A reconciliation project

No legal advice, just some random commentary on the core principle of aboriginal rights jurisprudence in Canada

Month: July, 2012

William v. BC and terra nullius

There are a variety of interesting points to be made about terra nullius in the context of the William case. I’ll save my thoughts on exclusivity for another day, perhaps my next post (it should be brief).

One central issue which the Court of Appeal grappled with is whether the claim can be construed as ‘territorial’. I gather the argument is whether the Tsilhqot’in should be capable of making a claim over the entirety of the territory which they historically used, or only those tracts of land which they inhabited on a regular basis. This characterization of the claim grows out of the importance of the term ‘occupation’ in the aboriginal title test.

Before proceeding further, it might be helpful to revisit the Western Sahara Advisory Opinion, which I discussed in my first post on terra nullius (http://wp.me/p1AYud-1l). As a threshold issue on the concept of occupation, it is helpful to be reminded that the International Court of Justice also highlighted the importance of the term ‘occupation’ in aboriginal title claims. However, the ICJ specifically used the term to prevent countries from claiming lands by virtue of their occupation. Occupation was not held to be the basis of the indigenous (or original) land right.

As I noted in my last post on the aboriginal title test and terra nullius, Canadian law cleverly turns the ICJ’s opinion around on aboriginal claimants, by requiring aboriginal claimants to demonstrate occupation. To be fair, even the Inter-American Court of human right uses occupation as a basis for an indigenous title claim…although its concept of occupation is markedly different than Canada’s. See Awas Tingni from paras. 142-155 (http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html). It is difficult to reconcile this reasoning with the ICJ’s statement that Canada’s land rights acquired through treaties, are ‘derivative roots of title’, derived from the original title of indigenous nations, and that Canada could not obtain an original title simply through ‘occupation’.

On the issue of ‘territorial’ claims, it is important to note that the ICJ specifically grappled with this issue in Western Sahara, in the context of claims by states against ‘nomadic peoples’. For example, at paragraph 87, the ICJ notes the ‘nomadic’ character of the indigenous occupancy, and then points out in the next paragraph, “But what is important for present purposes is the fact that the sparsity of the resources and the spasmodic character of the rainfall compelled all those nomadic tribes to traverse very wide areas of the desert. In consequence, the nomadic routes of none of them were confined to Western Sahara”. This type of occupancy is enough for indigenous peoples to resist a claim that a state has acquired its ‘title’ (or sovereignty) over a territory merely by occupying it.

Which makes sense because if the law only protects those forms of occupancy, while ignoring forms of occupancy typically practiced by groups engaged in a ‘nomadic’ culture, the law discriminates against the property rights of the latter and in the favour of the property rights of the former.

There is a very strong argument to be made that what the British Columbia Court of Appeal refers to as a ‘territorial claim’ rests on the same definition of occupancy that the ICJ relied on in Western Sahara. I certainly hope so, because one would hope that the application of Canadian constitutional law does not generate inconsistencies with long recognized international norms. The Court’s characterization of the plaintiff’s claim reinforces this argument (at paragraphs 217-218):

[217] As I see it, the claim can only be described as being a “territorial” one rather than a site-specific claim to title. The fact that the territory being claimed, large as it is, is a fraction of the total area alleged to be the traditional territory of the Tsilhqot’in does not prevent the claim from being characterized in this way.

[218] Indeed, the plaintiff’s often repeated statement that the Tsilhqot’in did not lead a “postage stamp” existence underlines the territorial nature of the claim – with a few exceptions, there are no definite tracts of land that were habitually occupied by the Tsilhqot’in at and around 1846.

This makes sense to me. I see no reason why the Tsilhqot’in, or any other claimant (remember claimants may be First Nations, Métis or possibly Inuit, though I believe the latter have settled outstanding title claims) would voluntarily claim ‘postage stamps’ or ‘checkerboards’, particularly where there is no juridical reason for Canada to lay claim over the extent of their traditional territory. So the Tsilhqot’in have asserted a ‘territorial’ claim to title, rather than a ‘site specific’ claim.

To understand what the Court did next, it might be helpful to recall that the Supreme Court of Canada has wrestled with the issue of ‘nomadic’ peoples and aboriginal title on several occasions. I have little doubt that one reason is several claimants or interveners have raised Western Sahara with the Court.

In Adams (http://canlii.ca/t/1fr7b), the Court held that aboriginal rights are not inexorably linked to aboriginal title because to do so would deprive ‘nomadic’ claimants of any rights (at paragraph 27). The Court assumed that nomadic peoples could not successfully assert a claim for title, without offering any analysis, legal or otherwise. A similar uncritical and unfounded analysis on the nature of ‘nomadic’ rights was outlined in Cote (http://canlii.ca/t/1fr7d). However, Adams is very important because the uncritical assertion in paragraph 27 has since been applied as a basis for much of the Court’s thinking on ‘nomadic’ peoples and aboriginal title. Which is why I sometimes say to people that citing international law may be imperfect, but it’s better than citing to no law at all.

For example, in Delgamuukw, decided one year later, the assertion from the Adams case was cited by the Court to support the proposition that “some aboriginal groups may be unable to make out a claim to title” (at para 139). Again, this statement was offered without any analysis, without reference to the Western Sahara opinion and relying only on paragraph 27 of the Adams case.

The emptiness of this reasoning is staggering. It continues in the Marshall and Bernard case (http://canlii.ca/t/1l5zg) at para 66, though, thankfully the Court appeared to distance itself a bit from the existing ‘reasoning’ on ‘nomadic’ peoples. In Marshall and Bernard, the Court refers to the line of ‘reasoning’ outlined above from Adams/Delgamuukw, but relies on paragraph 149 of Delgamuukw, rather than the passage above. Paragraph 149 makes no specific reference to ‘nomadic’ peoples, but only states that occupation:

“may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources: see McNeil, Common Law Aboriginal Title, at pp. 201-2. In considering whether occupation sufficient to ground title is established, “one must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed”: Brian Slattery, “Understanding Aboriginal Rights”, at p. 758.”

Believe me, I appreciate the efforts of the Supreme Court to found its reasoning on ‘nomadic peoples’ and aboriginal title upon some kind of legal analysis, even if the analysis is offered in isolated quotes from a couple of secondary sources (incidentally, I’m a big fan of both of these sources). However, Western Sahara, and arguably some of the Inter-American title cases (such as Awas Tingni)likely provide more relevant, or at least complementary, reasoning. Indeed, in the Awas Tingni case itself, the Inter-American Court received testimony that one reason that the rights of the Mayagna community were not recognized under domestic law was due to the ‘semi-nomadic’ character of the community (para. 83(e)). This was also a claim advanced, and rejected in the more recent and Xakmok Kasek case, at paras. 90-99. (http://www.worldcourts.com/iacthr/eng/decisions/2010.08.24_Xakmok_Kasek_v_Paraguay.pdf)

Marshall and Bernard states that (at para 70), “The requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law: Delgamuukw, at para. 156. These principles apply to nomadic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes.”

This should appear to be a relatively innocuous statement. A cursory review of para. 156 of Delgamuukw results in noting, again, that citing the Awas Tingni judgment (this time with respect to the importance of the customary law of the indigenous claimant, see para 138 and note this is not necessarily inconsistent with what Canadian courts say, the Inter-American Court is just more specific) would complement citation to the work of Professor McNeil.

However, the application of these concepts in Marshall and Bernard was harsh. One might argue the Court did anything but "generously" interpret the concept of occupation; in my view, the conclusion was even consistent with Western Sahara (where the meaning of the term "occupation" was central to the decision).

The Court discounted the emphasis that the Court of Appeal placed on the importance of the claimants "perspective"(dare I say, culture or customary laws) and, in the view of the minority, overemphasized British concepts of occupancy and ownership. In fact, the majority went so far to suggest the Court of Appeal would effectively presume aboriginal title (I don’t believe this is what the Court of Appeal was doing in Marshall and Bernard, but would more closely reflect my view, particularly based on my reading of Western Sahara and Awas Tingni). In fact, while the law behind it could support ‘territorial’ claims, the application of the Marshall and Bernard test clearly favors the “postage stamp” approach to aboriginal title. This is a fascinating result from a policy perspective because it presupposes a confusing checkerboard of rights and jurisdictions in areas subject to aboriginal title (more on that some other time).

Returning to William, the Court of Appeal considered Delgamuukw (and indirectly, Adams) as well as Marshall and Bernard to conclude that territorial claims are not within the scope of section 35. The rather long discussion above explains how the Court of Appeal got there, as well as some thoughts on why this reasoning may not be as robust as it appears.

For my part, this harsh application of the Marshall and Bernard approach can only mean that terra nullius is effectively the law of Canada, and more specifically, the law of aboriginal title. I believe this is similar to the situation in the Awas Tingni case (the nomadic character of the community led Nicaragua to simply claim its territory by occupation), and was ultimately rejected by the Court. (which, of course, made its ruling on the basis of international human rights law, and important consideration because one might assert Canadian law could be drifting into non-compliance with its international human rights obligations).

What is stunning is that the Court’s entire line of reasoning is built on a house of cards. The Adams line of reasoning is built on no analysis, whereas the ‘counterpoint’ is based on only two isolated quotes from secondary sources (I’m not sure I would read Common Law Aboriginal Title as supporting this analysis), rather than from carefully considered and contested decisions, like Western Sahara or Awas Tingni.

There will always be some part of the traditional territory (in many cases a vast part, depending on how the test is applied), which will be declared "empty", leaving Canada to claim as its own by "occupation" (no treaty and no conquest). This is precisely the circumstance the ICJ disallowed in Western Sahara almost 40 years ago! So long as Canadian law allows Canada to take ownership of lands through occupation, the fiction of terra nullius will be operative in Canada (and will be more of a practical source of oppression to aboriginal claimants than the Doctrine of Discovery).

This view is summed up by the minority in Marshall and Bernard (at para. 134):

Nomadic peoples and their modes of occupancy of land cannot be ignored when defining the concept of aboriginal title to land in Canada. “The natural and inevitable consequence of rejecting enlarged terra nullius was not just recognition of indigenous occupants, but also acceptance of the validity of their prior possession and title” (Hepburn, at p. 79). To ignore their particular relationship to the land is to adopt the view that prior to the assertion of Crown sovereignty Canada was not occupied. Such an approach is clearly unacceptable and incongruent with the Crown’s recognition that aboriginal peoples were in possession of the land when the Crown asserted sovereignty. Aboriginal title reflects this fact of prior use and occupation of the land together with the relationship of aboriginal peoples to the land and the customary laws of ownership. This aboriginal interest in the land is a burden on the Crown’s underlying title.

Again, my only problem with this quote from Marshall and Bernard is that it relies only on a secondary source, rather than jurisprudence…even (or especially) international jurisprudence. Well, depending on what is meant by that last sentence, I could see challenging that as well.

This entire discussion of ‘nomadic’ versus ‘semi-nomadic’ occupation is almost irrelevant from the perspective of whether terra nullius operates in Canada. In fact, I read Marshall and Bernard to recognize it is false dichotomy and that the title test should be equally applied to all, giving due consideration to the ‘aboriginal perspective’ (a loathsome concept for its vagueness). However, the discussion is important because it was used by the BC Court of Appeal in William to undermine the concept of aboriginal occupancy and breathe life into terra nullius across a swath of Tsilhqot’in territory.

It is only one problem with the BCCAs decision, and only one issue which may need to be confronted, should this decision be appealed. I would suspect claimants are going to have a much bigger problem with the harsh ‘application’ of the Marshall and Bernard test. More on Marshall and Bernard in some future post – it is another example of a `backdoor` application of terra nullius, but expanding on it hear would result in a remarkably lengthy post.

This is only a superficial examination of how the law of aboriginal title effectively implements the fiction of terra nullius, or, in my mind, how the fiction of terra nullius continues to operate as an underlying principle of aboriginal title law in Canada. There are also a variety of other issues raised in William, for example the fascinating endorsement of a postage stamp approach, which also bear consideration and analysis.

Terra Nullius Part 2

Terra nullius 2

The last post was on terra nullius generally, this one takes a closer look at the relationship between terra nullius and aboriginal title. My point is that the fiction of terra nullius is alive and well in Canadian jurisprudence and that claimants should be demonstrating this to courts, as well as offering options Courts to slowly (or quickly) extricate this fiction from Canadian law.

My last post provided several statements from the Supreme Court of Canada that the fiction of terra nullius does not inform Canadian aboriginal law. This is technically true, to the extent that the Supreme Court of Canada does not explicitly use the fiction of terra nullius to justify its decisions.

So long as the basis (or bases) for aboriginal law remains obfuscated and unexposed, true and meaningful reconciliation will escape Canada. The reason is that there will remain fundamental differences between aboriginal rights-holders and Canada; unspoken fundamental differences which will not receive critical reflection, nor will be the subject of dialogue.

In the last post, I superficially explained the legal doctrine (or as I call it, the legal fiction) of terra nullius, as well as the fact that the concept has been widely discredited, both in international law and in domestic aboriginal law. The next post will be an examination of the British Columbia Court of Appeal decision in William v. British Columbia, with a particular emphasis on why I think the fiction of terra nullius is alive and well in Canadian aboriginal law.

Before examining William, it might be helpful to offer some perspective on what an aboriginal title case is all about. Aboriginal title is not sourced in the Royal Proclamation, nor the Indian Act (obviously, I would hope) and not even in the Constitution Act, 1982 because the latter merely “recognizes and affirms” aboriginal title under Canadian law.

When Canada was settled, the rights of indigenous peoples did not receive recognition or affirmation in colonial courts. This does not mean those rights did not exist, nor does it mean those rights could not find application in colonial or British courts. In fact, there are several examples of British and colonial courts recognizing indigenous rights and applying the laws of indigenous nations, in recognition of the jurisdiction indigenous nations exerted within territories unsettled by colonial powers. That could be the subject of its own post, or even a book (and books have been written on this topic).

Aboriginal title rights have existed throughout Canada’s history, there simply haven’t been legal instruments to provide application for those rights in Canadian (or British or French) courts. As stated at paragraph 42 of the Taku River judgment (http://canlii.ca/t/1j4tr), s. 35 of the Constitution Act, 1982 provides a contemporary legal vehicle to translate or ‘reconcile’ “prior Aboriginal occupation with de facto Crown sovereignty.” What an interesting statement. First, note the express recognition from the Court that Canada was occupied prior to the Crown’s claim to sovereignty. This is a pretty clear reference to terra nullius and suggests one of the reasons for s. 35 is to ameliorate the past effects of the fiction.

The second point is the use of the term “de facto” in reference to the Crown’s claim to sovereignty. The term “de facto” means “in fact”, to be contrasted with “de jure”, which means in law. This phrase is suggesting that the Crown’s claim to sovereignty should not be considered a claim based in law until the rights of aboriginal peoples to their lands, territories and resources are dealt with (I presume through treaty).

The Court does not purport that the Constitution is the source of aboriginal rights because those rights already exist. This is a key point, and to the extent it is true, the fiction of terra nullius finds no application in Canada. The reason is that so long as aboriginal title is recognized and given effect by the Canadian legal order, then one cannot argue that the land was treated as empty when Canada established sovereignty over its claimed territory.

This brings me back to modern aboriginal title cases. For reasons which are entirely unclear to me, in an aboriginal title case, the burden rests on the claimant to “prove” title. This is curious because Canada is the party which is attempting to convert its de facto territorial sovereignty into de jure sovereignty.

To put it another way, aboriginal title is a pre-existing right which operates outside Canadian law, but is valid under some other form of law (say, that of the aboriginal claimant. I’d be willing to bet someone like Russell Barsh has written extensively on using a jurisdictional approach to resolve claims). Due to the discredited fiction of terra nullius, Canada (or BC) is unable to provide a legitimate juridical reason to solidify its own rights over the territory. Hence, statements like, “Let us face it, we are all here to stay.” That quote comprises the last words of the majority’s reasons in the Delgamuukw case (http://canlii.ca/t/1fqz8 at para. 186). Delgamuukw, interestingly, was an aboriginal title case in which the claimants were not awarded title.

The problem with forcing aboriginal claimants to prove title is that when they fail, that territory is effectively claimed by Canada as terra nullius. The reason is that when a claimant fails to ‘prove’ aboriginal title, Canada will not recognize their rights to the territory and the territory will then be governed (or ‘owned’ if you prefer) by Canada (federally or provincially). This means that Canadian courts will have effectively facilitated an acquisition of territory by terra nullius because the basis for Canada’s claim to the territory is that no aboriginal claimant could ‘prove’ title.

A nifty trick, given that terra nullius itself is alleged to find no application under Canadian law. My next post will be an examination of William v. British Columbia, with some thoughts on how the fiction of terra nullius was applied in the judgment of the Court of Appeal.

The Doctrine of Discovery is less of a problem than terra nullius

There has been considerable activity in recent years surrounding the ‘Doctrine of Discovery’. The Doctrine of Discovery is a legal doctrine which prevents countries from engaging in relations with indigenous nations which are located within the territorial boundaries of other countries. The rationale of the Doctrine was that once a territory was ‘discovered’ by a European power, the European power acquired the exclusive right to deal with the indigenous populations of that territory in order to secure lands and resources, establish trade or any number of other activities (for example, missionary work).

The legal effect of the Doctrine of Discovery was simply to enjoin European powers from engaging in relations with indigenous peoples. The Doctrine had no direct legal impact on the rights of indigenous peoples. The practical effect of the Doctrine of Discovery; however, was to leave indigenous nations to the mercy of domestic law, and to deny indigenous nations equivalent standing to nation-states, which in many cases prevented indigenous nations from securing redress under international law.

What made the Doctrine of Discovery so devastating was the application of a related legal concept, the principle of terra nullius. Terra nullius is a legal theory, or more accurately a legal fiction (something which may not be true, but is assumed to be so in order to facilitate particular legal findings) which holds that ‘discovered’ lands were, or are, empty. As a result of this ‘emptiness’, European powers asserted a unilateral right to simply take territories and resources within their jurisdictions. To put it another way, the legal fiction of terra nullius allowed European powers to simply assume that the underlying title to the entire territory belonged to those powers, rather than to the indigenous nations actually living there.

In a territory subject to terra nullius, once that territory has been properly claimed by a European power (vis a vis other powers), it would be assumed to be ‘owned’ by the power. By default, all lands, territories and resources would be the patrimony of the colonizing power.

This is important because the fundamental point of an indigenous rights claim is that indigenous peoples controlled lands, territories and resources before being ‘discovered’ by a European power and that they were never legally dispossessed of those lands, territories and resources. In other words, an indigenous rights case is, at base, a challenge to the assertion by the state that it has complete control over the lands, territories and resources within its international boundaries.

It should be noted there are a variety of ways for states to legally acquire lands, territories and resources from indigenous nations, for example through conquest (which is generally not applicable in Canada) or through treaty. But where there is no treaty, there is a legitimate question as to the source of Canada’s rights to lands, territories and resources. Hence, the reconciliation between the simple fact that First Nations (or Metis or Inuit) not only occupied and possessed territories, but were organized in distinct societies, with the de fact (or factual, which is to say, not legal) assertion of sovereignty by the Crown over those same territories.

The fiction of terra nullius simply states that Canada could claim rights over all territories within its boundaries because those lands were treated as ‘empty’ upon ‘discovery’.

This fiction (or principle) was rejected by the International Court of Justice in its Western Sahara Advisory Opinion (http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=69&case=61&code=sa&p3=4). At paragraph 80, the ICJ stated,

80. Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as teirae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through "occupation" of terra nullius by original title but through agreements concluded with local rulers. On occasion, it is true, the word "occupation" was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an "occupation" of a "terra nullius” in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual "cession" of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius.

The ICJ clearly recognizes the importance of treaties, a very important point for First Nations and Inuit seeking greater recognition of their treaties. However, the ICJ also clearly notes that so long as a territory is “inhabited by tribes or peoples have a social or political organization”, simply occupying the territory is insufficient for a state to successfully assert sovereignty over that territory. I leave it to another day to consider whether this test accords closely with the current test for aboriginal title, as currently applied by Canadian courts (or more interesting, what to do about it if one thinks that it doesn’t).

For my part, I’m unsure whether placing the particular burdens of proof on aboriginal peoples to demonstrate occupation, possession and continuity, as well as how the Courts interpret those terms in the context of an aboriginal title claim, can plausibly fit within this test offered by the ICJ. The Western Sahara Opinion involved ‘nomadic tribes’, which means that the threshold for ‘inhabitation’ was quite low (it does not involved fixed settlements, for example)

Incidentally, Canadian courts have also rejected the fiction of terra nullius. Further, they have strongly discouraged First Nations and others from bringing claims based on the injustices created by this fiction. In a very clever, subtle and remarkably incorrect application of the doctrine, the Court in Van der Peet even noted that the foundation of aboriginal peoples’ claims to territory themselves are based on a claim on terra nullius (http://canlii.ca/t/1fr8r at para. 106). I doubt both the factual and legal accuracy of this statement, note that it has very little to do with the case at hand, and have a hard time understanding precisely why the Court felt compelled to issue this statement.

The Van der Peet court also assured aboriginal claimants that “The assertion of British sovereignty was thus expressly recognized as not depriving the aboriginal people of Canada of their pre‑existing rights; the maxim of terra nullius was not to govern here.” (at para 270).

In Marshall and Bernard, after noting again that Canadian courts reject the fiction of terra nullius, the Court states, “Aboriginal title reflects this fact of prior use and occupation of the land together with the relationship of aboriginal peoples to the land and the customary laws of ownership. This aboriginal interest in the land is a burden on the Crown’s underlying title.” (http://canlii.ca/t/1l5zg at para 134). Again, aboriginal title appears to reflect quite a bit more than ‘inhabitation’. More disturbing is the court notes that aboriginal title is a burden on the Crown’s underlying title (this is likely a call out to the St. Catherine’s Milling case). In other words, the Crown’s rights to the territory prevail and aboriginal title operates only as a ‘burden’ on that apparently ‘pre-existing’ title.

While there may be a very good explanation for the ‘aboriginal title as burden’ argument, I have yet to hear a coherent explanation for how this argument does not pre-suppose terra nullius. In other words, what, precisely is the basis of the Crown’s title (particularly vis a vis the rights of indigenous nations which were present upon ‘discovery’?)

All lands in Canada were clearly not held by European powers before Canada was ‘discovered’. Again, one is left to ask precisely how Canada ended up with apparently sovereign rights over all of this territory, particularly that territory not covered by treaty. But this isn’t the question asked in aboriginal law.

Aboriginal law demands that First Nations prove aboriginal title. The details of the test are less important than the fact it is highly likely that at least one claimant is likely to fail (indeed, a case now approaches the Supreme Court of Canada which may present the first award of aboriginal title in Canada). Does that mean that Canada was, for legal purposes, ‘empty’ upon discovery, or sovereignty?

Recent developments, particularly the British Columbia Court of Appeal judgment in William v. British Columbia (http://www.courts.gov.bc.ca/jdb-txt/CA/12/02/2012BCCA0285.htm), suggest that the principle of terra nullius is alive and well in Canadian aboriginal law. More on why I think that is the case in my next post.