Reserve Lands and Aboriginal Title

Week 15 & 16

Find these slides online: https://webslides.baxterlab.ca/slides/property2025-26/15/
Category: Property 2025-26

Agenda

Lands on Reserve
First Nations Land Management Regime
Contemporary doctrine of Aboriginal Title

What are reserve lands?

Distinguished from traditional territories
Origins
Designated under the Indian Act
Governance structures established by the Act

What is the legal status of land on reserve?

Title held by the Crown “for the use and benefit of the band” - s 18
Possessory interests and Certificates of Possession - ss 20, 24, 25, 28
Designation and surrender - ss 37, 38

Guerin v R

What are the obligations of the federal government when reserve lands as surrendered for the purposes of a long-term lease to a third party?

Why do you think Justice Dickson in Guerin rejects the argument that the Crown holds Indigenous lands in trust?

KEY idea: there is no trust in the “private law” sense but Crown owes a fiduciary duty to Indigenous Nations
Fiduciary duty does not arise from Indian Act
Where does this fiduciary duty arise from if not from a trust established by the Indian Act? Rooted in Aboriginal title as a “certain interest in land” PAIRED WITH the inalienability of Aboriginal title (RP1763, surrender requirement in Indian Act) – i.e. the Crown assumed (imposed) an obligation to deal with third-parties on behalf of Indigenous Nations
Key to this logic is that RP1763 is NOT the sources of AT, but a recognition of AT based on the prior occupation of Indigenous peoples
Also important for Dickson J. to re-characterize AT as “legal right to occupy and possess certain lands” beyond “personal and usufructory right” = “sui generis” (because need a real property right to ground the fiduciary obligation)

Re Trust: " The law of trusts is a highly developed, specialized branch of the law. An express trust requires a settlor, a beneficiary, a trust corpus, words of settlement, certainty of object and certainty of obligation. Not all of these elements are present here. Indeed, there is not even a trust corpus."

Broader theme is relationship between conventional common law property concepts and Indigenous lands.

Consequences of the Indian Act structure for reserve lands

What impact does this legal structure have on Indigenous communities?

First Nations Land Management Regime

Origins
Effect of Land Codes
Critiques

What’s changed under Membertou Land Code?

section 28.1 - Council has full jurisdiction to decide WHAT property interests exist in reserve land and HOW those interests are allocated to Band members
section 28.3 - property interests among members are freely alienable (but NOT to non-members s. 28.2)
section 25.5 - leases (esp long-term leases) can be held by non-members but initial consent is req’d (25.6) after which the lease is freely alienable (25.7)
section 7.1 broad land-use management powers (jurisdiction vs “municipalization”)

Critiques:

Self-determination as economic self-sufficiency (without broader talk about governance over lands and resources)
Opens up reserve lands to market forces and foreign business interests (but note limits in FNLMA)
Silent on Indigenous governance systems (.e.g hereditary chiefs)
Are law-making powers under FNLMA Regime “Indigenous laws” in any sense?
“Municipalization” of First Nations governance

Aboriginal title: St. Catherine’s

Source: Royal Proclamation, 1763
Content: “personal and usufructory right, dependent on the goodwill of the sovereign” that is inalienable, except to the Crown

Aboriginal title: Guerin

Source: Aboriginal title pre-dates Royal Proclamation
Content: Sui Generis = inalienable + fiduciary obligation

Litigation Context: e.g. Tsilhqot’in

Expensive, time-consuming, uncertain (e.g. 5 years, 339 days of trial)
Courts increasingly take a “functional” approach to pleadings
Situated in relation to negotiation processes
Claim area not necessarily equivalent to traditional territory

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Test for Proof of Title

Delgamuukw/Tsilhqot’in

Sufficient
Continuous
Exclusive

Sufficiency

Occupation must be sufficient to ground Aboriginal Title.

Supreme Court has adopted a “territorial approach” to sufficiency (Tsilhqot’in).

Debate in Tsilqot’in: “territorial” vs “site-specific” test; Court adopts territorial approach
“The question of sufficient occupation must be approached from both the common law perspective and the Aboriginal perspective” (Delgamuukw)
“The Aboriginal perspective focuses on laws, practices, customs and traditions of the group. In considering this perspective for the purpose of Aboriginal title, “one must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed” (Delgamuukw)
“The common law perspective imports the idea of possession and control of the lands. At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised.”

Continuity

Where present occupation is relied on as proof of occupation pre-sovereignty there must be continuity between present and pre-sovereignty occupation.

(What happens when present occupation isn’t relied on?)

Exclusivity

There must have ben exclusive occupation of the land at the time of sovereignty, i.e. intention and capacity to retain exclusive control.

(Is effective control enough to prove exclusivity? What amounts to effective control of the land?)

Cowichan Tribes v Canada

Sufficiency: permanent physical presence not required; key principle is “communication to third parities”; “degree of control” is assessed mainly at exclusivity stage.
Exclusivity: giving or withholding permission to access lands shows intention and capacity to control the land; lack of challenges to exclusivity may also be evidence of control.
Continuity: court rejects “substantial connection” test; continuity is fulfilled where claimants are descendants of group that has established sufficient pre-sovereignty occupation.

Source of Aboriginal Title

Delgamuukw/Tsilhqot’in

Dual source:

Occupation prior to the assumption of Crown sovereignty; and
Relationship between common law and Indigenous law

Nature & Content of Aboriginal Title

Delgamuukw/Tsilhqot’in

Is Aboriginal Title like a common law estate in land? Why or why not?

Aboriginal Title is…

Delgamuukw/Tsilhqot’in

Sui generis
Beneficial interest in land that includes right to exclusive use and occupation
Inalienable
Inherently limited
Communal

Sui generis: it is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in Indigenous legal systems.

Beneficial interest: AT is a proprietary interest (Delgamuukw) – “personal” refers only to its alienability exclusively to the Crown; includes exclusive use and occupation of the land - NOT tied to “aspects of practices, customs and traditions integral to Nation’s distinctive culture” (legal frame for Aboriginal rights)

Inherent limit: range of uses 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 – EXAMPLE of paving over a hunting grounds – tension with economic development? NB can still “surrender” lands to the Crown and release those lands from the inherent limit.

Extinguishment

Prior to 1982, Aboriginal title could be “extinguished” when the intention of the Crown is clear and plain (R v Sparrow, affirmed in Delgamuukw), though language which refers specifically to “extinguishment” may not be required.

Duty to Consult

Where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting Aboriginal title and, if appropriate, accommodate the Aboriginal right. The duty to consult must be discharged prior to carrying out the action that could adversely affect the right. (Tsilhqot’in, citing Haida Nation)

Infringement

Crown must show:

It has discharged its duty to consult and accommodate;
A compelling and substantial objective;
Action consistent with Crown’s fiduciary obligation.

NB: “consent” vs “infringement”

Key point: section 35 outside the scope of s. 1 yet Oakes-like test

(1) Duty to consult: where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting Aboriginal title and, if appropriate, accommodate the Aboriginal right. The duty to consult must be discharged prior to carrying out the action that could adversely affect the right.

(2) Compelling and substantial objectives–NB quote from Lamer CJ re what activities could justify infringement

(3) Consistent with fiduciary obligation: (a) protection of the land for future generations and (b) proportionality (rational connection, minimal impairment; proportionality of impact)

Cowichan:

Court confirmed that Crown action pre-1982 (s35) can be the basis of the infringement analysis, i.e. granting fee simple titles
Found that Crown infringed and was continuing to infringe Cowichan Title and that this was not justified: (1) no consultation; (2) cannot justify infringement that deprives Cowichan of beneficial interest in the land

Compelling and substantial objective

In the wake of Gladstone, the range of legislative objectives that can justify the infringement of [A]boriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by [A]boriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive [A]boriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis. (McLachlin C.J.C in Tsilhqot’in, citing Delgamuukw)

Several theories have emerged about how to reconcile proven Aboriginal Title with existing fee simple interests in Cowichan, J.D Irving v Wolastoqey Nation, the pleadings in the Mi’gmawe’l Tplu’taqnn Inc. action.

What are the different options here and their potential consequences? Which one should courts choose?

Options for reconciling AT and fee simple

AT is “suspended” by fee simple (BC in Cowichan)
AT and fee simple co-exist as present rights and must be reconciled by the courts or negotiation (Young J in Cowichan)
AT is a burden on underlying (allodial) Crown title, including where fee simple interests exist (MTI)
AT and fee simple are mutually exclusive but a finding of AT can ground compensation from the Crown (Drapeau J.A. in J.D. Irving v Wolastoqey Nation)

Aboriginal Title is “suspended” by fee simple, which displaces any “presently exercisable right” of AT-holders (including right to exclusive use and occupation) for the duration of the fee simple estate (BC in Cowichan)
Neither Aboriginal Title nor fee simple are absolute; they co-exist as present rights in land and must be reconciled either by courts (though the justification framework) or through modern treaty negotiations. Nevertheless, Aboriginal Title is a “prior and senior right” in land (Young J in Cowichan)
Aboriginal Title is a burden on underlying (allodial) Crown title (MTI)
Fee simple and Aboriginal Title are mutually exclusive, but a court may find proof of Aboriginal title without a “declaration” of Aboriginal Title, which can ground a remedy for compensation from the Crown (Drapeau J.A. in J.D. Irving v Wolastoqey Nation)

Consequences:

BC in Cowichan: were fee simple to end (e.g. intestacy), then AT would become a present right. Is this consistent or not with “vested in possession” vs “vested in interest”?
Young in Cowichan: “fee simple interests and the exercise of associated rights will go unaffected in practice when Aboriginal title is recognized over that land, unless or until the Aboriginal title holder successfully takes remedial action in respect of the fee simple interests” (or matter is resolved through negotiation)
MTI: recognition of the role for Indigenous law as governance from the perspective of AT as jurisdiction

Role for Indigenous law?

“It may not be wrong to assert, as the Chief Justice does, that the dual purposes of s. 35(1) are first to recognize the fact that the land was occupied prior to European settlement and second, to reconcile the assertion of sovereignty with this prior occupation. But it is, with respect, incomplete. As the foregoing passages from Sparrow attest, s. 35(1) recognizes not only prior aboriginal occupation, but also a prior legal regime giving rise to aboriginal rights which persist, absent extinguishment.” (McLachlin J. in Van der Peet, cited by Young J., Cowichan)

“In an ideal world, the process of reconciliation would take place outside the adversarial milieu of a courtroom. This case demonstrates how the Court, confined by the issues raised in the pleadings and the jurisprudence on Aboriginal rights and title, is ill equipped to effect a reconciliation of competing interests … Despite this fact, the question remains: how can this Court participate in the process of reconciliation between [Indigenous] people[s], Canada and British Columbia?” (Vickers J. BCSC, Tsilhqot’in)

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