June 26th of this year marked a milestone in Canadian jurisprudence: for the first time, the Supreme Court of Canada (SCC) ruled on the existence of Aboriginal title. After the Xeni Gwet’in, one of the six Tsilhqot’in First Nations, spent more than two decades opposing provincially-sanctioned logging in their traditional territory in central British Columbia, eight SCC judges unanimously affirmed that not only does the Tsilhqot’in Nation have title to those lands, but also that the province breached its duties to the Tsilhqot’in people by allowing the logging in the first place. Barely a month old, the 80-page decision will likely have far-reaching effects in terms of Aboriginal-settler relations, certainly in British Columbia and likely elsewhere in Canada as well.
The response has been cacophonous. At the fore was the jubilation of Chief Roger Williams, the Xeni Gwet’in, the Tsilhqot’in people, and Aboriginal individuals across the country. News coverage also depicted the concerns of big business, commentators speculated about potential outcomes and debated whether the decision is or isn’t a game-changer. Some critics have argued it goes too far, while others say it hasn’t gone far enough, in terms of providing for Aboriginal titleholders and claimants. None of these articles, however, have fully answered a very simple question: how did we get here?
Looking at Tsilhqot’in from a historical perspective allows us to see the roots of this decision, showing how Canadian legal frameworks have changed over time. An historical approach also helps reveal the exceptional nature of Aboriginal histories in British Columbia compared to elsewhere in the country, while also emphasizing the increasingly clear rupture between settler colonial law and Indigenous justice.
In 1983, the province granted a commercial license enabling Carrier Lumber to log in Tsilhqot’in territory. Tsilhqot’in people immediately opposed the move, registering a land claim through the Xeni Gwet’in First Nations Government. In 1998, Xeni Gwet’in leaders amended their land claim to encompass title to the land on behalf of all Tsilhqot’in people. Between 2002 and 2007, the case was tried at the BC Supreme Court, which eventually supported the concept of Tsilhqot’in title, but only in principle. Five years later, the provincial Court of Appeal overturned the decision, deciding that while Tsilhqot’in peoples had rights to harvest, trap, and hunt on the territory, their title over it had not been established. The recent decision, written by Chief Justice Beverly McLachlin, upholds the initial verdict. It argues that the appeal decision had been based on an overly narrow conceptualization of title, and adds that a “culturally-sensitive approach” must be adopted in Aboriginal title cases.
All of this must be contextualized against historic interactions and agreements between Indigenous peoples and settlers. Key here is the 1763 Royal Proclamation, which stipulated that prior to lands being open for settlement, Aboriginal peoples had to cede or otherwise extinguish their title to those territories through treaties or other agreements. Accordingly, throughout most of Canada, government officials dispensed with Aboriginal title through treaties. However, in BC, initial treaty-making efforts were dramatically foreshortened after the end of James Douglas’ tenure as governor. During the early 1860s, lands were set aside as reserves for Aboriginal peoples not as an alternative to treaties, but as a stop-gap measure to ensure Aboriginal communities, increasingly buffeted by waves of prospectors and settlers eager to cash in on the colony’s rich resources, would still have a land base after treaties could be negotiated. However, once Joseph Trutch took up the post of chief commissioner of lands and works, not only were reserves reduced by up to 90%, but the non-negotiation of treaties became, especially after the 1871 incorporation into Canada, the new province’s de facto policy. Three distinct challenges confronted BC’s stance: the demands of Indigenous peoples, who petitioned the government for treaties; federal officials who asserted that the colony follow the practice carried out elsewhere in Canada; and entreaties from Queen Victoria’s representatives, like Governor General Lord Dufferin, affirmed that Aboriginal title needed to be extinguished in order to fulfill the Crown’s fiduciary duty to Aboriginal peoples in BC. As John Burrows explains, Tsilhqot’in intervenes in this historic debate by adding more clarity to the issue of interjurisdictional immunity.
British Columbia remained at this stalemate for more than a century, despite ongoing Indigenous land claims disputes. Until the 1951 amendments to the Indian Act, however, Indigenous peoples were legally prohibited from hiring lawyers, effectively barring them from taking land claims to court. Eventually, the Calder decision in 1973 stated that, unless ceded through treaty or otherwise, Aboriginal rights to land were not extinguished by the imposition of settler colonialism. In 1984, the Guerin case affirmed that Aboriginal peoples’ rights to use the land placed a burden on Crown title. In 1990, the Sparrow decision ruled that federal policies could infringe on constitutionally protected Aboriginal rights only if the Crown did not unnecessarily abrogate its fiduciary duty to Aboriginal peoples. Seven years later, Delgamuukw declared that both settler common law and Aboriginal perspectives should be equally consulted when assessing title claims. Finally, in 2004, the Haida decision stated that Aboriginal peoples must be consulted on proposals for development in their claimed territories. Tsilhqot’in’s reliance on these decisions and the Royal Proclamation demonstrate its historic roots. Further, the increasing strength of these Supreme Court decisions, all brought forward by BC First Nations, highlights how the lack of historic treaties in the province marks it as divergent from the national narratives of treaty-making.
Other historic factors helped support the Tsilhqot’in case, and underline not only the exceptional nature of BC Indigenous land claims within the context of national history, but also the exceptionality of the Tsilhqot’in claim within BC Indigenous history. The decision states that claimant First Nations must prove title on the basis of three factors: sufficiency, continuity, and exclusivity of occupation. Though it can prove onerous, it is fairly straightforward for a First Nation to demonstrate that occupation is sufficient and continuous: due to the Delgamuukw ruling, oral histories and archaeological evidence constitute valid sources for determining sufficiency of occupation, and in combination with contemporary land use, help show the continuity of Indigenous peoples’ presence on their territories.
While BC’s lack of treaties makes it exceptional in reference to the situation of most of the rest of the country, the Tsilhqot’in Nation’s geographical situation makes it unique in comparison to many other BC Indigenous communities. Indigenous land use in much of BC does not follow European patterns; historically and today, the same land can be used by more than one community. For example, the Musqueam, Squamish, and Tsleil-Waututh each claim parts of greater Vancouver based in part on historic gathering and hunting practices that necessitated a certain degree of territorial mobility. The remoteness of Tsilhqot’in territory enabled them to prove their exclusivity of use, but history plays into it as well. Both the Tsilhqot’in peoples’ historic efforts to defend their territory against other Indigenous groups, as well as their stance in the 1864 Chilcotin War, support a Tsilhqot’in claim of exclusive occupation. That the Tsilhqot’in were able to prove this exclusivity highlights the historically-embedded nature of the decision. At the same time, the unique circumstances of the Tsilhqot’in within the already exceptional situation of BC land claims means that this exclusivity requirement poses an extremely heavy burden of proof on other Indigenous title claimants in the province.
Another element demonstrating the deep historicity of the Tsilhqot’in decision is its reference to notions of inherent title and sovereignty. Chief Justice McLachlin interprets the establishment of settler sovereignty thusly: “At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival. The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation (1763).” While McLachlin rejects terra nullius, she does not offer an alternate rationale for the Crown’s acquisition of radical title, leaving a question mark hanging over the issue. Why does the mere fact of their arrival enable European settlers to assert sovereignty over all Canadian territories, while Indigenous peoples only have rights to occupy and use the land? This is a fundamental problem with the decision; the “European assertion of sovereignty” was without a doubt founded upon historically contingent legal practices, themselves predicated upon racial hierarchies, which simply could not conceive of existing Indigenous sovereignties. Russell Diabo has thusly argued that the SCC’s reaffirmation of the Crown’s radical title amounts to the reassertion of the laws of the doctrine of discovery. This is a major flaw in Aboriginal legal issues in Canada: despite the SCC’s “culturally sensitive approach,” ultimately, the court is a settler colonial one, unlikely to rule itself out of existence. The decision thus also shows us how the history of settler colonialism places an ongoing constraint on the rulings of our country’s highest court.
The Tsilhqot’in decision is steeped in the tangled history of Indigenous-settler relations in Canada. Founded on Indigenous archaeological evidence, oral tradition, colonial documentation, and other case law, it offers an overall picture of the history of colonialism in this country, and, especially, in British Columbia. To the extent that it provides a sympathetic, favourable verdict, the Tsilhqot’in decision is a victory for title claimants. However, its rhetoric of reconciliation veils logic that in many ways maintains the settler colonial status quo.
Madeline Knickerbocker is a PhD candidate in the Department of History at Simon Fraser University. Her dissertation is an ethnohistory of Stó:lō cultural curation and political activism in the twentieth century. More of her work is available at www.madelineknickerbocker.ca.