Background

The intersection of these two classes of ‘rights’ has come to public attention because of a ruling from the Supreme Court of British Columbia which said, in short, that aboriginal land rights supersede private property rights awarded by the government.

This ruling has, not surprisingly, caused some consternation among those holding private property rights in the areas affected.

Exploratory Thesis

The principles of common law – especially English Common Law – illustrate that the core philosophies of aboriginal title and private property title are quite similar, although developed through vastly different histories and experiences.

The concept of private property evolved from the ownership structure of feudal times, where all land belonged to the ruler.  Land held by a noble did not belong to the noble – the land belonged to the ruler – but the noble had the right of use and disposition of the land.  The noble could grant a disposition for the use of the land to a non-noble person – e.g., a serf or peasant – but ultimately the land still belonged to the ruler.  This structure was deliberately hierarchical, to the extent that, if the peasant wished to grant use of the land to another, the land held by the other was by the right of the granting peasant, which existed through the right of the granting noble, which existed by dispensation of the right of the ruler.  However, the right to use the land, from noble to peasant, was heritable by descendants.  The land was not ‘owned’ by either the noble or the peasant; each had a right to use.

A piece of land held by an individual was considered a ‘fief’, a derivation from the Latin feudum – hence feudal.  ‘Fief’ evolved into ‘fee’.  In late feudal times, land inherited was entailed to heirs.  Such a property transfer could be considered a ‘fee tail’.  The hierarchical system collapsed through its own complexity.  One effort to simplify was to permit the concept of a ‘fee’ transferred to someone other than the heir.  If there were no conditions to that transfer, then the transfer was ‘fee simple’ – i.e., without conditions.

Although the land was still held in right of the ruler – it was not private property – ‘fee simple’ established the first rules for property partially independent of the hierarchical structure.  This was the foundation of private property, which existed before Magna Carta and the development of common law.

Legislation after Magna Carta codified the concept of ‘fee simple’, allowing transfers of land between individuals.

However, the ownership of land is contingent on possession of it: use of it in some way, or just physical presence on the land.  This element is ‘key’.  Property rights are not absolute, they require maintenance.  In certain circumstances, a squatter can acquire ‘adverse possession’ of land abandoned by its owner by title.

Aboriginal tradition and practice do not recognize the concept of property assignable to an individual, whether ruler, noble or serf.  The concept of ‘fee simple’ is from another universe.

However, aboriginal practice with respect to land and water is that the land and the water are connected to the people through their use: living and harvesting, as examples.  In their occupation, aboriginal law and governance would have applied.  Aboriginal title arises through the use and governance of the land, not through actual titular possession.  There can be debates and discovery whether aboriginal use of the land has been continuous and whether such use pre-dated the arrival of the Crown and its claims on the land.  Further, given the nomadic nature of various aboriginal nations, there can be debate and discovery whether one nation or another or both made use of the lands in question.  However, the principle of use and governance of the land remains solid.

And here is the common element between early ‘fee simple’ title and aboriginal title: Use of the land.  In the case of aboriginal peoples, what common law calls ‘title’ exists through a long-standing relationship with the lands and waters.  In Common Law, ‘fee simple’ title is not absolute; it is contingent upon use.

Conflicting Claims

Much of the early colonisation of the Americas was legitimized on the premise of ‘terra nullius’, which basically argued that the land was vacant, unclaimed, that no indigenous person had established property rights.  Although this premise was asserted by early governments and settler colonists for many decades to come, its applicability was challenged more than a century prior to Confederation.

The first recognition of indigenous land rights was issued in the Royal Proclamation of 1763, following a war with France, and the formal establishment of colonies in America.  George III asserted that indigenous peoples living outside the stated boundaries of the new colonies “should not be molested or disturbed”.  The King proclaimed Crown sovereignty over all North America, but recognized indigenous title.

In 1792, Captain George Vancouver, on behalf on the British Crown, took the first steps toward claiming for the Crown the lands which would come to be known as British Columbia.  He had no authority to make a territorial claim.  His only legal authority was to conduct surveys and to negotiate with the government of Spain.  For more than a half-century, Vancouver’s ‘claim’ had little significance to the indigenous peoples in the area, as visiting Europeans were mostly traders and explorers, not settlers.

When conflicts were brought to a head, the British legal rationale was basically that, legal or not, the colonists were occupying and using the land so it was theirs by that right.  Once again, the principle of ‘use’ of the land was used to legitimize ownership.  What the colonist governments did not recognize was that the indigenous peoples had been using the land for centuries before the arrival of settler colonists, although uses of the land were for different purposes than the settler colonists.

The legal authority of the settler colonists was asserted through the 1846 Oregon Treaty with the United States, which separated the future BC from the US, and the British proclamation of BC colonial status in 1858.  Neither treaty acknowledged indigenous possession, let alone indigenous rights.  By the terms of the Royal Proclamation, both the treaty and the proclamation were ‘ultra vires’ – basically illegal.

Based on established constitutional principles, there is little doubt about the legitimacy of indigenous claims.  Opponents have presented arguments based on the frequency of use, but the facts support regular use on a seasonal basis, more than enough to maintain a claim.

Possible Resolution based on the Principle of Use

The objective here is ‘reconciliation’ between different nations or peoples and their cultures and laws.

If the courts declare that indigenous land claims are ‘senior’ to fee simple claims on private property, then the imperial chickens have truly come home to roost.  The proclamation of 263 years ago – coupled with the assertion of Section 35 of the Canadian Constitution – calls into question the private property rights many had taken for granted. The property rights are defective, with the question of their validity still to be determined.

These private property rights were first granted shortly after British Columbia became a recognized colony.  The granting proceeded even though the Governor at the time warned that the actions were ultra vires.  However, in practical terms, there was nothing the indigenous peoples could do as they had no legal status in British Columbia at the time.

The path to resolution might lie through the concept or doctrine of use, consistent with both Common Law and Aboriginal Rights.  The original settlers on those disputed lands were, in principle, squatters.  They had no right to be there (although they did not know that).

However, that land was occupied, used, improved and governed for more than 160 years.  So, if use of the land is a requirement for possession of title, then one can apply that principle to argue that the private titles are valid.

Neither aboriginal peoples nor the Crown are subject to the private property concept of adverse possession.  Strictly speaking, the principle does not apply.  However, the legal waters here are already murky, and perhaps the adoption of an ancient common law principle might allow resolution, with a goal of reconciliation.

A hopeful sign appears in the view of the aboriginal groups asserting title here, as they have said that they have no interest in occupying the lands held by fee simple owners.  Their claim is against land still held by the Crown, where their case is more clear and less contentious.

Canada was founded on compromises rather than absolutes.  If the indigenous peoples are willing to ‘put some water in their wine’ to resolve the issue, perhaps the courts could as well.