharing of the sacred space are evident in almost every treaty with the British Crown. The prerogative Treaties reserve their land tenure and beneficial interest under the protection of the Crown and separate from the provinces. These Treaties were forged from the ancient ecological covenants with the Keepers of the Mntu and from their Nikmanen law. The context for the prerogative Treaties was the ancient Nikmanen [Míkmaw transnational legal] Order.

Peace and Friendship Treaty (1725)

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Ratification of 1725 Treaty #

Articles of Submission & Agreements made at Boston in New England by Sanguaarum alias Loron, Arexus Francois Xavier and Meganumbe Delegates from Penobscott Naudgevaek S. Johns Cape Sables and Other Tribes Inhabiting within His Majesties Territories of Nova Scotia and New England __________

Whereas His Majesties King George by Concession of the Most Christian King made at the Treaty of Utrecht became the Rightfull Possessor of the Province of Nova Scotia or Acadie according to its antient Boundaries We the said “Indians Sanguaarum alias Loron Arexus Francois Xavier and Meganumbe Delegates from the said Tribes Penobscott Naudgewaek St. Johns Cape Sables and other tribes Inhabiting His Majesties and Territories in Nova Scotia or Acadie and New England in the name and behalf of the said Tribes We Represent Acknowledge His Said Majesty King George’s Jurisdiction and Dominion over the said Territories of Nova Scotia or Acadie and make our Submission to his said Majesty in as ample a Manner as We have formerly done to his most Christian Kings __________

Peace and Friendship Treaty (1752)

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Treaty or Articles of Peace and Friendship Renewed between His Excellency Peregrine Thomas Hopson Esquire Captain General and Governor in Chief in and over His Majesty’s Province of Nova Scotia or Acadie. Vice Admiral of the same & Colonel of one of His Majesty’s Regiments of Foot, and His Majesty’s Council on behalf of His Majesty and Major Jean Baptiste Cope, chief Sachem of the Tribe of Mick Mack Indians Inhabiting the Eastern Coast of the said Province, and Andrew Hadley Martin, Gabriel Martin & Francis Jeremiah, Members and Delegates of the said Tribe, for themselves and their said Tribe their Heirs, and the Heirs of their Heirs forever, Begun made and concluded in the manner, form and Tenor following, vizt:

R v Syliboy

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Patterson (Acting) Co. Ct. J. — #

The defendant, who is the grand chief of the Mick Macks of Nova Scotia was convicted under the Lands and Forests Act, 1926 (N.S.), c. 4, of having in his possession at Askilton in the County of Inverness on November 4, last fifteen green pelts, fourteen muskrat and one fox. He made no attempt to deny having the pelts, indeed frankly admits having them, but claims that as an Indian he is not bound by the provisions of the Act, but has by Treaty the right to hunt and trap at all times. Every now and then for a number of years one has heard that our Indians were making these claims but, so far as I know, the matter has never been before a Court.

Interpretation of the 1752 Treaty after Syliboy

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In 1928, Grand Chief Gabriel Syliboy was charged and ultimately convicted of hunting muskrats out of season on Unamaki (Cape Breton). Justice Patterson’s interpretation of the 1752 treaty in R v Syliboy—though ultimately rejected by Canadian courts—would stand as an authoritative common law precedent for many years to come. The decision would influence relationships between Mi’kmaq peoples and the Crown long after it was issued. As William Wicken notes:¹

In approaching treaties signed with Mi’kmaq peoples, federal and provincial governments have ignored community perspectives and reinforced Judge Patterson’s viewpoint of treaty-making. Though treaty issues have been before the courts on numerous occasions over the past sixty years, scant attention has been focused on how the Mi’kmaq understood treaties both at their signing and afterward. A 1974 memorandum, for instance, sent by Nova Scotia’s deputy Attorney-General, to the president of the Union of Nova Scotia Indians noted that:

Simon v The Queen

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Dickson C.J.C. – #

This case raises the important question of the interplay between the treaty rights of native peoples and provincial legislation. The right to hunt, which remains important to the livelihood and way of life of the Micmac people, has come into conflict with game preservation legislation in effect in the Province of Nova Scotia. The main question before this Court is whether, pursuant to a Treaty of 1752 between the British Crown and the Micmac, and to s. 88 of the Indian Act, R.S.C. 1970, c. 1-6, the appellant, James Matthew Simon, enjoys hunting rights which preclude his prosecution for offences under the Lands and Forests Act, R.S.N.S. 1967, c. 163.

Royal Proclamation (1763)

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And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds,–We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

Johnson v McIntosh

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Find excerpt.

St. Catherine's Milling and Lumber Co. v R

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Background to the Case #

For more than a hundred years after it was enacted, the Royal Proclamation of 1763 stood as the British Crown’s most authoritative statement on how it viewed Indigenous rights in land. But during this period the Proclamation itself received little to no scrutiny in the common law courts. This changed dramatically when the Chancery Division of the High Court of Ontario issued its decision in St. Catherine’s Milling and Lumber Co. v R in 1886, followed by subsequent appeals all the way to the Judicial Committee of the Privy Council—at that time, Canada’s highest court of appeal. The case would chart the course for the common law doctrine of Aboriginal Title in Canada for well into the next century.

Terra Nullius

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Terra nullius is a term that refers to a “territory without a master.” It is a term used in public international law to describe a space that can be inhabited but that does not belong to a state, meaning the land is not owned by anyone. In fact, when a State or an entity describes a land as a terra nullius, the land is in reality occupied – by a nation or a minority – but the term has oftentimes been used in order to legitimize state occupation and colonization. In international public law, when the definition terra nullius is given to a land, it can legally legitimize its occupation and acquisition of sovereignty by another nation, under the doctrine of discovery, which the International Court of Justice (ICJ) has approved as a legal method of acquisition of territory.

Guerin v R

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[This case concerns the lease of reserve lands situated within the geographical boundaries of the City of Vancouver. In 1957, members of the Musqueam Indian Band voted to surrender 162 acres of their reserve lands to the federal Crown on the understanding that these lands would in turn be leased by the Crown to the Shaughnessy Heights Golf Club for use as a golf course. Rents and other benefits from this lease were to be paid to Band. The final terms on which the Crown ultimately leased the lands to Shaughnessy Heights, however, were very unfavourable to the Band. The Chief and Councillors of the Musqueam Indian Band sued the Crown for breach of trust and damages in the amount of $10,000,000.]

Constitution Act, 1982

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Section 35 #

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. […]

Delgamuukw v British Columbia

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Lamer C.J.C – #

II. Facts #

A. The Claim at Trial #

This action was commenced by the appellants, who are all Gitksan or Wet’suwet’en hereditary chiefs, who, both individually and on behalf of their “Houses” claimed separate portions of 58,000 square kilometres in British Columbia. For the purpose of the claim, this area was divided into 133 individual territories, claimed by the 71 Houses. This represents all of the Wet’suwet’en people, and all but 12 of the Gitksan Houses. Their claim was originally for “ownership” of the territory and “jurisdiction” over it. (At this Court, this was transformed into, primarily, a claim for aboriginal title over the land in question.) The province of British Columbia counterclaimed for a declaration that the appellants have no right or interest in and to the territory or alternatively, that the appellants’ cause of action ought to be for compensation from the Government of Canada.

Tsilhqot’in Nation v. British Columbia

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McLachlin C.J.C. — #

I. Introduction #

What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title? These are among the important questions raised by this appeal.

Duty to Consult

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You will note that in the final paragraphs excerpted from Tsilhqot’in Nation, the Supreme Court found that the Province of British Columbia breached its duty to consult with the Tsilhqot’in Nation prior to granting forestry licences to third parties on territorial lands. That duty was engaged when the Province began the planning process for removing timber on the land.

An important point here is that the Crown owed and breached its duty to consult with the Tsilhqot’in Nation well prior to the Tsilhqot’in Nation successfully proving their claim in the courts. This is a central purpose of the consultation doctrine: it engages the Crown’s fiduciary duty and the honour of the Crown in advance of litigation or negotiations to address claims to title, and therefore offers some measure of protection for title lands in light of the several legal and other barriers to successfully resolving such claims.

Cowichan Tribes v. Canada (Attorney General)

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B.M. Young J. – #

Executive Summary #

The plaintiffs, on their own behalf and on behalf of the descendants of the historic Cowichan Nation, brought this action seeking a declaration of Aboriginal title to their traditional village of Tl’uqtinus on the south arm of the Fraser River, and to its surrounding lands and submerged lands. They also seek a declaration of an Aboriginal right to fish the south arm of the Fraser River for food.

J.D. Irving, Limited et al. v. Wolastoqey Nation

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Drapeau J.A. (for the Court) – #

[In its Statement of Claim in the New Brunswick Court of King’s Bench, the Wolastoqey Nation sought a declaration of Aboriginal Title in ungranted Crown lands as well as lands subject to fee simple interests held by the appellant, J.D. Irving, and other named “Industrial Defendants”, but not in lands subject to other fee simple interests held by “Strangers to the Claim”. The appellant sought an order striking portions of the Statement of Claim that asserted a cause of action against them for a declaration of Aboriginal Title on the ground that “declarations of Aboriginal title can only be obtained against the Crown.” The motions judge determined that it was “plain and obvious” the claim against the appellants for a declaration of Aboriginal Title and various consequential relief had no reasonable prospect of success at trial, but that it was not “plain and obvious” that the Wolastoqey Nation was precluded from prosecuting its claim against the Crown for a declaration of Aboriginal Title over the appellants' lands. It is this latter finding that is under appeal by J.D. Irving in the decision excerpted below.

Land Back - A Yellowhead Institute Red Paper

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Adapted from Land Back: A Yellowhead Institute Red Paper (October 2019), online: https://redpaper.yellowheadinstitute.org/

Executive Summary #

One of the loudest and most frequent demands of Indigenous people in the relationship with settlers is for the return of the land.

There are mountains of evidence that describe the theft of Indigenous territories, and even more mountains that testify to the harms that followed and the need for restoration.

Despite this, in the supposed era of reconciliation there can appear to be progress: legal “victories,” proliferating negotiation tables, land codes development, impact benefit agreements, and so on. For some, these may be enough. But for others, particularly those asserting rights and jurisdiction outside of reserve or settlement boundaries, they do not go far enough.

Indian Act

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18 (1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

Framework Agreement on First Nation Land Management Act

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8 On the coming into force of the land code of a First Nation, the rights and obligations of His Majesty in right of Canada as grantor in respect of the interests or land rights and the licences described in the First Nation’s individual agreement referred to in clause 6 of the Framework Agreement are transferred to the First Nation in accordance with that individual agreement.

The Rise of the First Nations Land Management Regime in Canada: A Critical Analysis

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Part I: First Nations Land Management Foundations #

During the 2015 federal election campaign, the Liberal Party of Canada campaigned on a platform of significant commitments to Indigenous peoples, including the promise to “renew the relationship between Canada and Indigenous Peoples.” But tellingly, they framed their platform as “both a right thing to do and a surefire way to economic growth.” In the emerging era of sectoral self-governance, the First Nations Land Management Regime has become a key feature not only in the federal government’s notion of the “right thing,” but also their plans to chip away at the Indian Act and make First Nations more “economically independent.” Of course, this economic growth or independence does not include a redistribution of land or resources, rather it is an expectation that First Nations should support their members through economic activities exclusively on reserve lands.