Aboriginal title? Mr. Campbell, meet Mr. Harcourt
By John Cummins, Special to the Sun
April 27, 2009
http://www.vancouversun.com/news/Aboriginal+title+Campbell+meet+Harcourt/1537823\
/story.html
There is again a political desire to breathe life back into "aboriginal title,"
a moribund concept that has seduced politicians and bedevilled the courts for
nearly four decades. History has a way of repeating itself in British Columbia
politics and nowhere is this truer than in the recognition and reconciliation
legislation promised by Gordon Campbell.

In March 1991, the British Columbia Supreme Court in its Delgamuukw decision
rejected a claim of aboriginal title to 22,000 square miles of northern British
Columbia. The court concluded that all such aboriginal interests in land were
extinguished by British Columbia in the years before Confederation. The B.C.
government had won and the claimants of aboriginal title had lost decisively in
court.

That should have been the end of the debate, but between the time the B.C.
Supreme Court rendered its decision in Delgamuukw and the appeal of the decision
to the B.C. Court of Appeal, the NDP government of Mike Harcourt came to power.

The Harcourt government wanted to recognize aboriginal title, but the landmark
Delgamuukw decision stood in the way. If his support of aboriginal title was to
succeed, Harcourt had to undermine the B.C. Supreme Court decision.

To that end the Harcourt government dismissed the legal team that had won the
decisive victory in the B.C. Supreme Court, appointed a new legal team
sympathetic to the native cause and directed it to concede the key elements of
the case the province had won at trial: That there was no aboriginal right or
title to land and that there had been a blanket extinguishment of aboriginal
rights or title to land before British Columbia's entry into Confederation. The
province thus surrendered the high ground on the key issues it had won at trial.

The Court of Appeal ignored Harcourt's concession on aboriginal title. The
matter was then appealed to the Supreme Court of Canada with the province again
abandoning the position it had successfully argued at trial. The Harcourt
government asked the Supreme Court to recognize an aboriginal right or interest
in land and to base such recognition on an acknowledgement that there had not
been a blanket extinguishment of aboriginal rights in land.

Harcourt's concession of aboriginal title was again rejected. The Supreme Court
of Canada did not grant a declaration of aboriginal title. Rather, it determined
that, to support a claim of aboriginal title, an aboriginal group had to provide
evidence that its ancestors had "exclusive occupation" of the land at the time
of British sovereignty.

Unfortunately the Supreme Court left unresolved what, in practical terms,
"exclusive occupation" meant. Did it mean occupation of the entirety of the
traditional territory before sovereignty, or did occupation refer only to those
parts of the traditional territory physically occupied by each group, such as
village sites and the immediately surrounding lands that were intensively used
by the group, but excluding land used only seasonally or occasionally?

The court ordered a new trial to address the claim to aboriginal title raised in
Delgamuukw, but the matter never did go back to trial. The issue of what
constituted "exclusive occupation" was left unresolved by the courts until the
Marshall/Bernard decision of the Supreme Court of Canada in 2005.

In that decision the Supreme Court rejected a claim of aboriginal title to
timber-cutting sites in New Brunswick and Nova Scotia. Significant in the
British Columbia context, the Supreme Court cautioned against the reckless and
indiscriminate conferring of aboriginal title in the absence of evidence of
sufficiently regular and exclusive pre-sovereignty occupation and warned that to
do so would transform the right or practice into a new and different right:

"The common law right to title is commensurate with exclusionary rights of
control. That is what it means and has always meant. If ancient aboriginal
practices do not indicate that type of control, then title is not the
appropriate right.

"To confer title in the absence of evidence of sufficiently regular and
exclusive pre-sovereignty occupation, would transform the ancient right into a
new and different right."

In rejecting aboriginal title, the Supreme Court approved several "tests" that
might be used in evaluating a claim:

- "The line separating sufficient and insufficient occupancy for title is
between irregular use of undefined lands on the one hand and regular use of
defined lands on the other."

- "Occasional visits to an area [for hunting, fishing and gathering] did not
establish title; there must be evidence of capacity to retain exclusive control
over the land claimed."

- The presence of Europeans may undermine claims of exclusive control and
therefore undermine the claim of aboriginal title.

The 2005 Marshall/Bernard decision of the Supreme Court of Canada explained in
practical terms the evidence necessary to establish aboriginal title. The court
made clear that mere seasonal or occasional visits to an area for hunting,
fishing or gathering was not sufficient to establish aboriginal title, noting
that while such practices might give rise to a more limited right, such as an
aboriginal right to hunt for food, but they certainly did not give rise to a
right to aboriginal title to the land.

For that to occur there must exist both a clear intent and an ability to exclude
all others from the area. The free movement or welcoming of fur traders,
explorers, prospectors, miners, missionaries, Hudson Bay Co. personnel and
government officials would work to undermine claims of exclusive control, making
the application of aboriginal title beyond a few village sites virtually
impossible.

The Supreme Court had now put British Columbia in the strongest position with
regard to aboriginal title since before the Harcourt government came to power in
1991.

Yet that was not to be. The Campbell government in February 2009 did the
unthinkable and "pulled a Harcourt," declaring that it was now a believer and it
would recognize aboriginal title throughout British Columbia without any
requirement for claimants to title to provide any evidence or proof that they
indeed qualified for aboriginal title.

Again, as Harcourt had done in 1992, Campbell has snatched defeat from the jaws
of victory.

The province immediately gave notice to the B.C. Supreme Court that it was
withdrawing from a case involving a claim of aboriginal title to coastal waters
off Vancouver Island because it was no longer able to take "a strictly legal
position regarding the test for aboriginal title."

It is not known what position the province will take in the Tsilhoquot'in case
now before the B.C. Court of Appeal. If the Campbell government declares that
aboriginal title exists throughout the province and that aboriginal claimants
need not provide any evidence of exclusive control and occupation in a defined
area as set out by the Supreme Court in Mars-hall/Bernard, will the province
fire its legal team in the Tsilhoquot'in case, hire new lawyers more sympathetic
to the aboriginal position and simply concede the key aspects of aboriginal
title as was done by Harcourt in Delgamuukw?

The promise by the Campbell government to recognize aboriginal title to land
throughout British Columbia has encouraged those native leaders who already
believe that natives hold title to all lands in the province and that the rest
of us are at best tenants and at worst trespassers on their land.

Recognition of aboriginal title would transfer control of 95 per cent of British
Columbia to native leaders who represent little more than three percent of the
population. If you own it, control it and have title to it, it follows that
revenues which flow from the land such as stumpage fees, mining royalties, rents
and access fees for recreational and sporting activities that you impose will be
yours.

How the provincial treasury, robbed of these revenues, would maintain its
obligations to all British Columbians, including roads, medical and education
services, is not addressed by Campbell's recognition and reconciliation
proposal.

John Cummins is the Conservative member of Parliament for Delta-Richmond East.


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