Ottawa’s offer to recognize Wet’suwet’en land rights could be a game-changer for Canada. Here’s how

OTTAWA—Who owns the land, really?

That question is at the centre of the dispute over the Coastal GasLink pipeline: the Wet’suwet’en hereditary chiefs say it can’t pass through the nation’s territory without their permission, but Canada’s legal framework does not acknowledge Wet’suwet’en ownership of the territory they claim.

At least not yet.

On Sunday, ministers from the British Columbia and federal governments stood with a Wet’suwet’en hereditary chief to hail a “milestone” proposal to recognize the nation’s “title.”

The government has long said an important element of its reconciliation agenda is the recognition of land rights and title for all Indigenous nations that wish to pursue them.

But what does that actually mean for the relationship between First Nations and the Crown? And how might it reshape how decisions are made — on resource development and other issues — across Canada?

What, in other words, are we talking about when we talk about “Aboriginal title?”

So, what does it mean to recognize “Aboriginal title?”

“You’re just returning or recognizing what’s already theirs,” said John Borrows, Canada research chair in Indigenous law at the University of Victoria.

For millennia, Indigenous nations governed, traded, hunted, fought and travelled throughout the territory that is now called Canada. Then European colonizers arrived and declared themselves sovereign. Sometimes there were treaties to formalize this claim — in which Indigenous peoples formally ceded territory — but oftentimes the colonizers simply considered the land open for settlement.

Just because the Crown asserted sovereignty, however, didn’t mean it was necessarily so. According to Borrows, the courts have found that Indigenous land rights “survived the assertion of sovereignty,” and have not been subsequently wiped out by provincial or federal laws.

The Crown’s claim over large tracts of land in places like B.C. has been chipped away by a series of court cases that have gradually ruled Indigenous claims to the same land are not inferior to claims from the settler government, Borrows said.

Those cases includes the landmark Tsilhqot’in decision in 2014, in which the Supreme Court of Canada affirmed a B.C. Indigenous nation’s “Aboriginal title” for the first time. “The idea here is that (title) is a pre-existing right that has not been extinguished,” Borrows said.

Does recognizing “Aboriginal title” make land into private property?

No.

Borrows explained that courts have outlined how Aboriginal title has an “inherent limit.” Because it refers to land that is owned collectively by an Indigenous nation, rather than individually, “you have to preserve that land for future generations,” he said. “You can’t sever the historic relationship with the land.”

Eugene Kung, a staff lawyer with West Coast Environmental Law, added that Aboriginal title land can only be transferred to the government — not to individuals or a corporation.

Otherwise, the concept of Aboriginal title — which is enshrined in Section 35 of the Constitution — is very much like the popular conception of private property, said Robert Janes, principal at JFK Law in Victoria, B.C. SOURCE