History of Aboriginal Land Title Claims in B.C

5. Issues in Aboriginal title

History of aboriginal land title claims in B.C.

-  Three ways of viewing aboriginal title:

-  (1) At whim of sovereign: They didn’t have land to give up, only a moral right to occupy land at whim of sovereign – thus treaties a sham since Indians had no legal interest to give up

-  (2) Only personal rights to hunt, fish, etc. and such rights only surrenderable to the Crown. No legal right to own the land, only use it

-  (3) Communal ownership like fee simple, surrenderable only to the Crown, supported by Royal Proclamation and Delgamuukw.

Delgamuukw v. British Columbia (1997) (S.C.C.)

-  Facts: Gitksan and Wet’suwet’en claim land in BC. Trial judge did not give independent weight to natives’ oral history of their attachment to the land and concluded plaintiffs had not proved their historical occupation, hence dismissing claim.

-  Issue: what is the nature and scope of constitutional protection afforded by Section 35(1) to Common Law Aboriginal Title?

-  Objective of s.35 is reconciliation of prior occupancy by aboriginals with British Crown sovereignty

-  Aboriginal title exists on top Crown title as a burden / encumbrance (and this is why it couldn’t have existed until 1846, time of sovereignty, rather than at first contact)

-  Content of aboriginal title:

o  Sui generis: exists in and of itself, not derived from some other doctrine / principle, and a mix of aboriginal and common law

o  Inalienability: can only sell/surrender to federal Crown

o  Communal ownership

o  Sources: prior occupation, and pre-existing systems of Aboriginal Law

-  Proposition 1: It is a right in land including exclusive use and occupation,

o  It confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive culture of the aboriginal band. Thus present day needs can be met.

-  Proposition 2: It contains inherent limits

o  May not be alienated – except to the Crown

o  Use of the land must be consistent with Aboriginal title

o  Title comes from previous occupancy and use of land, which forms part of distinctive culture, which should be protected for future aboriginal people.

o  Thus no equitable waste (legal waste is when current holder e.g. life tenant goes beyond just taking income and destroys future interest e.g. for remainderman, and equitable waste is similar waste but destroys interest for someone else)

o  This is not to be interpreted as preventing surrender

-  S.35 protected rights fall along a spectrum

o  One extreme free-standing right: practices, customs, traditions integral to distinctive culture, but not sufficient to support title claim, right only and no title.

o  In middle site-specific right: such activities that by necessity take place on land, perhaps at specific site, but still not sufficient to support title claim e.g. nomadic people who have seasonal grounds, but not exclusive occupation.

o  At other extreme title: aboriginal title and the right to the land itself. When land was of central significance to their distinctive culture, activity sufficient to constitute exclusive occupation. This is a burden on the Crown’s title.

-  Proof of aboriginal title:

o  The time for title = Crown sovereignty over the land. Need to prove occupation.

o  Evidence: Oral histories must be considered

-  Need to Establish:

o  Proof of Exclusive occupation at the time Crown asserted sovereignty:

§  Can use both common law which recognizes actual physical occupation, and aboriginal law; proof can use physical dwellings, cultivation, enclosure of fields, regular use for hunting/fishing/exploiting resources, regard to be had to groups size, manner of life, material resources, technological abilities, and character of the land claimed.

o  Must be continuous if a substantial maintenance of connection to land, even if nature of occupation has changed and making allowances for periods of disruptions (by European settlers for example)

-  Overall test: land must have been of central significance to the groups culture. This means more than incidental – must have been either substantial connection or sufficiently important.

-  Aboriginal rights may be infringed by both federal and provincial governments, so long as they satisfy test of justification:

o  Legislative objective must be compelling and substantial,

o  Must be consistent with fiduciary obligation of Crown to aboriginal peoples to put their interests first

o  Fiduciary duty requires at least consultation, if not full consent / involvement in management by aboriginals on land they have title to depending on importance of right, and fair compensation will usually be required.

o  Infringement must infringe as little as possible

o  Allowable infringements to title may include development of agriculture, forestry, mining, general economic development, protection of environment or endangered species (unclear if this only applies to title, may also apply to rights with no internal limits)

-  Only the federal government had the power (prior-1982) to extinguish aboriginal title, but they must have done so with a “clear and plain” intent.

My Notes

-  Test for proof of Aboriginal Title

o  (1) Land must have been occupied prior to sovereignty

o  (2) If present occupation is relied on as proof of occupation pre-sovereignty there must be a continuity between present and pre-sovereignty occupation

o  (3) At sovereignty that occupation must have been exclusive. Must rely on both the perspective of the common law and the aboriginal perspective placing equal weight on each.

-  Infringements on Section 35 need to pass a test of justification

o  (1) Infringement of aboriginal title must be in furtherance of a legislative objective that is compelling and substantive.

o  (2) Whether the infringement is consistent with the special fiduciary relationship between the Crown and Aboriginal People

§  Aboriginal title encompasses the right to exclusive use and occupation

§  It encompasses the right to choose what uses land can be put

§  Lands held pursuant to aboriginal title have an inescapable economic component.

-  The Crown must consult before breach of fiduciary duty. Must be in good faith and may require full consent of the aboriginal nation. The economic aspect of aboriginal title suggests compensation relevant to the question of justification of breach of fiduciary duty.

R v Marshall; R. v. Bernard

-  Facts: Person is part of nomadic group, accused of cutting trees without the permission of the Crown on Crown land. He claims Aboriginal title but since nomadic, not located at a specific spot, not building dwelling houses, etc. They may visit the site at different times during the year.

-  Decision: Need evidence of exclusive occupation otherwise it would blur the difference between a title right and a right. Delgamuk can apply to nomadic but it is hard

o  Must reflect something more than a transient presence to the particular site.

o  Need to establish that they were the only ones that could go there and that they excluded anyone else from going there.

-  3 concepts

o  (1) Exclusion: right to control land and exclude others from using it is basic notion of common law title.

o  (2) Nomadic or Semi-Nomadic can get title based on evidence

o  (3) Continuity: Must establish they are right holders.

-  In sum, exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title. Usually by showing regular occupancy

-  In this case it is difficult to prove on the spectrum because there has been activity on a site specific place but they don’t have exclusive occupation.

-  Dissent: Test posed by the majority may prove to be incompatible with nomadic or semi-nomadic lifestyles. Aboriginal concepts of territoriality need to be incorporated into common law approaches.

Aboriginal cultural artefacts/chattels, held in museums, seeking return

-  Museum may be unsure who is rightful claimant

-  Possible conflict of laws if held outside Canada,

-  Preservation may be an issue – if returned, will the artefact be preserved

-  How should such artefacts be viewed

o  Should ownership of chattels come under title, with inalienability

o  Are they Fixtures

o  Or should artefacts be seen as cultural/heritage rights

o  Or perhaps even view as human rights.

-  Law of intellectual property relevant here

6. Issues of Indefeasibility

Alienability – source in 1290 Quia Emptores, completed in 1660 Abolition of Tenures Act

1)  The alienability (from transferor to transferee) was completed in 1660, for both inter vivos transfers and by will:

a)  Inter vivos (while living):

i)  1660 Abolition of Tenures Act: abolished this fine for tenants-in-chief, so after that they were given the rights to sell their interest without a fine. Alienability inter vivos was fully established.

b)  Testamentary:

i)  Originally personalty, not realty, could be disposed of by will

ii)  The “use” got around this: A would transfer land inter vivos to B for the use of A during A’s lifetime, with remainder to go to someone specified in A’s will (equitable interests could be disposed of by will)

iii)  1535: Statute of Uses got rid of this technique, but was not popular

iv)  1540: Statute of Wills allowed all lands held under socage, and 2/3 of lands held under knight service to be passed by will

v)  1660: Abolition of Tenures Act converted knight service to socage, so completing alienability in wills

vi)  B.C. Estate Administration Act now specifies who gets what if die intestate (i.e. without will), and if no one possible, escheats to Crown

Mechanics of transfer: from historical livery of seisin to modern documentation

-  Seisin = Legal possession of property, livery = delivery

-  Historically there was a requirement of a public display to transfer land.

-  Written evidence of such livery (delivery) was made compulsory by the 1677 Statute of Frauds.

-  The requirement to actually be on the land to make the transfer, and the public nature of it, led some people to develop alternative means of transfer (like creating uses). Over time “livery of seisin” was almost completely replaced by such methods.

-  In England, the Real Property Act of 1845 recognized and simplified these alternative methods, allowing for corporeal interests to be transferred by grant (i.e. by deed, a document under seal) as well as by livery of seisin. The documentation had to be delivered, replacing the ceremonial delivery of the land in livery, and hence the phrase “signed, sealed, and delivered”.

-  Deeds, not livery, came to Canada. Today, contracts transferring land have to be in writing, but do not have to be sealed. The Land Title Act contains the forms for transfer (and even computerized records/transfers today).

Conveyancing: Common law, Deeds registration, Torrens Title registration

-  The registration system prevents people from having to search for the root of the title to learn about mistakes and if they are obtaining a good title.

-  Historically, common law conveyancing:

-  If there was an error in the past, it will be corrected (by the nemo dat principle, cannot give what you haven’t got)

o  E.g. A sells to B who gives in will to C who sells to D who sells to E – but suppose recently discovered that C was witness to B’s will, so cannot benefit from it, then C did not have proper title to land, and so therefore neither D nor E have good title (it will belong to some other benefactor from residuary clause of B’s will).

-  Searching for good root of title was therefore necessary on every conveyance. So had to go back through time and make sure each conveyance is good otherwise latest person will lose out if discovered. Theoretically the search should go all the way back to original grant from the Crown, but a limitation period of 60 years was usually recognized.

-  To address difficulties finding all these documents, Deed registration required all documents to be stored at registry. So you still needed same searching of title however, since defects would be corrected as at common law, documents not registered could safely be ignored. Still operates in Maritimes and earlier-settled parts of Ontario.

-  Title registration systems avoids the need for search – register establishes all interests in land, and issues certificates of title.Developed in England in mid C18th and has now brought most of land in England under it, and Ontario largely on this system.

-  Torrens system in 4 western provinces, New Zealand, Australia.

Section 23(2) of B.C. Land Title Act (previously the Land Registry Act)

General Principle of Indefeasibility: curtain drawn over previous errors, mirrors situation

-  An Indefeasible title is incapable of being defeated or altered

-  Indefeasibility of title in fee simple is cornerstone of Torrens land title system

-  Once land registered and certificate of title issued a “curtain is drawn” on previous errors, and current title certificate “mirrors” the current state of affairs.

-  Thus an indefeasible title is conclusive evidence at law and in equity, against the Crown and all other persons, of title to an estate in fee simple. However, there are some exceptions (which vary from jurisdiction)

Creelman v. Hudson Bay Insurance (1920) (J.C.P.C.)

If land is registered, defect in title is corrected and third party obtains good title

-  Facts: Hudson Bay was holding land and there was a possible defect in title. Under the old system, if such land was sold to another party and the defect then discovered, the purchaser would lose out since the land would be returned to the proper owner.

-  Decision: Hudson Bay had registered title for the land under the B.C. Land Title Act, which effectively corrects any defect, and so the third party could not get title back even if there was a defect in the root of title.

o  Prior to a third party being involved, prior holders could have said that the register has to be changed, but once a third party buyer becomes involved, they rely on the mirror of the register and have the ability to have the good title conveyed

Section 23(2)(i) of B.C. Land Title Act

Exceptions to indefeasibility are fraud/forgery without knowledge

-  Indefeasible title is subject to: “the right of a person to show fraud, including forgery, in which the registered owner, or the person from or through whom the registered owner derived his right or title otherwise than bona fide for value, has participated in any degree”.