July 7, 2024

UNDRIP: upsetting the burden of proof

In British Columbia, the Crown governs and asserts ownership of land in the province largely without formal treaties with Indigenous peoples. Although some public discussion involves objection to the Crown giving away “Crown” land to Indigenous peoples, the more pressing question, from a legal perspective, is how and why the Crown owns land which it has not acquired by any treaty. 

Of course, the heart of colonialism involved European powers asserting dominion over vast territories, without the consent of the Indigenous inhabitants, based on the doctrine of discovery which presumed European superiority and grounded sovereignty claims over lands of non-Christian Indigenous peoples. However, given that such doctrines cannot now withstand scrutiny against evolving human rights both internationally and domestically, the question remains how the Crown may legally retain some or all of its non-treaty lands.

Doctrine of Discovery and Its Rejection

The Doctrine of Discovery, originating from 15th-century papal bulls, justified European nations claiming lands they “discovered,” provided they were not inhabited by Christians. This doctrine facilitated widespread colonization but has since been condemned for its inherent violation of modern human rights standards. Indeed, in 2021, Parliament enacted the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c. 14 which expressly affirmed in its preamble that, “all doctrines, policies and practices based on or advocating the superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences, including the doctrines of discovery and terra nullius, are racist, scientifically false, legally invalid, morally condemnable and socially unjust….” Further, on March 30, 3023, the Holy See (the Roman Catholic government) issued a joint statement of two bureaus of the Vatican, repudiating the doctrine of discovery, stating explicitly that the papal bulls “did not adequately reflect the equal dignity and rights of indigenous peoples,” and were ““manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples….”

The Crown’s Title and Aboriginal Rights

Respecting much of British Columbia, the Crown’s title and sovereignty lacks foundation in any treaty. Crown sovereignty and ownership of land is, instead, based on asserted sovereignty and ownership, based in turn on the Doctrine of Discovery. For example, the Act to provide for the Government of British Columbia, 1858, presupposes Crown subjects having settled on certain “wild and unoccupied Territories….” When British Columbia joined confederation in 1871, the Crown in right of British Columbia retained its lands subject to s. 109 of the Constitution Act, 1867,  which made that interest “subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same” – interests which include any aboriginal title and rights existing since 1846 and later recognized and affirmed by s. 35 of the Constitution Act, 1982. Pre-existing legal rights that survived Crown sovereignty therefore remain to be reconciled with the Crown’s asserted sovereignty and ownership.

Legal Framework and Onus of Proof

Although the true legal question seems to be whether and why the Crown is entitled to any non-treaty lands, the legal framework in Canada has thus far given the Crown the upper-hand by presuming the Crown’s exclusive sovereignty and ownership, and requiring that Indigenous peoples prove their Aboriginal rights and title. This burden of proof places Indigenous peoples in the position of having to provide historical and cultural evidence to support their claims, through a court process that requires an often-overwhelming commitment of resources – resources of which Indigenous peoples have been deprived by virtue of presumed Crown ownership. The result is an imbalanced power dynamic that is problematic and arguably inconsistent with human rights contained in the United Nations Declaration on the Rights of Indigenous Peoples (or UNDRIP).

Inconsistencies with UNDRIP

UNDRIP outlines several key principles that challenge the current legal framework in British Columbia:

1. Recognition of Traditional Land Rights: Article 26 of UNDRIP emphasizes that Indigenous peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used. The burden of proof on Indigenous peoples contradicts this principle by not automatically recognizing these rights.

2. Free, Prior, and Informed Consent (FPIC): Article 32 of UNDRIP asserts that Indigenous peoples have the right to determine their own priorities and strategies for the development or use of their lands. This includes obtaining their free, prior, and informed consent before any development. The current presumption of Crown title does not align with this principle, as it places the onus on Indigenous peoples to first prove their rights, rather than on the Crown to prove a treaty or some other legitimate basis for its sovereignty and ownership.

3. Reparation and Redress: Article 28 of UNDRIP states that Indigenous peoples have the right to redress, by means that can include restitution or fair compensation, for lands taken without their free, prior, and informed consent. The requirement for Indigenous peoples to prove their rights can hinder the process of obtaining redress and justice.

Moving ForwardThe importance of Aboriginal rights claims in British Columbia cannot be overstated. These claims are fundamental to recognizing historical injustices, preserving Indigenous cultures, and promoting economic and social justice. Any presumption that the Crown is giving away something that belongs to the Crown is, from a legal perspective, a view based on a fundamental misconception. As the Crown continues to assert its title and sovereignty, it must do so with a commitment to genuine reconciliation and respect for Indigenous peoples’ inherent rights, in accordance with the human rights standards embodied in UNDRIP.

Lisa C. Fong, KC and Michael Ng