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Indian title
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Land claims
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Indian title
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Living conditions
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Legal status
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3a) I've heard that I could lose my land if land title questions are settled the way Indians want.

People are afraid of the whole aboriginal rights and title issue and we feel certain government forces are exploiting that fear. We're not out to take away homes and the livelihoods of white people. This is our only homeland, we're fighting for our homeland. We have nowhere to run.

- Ron Ignace, Chairman of the Shuswap Nation Tribal Council

Native people have consistently said that they are not interested is displacing people from their homes.

3b) If the claims of native people were recognized, would that mean that Indians own the province lock, stock, and barrel?

The exact details of what native claims to title would mean remain to be worked out between native nations and the provincial and federal governments. Hamar Foster, associate professor of Law at the University of Victoria, explains it this way.

First of all, Indian title is a legal concept, hundreds of years old, and no one, not even the government, is free to choose whether or not to accept the law. Secondly, to ³accept² the legal concept of Indian title in B.C. is to accept a claim, not a result, and is quite consistent with rejecting a particular native interpretation of title. The extent to which each band or nation still has title, and what that means, is precisely what talks would be about.

The problem, of course, is that when native people and non-native people politicians and lawyers sit down to discuss title, two very different definitions and set of assumptions are at work. Governments tend to view title as based on "use" and occupation. Native people tend to talk more about a relationship and responsibility to the land.

3c) What is the basic content of the concept of Indian title from a legal point of view?

At a minimum, it is the legal right to possess and use land, to which the underlying title of the Crown is subject. Obviously, what the courts will do to fill in the gaps in this concept remains to be seen, but for present purposes the fundamentals can be summed up in the following five propositions.

  1. That when Europeans arrived in Canada, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. That is what Indian title means. . . (Majority decision, Supreme Court of Canada, 1973, Calder Case.)
  2. That Indian title is a unique concept. It is more than the right to enjoyment and occupancy, although . . . it is difficult to describe what more in traditional property law terminology. (Unanimous Supreme Court of Canada decision, 1988)
  3. That, to establish their title, each band or nation must prove that their exclusive occupation of the claimed territory was an established fact when sovereignty was asserted by England. (B.C. Court of Appeal, 1989)
  4. That Indian title can be extinguished only by a sovereign authority competent to do so, and then only if the intention to extinguish it is clear and plain. (Unanimous Supreme Court of Canada decision, 1990)
  5. That in most of B.C. Indians neither sold land nor signed treaties ceding it, nor is there any legislation that expressly extinguishes it. Moreover, it is unlikely that such legislation could be passed today without a constitutional amendment.

. . .Whether one speaks of aboriginal rights to the land or of title to it, the issues are the same: what is the geographical extent of these rights, and how far beyond enjoyment and occupancy do they go?"

(excerpted from the Vancouver Sun, August 15, 1990)

3d) What about corporate interests in the land?

Third party interests arise when companies like forest or mining companies are granted leases or rights to extract resources from land, the title of which is under dispute. Those companies then develop plans and commit resources based upon the use of land and its resources. If the situation with respect to that land or those resources change, they expect to be compensated for the impact the change of rules has upon their business.

In some area like the lands of the hereditary chiefs of the Gitksan-Wet'suwet'en people, natives are trying to work with and negotiate with local business people to find solutions acceptable to all parties. In all areas, third party interests add another level of complexity to an already complex situation.