What are the rights of Canada’s First Nations in their lands/property, a 1973 court decision defined them.

In the Supreme Court of Canada’s 1973 decision in Calder et al. v. Attorney-General of British Columbia,  (Frank Calder et al., suing on their own behalf and on behalf of All Other Members of the Nishga Tribal Council, and James Gosnell et al., suing on their own behalf and on behalf of All Other Members of the Gitlakdamix Indian Band, and Maurice Nyce et al., suing on their own behalf and on behalf of All Other Members of the Canyon City Indian Band, and W.D. McKay et al., suing on their own behalf and on behalf of All Other Members of the Greenville Indian Band, and Anthony Robinson et al., suing on their own behalf and on behalf of All Other Members of the Kincolith Indian Band Appellants), the appellants, sued on their own behalf and on behalf of all other members of the Nishga Tribal Council and four Indian bands, brought an action against the Attorney-General of British Columbia for a declaration “that the aboriginal title, otherwise known as the Indian title, of the Plaintiffs to their ancient tribal territory… has never been lawfully extinguished”. It was agreed that this territory consisted of 1,000 square miles in and around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal, all located in northwestern British Columbia. The action was dismissed at trial and the Court of Appeal rejected the appeal. With leave, the appellants then appealed to this Court.

Held: The Royal Proclamation of October 7, 1763, which the appellants claimed applied to the Nishga territory and entitled them to its protection, had no bearing upon the problem of Indian title in British Columbia. The history of the discovery and settlement of British Columbia demonstrated that the Nass Valley, and, indeed, the whole of the Province could not possibly be within the terms of the Proclamation. The area in question did not come under British sovereignty until the Treaty of Oregon in 1846. The Nishga bands, therefore, were not any of the several nations or tribes of Indians who lived under British protection in 1763 and they were outside the scope of the Proclamation.

When the Colony of British Columbia was established in 1858, the Nishga territory became part of it. The fee was in the Crown in right of the Colony until July 20, 1871, when the Colony entered Confederation, and thereafter in the Crown in right of the Province of British Columbia, except only in respect of those lands transferred to the Dominion under the Terms of Union.

A series of proclamations by Governor Douglas between 1858 and 1863, followed by four ordinances enacted between 1865 and 1870, revealed a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any conflicting interest, including one as to “aboriginal title”.

Under art. 13 of the Terms of Union, the charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, were assumed by the Dominion Government. The recommendations of a Royal Commission in 1913 resulted in the establishment of new or confirmation of old Indian reserves in the Nass area. Although it was said that this was done over Indian objections, nevertheless the federal authority did act under its powers under s. 91(24) of the B.N.A. Act. It agreed, on behalf of the Indians, with the policy of establishing these reserves.

Also, the Government of the original Crown Colony and, since 1871, the Government of British

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Columbia had made alienations in the Nass Valley that were inconsistent with the existence of aboriginal title. Further, the establishment of the railway belt under the Terms of Union was inconsistent with the recognition and continued existence of Indian title.

In view of the conclusion reached as to the disposition of the appeal, it was not necessary to determine the point raised by the respondent that the Court did not have jurisdiction to make the declaratory order requested because the granting of a fiat under the Crown Procedure Act, R.S.B.C. 1960, c. 89, was a necessary prerequisite to bringing the action and it had not been obtained. However, agreement was expressed with the reasons of Pigeon J. dealing with this point.

St. Catharines Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Johnson v. McIntosh (1823), 21 U.S. 240; Worcester v. State of Georgia (1832), 31 U.S. 530; United States v. Santa Fe Pacific R. Co. (1941), 314 U.S. 339; United States v. Alcea Band of Tillamooks (1946), 329 U.S. 40; (1951), 341 U.S. 48; Tee-Hit-Ton Indians v. United States (1955), 348 U.S. 272, referred to.

Per Pigeon J.: Although sovereign immunity from suit without a fiat has been removed by legislation at the federal level and in most of the Provinces, this has not yet been done in British Columbia. Accordingly, the preliminary objection that the declaration prayed for, being a claim of title against the Crown in the right of the Province of British Columbia, the Court has no jurisdiction to make it in the absence of a fiat of the Lieutenant-Governor of that Province, should be upheld.

Lovibond v. Governor General of Canada, [1930] A.C. 717; Attorney-General for Ontario v. McLean Gold Mines, [1927] A.C. 185, applied.

Per Hall, Spence and Laskin JJ., dissenting: The proposition accepted by the Courts below that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognized by the conqueror or discoverer was wholly wrong. There is a wealth of jurisprudence affirming common law recognition of aboriginal rights to possession and enjoyment of lands of aboriginees precisely analogous to the Nishga situation.

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Paralleling and supporting the claim of the Nishgas that they have a certain right or title to the lands in question was the guarantee of Indian rights contained in the Royal Proclamation of 1763. The wording of the Proclamation indicated that it was intended to include the lands west of the Rocky Mountains.

Once aboriginal title is established, it is presumed to continue until the contrary is proven. When the Nishga people came under British sovereignty they were entitled to assert, as a legal right, their Indian title. It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and then only by specific legislation. There was no surrender by the Nishgas and neither the Colony of British Columbia nor the Province, after Confederation, enacted legislation specifically purporting to extinguish the Indian title nor did the Parliament of Canada.

As to the pre-emption provision in the consolidating Ordinance of July 1, 1870, on which the Courts below chiefly relied in making the finding that the Indian title in British Columbia had been extinguished, it was obvious that this enactment did not apply to the Nishga lands on the Nass River. The Northwest boundary of the Colony in that area was still in dispute at the time.

On the question of jurisdiction, actions against the Crown in British Columbia are governed by the Crown Procedure Act and this Act provides for the petition of right procedure, which requires that a fiat be obtained as evidence of the consent of the Crown to the action. However, the petition of right procedure does not apply to proceedings seeking declaratory or equitable relief. Furthermore, the validity of what was done by Governors Douglas and Seymour and by the Council of the Colony of British Columbia was a vital question to be decided in this appeal and the Province could not be permitted to deny access by the Nishgas to the Courts for the determination of that question.

No treaty or contract with the Crown or the Hudson’s Bay Company has ever been entered into with respect to the area by anyone on behalf of the Nishga Nation. Within the area there are a number of reserves but they comprise only a small part of the total land. The Nishga Nation did not agree to or accept the creation of these reserves. The Nishgas claim that their title arises out of aboriginal occupation; that recognition of such a title is a concept well embedded in English law; that it is not dependent on treaty, executive order or legislative enactment. In the alternative they say that if executive or legislative recognition ever was needed, it is to be found in the Royal Proclamation of 1763, in Imperial Statutes acknowledging that what is now British Columbia was “Indian Territory”, and in Royal instructions to the Governor of British Columbia. Finally, they say that their title has never been extinguished.

All these claims, at one point or another, were rejected in the judgments under appeal.

In the agreed statement of facts, the mode of life of the Indians is set out in rather bald terms. This description is amplified in the material filed at the hearing. I refer to The Indian History of British Columbia, chapter 8, by Wilson Duff, published in 1964:

It is not correct to say that the Indians did not “own” the land but only roamed over the face of it and “used” it. The patterns of ownership and utilization which they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected. Even if they didn’t subdivide and cultivate the land, they did recognize ownership of plots used for village sites, fishing places, berry and root patches, and similar purposes. Even if they

didn’t subject the forests to wholesale logging, they did establish ownership of tracts used for hunting, trapping, and food gathering.  Even if they didn’t sink mine shafts into the mountains, they did own peaks and valleys for mountain goat hunting and as sources of raw materials. Except for barren and inaccessible areas which are not utilized even today, every part of the Province was formerly within the owned and recognized territory of one or other of the Indian tribes.

The Nishga answer to government assertions of absolute ownership of the land within their boundaries was made as early as 1888 before the first Royal Commission to visit the Nass Valley. Their spokesman said:

David Mackay—What we don’t like about the Government is their saying this: “We will give you this much land.” How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land—our own land. These chiefs do not talk foolishly, they know the land is their own; our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, and places where they got their berries; it has always been so. It is not only during the last four or five years that we have seen the land; we have always seen and owned it; it is no new thing, it has been ours for generations. If we had only seen it for twenty years and claimed it as our own, it would have been foolish, but it has been ours for thousands of years. If any strange person came here and saw the land for twenty years and claimed it, he would be foolish. We have always got our living from the land; we are not like white people who live in towns and have their stores and other business, getting their living in that way, but we have always depended on the land for our food and clothes; we get our salmon, berries, and furs from the land.

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Any Canadian inquiry into the nature of the Indian title must begin with St. Catharines Milling and Lumber Co. v. The Queen[2]. This case went through the Ontario Courts, the Supreme Court of Canada and ended in the Privy Council. The Crown in right of the Province sought to restrain the Milling Company from cutting timber on certain lands in the District of Algoma. The company pleaded that it held a licence from the Dominion Government which authorized the cutting. In 1873, by a treaty known as the North-West Angle Treaty No. 3, the Dominion had extinguished the Indian title.

The decision throughout was that the extinction of the Indian title enured to the benefit of the Province and that it was not possible for the Dominion to preserve that title so as to oust the vested right of the Province to the land as part of the public domain of Ontario. It was held that the Crown had at all times a present proprietary estate, which title, after confederation, was in the Province, by virtue of s. 109 of the B.N.A. Act. The Indian title was a mere burden upon that title which, following the cession of the lands under the treaty, was extinguished.

The reasons for judgment delivered in the Canadian Courts in the St. Catharines case were strongly influenced by two early judgments delivered in the Supreme Court of the United States by Chief Justice Marshall—Johnson v. McIntosh[3], and Worcester v. State of Georgia[4]. In Johnson v. McIntosh the actual decision was that a title to lands, under grants to private individuals, made by Indian tribes or nations northwest of the river Ohio, in 1773 and 1775, could not be recognized in the Courts of the United States. In Worcester v. Georgia, the plaintiff, who was a missionary, was charged with residing among the Cherokees without a licence from the State of Georgia. His defence was that his residence was in conformity with treaties between the United States and the Cherokee nation and that the law under which he was charged was repugnant to the constitution, treaties and laws of the United States. The Supreme Court made a declaration to this effect. Both cases raised the question of aboriginal title to land. The following passages from 8 Wheaton, pp. 587-8, give a clear summary of the views of the Chief Justice:

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.

The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy; and recognized the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

The description of the nature of Indian title in the Canadian Courts in the St. Catharines case is repeated in the reasons delivered in the Privy Council. I quote from 14 App. Cas. at pp. 54‑5:

The territory in dispute has been in Indian occupation from the date of the proclamation until 1873. During that interval of time Indian affairs have been administered successively by the Crown, by the Provincial Governments, and (since the passing of the

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British North America Act, 1867), by the Government of the Dominion. The policy of these administrations has been all along the same in this respect, that the Indian inhabitants have been precluded from entering into any transaction with a subject for the sale or transfer of their interest in the land, and have only been permitted to surrender their rights to the Crown by a formal contract, duly ratified in a meeting of their chiefs or head men convened for the purpose. Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation in favour of all Indian tribes then living under the sovereignty and protection of the British Crown. It was suggested in the course of the argument for the Dominion, that inasmuch as the proclamation recites that the territories thereby reserved for Indians had never “been ceded to or purchased by” the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be “parts of Our dominions and territories;” and it is declared to be the will and pleasure of the sovereign that, “for the present”, they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion. There was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their Lordships do not consider it necessary to express any opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

  1. title.

Gosnell, Chief Councillor of the Gitlakdamix band, said:

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  1. Mr. Gosnell, have the Nishga people ever signed any treaty or document giving up their Indian title to the lands and the waters comprised in the area delineated on the map Exhibit 2 which I am showing you?
  2. No.
  3. BROWN: I think I can save my friend some trouble, I think the Attorney-General is prepared to say while denying there is such a thing as an Indian title in the area, that the inhabitants never did give up or purport to give up that right.

The witnesses McKay, Nyce and Robinson confirmed the evidence of Calder and Gosnell.

W.E. Ireland, Archivist for British Columbia, produced the private papers of Governor Douglas as well as despatches between the Secretary of State for the Colonies and Governor Douglas and many other historic documents, including the Nishga petition to the Privy Council in 1913. There were received in evidence extracts from testimony given at hearings of two Royal Commissions, the first being in 1888 when David MacKay, speaking for the Nishgas, said in part:

David Mackay—what we don’t like about the Government is their saying this: “We will give you this much land”. How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought and conquered our people and taken the land in that way, and yet they say now that they will give us so much land—our own land. These chiefs do not talk foolishly, they know the land is their own; our forefathers for generations and generations past had their land here all around us; chiefs have had their own hunting grounds, their salmon streams, and places where they got their berries; it has always been so. It is not only during the last four or five years that we have seen the land; we have always seen and owned it; it is no new thing, it has been ours for generations. If we had only seen it for twenty years and claimed it as our own, it would have been foolish, but it has been ours for thousands of years. If any strange person came here and saw the land for twenty years and claimed it, he would be foolish. We have always got our living from the land; we are not like white

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people who live in towns and have their stores and other business, getting their living in that way, but we have always depended on the land for our food and clothes; we get our salmon, berries, and furs from the land.

At the second Royal Commission hearing in 1915 (the McKenna-McBride Commission), Gideon Minesque for the Nishgas said:

We haven’t got any ill feelings in our hearts but we are just waiting for this thing to be settled and we have been waiting for the last five years—we have been living here from time immemorial—it has been handed down in legends from the old people and that is what hurts us very much because the white people have come along and taken this land away from us. I myself am an old man and as long as I have lived, my people have been telling me stories about the flood and they did not tell me that I was only to live here on this land for a short time. We have heard that some white men, it must have been in Ottawa; this white man said that they must be dreaming when they say they own the land upon which they live. It is not a dream—we are certain that this land belongs to us. Right up to this day the government never made any treaty, not even to our grandfathers or our great-grandfathers.

 

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