My last article reviewed court cases involving accidents with motor vehicles and livestock. I did then say that I would continue with a short series of articles to review the legal basis for potential liability of the livestock owner, and the due diligence defense.
But sometimes things change—I decided to break up the motor vehicle accident series and write instead about how aboriginal title and fee simple (deeded) land ownership intersect.
I am no expert on aboriginal law and have leaned heavily for content and case analysis in this article on material and comments from Tom Isaac, of Cassels Brock in Vancouver, a nationally recognized expert on aboriginal law. Mr. Isaac represented B.C. Cattlemen’s Association when it intervened at the Supreme Court of Canada hearing, culminating in the decision in Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73. He often writes about aboriginal law cases and his comments are well worth reading. They can be accessed through the Cassels Brock website.
We exist in a time of enormous, and essential, evolution in the relationship between aboriginal people and the larger Canadian society.
Indian people did not have the right to vote until well after I was born. They were not able to leave their reserve without the Indian agent’s approval. They could not buy land. Residential schools educated some and damaged many. Their languages, family structures, and cultures struggled for survival.
From the start of European settlement, Indian leaders persistently objected, at every level of government including representations to the British Crown, to the loss of their lands. The interest of aboriginal people in land and land use decisions is not new, it is in fact very old.
"Indian"? "Aboriginal"? "Indigenous?" What should people descended from those who were here before European explorers and settlers arrived, be called?
"Indian", although so out of vogue as to be no longer politically correct, is how many aboriginal people refer to themselves. In addition, it can properly be used to identify people who are subject to the Indian Act (Canada).
"Aboriginal", at least in legal circles, is generally thought to be Canadians who are entitled to Constitution Act 1982 (Canada) section 35 rights, discussed below. "Aboriginal" includes Indian, Inuit, and Metis people of Canada. Metis people are those defined in R. v. Powley ([2003] 2 SCR 207), a Supreme Court of Canada decision which describes the requirements for establishing Metis status.
"Indigenous" is in current use to describe broadly those who are aboriginal peoples, or who are connected by descent or heritage with aboriginal peoples. Use of the description started in about 2015, possibly because the United Nations Declaration on the Rights of Indigenous Peoples came to the Canadian consciousness. "Indigenous" includes people who are not defined as "aboriginal" and are not section 35 rights holders.
"Indian", "aboriginal" and "indigenous" are not generally used in everyday speech with this level of precision.
The Constitution Act (Canada) of 1982 which on April 17, 1982 repatriated the Canadian constitution and established the Charter of Rights and Freedoms, also stated in section 35 that:
"35(1) The existing aboriginal and treaty rights of the aboriginal people in 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.
(4) Notwithstanding any other provision of this act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons."[1]
Section 35 provides constitutional protection to aboriginal and treaty rights as they may be found to exist. Section 35 is not part of the Charter.
In earlier cases, and especially in its 1997 decision in Delgamuukw v. British Columbia ([1997] 3 SCR 1010), the Supreme Court of Canada described the nature and continued existence of aboriginal title in Canada.
Aboriginal title is at the top of the range of aboriginal rights. An aboriginal community holding aboriginal title owns the land itself, not merely the right to hunt, fish, and gather or otherwise make use of the land.
It is a unique form of ownership, held by the community, not by individuals, and can only be transferred to the Crown. The community uses made of the land cannot destroy the attributes of the land which led to the connection with the aboriginal community which resulted in the grant of aboriginal title.
Aboriginal title includes:
Fee simple ownership includes:
No court decision has yet said whether, or how, aboriginal title and fee simple ownership can co-exist, or whether, or how, one can displace the other. Given the attributes of each type of ownership, it is hard to see how they could possibly both exist at the same time on the same land.
This 2014 Supreme Court of Canada decision ([2014] 2 SCR 257) is the first and only declaration of aboriginal title on specific land in Canada. It confirmed that the Tsilhqot’in Nation has aboriginal title to about 1,800 square kilometres southwest of Williams Lake.
The Tsilhqot’in decision did not, however, deal with a number of fee simple parcels which lie within the area found to be subject to aboriginal title. These parcels were excluded from the claim, so the Tsilhqot’in decision does not answer our question about how aboriginal title and fee simple interests can co-exist on the same parcel of land—if at all.
The Chippewas case is an Ontario Court of Appeal case ([2000] OM No. 4804). The Chippewas claimed about a quarter of the downtown area of Sarnia, including fee simple lands, on the basis that there had been no proper surrender of the Chippewas’ traditional land to the Crown. The events around surrender had happened 150 years ago. The court agreed that there had been no proper surrender of the land.
The Chippewas applied to invalidate the Crown grants involved, and claimed to own the properties for which the current owners believed they had fee simple ownership under the Crown grants.
The Ontario Court of Appeal set out the court’s reluctance to interfere with Crown grants long relied on by third parties. In the outcome, the claim for title was dismissed because there was a long delay by the Chippewas in bringing the claim, and because innocent third parties had relied on the Crown grants. The Chippewas still had the option of making a claim for damages against the Crown.
The Chippewas applied to appeal the Ontario Court of Appeal decision to the Supreme Court of Canada. The application to appeal was rejected, which suggests that the Supreme Court of Canada agreed substantially with the Ontario Court of Appeal decision.
In the Drew case, (2006 NLCA 53), the Newfoundland and Labrador Court of Appeal held that aboriginal title could be extinguished by acts or legislation that are "incompatible with the continued existence of the right held by the aboriginal community", and that there can be extinguishment by necessary implication. Conceivably, an incompatible act could be the issuance of a Crown grant.
In this ongoing litigation, the Kwikwetlem First Nation claims a declaration of aboriginal title over an area within the Coquitlam watershed which includes both Crown and fee simple lands.
The claim has not yet gone to trial. British Columbia, the GVRD, the BC Housing Management Corporation, the Corporation of the City of Port Coquitlam, the Minister of Forests, Lands and Natural Resource Operations, and the Provincial Rental Housing Corporation are all defendants.
In defending the claim, the Province argued that any aboriginal title cannot co-exist with and is "displaced" by the estate of any fee simple land owner. The Province did not argue that a Crown grant of a fee simple interest extinguished any aboriginal title.
In its defence, the GRVD did argue that, by making a Crown grant of a fee simple interest title before the April 17, 1982 adoption of the Constitution Act 1982, aboriginal title had been extinguished.
The plaintiff First Nation applied to court to strike the displacement/extinguishment defences as being unmeritorious.
The application to strike the defences was rejected by B.C. Supreme Court Justice Affleck in a decision rendered in May, 2018. Justice Affleck said "The questions surrounding Aboriginal title to land and the validity of fee simple title to that land have long been looming in the background of aboriginal land claim litigation in British Columbia, as so forcefully articulated by Southin J.A. in Skeetchestn. An attempt to remove or attenuate those issues in this proceeding by acceding to the plaintiff’s application in my view would be inappropriate".
The conclusion is that there is no conclusion. We do not yet know how aboriginal title, if proved, will affect fee simple lands.
In Skeetchestn Indian Band and Secwepemc Aboriginal Nation v. Registrar of Land Titles, Kamloops (2000 BCCA 525), Justice Mary Southin of the British Columbia Court of Appeal wrote:
Sooner or later, the question of whether those who hold certificates of indefeasible title, whether to ranch lands on Kamloops Lake or to a small lot with a house on it on Railway Avenue in the Village of Ashcroft or an office tower on Georgia Street in the City of Vancouver, are subject to claims of aboriginal right must be decided. If it is proper in some aspects of Indian claims to weigh in the balance in favour of the claimant the honour of the Crown, as I thought was right in my dissenting judgment in Attorney General (British Columbia) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 156 (B.C. Court of Appeal), should the honour of the Crown not also be weighed when determining whether a Crown grant in fee simple, at least one made before 17th April, 1982, assures to a person who obtained, founded on the grant, whether through the absolute fee system explained hereafter or directly, a certificate of indefeasible title, and his successors in title, the title for which he paid free of aboriginal claims?
If the inhabitants of British Columbia, be they rich or poor, of whatever stock of descent – I would be surprised if there are not persons of aboriginal decent in British Columbia who hold land in fee simple – cannot rest on their certificates of indefeasible title, they, their mortgagees, and, perhaps more importantly, their families who are dependent on them for their economic well-being, should know, and the sooner the better. A cloud on title, whether it be "upstream" or "downstream" is still a cloud. Twenty years ago this cloud, then no bigger than a child’s hand, was on the far horizon. If the appellants and the intervenor, especially the latter, are correct in their interpretation of Delgamuukw, that cloud has grown to lower over the whole of the Province, save that part encompassed in the Nisga’a Treaty, Treaty No. 8, and the so-called Douglas Treaties.
Justice Southin was right – yet eighteen years later, the question remains unanswered.
Perhaps the Giesbrecht (Kwikwetlem) litigation, if it goes to trial and works its way up through the British Columbia Court of Appeal and the Supreme Court of Canada, will finally provide an answer.