After Tsilhqot'in Nation: the aboriginal title question in Canada's maritime provinces.

Author:Hamilton, Robert
Position:IV. Extinguishment of Aboriginal Title through VI. Conclusion, with footnotes, p. 82-108

    Prior to the constitutionalization of Aboriginal and treaty rights in 1982, Aboriginal title may have been extinguished in one of two ways: by voluntary surrender or unilaterally through legislation. (138) Title can now be extinguished only through voluntary surrender, and any infringements of title must be justified pursuant to the standards established by the Supreme Court. (139) Where Aboriginal title can be proven to have existed at the date of the assertion of sovereignty, extinguishment can be determined by ascertaining whether that title was surrendered voluntarily or, prior to 1982, by unilateral legislation. The onus is on the party seeking to prove extinguishment to bring evidence that title was extinguished by one of these two means. (140)

    Should pre-1982 legislation be relied on as evidence of extinguishment, the ability of that legislation to extinguish title is constrained by three requirements. First, the legislative body must have been competent to legislate in respect of both common law property rights and Aboriginal land rights--that is, the legislation must not have been ultra vires the legislative body which enacted it. Second, the legislation in question must not have been repugnant to higher order constitutional laws or principles by which the legislative body was bound (e.g., Royal Proclamation, 1763, (141) treaties, etc.). (142) Third, any purported legislative extinguishment must satisfy the "clear and plain intent" standard. (143) This standard stipulates that the legislative body must have had the intention to extinguish the right in question; extinguishment could not have occurred incidentally.

    1. Voluntary Surrender

      The ability of Indigenous peoples to voluntarily enter into agreements with the Crown that have the effect of extinguishing title has never been questioned; rather, "[i]t has always been considered possible for a native people to cede aboriginal lands to the Crown by treaty." (144) This policy was given legal force in the Royal Proclamation, which "laid down a uniform legal regime governing native title, whereby native groups were recognized as holding communal rights to their unceded lands, subject only to a restriction of alienation." (145) As Professor Slattery stated, pursuant to the Royal Proclamation, "aboriginal peoples held continuing rights to their lands except where these rights have been extinguished by voluntary cession." (146) The Proclamation both established legal parameters for acquiring Indigenous lands and confirmed that Indigenous land rights were communally held, continued to exist where they had not been extinguished, and could be extinguished only by voluntary surrender to the Crown.

      In Chippewas of Sarnia, the Ontario Court of Appeal held that the legal framework established by the Royal Proclamation--specifically, the prohibitions on alienation and the procedural requirements governing the acquisition of Aboriginal lands--was and is a part of the common law and exists independently of the Proclamation. (147) Thus, following the Proclamation, Aboriginal title could be extinguished by voluntary surrender, though only by surrender to the Crown. Following 1982, this is the only manner in which title may be extinguished.

    2. Unilateral Legislation

      Any purported legislative extinguishment of title must meet the three criteria outlined above: the legislation must have been intra vires the legislative body in question, the legislation must not have been repugnant to any higher order constitutional laws or principles, and the legislation must satisfy the clear and plain intent standard. In this section I outline these criteria with the aim of providing a clear articulation of what types of legislation may have extinguished title during distinct historical eras. This requires an analysis of executive and legislative authority, Imperial and colonial jurisdiction in the pre-confederation period, and federal and provincial jurisdiction in the post-confederation period.

      1. Executive and Legislative Authority

      In the British-Canadian system, law-making authority rests exclusively with the legislative branch of government. Executive authority is political or administrative and is derived from statute or royal prerogative. (148) The scope of authority that inheres in each branch of government is essential in determining the capacity to extinguish Aboriginal title. In the British and Canadian systems, property rights can be extinguished or infringed only under the auspices of explicit legislative authority. Property cannot be seized--that is, property rights cannot be extinguished--by the executive branch except during wartime, and even then compensation must be paid. (149) The 'executive taking' of property has been prohibited since at least the Magna Carta in 1215. (150) Only under the auspices of explicit legislative authority, then, can proprietary interests in land be extinguished.

      Courts have established a degree of judicial oversight over this process by requiring a "clear and plain" legislative intent to legally effectuate the extinguishment of property rights. (151) Further, ambiguities will be interpreted as favouring property owners, and courts will look for compensation to be provided wherever land is taken pursuant to legislative authority--unless compensation is expressly limited by the legislation itself. (152) Courts have been consistent in stating that the executive branch cannot extinguish property rights in the absence of clear and plain legislation permitting such an action. (153) Before any of the characteristics unique to Aboriginal title are considered, this should be the basic level of protection afforded to Aboriginal title lands. (154) Any protections that Aboriginal title receives pursuant to its status as a constitutionalized Aboriginal right should be considered in addition to the protections it receives as a common law property right. Conceptual clarity in this respect is important to ensure that the sui generis nature of Aboriginal title not be applied in a manner that derogates from the protections afforded property rights at common law. (155)

      Clarity in this regard is essential because of the uneven language employed by the Supreme Court. In Sparrow, for example, the Court referred to the will of the "Sovereign" in articulating the clear and plain intent test. (156) This language leaves open the possibility of executive extinguishment, so long as such extinguishment was clearly intended. This is a residue of the St Catherine's Milling (157) decision, in which Lord Watson characterized Aboriginal title as a "personal and usufructuary right, dependent upon the good will of the Sovereign." (158) This characterization has clearly been abandoned in contemporary jurisprudence. In Calder, for example, Hall J held that title could only be extinguished by specific legislation passed by a competent legislative authority or by surrender to the Crown. (159) In particular, the Supreme Court has emphasized that Aboriginal title is a proprietary right, due all the protections afforded other such rights at common law. As Lamer CJC stated in Delgamuukw, the sui generis nature of Aboriginal title does not derogate from the protections it receives as a proprietary right at common law:

      This Court has taken pains to clarify that aboriginal title is only "personal" in this sense [that it is inalienable except to the Crown], and does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests. (160) As a proprietary right, title could only have been extinguished by clear and plain legislation, and compensation would be expected unless stated otherwise in the legislation.

      Given some ambiguity in the case law, however, it is important to note that, owing to the fact that rights could only be extinguished by the legislative branch, the clear and plain intent test applies to legislation, not to the 'Sovereign' or 'Crown'. Given this, the question is which legislative bodies had the jurisdiction to extinguish title. In the pre-confederation period, this inquiry is concerned with the division of powers between the Imperial and colonial legislatures.

      2. Imperial and Colonial Jurisdiction

      The jurisdiction to manage the relationship with Indigenous peoples in the pre-confederation period rested with the Imperial government. As the Ontario Court of Appeal stated in Chippewas of Sarnia:

      First and foremost, dealings between the English Crown and First Nations were viewed as involving relations between sovereign nations to be governed by agreements or treaties made by the English Crown and the First Nations. Relations with the First Nations were an imperial concern to be administered primarily through the exercise of the royal prerogative. (161) Accordingly, the authority to extinguish rights also rested at the Imperial level. As Bastarache J stated in R v Sappier; R v Gray, "during the colonial period, the power to extinguish aboriginal rights rested with the Imperial Crown." (162) As has been seen above, however, extinguishing rights required legislative authority. Accordingly, the legal authority to extinguish Aboriginal rights in the pre-confederation period resided with the Imperial Parliament, subject to two important exceptions: the authority to legislatively extinguish rights could be delegated to colonial authorities; and, in colonies acquired by conquest or cession, the royal prerogative included the power to legislate until such time as a governor was authorized to establish a legislative assembly. (163)

      The policy of maintaining Imperial control over relations with Indigenous nations was in part shaped by a concern that colonists, those closest to Indigenous peoples and with the most interest in their lands, could not be trusted to deal with Indigenous peoples in a...

To continue reading