January 22, 2018

Claims to aboriginal title and third-party property rights


As part of defending a claim by Haida Nation for aboriginal title over lands in which third-persons had interests under Canadian law, British Columbia sought to stay the proceedings until either Haida Nation declared they would not disturb the tenures, permits and licences of third parties not named in this action, or it added those third parties as defendants to their action. British Columbia claimed that seeking relief against both the Crown and the third-person rights holders was a pursuit of inconsistent rights: The Council of the Haida Nation v. British Columbia, 2017 BCSC 1665.

Haida Nation has claimed aboriginal rights and title over Haida Gwaii, and its claim includes “the land, inland waters, seabed, archipelagic waters, air space, and everything contained thereon and therein,” thus including private lands and Crown grants of tenures, permits, and leases. Haida Nation also seeks damages against the Crown for various infringement of their rights. The claim raises some complex legal questions that have not previously been addressed by a court, since the Tsilhqot’in only sought a declaration for title over publicly-held lands in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

The Court declined to apply strict common law principles to aboriginal title and rights, saying instead they could be applied only by analogy. The Court acknowledged British Columbia’s concerns with respect to adding the third parties on as defendants, but declined to add them, as such a “daunting” lawsuit would put an “undue burden” on the rights holders.

The Court then denied Canada’s application to have the privately held land owners added as defendants to the action. The Court cited Williams v. Riverside for the proposition that Canada could freely advertise the possible adverse impact on the landowners rights.

Furthermore, the Court found that adding on so many landowners to the action would create fear in non-aboriginals, and therefore be against the goals of reconciliation.

This case is significant because it demonstrates the confusion of what aboriginal title means in the face of private non-member land interests. The impact of aboriginal title on third persons is something that the courts have not yet addressed, and will undoubtedly have to resolve in future cases.

The Council of the Haida Nation v. British Columbia, 2017 BCSC 1665

Lisa C. Fong and Kimberly Webber