Can Indigenous groups be granted Aboriginal title to private property?
This enormously consequential question is winding its way up to Canada’s highest court.
In August, a B.C. trial court granted a declaration of Aboriginal title to huge swathes of private property in Richmond, B.C., as well as to government lands. Aboriginal title is a constitutional right that grants Indigenous groups exclusive possession, occupation and use of their land.
In December, the New Brunswick Court of Appeal issued a conflicting decision. That court ruled that a First Nations’ claim to Aboriginal title of private property could not proceed.
The issue seems destined to be decided by the Supreme Court of Canada. Should it hear the case, we hope the court does not lose sight of the big picture.
The New Brunswick appellate court helped put that big picture into focus.
“In my view, a declaration of Aboriginal title over privately owned lands … would sound the death knell of reconciliation with the interests of non-Aboriginal Canadians,” Justice Ernest Drapeau wrote on behalf of the three-judge court.
We strongly agree with Justice Drapeau on this point.
Reconciliation is about repairing the relationship between Indigenous peoples, government and non-Indigenous peoples that was broken through centuries of colonization, discrimination and cultural harm.
In the 44 years since Canada’s 1982 constitution was enacted, the courts have developed a complex body of Aboriginal rights, of which Aboriginal title is one. A core aim of this modern body of Aboriginal law is to advance reconciliation.
A court ruling that puts Indigenous groups’ property interests in direct conflict with non-Indigenous individuals’ property interests is not a basis for repairing relationships.
To the contrary, it is likely to pit groups against each other on the basis of race, not just in B.C., but across most parts of Canada, where Indigenous groups are at various stages of claiming Aboriginal title.
Furthermore, a Supreme Court ruling that Aboriginal title and private ownership — known as a fee simple interest — can co-exist in the same property would shake the foundations of our economy.
Thomas Isaac, a lawyer representing parties in both the B.C. and New Brunswick cases, told Canadian Affairs such a finding would be nothing short of “catastrophic.”
If that sounds hyperbolic, consider for yourself what both terms mean. As noted above, Aboriginal title grants Indigenous groups the right to exclusive possession, occupation and use of their land.
Fee simple ownership grants the same; it also grants the right to sell or bequeath property. Generally, it is indefeasible, meaning it cannot be extinguished.
The two cannot logically co-exist in the same piece of property.
The lower, trial court that first heard the New Brunswick case took the position that Aboriginal title could be declared over fee simple lands but could not be enforced directly against the fee simple owners.
Kent McNeil, a leading authority on Aboriginal law, argues this would be a responsible path forward.
“[The lower court’s] decision was a valiant attempt to achieve reconciliation by validating both Aboriginal title and fee simple interests and placing responsibility to resolve the potential conflict between them on the Crown,” McNeil wrote in a recent blog post.
“I think this is appropriate because it was the Crown that created the conflict in the first place by wrongfully granting lands to private owners without first obtaining surrenders of Aboriginal title, as required by the Royal Proclamation of 1763 and the common law,” he added.
We agree that the government created the mess we now find ourselves in. And we agree that the government must fix it. Practically, it is not clear how what New Brunswick’s trial court proposed is different from what we are saying: that it does not work to grant both Indigenous and non-Indigenous individuals exclusive rights to the same thing.
Practically, what matters now is that the government resolve Indigenous groups’ claims to title in a way that is honourable and that does not impose unacceptable costs on society or engender ill will between groups.
In all likelihood, this would require offering generous alternative remedies, such as compensation, to Indigenous groups that can establish they would have had title to lands that are now privately possessed.
Admittedly, this would be an imperfect justice for the Indigenous groups dispossessed of their lands. But justice is rarely perfect, and perfect should not be the enemy of the good.
Are we not all Canadians. The indigenous are really immigrants as well as they did not sprout out of the ground! They have no more right to this land than immigrants from Europe who did build this land. “Give us our land back” And just why and how is it the indigenous who own it?And how do they plan to repay the billions of dollars Canada has already given them? They don’t pay taxes, nor do some even work.They can’t have it both ways!
I think I can find it in my heart to agree with the Aboriginal requests, as long as the land requests include the multi-million dollar mansions of our politicians!