Although I was only at the LTSA for three years I did learn a thing or two, and continued to maintain an interest in land tenure and land ownership after the I left the organization.
This question of fee simple vs Aboriginal land claims is a complex one and no doubt the 2014 Supreme Court decision re: the Tsilhqot'in First Nation land ruling will ultimately impact virtually all questions in BC of Aboriginal vs Private land 'ownership'. I have a close buddy who is taking the lead on assisting the Tsilhquot'in develop a comprehensive land use plan so I hear inside details on the issue periodically. The Tsilhqot'in was a landmark case which even today most British Columbian's remain ignorant of, and in particular the implications for land tenure in this province.
The legal wrangling in the case dragged on over 20 years, since six Tsilhqot'in bands first began using the courts and a blockade to stop logging operations in their traditional territory near Williams Lake. But the struggle over who owns the land in B.C has endured much longer, pretty much ever since explorers first arrived in BC, and the chiefs began demanding a resolution to what became known as the "Indian land question." The Supreme Court of Canada's unanimous decision in 2014 laid that question to rest. Sort of......
The Court confirmed the Tsilhqot’in peoples had aboriginal title to a large swath of their traditional territory, over 1,700 square kilometres - and not just old village sites as the provincial and federal governments had argued. It was the first time in Canada aboriginal title had been confirmed, outside of an Indian reserve. Not only did that have ramifications for B.C., a province blanketed by unresolved land claims, the decision set a critical precedent for future claims of aboriginal title throughout the country, particularly in Quebec and the East Coast - where land cession treaties don't exist.
The Court clarified major issues, such as how to prove aboriginal title and when consent is required from aboriginal groups involved in negotiations over major projects such as the Northern Gateway pipeline. Some legal analysts don't buy First Nation claims that the decision was a victory. Indeed, the court ruled aboriginal title isn't absolute: major projects such as mines or pipelines can still go ahead without the consent of a First Nation, if the government can make the case development is "pressing and substantial," and meet its fiduciary duty to the aboriginal group.
In their argument to the Supreme Court the Tsilhqot’in notably omitted areas of private property from its claim to Aboriginal title, which means that the relationship between Aboriginal title and private property has not yet been resolved with any certainty.
However, existing legal principles from Tsilhqot’in and other Aboriginal law cases do provide a road-map for resolving conflicts between Aboriginal title and private property. In short, it is possible to prove Aboriginal title over private property in Canada. However, the government may be able to justify the infringement that private property interests represent on Aboriginal title. Where justification is not possible, Canadian case law suggests that the remedy for infringement of Aboriginal title by a grant of private property interests will likely be financial compensation by the government.
With respect to Aboriginal vs Fee Simple land ownership think of it this way: when an individual purchases land in BC, he or she owns it in “fee simple.” Fee simple is the most substantial interest in land that exists in law, giving the owner absolute rights of ownership and exclusive rights to use and occupy the land. Although essentially equivalent to absolute ownership, land held in fee simple is still held “in tenure on the Crown’s underlying title.” This means that fee simple ownership, because it is granted by the Crown, relies on the validity of the Crown’s interest in the land in the first place, and any encumbrances on the Crown’s underlying title also apply to the fee simple interest itself.
Aboriginal title is similar to fee simple in that it confers exclusive use and occupation of the land. It also provides the group holding title with the rights to decide land usage and to benefit economically from its use. One primary difference between fee simple and Aboriginal title however is that Aboriginal title is a communal right held by the group as a whole. Consequently, uses of Aboriginal title land are restricted to those that will not deprive future generations of the benefit of the land. Another key element is that unlike land held in fee simple, which is generally transferable, Aboriginal title lands may only be transferred to the Crown.
The $64,000 question remains however: Can Aboriginal title be proved over Fee Simple? Since each type of ownership entails an exclusive right to the land in question, simultaneous ownership through Aboriginal title and fee simple seems problematic, if not impossible. However, Canadian courts have laid out a framework for resolving conflicts between the two types of ownership.
In order to prove Aboriginal title, the test set out in the Tsilhqot’in ruling requires an Aboriginal group to demonstrate that, prior to the assertion of European sovereignty, the land was occupied in a manner that was sufficient, continuous and exclusive. These can all be established where private property interests also exist:
- Sufficiency – Sufficiency examines the degree of land use prior to the assertion of European sovereignty. Because this is a historical inquiry, it is possible for an Aboriginal group to establish this requirement over land that is currently held in private ownership.
- Continuity – Where present occupation is relied on as proof of pre-sovereignty occupation, continuity between the present and pre-sovereignty occupation must be demonstrated. Importantly, this arm of the Tsilhqot’in test is optional – continuity must only be established if current occupation is a key element of proof of historical occupation. In a previous case in Ontario, the Court also recognized that the continuity requirement should be given a very liberal interpretation. Considering its optional nature and liberal application, continuity should not present a meaningful barrier to proving Aboriginal title on fee simple lands.
- Exclusivity – Exclusivity can be proved where an Aboriginal group can establish they historically had the intention and capacity to exclusively control the land. This is an inquiry into control at the time of European sovereignty only – present exclusivity is not required. As such, an Aboriginal group claiming title over privately owned property today would not be barred from proving this branch of the test.
Accordingly, based on the test laid out in Tsilhqot’in, Aboriginal groups can certainly prove Aboriginal title over land held in fee simple. That all said questions about whether a grant of private property rights on Aboriginal title land is justifiable, the reconciliation of private property and Aboriginal title - and ultimately compensation - are all as yet absolute unknowns in terms of which way the courts will rule. This is an incredibly complex subject, which of necessity will require years of of court hearings and legal wrangling, and one which has the potential to impact many citizens of this province far beyond First Nations peoples.