The Canadian Supreme Court recently elaborated legal rules affecting non-Aboriginal encroachment on Native lands. The unanimous decision, Tsilhqot’in Nation v. British Columbia, affirmed a Tsilhqot’in challenge to a British Columbia provincial logging license covering lands within traditional Tsilhqot’in territory. The Tsilhqot’ asserted Aboriginal title to the lands, an assertion opposed by both provincial and Canadian federal governments.
The Canadian press described the case as "a historic decision with major implications," adding, "The landmark ruling is the Supreme Court’s first on aboriginal title and will apply wherever there are unresolved land claims."
Wilf Adam, chief of the Lake Babine Nation, said, “The Government of British Columbia, Canada, and proponents who seek to develop in Lake Babine’s territory must start acknowledging Lake Babine’s aboriginal title claim by engaging with us respectfully and proposing meaningful accommodation for Lake Babine.”
A five-year trial resulted in a finding of Aboriginal title; but the British Columbia Court of Appeal overturned that decision, using a narrow doctrine requiring proof of site-specific use at the time when colonial sovereignty ("Crown dominion") was asserted.
The Supreme Court reversed the Appeals Court and reinstated the trial court decision, stating, "The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms." The court defined this as looking to "Aboriginal culture and practices, and [comparing] them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation."
The decision repeatedly emphasized that courts "must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights." It ruled, "The dual perspectives of the common law and of the Aboriginal group bear equal weight in evaluating a claim for Aboriginal title."
"The relevant [legal] task," the court said, "is to identify how rights and interests possessed under traditional [Aboriginal] law and custom can properly find expression in common law terms." The court defined Aboriginal title as "the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival."
The press and Native leaders seem not to see that the decision perpetuated the doctrine of "Christian Discovery"—i.e., that "the Crown acquired radical or underlying title to all the land in the province upon its assertion of colonial sovereignty." The notion of "radical title" preserves a position of dominion over Aboriginal Peoples.
As the court summarized, "Aboriginal… title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land." But the Crown retains "a fiduciary duty … to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can …[reconcile] Aboriginal interests with the broader public interests," by proving "a compelling and substantial governmental objective and [showing] that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group."
The Crown's "fiduciary duty" reflects the "trust" and "wardship" doctrines that developed from "Christian Discovery." Proclaimed in 15th century Papal Bulls and adopted in royal "charters" by Christian European powers, "Christian Discovery" provided an excuse for claims of "dominion." The claims arose from the assertion that "pagans and infidels" could not maintain their own dominion after being "discovered" by a Christian power.
The work of Law Professor Kent McNeil, whose book, "Common Law Aboriginal Title," was cited by the court, shows the dilemma facing English colonial regimes: Under the common law, "every possession is presumed to be lawful until shown to be otherwise." The common law made it almost impossible to claim ownership against the occupant of lands; thus, the aphorism, "possession is nine-tenths of the law."
"Christian Discovery" gave the English a way to sidestep this ordinary rule of occupancy and replace it with a lesser category, called “Aboriginal occupancy." The 'side-step’ ruptured the common law. The colonial powers, after denying the priority of Native dominion and possession, reinstated common law process with a now inherent rupture.
This rupture—the legacy of "Christian Discovery"—though not mentioned by the Canadian decision—underlies the court's call for "reconciliation," which it says will "identify how pre-sovereignty rights and interests can properly find expression in modern common law terms." The framework of "Aboriginal title" and Crown "fiduciary duty," the court stated, "permits a principled reconciliation of Aboriginal rights with the interests of all Canadians."
But what kind of reconciliation can occur under one party's claim of dominion? That structure precludes the colonial regime reconciling to Native possession and dominion.
In the court's view, "Aboriginals and non-Aboriginals are 'all here to stay' and must of necessity move forward in a process of reconciliation." But this does not mean reconciliation among equals, for the court also says, “distinctive Aboriginal societies exist within, and are a part of, a broader social, political and economic community." The non-Aboriginal governments supposedly represent the "broader" community and have dominion. In this formulation, "reconciliation" turns out to easily include "infringement."
The court exemplifies this: "the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title."
This list justifies a wide range of intrusions onto Native lands and infringement of Aboriginal title, with no parallel list justifying Aboriginal infringement of non-Aboriginal dominion.
Despite its retention of the concept of Crown dominion, the Canadian Supreme Court staked out a more protective position for Native lands than the U.S. Supreme Court. In the U.S., the 1955 Tee-Hit-Ton case ruled that "Indian title" means "permission from the whites to occupy," further defined as "mere possession not specifically recognized as ownership by Congress."
The U.S. decision concludes that Indian title "may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians." As for any "fiduciary duty," the court said, "It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy."
Both the Tsilhqot’in and Tee-Hit-Ton cases involved taking timber from Native lands. Where the U.S. court denied compensation, on the ground of Christian Discovery, the Canadian court found a breach of Crown duty, even before Tsilhqot’in title was confirmed. While both Canada and U.S. law arise from the violation of Native dominion by "Christian Discovery," only Canada appears to struggle with this strange history by fact-based inquiries, limitations on "Crown" power, and a questioning of "modern" common law.
If Native Nations want to undo "Christian Discovery," they will have to approach legal forums not rooted in colonial domination. Given that the existing framework of international law derives from regimes of domination, the prospects for real resolutions of conflicts between Native Nations and states (especially former colonizing states) remains a work in progress.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.