{"id":266903,"date":"2019-02-01T11:30:46","date_gmt":"2019-02-01T16:30:46","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/canadas-prove-it-approach-to-aboriginal-title\/"},"modified":"2025-10-07T22:23:22","modified_gmt":"2025-10-08T02:23:22","slug":"canadas-prove-it-approach-to-aboriginal-title","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2019\/02\/canadas-prove-it-approach-to-aboriginal-title\/","title":{"rendered":"Canada\u2019s \u201cprove it\u201d approach to Aboriginal title"},"content":{"rendered":"

The world watched in early January as an armed RCMP force entered Wet\u2019suwet\u2019en territory and arrested 14 people. The RCMP was enforcing an interim injunction obtained by Coastal GasLink Pipeline Ltd. (a subsidiary of TransCanada Pipelines) to prevent interference with work on its planned natural gas pipeline crossing Wet\u2019suwet\u2019en territory.<\/p>\n

On January 6, just prior to the raid, the RCMP released a statement to the media. Part of the original text said:<\/p>\n

For the land in question, where the Unist\u2019ot\u2019en camp is currently located near Houston, BC, it is our understanding that there has been no declaration of Aboriginal title in the Courts of Canada. In 1997, the Supreme Court of Canada issued an important decision, Delgamuukw v. British Columbia, that considered Aboriginal titles to Gitxsan and Wet\u2019suwet\u2019en traditional territories. The Supreme Court of Canada decided that a new trial was required to determine whether Aboriginal title had been established for these lands, and to hear from other Indigenous nations which have a stake in the territory claimed. The new trial has never been held, meaning that Aboriginal title to this land, and which Indigenous nation holds it, has not been determined.<\/em><\/p>\n

The RCMP subsequently called this portion of its media statement \u201cinappropriate<\/a>\u201d and removed it. Nonetheless, the RCMP\u2019s statement is reflective of a commonly held view that the Indigenous decision-making authority inherent in Aboriginal title, and in an Indigenous nation\u2019s own laws and governance, does not apply until it has been determined in court or recognized by the Crown in an agreement.<\/p>\n

This view effectively puts the burden of proof on Indigenous nations to \u201cprove\u201d to state institutions that their pre-existing title and governance exist in order for that title to apply \u2014 a view sometimes referred to as the \u201cprove it\u201d approach. This is in stark contrast to the recognition approach, which starts<\/em> by acknowledging Indigenous rights and title.<\/p>\n

More than two decades after the Delgamuukw<\/em> decision<\/a> affirmed Aboriginal title, the Crown\u2019s continued pattern of making decisions in the absence of Indigenous consent \u2014 without resolving the underlying title and governance issues \u2014 undermines the constitutional foundations that are meant to define Canada. Ultimately, this is about much more than a pipeline.<\/p>\n

Aboriginal rights are inherent <\/strong>\u2014 not granted by Canadian law<\/strong><\/p>\n

When an Indigenous nation brings a title claim in court, the court expects that nation to prove its claim. The procedural double standard in this approach has been pointed out by observers such as the Indigenous legal scholar John Borrows, who asks<\/a>: \u201cWhy should the Aboriginal group bear the burden of reconciliation by proving its occupation of land? After all, the Crown is the subsequent claimant. Why should the Crown not have to prove its land claims?\u201d Nonetheless it is obvious that Canadian courts accept Crown title based, as Borrows puts it, on \u201cbare words,\u201d while expecting Indigenous nations to prove their claim to pre-existing Aboriginal title.<\/p>\n

What the RCMP statement does not address, and what is often overlooked in the \u201cprove it\u201d approach, is that Aboriginal title and governance exist and apply in Canadian law now, even if the bounds of title lands have not been delineated in a court case.<\/p>\n

Canada\u2019s Constitution and judgments of the Supreme Court of Canada recognize the pre-existing nature of Aboriginal rights and title, which are interwoven with Indigenous laws and governance. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples<\/a> (UNDRIP), which both the federal and BC governments have committed to implement, recognizes \u201cthe urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.\u201d<\/p>\n

Importantly, the source of the inherent rights affirmed by UNDRIP is the pre-existing governance and culture of each Indigenous nation itself \u2014 in other words, UNDRIP recognizes rather than creates the rights. The Supreme Court of Canada similarly recognizes in Delgamuukw<\/a><\/em> that constitutionally protected Aboriginal title is not created by Canadian law; rather, Aboriginal title \u201carises from the prior occupation of Canada by aboriginal peoples.\u201d The SCC also described the system of Clans and houses with Hereditary Chiefs as \u201cthe fundamental premise of both Gitksan and the Wet\u2019suwet\u2019en peoples.\u201d Canadian law is playing catch-up by slowly recognizing these rights and governance structures.<\/p>\n

\"\"<\/a>
Wet’suwet’en Hereditary Chief Namoks (John Ridsdale) speaks as Indigenous nations and supporters gather to show support for the Wet’suwet’en Nation before marching together in solidarity, in Smithers, B.C., on Wednesday January 16, 2019. THE CANADIAN PRESS\/Darryl Dyck<\/figcaption><\/figure>\n

Legally there is no question that Aboriginal title exists, and there is no doubt that related rights of Indigenous nations to make decisions about and govern their territories also exist. The Canadian state lost its arguments that Aboriginal title does not exist, perhaps most notably in the Delgamuukw<\/em> case brought jointly (with the Gitxsan) by hereditary leadership of the same Wet\u2019suwet\u2019en nation whose members were arrested under the Coastal GasLink injunction.<\/p>\n

In Delgamuukw<\/a><\/em>, the Supreme Court of Canada did not delineate where Gitxsan and Wet\u2019suwet\u2019en title exists, holding that a new trial would be required for a Court to determine those factual matters. Yet the Court added: \u201cI do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts.\u201d Instead, the Court encouraged \u201cnegotiations in good faith\u201d to apply the principles it had articulated about the existence and application of Aboriginal title.<\/p>\n

However, for years afterward the Crown maintained a position that Aboriginal title does not apply on a territorial basis, but rather to small high-use areas within a territory. The Crown lost this argument in the Tsilhqot\u2019in<\/em> decision<\/a>.<\/p>\n

The trial judge<\/a> in Tsilhqot\u2019in<\/em> stated: \u201cWhat is clear to me is that the impoverished view of Aboriginal title advanced by Canada and British Columbia, characterized by the plaintiff as a \u2018postage stamp\u2019 approach to title, cannot be allowed to pervade and inhibit genuine negotiations. A tract of land is not just a hunting blind or a favourite fishing hole.\u201d<\/p>\n

When the case made its way to the Supreme Court of Canada, the Court declared Tsilhqot\u2019in title and rejected a postage stamp approach, underlining that \u201cDelgamuukw<\/em> affirms a territorial use-based approach to Aboriginal title.\u201d The Court added that title includes \u201cthe right to decide how the land will be used\u201d and \u201cthe right to proactively use and manage the land.\u201d<\/p>\n

Despite this recognition, in practice the legal reality of Aboriginal title and governance has been largely held back from on-the-ground application by the Crown\u2019s fallback position, which could be cynically summarized as \u201cYes, Aboriginal title and governance exist, but we don\u2019t know where exactly and it\u2019s quite complicated, so in the meantime we\u2019re going to continue making decisions as if it doesn\u2019t exist anywhere.\u201d This \u201cprove it\u201d mentality is exhibited in the RCMP\u2019s retracted statement about the Unist\u2019ot\u2019en camp.<\/p>\n

Why is Aboriginal title (still) not being applied on the ground?<\/strong><\/p>\n

There are several factors that have allowed the Crown to continue making decisions that avoid the implications of Aboriginal title and Indigenous governance on the ground over the two decades since the Delgamuukw <\/em>decision was made. They include the following:<\/p>\n