Monday, November 25, 2013

A Concept of Native Title by Leroy Littlebear


By Leroy Littlebear  (1982)

Presently in Canada the issue of aboriginal rights, Indian title, and land claims by the Indian people are issues that to the people of Canada are major concerns. These issues are of a major concern not only because if recognized as legitimate and legal it means the payment of large sums of money by the people of Canada to the Natives of this country, but they also have implications for the development and exploitation of the natural resources, especially oil and gas, and for the ecology.  But so far, neither the Canadian Government nor the people at large have come to grips with these issues.  It is probably more correct to say that they do not want to come to grips with them.

The courts of Canada have had several opportunities to deal with aboriginal rights, but not unlike the government, they too have avoided dealing directly the issues. They find one technicality or another to dismiss a case.

In regards to land, aboriginal rights includes native title, and land claims almost exclusively deals with the issue of native title.  In this short paper, the writer will attempt to present a concept of native title for purposes of educating these people who are in a position to do something about these issues.

Three recent court decisions have attempted to deal with native title: Calder v. Attorney General of British Colombia[1], referred in layman's terms as the “Nishga Case”; Kanatewat v. James Bay Development Corporation[2], and its sequel, James Bay Development Corporation v. Kanatewat[3], better known as the James Bay Cases; and Re Paulette and the Registrar of Land Titles[4].

In the Calder case, the Supreme Court of Canada held against the Nishga Indians of British Columbia. Their holding was to the effect that if the Nishgas had title, this title had long ago been extinguished by adverse acts on the part of the British Crown. The Court also reasoned that Indian title does not exist independent of legislation recognizing it.  But the court did not define Native Title.

At the superior court level of the James Bay cases, the judge held that Indians had aboriginal title. But the Quebec Court of Appeals reversed the superior court's decision and in essence held that there is no such thing as aboriginal title.  They reasoned that no treaties had ever been signed in the James Bay area, therefore, no Native title exists.  But this of course, is ridiculous because treaties are a means of extinguishing Indian title and not a means of creating it.  But both courts did not define Indian title.

In the Paulette case the judge, in handing down his decision on whether the Indians of the Northwest Territories could lodge a caveat in regards to the land they were claiming, held that arguably the Indians had a legally recognizable interest in the land in spite of the fact that the area claimed was covered by a treaty[5].  He reasoned that the Treaty could not be interpreted as a total surrender and should be looked at as a peace and friendship treaty.  At the Court of Appeals level, again, the lower court's decision was reversed.  The Court of Appeals in essence held that a caveat could not he lodged against a sovereign without its permission.  Here again the court did not define Native title.

Important as these decisions are and the implications they have for aboriginal rights in Canada, the single most important decision is St. Catherine’s Milling and Lumber Co. v. The Queen[6], handed down by the Privy Council.  The Council held “that the tenure of the Indians as a personal and usufructuary right, dependent on the goodwill of the sovereign”; that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian’s title, which became a plenum, dominium whenever that title was surrendered or otherwise extinguished”.  In other words, the British Crown, prior to the discovery of North America, has always had title to the lands in North America in an a priori sense.  The result of the St. Catherine’s Milling and Lumber Co. case is that the British, by simply setting foot on North America and planting a rag attached to a pole on the shores, acquired the title to Indian lands.

This ritual, i.e. the coming ashore and the planting of a flag and the claiming of the land for the Monarch, is sometimes referred to as "Discovery". The Doctrine of Discovery is one justification for claiming fee simple title to lands in North America.  But the doctrine has been abused, misconstrued, and misinterpreted by the white man.  Chief Justice Marshall of the United States Supreme Court, and one of the first to use the Concept or Discovery in his decisions, said in the Johnson and Graham’s lessee v. Mc’Intosh case[7] that discovery was a doctrine meant to apply to the European powers for their own orderly conduct in dealing with the aboriginal people of North America.  Hence, discovery was not meant to apply to the Indians.  It was not meant to mean fee simple ownership.  To the contrary discovery can be analogized to a ‘business franchise’.  Just as a business franchise gives exclusive rights to the owner of the franchise to enter into business relations with people, within the geographic area of the franchise, discovery was meant to give a European power which came to the shores of North America the exclusive right to deal with the Indians whose territory covered or included the particular area discovered by a European power.  A right to deal with people certainly does not give ownership to their property.

Before moving on, the writer would like to consider two separate but not unrelated fundamental questions.  Firstly, in regards to the reasoning of the Privy Council in the St. Catherine’s Milling and Lumber Co. case, the writer would like to ask, “What is property?” Most authorities would define property to be the relationship that people have about a thing.  Taking this definition and applying it to the statement by the Privy Council that the Crown has always had underlying title to the lands in question how is it possible to have a relationship about a thing, in this case, land, which a people do not know exists?

In regards to the doctrine of discovery, it interpreted as giving fee simple ownership, rather than being in the nature of a franchise, then should not the doctrine have a geographic limitation, in the same way that the Royal Proclamation of 1763 has been held not to apply to terra incognita?

When it come to the consideration of Native title, most authorities reason that Indians have no concept of property ownership and therefore, how could they have title?  But this is nonsense!  It is high time the Government and the Courts stop using as premises false reasonings such as “personal and usufructuary right dependent on the good will of the sovereign" for stare decisis sake.  At one time reasonings such as were forwarded in the St. Catherine's Milling and Lumber Co. case may have held water and we can, at least, give them the benefit of the doubt because people probably did not know any better. But we know better today, and we know different.  At least, we claim to be one of the most advanced societies this world has ever known.  It is time we put out intelligence to work in a way that will do justice to our claim!

In order to understand the property concepts of any society, one must have some appreciation of the overall philosophy or habitual thought of that society.  By habitual thought, the writer means the philosophical premises that are basic to a culture; premises that a society used to relate to the world.  The habitual thought of Western Occidental society is very linear and singular.  A good example of linear things is Western Occidental society's concept of time.  Time is conceptualized as a straight line.  If one attempted to picture "time" in his mind, he would see something like a river flowing toward and on past him.  What is behind is the past.  What is immediately around him is the present. The question is upstream.  But one cannot see very far upstream because of a waterfall, the waterfall symbolizing the barrier to knowing the future.  This line of time is conceptualized as quantity, especially as lengths made of units.  A length of time is envisioned as a row of similar units.

A logical and inherent characteristic of this concept of time is that once a unit of the river of time flows past, that particular unit never is gone forever.  This characteristic lends itself to other concepts such as "wasting time”, "making up time”, "buying time", “being on time", which are unique to Western Occidental society.

Another characteristic of this linear concept of time is that each unit of time is totally different and independent of similar units.  Consequently, each day is considered a different unit, and thus a different day.  Every day is a new day, every year is a new year.  From this the reader can readily understand why there is a felt need among Western society to have names for days and months, and numbers for years.  In general, Western philosophy is a straight line.  One goes from A to B to C to D to E, where B is the foundation for C, and C is the foundation for D, and on down the line. 

Many Native people think in terms of cyclicity.  Time is not a straight line.  It is a circle. Every day is not a new day, but the same day repeating itself.  There is no need to name each day a different name.  You only need one name: day.  This philosophy is the result of a direct relationship to the Macrocosm.  The sun is round; the moon is round; a day is a cycle – daylight followed by night; the seasons follow the same cycle year after year.  A characteristic of cyclical thinking is that it is wholistic, and the same way that the circle is a whole.  A cyclical philosophy does not lend itself readily to dichotomies of categorizations, nor fragmentation, nor polarizations, whereas linear thinking lends itself to all of the above.  Linear thinking, also, lends itself to singularity.  For example, “there is only one great spirit”, “only one true rule”, “only one true answer”.  These philosophical ramifications of Western habitual taught result in misunderstanding wholistic concepts.  Westerners relate themselves to only one aspect of the whole at the time.

The linear and singular of philosophy of Western society, in the cyclical and the wholistic philosophy of most Native people can readily be seen in the property concepts each society has.  British concepts of ownership or title dissimilar to Native concepts of land ownership. An underlying premise of the British property system is that no one can own land in the same way that one can own a book. One cannot possess land in the same way that one can possess a book. Possession forms a large part of ownership.  Since one cannot own land in the same way that he can own a book, a system has been devised by the British to give symbolic ownership.  This system is known as the estate system.  Under the estate system one cannot outrightly own the land, mainly because land outlasts human beings.  The land was there before the present owner, and will still be there after the present owner passes.  Consequently, one can only have an interest in the land called an estate.

The British developed a hierarchy of interests or estates.  At the very top is "a fee simple absolute”. It is a possessory fee simple absolute, the largest estate known to the law.  Even though a parcel of land has geographic bounds, when considered in terms of time, this estate is said to be of infinite duration.  It is a present, freely alienable, possessory estate.  There are no other outside interests.  A fee simple absolute can be symbolized as A (grantor) to B (grantee) and his heirs.

On down the line come the defeasible estates. The first defeasible estate is the fee simple determinable (with a possibility of a reverter).  It is possible that A, a landowner in a fee simple absolute will grant land to B with a condition, or limitation which will cause the estate of B to come to an end upon the happening of a certain event.  The fee simple determinable can be symbolized as A (grantor) to B (grantee) plus a condition (so long as liquor is not sold on the premises).  The interest retained by the grantor is known as a possibility of a reverter.  The grantee has all the same rights in regards to the land as one having a fee simple absolute except for the one condition, hence he has a lesser interest than one having a fee simple absolute.

Another defeasible estate is the fee simple subject to a condition subsequent.  It can by symbolized as A (grantor) to B (grantee) on the condition that liquor is never sold on the premises; but if liquor is ever sold on the premises, the grantor shall have a right to enter. This interest is not greatly different from the fee simple determinable. The main difference is the interest retained by the grantor.  In the F.S.D., the grantor interest automatically terminates on the happening of an event.  As soon the condition is broken, the fee reverts back to the grantor.  In the F.S.S.C.S. the fee does not automatically revert back to the grantor on the happening of an event or when the condition is broken.  The grantor or his heirs must exercise the right to re-enter before the fee reverts back.  If the right of re-entry is not exercised, the fee remains in the grantee in spite of the condition being broken.

Another step down the hierarchy of estates is the Fee Tail, which has been phased out of British common law. The fee tail limits the class of heirs capable of inheriting to those who likewise answer the description of lineal descendants. When and if the line of lineal descendants runs out, the estate tail comes to an end.  The Grantor retains a non-posessory, future estate called a reversion.  A fee tail can be symbolized in legal language as follows: A (grantor) to B (grantee) and the heirs of his body.

There are a number of other interests or estates such as a life estate, indefensible vested remainders, contingent remainders, executory interests, and a number of non-freehold estates.  But for our purposes, the above will suffice.

A couple of observations can be made in regard to the estate system.  Firstly, the system is linear vertically.   The system is also very singular.  It is geared to the individual ownership of land. Secondly, an underlying goal of the system is to facilitate transferability of the different interests.  Thirdly, the system necessitates an extensive and complicated registry. It makes possible to chronologically trace previous owners. If one went back far enough to the original source or original owner, one would discover that it is the Crown or the Monarch.  In other words, the source of title is the Crown.

Indian ownership of property, and in this case, land is wholistic. Land is comunally owned. Indian property ownership is somewhat akin to joint tenancy: the members of a tribe have an undivided interest in the land; everybody, as a whole, owns the whole.  In regards to title, to use the language of the estate system, the Native concept of title is somewhat like a F.S.D., or a F.S.S.C.S, or a F.T. or a combination of all three.  It is as though the original grantor of the land to the Indians put a condition on it… “so long as there are Indians”; “so long as it is not alienated”; “on the condition that it be used only by Indians” etc.  In other words, the Indian concept of title is not equivalent to a fee simple, but is somewhat less than fee simple. This is not to say that they were not capable of conceiving a fee simple concept.  If one attempts to trace the Indian’s source of title, one will quickly find the original source is the Creator.  The Creator, in granting land, did not give the land to human beings only but gave it to all living beings.  This includes plants, sometimes rocks, and all animals.  In other words, deer have the same type of estate or interest as any human being.  This concept of sharing with fellow animals and plants is one that is quite alien to Western society’s concept of land.  To Western society, only human beings have a right to land, and everything else is for the convenience of human beings.  The concept of the Indians of sharing with fellow living things is not unrelated to the concept of social contract that has been forwarded by some philosophers.

For instance, Rousseau and Locke refer to a social contract to explain the origins society and government.  But their social contract refers to human beings only. If the idea of a social contract is applied to Native people, one will find that it includes not only human beings but all other living beings.

An observation about the Indian’s concept of land title includes a reference back to the basic philosophy.  Indian property concepts are wholistic.  Ownership does not rest in any one individual, but belongs to the tribe as a whole, as an entity.  The land belongs not only to people presently living, but it belongs to past generations and to future generations. Past and future generations are as much a part of the tribal entity as the living generation.  Not only that, but the land belongs not only to human beings, but also to other living things; they, too, have an interest.

The question inevitably arises as to just what the Indians surrendered when they signed treaties or engaged in activities that today the government claims were actions on the part of the Indians extinguishing their title.  Firstly, the Indian concept of land ownership is certainly not inconsistent with the idea of sharing with an alien people.  Once the Indians recognized them as human beings, they gladly shared with them.  They shared with Europeans in the same way they shared with the animals.  But sharing here cannot be interpreted us meaning that Europeans got the same rights as any other Native person, because they were not descendants of the original grantees, or they were not parties to the original social contract.  Sharing certainly cannot be interpreted as meaning that one is giving up for all eternity his rights.

Secondly, the Indians could not have given a fee simple in any land transaction they may have engaged in, because they did not have a fee simple.  They were never given a fee simple by their grantor.  It is well known in British property law that one cannot give an interest greater than he has.

Thirdly, Indians could not have given an interest equal to what they were originally granted, otherwise they would be breaking the condition of the fee granted. Not only that, but they are not sole owners of the original grant.  The land belongs to the past generations, the yet to be born, and the plants and animals.  In order to give an interest equal to the original grant, one would have to get a transfer from those holding an equal interest, and these would include the dead, and the yet to be born, and the plants and animals.  Has the Crown ever received a surrender from these other living entities?

Fourthly, the only kind of interest that the Native People have given or transferred is an interest lesser than they had, for one can always give an interest smaller than he has.  For instance, if one holds an F.S.S.C.S., one can always give away a life estate.  From the above one can readily conclude that the Indians did not surrender very much if they surrendered anything at all.

Fifthly, the above philosophy, property concepts, and ramifications and implications thereof, may sound ridiculous and fairy-tale-like, but what philosophy does not? Do biblical stories make more sense?  To Native people they sound rather ridiculous and make believe. Does the "Crown" as a fictitious entity make more sense?  The writer does not think so.

Canada as a sovereign nation, via the Crown, claims ownership and sovereignty over all the land within its boundaries.  But how does one gain ownership and sovereignty over particular piece of land?  One can gain sovereignty through aboriginal rights which basically means that one is the original occupier of a particular piece land.  One can gain sovereignty through conquest.  One can gain some land rights through adverse possession.  One can gain title through conveyance.   Lastly and uniquely to the Americas, and claimed to be just by Europeans, one can gain title through discovery. 

If we look at Canada, and ask again, “How did she gain title to the lands within its boundaries? “  It certainly cannot claim title via aboriginal rights.  Only Native people can claim aboriginal rights.  It cannot claim sovereignty through conquest.  Who did it conquer? Sure, one or two small tribes may have been conquered, but certainly not most Indian tribes.  On the contrary, she chose to enter into peace and friendship treaties with most tribes.  If one tribe was actually conquered, it certainly does not mean that all Indians were conquered.  Conquest has geographic limitations in the same way that the Royal Proclamation has geographic limitations.

In the Nishga case, the court in a roundabout way, suggests that the Crown gained title to lands in British Colombia via adverse possession, i.e. adverse acts on the part of the crown.  But the theory of adverse possession could not apply to Native peoples because the land was not individually owned.  Secondly, adverse possession does not apply to a sovereign because an underlying assumption of the theory of adverse possession is that the adverse possession must have his title recognized by a higher entity.  In the case of the sovereign, there is no higher entity.

If the Crown can claim any type of interest, it can legitimize this claim through conveyance and only through conveyance.  But as the writer has already shown, the Indians surrendered if they surrendered anything at all, is a lot smaller to what the government lays claim to.  It certainly is not a fee simple.

The only other means by which Canada can justify its claim to Indian lands is through discovery.  But then the writer has shown how discovery has been misinterpreted and misconstrued.

When the courts and the government say the Indian’s title is dependent on the goodwill of the sovereign, and that the Indian’s interest is a mere burden on the underlying title of the crown, the question to ask is: “What did the Crown get its title from? And how?”

When the courts refer to Indian title, they should say something to the effect of, “the title or interest of the Crown is a mere personal and usufructuary interest dependent on the goodwill of the Indians.”  The Indians have all along had a paramount estate underlying the Crown’s interest.  The Crown’s interest is a mere burden on the title of the Indians.

As a conclusion to this short paper, the writer would like to state that his hope that he has in some small way contributed to a better understanding of the Indians property concepts, which in turn, hopefully, will facilitate a better understanding by those who are not familiar with Indian thinking.  The writer hopes that, in some small way, by this paper, he has contributed toward educating non-Indians about why and the basis for the land claims the Indians are making.

If justice and fairness are underlying goals of today’s government and court system, then the concepts and the philosophy of Indian people should certainly be taken into consideration and given as much weight as British concepts and philosophy.  But if justice and fairness are not underlying goals, then we should stop covering ourselves with a false aura of sacredness and bring out things in the open, so everybody knows where they stand.  In other words, if we cannot be bothered with justice and fairness, we should, at least, be truthful.


[1] Calder V. Attorney-General (1971). 13 D.L.R. (3d) 64, 74 W.W.R. 481.
[2] In Re Paulette, (1974) 42 D.L.R. (3d) 8.
[3] Kanatewat V. James Bay Development Corpo ,and the Attorney General of Canada, Quebec Superior Court of Appeals, November 22, 1973
[4] James Bay Development Corp. V. Kanatewat, Quebec Court of Appeals, November 22, 1973.
[5] Treaty No.11 (1921)
[6] St. Catherine<s Milling and Lumber Co. V. The Queen (1887) 13 S.R.C. 577.
[7] Johnson V. Macintosh 21 U.S. (8)

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