|The Nisga’a land claim can be traced back to 1887. Since that time, the Nisga’a had lobbied governments in Canada and abroad to resolve their claim. In 1968, litigation commenced to determine the question. The Nisga’a Tribal Council brought an action against the Attorney-General of British Columbia for a declaration that the Aboriginal title to certain lands had never been lawfully extinguished. The Nisga’a argued that while sovereignty and underlying title may be with the Crown, it was subject to Nisga’a Aboriginal title — that is, a right to occupy and manage their lands until otherwise provided by treaty. This argument failed both at trial and in the Court of Appeal where it was held that there was no Aboriginal title in the province of British Columbia as the government had not recognised it. The decision was then appealed to the Supreme Court. There, one of the seven judges ruled that the issue of Aboriginal title was not properly before the court as the Nisga’a had not sought and obtained permission to sue the Crown. Six judges thus remained to consider the issues, finding that the Aboriginal title which the Nisga’a had upon European contact is a burden on the underlying title of the Crown, and exists irrespective of government recognition. |
As to the question of the continued existence of Nisga’a title, Justices Judson, Martland and Ritchie found that it had been ‘extinguished by properly constituted authorities in the exercise of their sovereign powers.’ The Governor of British Columbia was enabled to have Crown lands sold within the Colony, and to grant any land belonging to the Crown, by virtue of Proclamation of 2 December 1858. Similarly, by Proclamation of 14 February 1859, ‘all lands in British Columbia and all mines and minerals thereunder were declared to belong to the Crown in fee.’ The judges found that the Proclamations and Ordinances revealed both an intention to exercise, and the actual legislative exercise, of absolute sovereignty over all the lands of British Columbia. The exercise of sovereignty was found to be inconsistent with any conflicting interests, including one as to Aboriginal title. The terms under which British Columbia entered into Confederation with the Dominion of Canada, which recognised the assumption of responsibility by Canada for the trusteeship and management of lands reserved for Indians, and the very creation of reserves, were also held to be inconsistent with the continued existence of Aboriginal title. Finally, the negotiation by the federal government of Treaty No 8 in 1899 was held not to constitute a recognition of the rights of the appellants.
Similary, Justices Hall, Spence and Laskin held that the Court of Appeal had erred in finding that after conquest or discovery the Nisga’a had no rights except those subsequently granted or recognised by the conquerors or discoverers. They found that there is an interest of a usufructuary nature (that is, a right of enjoyment of the land, and to draw from it all the profit, utility and advantage which it may produce) which burdens the title of the Crown, is inalienable except to the Crown, and extinguishable only by a legislative enactment of the Parliament of Canada. They held that this Aboriginal title is not dependent on treaty, executive order or legislation, but ‘flows from the fact that the owners of the interest have from time immemorial occupied the areas in question and have established a pre-existing right of possession.’ That right continues in the absence of an indication that the sovereign intends to extinguish that right.
On the question of whether Nisga’a title was extinguished, Hall, Spence and Laskin JJ found that the right continued unless it was surrendered to the Crown, or was extinguished by competent legislative authority, and then only by specific legislation. They found that no such surrender was made by the Nisga’a, and that no specific legislation purporting to extinguish title was enacted. For this reason, it could only be presumed that the British Crown intended to respect Indigenous rights. The Proclamation and Ordinances relied upon to establish an exercise of sovereignty were not relevant to the claim brought by the Nisga’a, which did not challenge the fee of the Crown but rather ‘sought a declaration that the appellants possessed a right of occupation against the world except the Crown and that the Crown to date had not lawfully extinguished that right.’ The Proclamations and Ordinances were also held to be ultra vires (or beyond power) to the extent that they extinguished Aboriginal title, since the colonial Governor did not have any power or authorisation to do so.
Therefore, of the six judges who considered the issues, all held that Aboriginal title could exist. On the second question as to whether Nisga’a title remained, three found that it had been extinguished by colonial land laws, while the other three found that it continued. The appeal was ultimately dismissed as four of the seven judges had found that the Nisga’a should have sought permission to sue. Nevertheless, the decision was highly significant, as six judges of the Canadian Supreme Court had held that Aboriginal title is part of Canadian law, and that the Nisga’a had once held such title.