Bands Authority vs. Hereditary Chiefs Authority regarding Land Claims

One of the first arguments we keep seeing in both social media and the press is those who support the chiefs making the erroneous claim that only the Hereditary Chiefs have the authority to negotiate land claims. It appears that they think the more they say it the more it becomes the truth, however its far from the truth.

The Supreme Court of Canada affirmed yesterday in the TMX pipeline hearing the following. “There is no Canada if any one group within the country has veto power over all the other groups.”

In the eyes of the only court that counts the Supreme Court of Canada, those who created the authority remain irrelevant (elected band offices were created by Canada), the only law that matters is the one the Supreme Court of Canada goes by, in DELGAMUUKW V. BRITISH COLUMBIA it ruled the power belongs to the people, not to selected chiefs. It never mattered who created an elected authority on reserves, what does matter is its democratic, its the will of the people.

The chiefs by choice can represent the people, and by choice they could also choose any other representative, including an elected chief. The bottom line is its the people who have the final say, not the Office of Wet’suwet’en

Even the Gitxsan figured it out when some of the chiefs signed deals without the peoples consent.

“Sterritt was a witness in the Delgamuukw court case and was on the stand for more than 30 days. He fears the chiefs who signed the agreements have undermined key legal principles that came out of their victory. In Delgamuukw, the courts said that “Aboriginal title is held communally.” This means that the land belongs to the Gitxsan Nation as a whole and not just to hereditary leaders. Therefore, decisions regarding the land have to be made communally.”

It was their lawyers that pointed out, the authority on land claims is 100% the jurisdiction of the community, the community in short is the citizens of a nation, in this case the Wet’suwet’en Nation. The Wet’suwet’en chiefs are part of the cultural system, but they are not the owners of aboriginal land, that belongs to the people, and the people are represented by those they vote to decide issues for them. I have highlighted in blue the text from the Delgamuukw (Delgamuukw v. British Columbia) We added the emphasis in blue plus underline, the text is part of the original transcript and can be found in the link below.

Source: Delgamuukw v. British Columbia, Supreme Court Judgments. Date 1997-12-11  - Report [1997] 3 SCR 1010

The Content of Aboriginal Title, How It Is Protected by s. 35(1)  of the Constitution Act, 1982 , and the Requirements Necessary to Prove It

Per Lamer C.J. and Cory, McLachlin and Major JJ.:  Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.  The protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

Aboriginal title is sui generis, and so distinguished from other proprietary interests, and characterized by several dimensions. It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown.  Another dimension of aboriginal title is its sources:  its recognition by the Royal Proclamation, 1763 and the relationship between the common law which recognizes occupation as proof of possession and systems of aboriginal law pre‑existing assertion of British sovereignty. Finally, aboriginal title is held communally.

The exclusive right to use the land is not restricted to the right to engage in activities which are aspects of aboriginal practices, customs and traditions integral to  the claimant group’s distinctive aboriginal culture.  Canadian jurisprudence on aboriginal title frames the “right to occupy and possess” in broad terms and, significantly, is not qualified by the restriction that use be tied to practice, custom or tradition. The nature of the Indian interest in reserve land which has been found to be the same as the interest in tribal lands is very broad and incorporates present‑day needs.  Finally, aboriginal title encompasses mineral rights and lands held pursuant to aboriginal title should be capable of exploitation.  Such a use is certainly not a traditional one.

ALSO

115                           A further dimension of aboriginal title is the fact that it is held communally.  Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation.  Decisions with respect to that land are also made by that community.  This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests. 

(b)  The Content of Aboriginal Title

116                           Although cases involving aboriginal title have come before this Court and Privy Council before, there has never been a definitive statement from either court on the content of aboriginal title.  In St. Catherine’s Milling, the Privy Council, as I have mentioned, described the aboriginal title as a “personal and usufructuary right”, but declined to explain what that meant because it was not “necessary to express any opinion upon the point” (at p. 55).  Similarly, in Calder, Guerin, and Paul, the issues were the extinguishment of, the fiduciary duty arising from the surrender of, and statutory easements over land held pursuant to, aboriginal title, respectively; the content of title was not at issue and was not directly addressed.