February 7, 2022


modern art piece with bright colors

In the recent Saik’uz case, the BC Supreme Court touched on what may be one of the most fundamental disputes in Canadian aboriginal law: how did Canadian law allow the Crown to seize ownership of all land in Canada – including in British Columbia, where most First Nations did not enter any treaty or otherwise cede or surrender their lands and waters? And why is the Crown deemed to own any First Nation’s territory, unless and until the First Nation proves aboriginal title, by proving prior occupation to a Crown court, through a process that will involve millions of dollars, take up years if not decades of resources, and attract the strenuous opposition of Crown governments?

The court in Saik’uz posed the dispute this way: “[196] …one might rightly ask, if the land and its resources were owned by Indigenous peoples before the arrival of Europeans, how, as a matter of law, does the mere assertion of European sovereignty result in the Crown acquiring radical or underlying title? How and why does pre-existing Indigenous title somehow become subordinate?” More pointedly, the court concluded in a manner that likely articulates the views of most, if not all, Indigenous peoples who have been dispossessed of their territories: “[198] Some argue, in my view correctly, that the whole construct is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada….” (emphasis added)

Viewed another way, the assertion of Crown sovereignty, which has apparently led to a legal presumption of Crown title, and a burden of proof on individual First Nations to regain “aboriginal title” – a Crown-structured construct that replaces their previous Indigenous sovereignties and Indigenous legal systems – was and remains a massive human rights violation. The Imperial Crown would consider itself bound to respect the sovereignties of Christian peoples, but in relation to non-Christian Indigenous peoples, and in the absence of conquest, the Crown applied a doctrine of discovery to unilaterally claim sovereignty and ownership over their territories.

Despite this questioning, the court in Saik’uz ultimately concluded that Crown sovereignty was “undeniable and its continuation is certain,” even though it acknowledged that “the legal justification for Crown sovereignty may well be debatable” (at para. 203). But the court pragmatically concluded this “harsh reality” (as framed by the court) withoutaddressing the implications of the BC Declaration Act (SBC 2019, c 44) and the Federal Declaration Act (SC 2021, c 14), both of which implement (to some degree) the United Nations Declaration on the Rights of Indigenous Peoples(UNDRIP).

Of course, the court did mention UNDRIP, wherein Article 26(1) provides that, “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” But the court had no occasion to apply UNDRIP, as the matter was so far progressed that the plaintiffs had to understandably take the position that, “[210] …the extent to which UNDRIP creates substantive rights is not an issue that needs to be resolved in this case.” And the defendants (which included both British Columbia and Canada) took the remarkable position that, “the recent UNDRIP legislation has no immediate impact on existing law and is simply ‘a forward-looking’ statement of intent that contemplates an ‘action plan yet to be prepared and implemented by either level of government.” As a result, the court decided to let others (meaning the Supreme Court of Canada) to determine the effect of the UNDRIP legislation on the common law:

“[212] It remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the common law respecting Aboriginal rights including Aboriginal title. Even if it is simply a statement of future intent, I agree it is one that supports a robust interpretation of Aboriginal rights. Nonetheless, as noted above, I am still bound by precedent to apply the principles enunciated by the Supreme Court of Canada to the facts of this particular case and I will leave it to that Court to determine what effect, if any, UNDRIP legislation has on the common law.”

As none of the parties asserting that UNDRIP has any impact on substantive common law rights (as distinct from an impact on how rights should be interpreted), the court’s inaction in addressing UNDRIP is hard to criticize. But in our view, in a case where the parties may have time, resources, and focus to address the substantive effects of UNDRIP, a court may well address how UNDRIP and its enabling legislation may impact both legislation and judge-made law to ensure their consistency with UNDRIP rights.

For example, and at the very least, a court is now clearly empowered to determine if any law of British Columbia (or any law of Canada) is “inconsistent” with UNDRIP rights, or said another way, whether an enactment or other law unjustifiably infringes an UNDRIP right:

  • Like the Canadian Charter of Rights and Freedoms, UNDRIP sets out a variety of rights that constitute “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world” (Article 43), and then provides for justification for infringements (in Article 46(2)): UNDRIP rights “shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.”
  • One of the express purposes of the BC Declaration Act is to affirm the application of UNDRIP “to the laws of British Columbia” (emphasis added) – a description that goes beyond enactments to encompass judge-made law, including common law and equitable principles. Similarly, one of the express purposes of the Federal Declaration Act is to affirm that UNDRIP is “a universal international human rights instrument with application in Canadian law” (emphasis added) and not merely to Canadian enactments.
  • The justiciability of UNDRIP in BC is now beyond doubt, given BC’s enactment of s. 8.1(3) of the Limitation Act, which mandates that enactments be interpreted in a manner consistent with UNDRIP. As the function of this provision was described by the BC government during third reading (Hansard, Nov. 23, 2021), “Our intention is that it will operate in such a way that a reasonable interpretation that’s consistent with the UN declaration should be preferred by a statutory decision-maker or a court over an interpretation that is not consistent with the DRIPA legislation.”

Clearly, in the event of any inconsistency between any law of BC (including enactments) and UNDRIP, s. 3 of the BC Declaration Act requires that, “3. In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.” (emphasis added) The “government” means Her Majesty in right of British Columbia. But courts too (and tribunals too) may (and arguably must) shape or revise judge-made principles to ensure consistency not only with Canada’s Constitution, and with quasi-constitutional human rights principles, but also with human rights articulated for an Indigenous context as UNDRIP rights.

The presumption that the Crown’s sovereignty also includes Crown ownership of radical title is judge-made law. The absence of presumed First Nations ownership is also judge-made law. The burden of proof on First Nations to prove aboriginal title, without a similar obligation on the Crown, is judge-made law. And the need for First Nations to first prove aboriginal title before they can resist injunction applications by industrial concerns, seeking to enforce permits relating to work on “Crown” land, is judge-made law. All these judge-made laws have significant components that appear inconsistent with UNDRIP rights. Courts must recognize that the application of UNDRIP to Canadian law is not a matter only for appellate courts, but for all first instance courts and tribunals. Such recognition is what will partially determine whether UNDRIP legislation is “vacuous political bromide” or an instrument for immediate change.

Saik’uz First Nation v Rio Tinto Alcan Inc.2022 BCSC 15,

Lisa C. Fong, Michael Ng, and Ruben Tillman