Native – Dawn Mills, Gitxsan property, ownership, and Governance. (2008) p.339 – Ownership of land is based on history
Overview – One Sentence Sum up
Gitxsan (G) society rests on Wilp which may include membership anywhere from 25 to 200 people. It is the dwelling place and the resource-owning group….using a matrilineal inheritance system (passed b/w women).
Wilp owns its history which is that basis upon which everything is “owned” as we understand it. It is the property owning group and its members have rights and obligations. It has proprietary interests in land, but lends rights of access to others.
People have membership to their father’s fishing, hunting, and berry grounds while he is alive.
G society holds the wilps as holding its territory as a whole in alliance with each other and members are delegated rights according to relationships.
Trying to use western notions of land may be masking the real pattern of rights to land and/or resources.
It seems like the ownership of the land flows from the land to the Chief and on down to the people.
Tenure and ownership are coded in a series of cultural images, practices, and in their historical relations to the land (Cf. above: “history is the basis on which everything is owned”. Demonstrated thru Ayuks
People do not have rights over things, but owe obligations to one another.
Elaborate anthropological evidence (bark painting) rejected as evidence of aboriginal property.
Feudal theory in Australia – Aus was a “settled” colony – this weight of precedent hung over court in Mabo
Terra Nullius = settled
Cession
Conquest
English law applied inc feudal tenure; property of colony is in Crown, all rights derived from Crown grant
Leads to an equality of property right issue: English colonials v. indigenous.
Skeleton of Principle – feudal tenure cannot be thrown out, b/c it is holding up the Aus property system…we just need to make “space” for native property.
Consequences of Mabo
Doctrine of tenure confirmed
Crown title (radical title) distinct from crown ownership (beneficial title)
Rejection of extended terra nullius crown ownership only over literally unoccupied land
Corollary of radical title is power to grant and extinguish interests in land.
The issues of “Different” property
We shouldn’t dismiss other people’s conception of property simply b/c it is different then our own.
Delgamuukw et al v. The Queen in Right of BC, 1997, SCC 347 Attempt to reconcile pre-existing Aboriginal concepts of Property with CML concepts of Property
Facts: Civil Case. Before this case there was a perception that Indian land title was “something less” than Common Law Property. The Gitskan and Wet’suewt people are claiming “ownership and jurisdiction” over traditional lands. The trial judge did not accept the plaintiff’s evidence largely based on oral history of their attachment to the land.
Issue:
1) What is the content of aboriginal title, how is it protected by s.35(1) CA 82 and what is required for its proof? [Natives do not have title]
Maj (Lamer C.J):
Factual Findings
In aboriginal claims situations, court should approach rules of evidence and evidence that exists with a consciousness of the special nature of aboriginal claims and a consciousness of the evidentiary difficulties in proving a right which originates in a time where there were no written records.
Attempt to achieve reconciliation by bridging aboriginal and non-aboriginal cultures.
Although aboriginal rights is a common law doctrine, aboriginal rights are truly sui generis (unique).
Source of Aboriginal law is: prior occupation and relationship b/w Cml and Aboriginal precedent.
Accommodation in a way that does not strain the Canadian legal and constitutional structure.
Oral histories should be accepted as evidence.
Disagreement about aboriginal title itself and its reception into the constitution by s.35 (1)
Lamer doesn’t think anyone has characterized aboriginal title properly so is going to set the record straight.
Aboriginal title is a right in land and as such is more than the right to engage in specific activities which may be in themselves aboriginal rights.It confers the right to use land for a variety of activities, which do not all, have to be traditional activities. But range of use is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land, which forms the basis of the particular group’s aboriginal title.
General Features
Aboriginal title has been described as sui generis in order to distinguish it from normal proprietary interests, such as fee simple.
Also sui generis because cant be explained with reference only to the CML
One dimension of aboriginal title is its inalienability: cannot be transferred, sold or surrendered to anyone but the Crown.
Source: Although Aboriginal title was recognized by Proclamation it arises from the prior occupation of Canada by aboriginal people. Occupation= in CML proof of possession: ABG title is sui generis because possession arises before assertion of British Sovereignty.
1) ABG Title encompasses the right to use the land held pursuant to that title for a variety of purposes, which need not be aspects of those ABG practices, cultures and traditions which are integral to distinctive ABG cultures.
-Guerin v the Queen: Lands held pursuant to aboriginal title, like reserve lands are also capable of being used for a broad variety of purposes.
-ABG title also encompasses mineral rights and lands held pursuant to ABG title should be capable of exploitation in the same way, which is certainly not a traditional use of the land.
BUT: ABG Title does NOT = Fee simple, here is why:
-Inherent limit: Lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to ABG title.
-Occupancy is determined by references to the activities that have taken place on the land and the uses to which the land has been put by the particular group.
-If a site was a prayer site Aboriginal could not build a parking lot on the site and maintain ABG title.
-If they want to use the land in a way that ABG title does not permit they can surrender those lands to the Crown.
-I think this is total bullshit: Lamer concludes: “The approach I have outlined above allows for a full range of uses of the land, subject only to an overarching limit, defined by the special nature of the aboriginal title in the land”
Although ABG title is a species of ABG right recognized and affirmed by s.35 (1) of the Constitution Act it is distinct from other ABG rights because it arises where the connection of a group with a piece of land was of a central significance to their distinctive culture.
ABG title confers a right to land itself (in some cases).
Proof of Aboriginal Title
-ABG Title v. ABG Right can be distinguished through test that Lamer set out in Van der Peet:
ABG Rights Test:
1) Requirement that land be integral to the distinctive culture of the claimants
2) Time for identification of aboriginal rights is time of first contact.
ABG Title Test [p. 358]:
1) Requirement of occupancy: Land must have been occupied prior to sovereignty.
-If, at the time of sovereignty, an aboriginal society had laws in relation to land, those laws would be relevant to establishing the occupation of lands which are the subject of a claim for aboriginal title.
2) Time for identification of ABG title is the time at which the crown asserted sovereignty over the land: If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty .
-No need to establish an unbroken chain of continuity between present and prior occupation. There must be substantial maintenance of the connection.
3) At sovereignty, that occupation must have been exclusive.
-Requirement flows from definition of ABG title itself.
-Proof of exclusivity must rely on both perspective of the CML and the aboriginal perspective.
-Exclusivity as understood under CML must take into account context of ABG society at time of sovereignty.
Infringements of ABG Title: The test of Justification (like a little Oakes test b/c this is outside the Charter)
1) Infringement of ABG title must be in the furtherance of a legislative objective that is compelling and substantial.
2) Assessment of whether the infringement is consistent with the special fiduciary relationship between the crown and the ABG peoples.
R v. Marshall & R v Bernard. SCC 2005 367 Exclusion is still key; no exclusion no right.
Facts: Appelants logged on sites owned by the Crown in Nova Scotia and New Brunswick. They were charged with criminal offences (changes BoP). Only need to raise a reasonable doubt). Most native land claims cases are defences to Criminal cases.
Evidence -Admitted logging but argued that they were not guilty because they held aboriginal title to the sites.
Held: Mikmaq do not have title to the land.
Issue:What is the standard of occupation required to prove title, including the related issues of exclusivityof occupation, application of this requirement to nomadic peoples and continuity? [What is the standard of Proof required for Lamer’s test in Delgamuukw to prove “occupied, continuity, and exclusive” in order to find Aboriginal Title?]
Maj (McLachlin): note she never once use the term “sui generous”
Aboriginal Title at Common Law
-The crown can impinge on aboriginal title only if it can establish that this is justified in pursuance of a compelling and substantial legislative objective for the good of larger society. [Cf. Gladstone, cited above in Delgamuukw]
Standard of Occupation of Title: The Law
-Question court needs to figure out is which standard of “occupation” is appropriate to determine aboriginal title.
-Also, what standard of evidence suffices?
-Don’t forget there is a requirement in deciding this standard that both aboriginal and European common law perspectives be considered. Also, there are a variety of aboriginal rights that may be affirmed.
Court must:
examine the pre-sovereignty aboriginal practice and translate that practice into a modern legal right.
consider the pre-sovereignty practice from the perspective of the aboriginal people. Needs to translate into CML right. Can’t be done in narrow formalistic way.
Does the practice correspond to the core of the concepts of the legal right claimed?
-Once that is done, next question is what modern right best corresponds to the pre-sovereignty aboriginal practice, examined from the aboriginal perspective.
-There are all sorts of different rights that flow from this…one of them is aboriginal title to land.
-Link with Delgammuukw: To establish title must prove exclusive, pre-sovereignty “occupation” of the land by their forbears
-If aboriginals used land to hunt they would get a hunting right on the land not title over the land: You really need occupation and use of land in order to be able to claim title to the land.
1) Exclusion Issue
Evidence of exclusion is not required to establish aboriginal title. All that is required is demonstration of effective control of the land by the group from which a reasonable inference can be drawn that it could have excluded others.
2) Can nomadic and semi nomadic people ever claim title to aboriginal land?
It depends on the evidence. Whether nomadic people enjoyed sufficient possession to give them title to land is a question of fact.
-Delegamuuk: physical occupation may be established by regular use.
-Question of degree of occupation or use
3) Continuity
Claimants must establish they are right holders.
-Modern day claimants must establish a connection with the pre-sovereignty group upon whose practice they rely to assert title or claim a right.
Paragraph 70 at page 373 gives the best summary of these requirements.
Application of the Legal Test
-Cromwell speaking for Court of Appeal says that trial court test was too strict, that it was sufficient to prove occasional entry. He also said that the sufficiently regular and exclusive use was not consistent with semi nomadic culture of the MikMaq.
-SCC says they can’t accept this argument because it is saying that possession of the land in the sense of exclusive right to control should be diminished – the SCC doesn’t want to do this because they want to maintain the idea of exclusionary right of control.
SCC holds: The CML right to title is commensurate with exclusionary rights of control [374]. That is what it means and had always meant. If the ancient aboriginal practices do not indicate that type of control then title is not appropriate right. (I.E SCC is trying to be politically correct by saying they will include aboriginal law in the analysis but in the end it still just comes down to common law concept of exclusion, and if that is not there, there is no claim.)
Ratio: The CML right to title is commensurate with exclusionary rights of control. That is what it means and has always meant. If the ancient aboriginal practices do not indicate that type of control then title is not appropriate right. No exclusion = No right.
Aboriginal Title in Practice
No successfully litigated claims to date
Strength? Depends on duty to consult
No duty to accommodate
Community capacity
Driven by gov’t policy
How does the law reflect social mores and conventions?
What harm is the court trying to avoid in the various situations we cover?
What is the vision of how law is used against which the common law tests its principles?
What are the values that underpin ownership of land?
What values are supported by the common law of property in relation to land?
How does the anglo-american view of land ownership accommodate other ways of owning land that are cultural, ethnic, religious, etc?
Feudalism:
King declares himself owner of all land in country. Divides land b/w 1500 Barons
Land is a status symbol, but a system is developed to encourage people to part with land in exchange for something else.
Tenants-in-Chief hold land and in turn sub-infeufdation – with a resulting series of obligations that flow back and forth.
This whole system was called a Tenure – from French for tenir – holding land for someone else.
This system is the basis that all land is held by the king – which is why we still feel like all land is held by the Crown in Canada.
Free
Devine servants – saying prayers for their lords
Chivalry – military service
Personal Service – personal servant of the lord.
Free and Common socage – exchange of money or goods for land – like modern day rent.
Un-Free
Copyhold: had to perform whatever duty was written in the “copy”. Only certainly was that whatever was extracted would be offensive – they could defend against anything that would threaten their survival.
**The feudal structure survived on the backs of the serfs, but when they all died in the plague the system collapsed and lead to a series of changes, which:
prohibited sub-infeudation
people could not create their own tenures
1660 Act abolished all forms of land holding except free and common socage.
Crown would now grant all land
If you own an estate you don’t own the land, you own an estate in the land (a right from the King to use the land)
Escheat – if you die without heirs, land reverts to Crown
Reversion: any interest that is retained by the grantor
Remainder: anything left in a third party following the grant of an estate less than a fee simple
Life estate (increasingly being used in charitable situations for tax purposes)
Fee simple – “fee” refers to inheritance, “simple” refers to the largest bundle of rights, the most ample, only subject to Crown’s right to expropriate
A. Neil, Classless Britain? (1996) p.321 – Last Feudal system in Europe
Rich Barclay Brothers build a secluded home on the uninhabited island of Brecqhou – within the feudal property of Sark, a nearby island.
Sark is the last remaining feudal land holding in Europe
Barclay’s on purchase had to pay into the Seigneur’s pocket 1/13 of the purchase price = L177,000.
Primogeniture – property is by law or custom heir to the oldest male child – is still practiced and Barclay’s want to challenge it as offending art. 14 of the European Convention on Human rights as offending sexual equality and equal rights.
Crown has joined the court fight on behalf of the Seigneur and will be paying his legal bills.
Critical of Britain’s reverence for inherited privilege, wealth, and hereditary rights at the expense of those who generate their own wealth.
S. Morris, Stark Realities for last Bastion of Feudalism (2002) p.324 – Change is coming to Feudal Sark
Sark must amend its constitution to eliminate the last bastion of feudalism in the western world iot comply with human rights laws
Most of the members who sit on the island’s Parliament do so b/c they own land or are rich enough to buy a seat, although a minority are elected.
In 1999 law was changed to eliminate primogeniture
There is much tension in the reform process with tenure-holds opposing change, while the elected members favour elimination of the feudal system.
S. Morris, Stak faces battle with 21st Century Kinghts (2008) p.327 –
Sark is facing major reform for two reasons:
The island signed the European Convention on Human Rights; and
Billionaire Barclay twins have lead a fight to have feudalism scrapped claiming it is unfair and unjust.
Sark has initiated reform that introduces democracy, although the Seigneur and the Seneschal will hang on to some of their powers.
Barclay’s think any remnants of feudalism indicate the democratic reforms have not gone far enough.
