Aboriginal title must challenge our ideas of property and ownership, says lawyer

Aboriginal title to Canadian lands is real and its consequences must be grappled with, according to a prominent lawyer and surveyor who is visiting the Yukon next week.

Aboriginal title to Canadian lands is real and its consequences must be grappled with, according to a prominent lawyer and surveyor who is visiting the Yukon next week.

“Aboriginal title is not something to be dismissed,” said Izaak de Rijcke in an interview Thursday.

“The common law conceptualization of title and ownership needs to accommodate elements of aboriginal title. It may be complicated and it may be challenging, but those are no longer excuses to shirk away from the discussion.”

Property ownership has never been absolute, said de Rijcke.

If you buy a house and sign a mortgage you are relatively confident that you are entitled to own and use that property in certain ways, but your ownership will always be constrained.

For example, a government could come and expropriate you if it had other intentions for the land. A municipality could limit what you can build on the land and how you can use it through zoning bylaws and other rules.

We understand and accept these constraints because they have been fleshed out through centuries of thinking about what property ownership means and asking judges to make rulings as conflict arises.

“I think one could say that our deeper understanding of outright fee simple ownership or title to land at common law is complicated,” said de Rijcke. “It’s no less complicated than aboriginal title, it’s just that we’ve devoted intellectual effort and centuries of court cases to an understanding today of what common law fee simple title actually means and what it does not. We haven’t spent the same amount of time, we haven’t done the same amount of work, in terms of fleshing out the meaning of aboriginal title.”

That work needs to begin in earnest, because the Supreme Court of Canada has demanded it, most recently in last year’s landmark case involving the Tsilhqot’in Nation in British Columbia.

“The issue is that we’ve never come to understand the First Nation conceptualization of aboriginal title as they understood it – we’ve always tried to fit it within our common law concept of title,” said de Rijcke.

“It’s only in very recent decades that the courts have actually started to push back and say, no no, we have a relationship with our First Nations in which we need to recognize that there are elements of aboriginal title and interest in land that is legal, it’s going to be recognized by the courts, and it needs to be respected.

“It moves now into a framework of looking into the historic evidence, the archeological evidence in order to gain better insight and understanding of the relationship which a particular First Nations people had with the land and with the territory that is theirs, that they claim is theirs.”

This week’s report from the Truth and Reconciliation Commission, too, recognizes the importance in engaging in this question.

The commission called on the Canadian government to accept all aboriginal title claims once the aboriginal claimant has established occupation of the territory in question at a particular point in time.

“Once aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation,” according to the recommendation document.

“I totally applaud the fact that it has actually identified that as an issue for further discussion,” said de Rijcke. “I think the discussion is essential, it’s absolutely important to have, because that is a discussion which begins to recognize that we actually have First Nations people whose culture is linked to the land, and if we are going to be serious about working through elements of reconciliation, we have to be able to have a discussion about our own understand of land.”

The existence of land claim treaties across much of Yukon does not diminish the imperative to deal with these questions, said de Rijcke.

These agreements contemplate that First Nations continue to have rights throughout their traditional territories resulting from aboriginal title, including having a say on land use planning and development decisions.

Like rights of territorial or municipal government to constrain what can be done with private property, aboriginal title does not supersede other forms of ownership but adds another layer of consideration and complexity to how we think about land use.

“These are not ‘all or nothing’ agreements,” wrote de Rijcke in an email. They “can only be understood by adopting novel approaches to how we think about land and property.”

De Rijcke will speak at 7:30 p.m. on Tuesday at the Yukon Arts Centre.

Contact Jacqueline Ronson at

jronson@yukon-news.com

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