Chapter II – The Fight to Restore Title

Every First Nation in Canada has been fighting to have title, rights, and jurisdiction restored since confederation.  The events associated with this challenge can be grouped into three broad periods: 1850s-1950, 1951-1972 and 1973-onwards.

The Early Struggle – 1850s to 1950

First Nation leaders made submissions to Canada, the provinces and the Queen to have their title and jurisdiction restored.  A few First Nations hired lawyers to support them during this legal challenge.  One example of this is contained in an excerpt from a submission to Wilfred Laurier in July 1910 in British Columbia:

“We stand for the obtaining of permanent and secure title (to be acknowledged by the government as such) of our ownership of our present reservations, and of such lands as may be added thereto.”

The federal government at that time responded between 1884 and 1927 by banning all means to raise revenues to support these claims.  Two important milestones were the 1927 Indian Act amendment that prevented First Nations from raising their own revenues to pay for lawyers to pursue legal challenges and claims, and the Natural Resource Transfer Act which provided land and resource ownership to the Prairie Provinces without the consent of treaty First Nations. The intent of this effort is best summarized in a comment made from a government representative, Thomas Mitchell Tweedie, during the debates around that time:

“Well, the Indian may be satisfied and he may not.  My personal view with regard to the Indian is that he is the ward of the Government, and being a ward he is bound to accept the treatment given him.”

Indian Act Amendment and White Paper – 1951 to 1972

The Indian Act was amended in 1951 to restore some revenue raising powers.  However, the federal government initiated a debate in the 1960s about what to do with the title and jurisdiction of reserves.  There were several meetings in 1968 and 1969 between First Nations and Canada across the country, known as the Indian Act Consultation Meetings.  One of the results of those meetings was that some First Nation leaders were unaware that they didn’t own their reserves:

Mr. Josie Sam said on behalf of the Indians of the James Bay area, that they were unable to build any houses because they did not own any land.  For this reason it was necessary for him to state that they needed land. Quebec City, PQ – September/October 1968

Mr. Clarence Jules wanted to know what would happen if the Government decided to abolish the Indian reserves and do away with the Indian Act.  He asked who will own the land then.  He added that the land belonged to members of the Band and any doubt about that should be resolved now.  – Kelowna, BC – November 1968

The federal government responded by presenting the Statement of the Government of Canada on Indian Policy (1969 White Paper) that recommended title and jurisdiction of reserves be transferred to the provinces.  This was not well received by First Nations and led to the next phase of the struggle for rights and title.

Courts and Agreements

Over approximately the last 50 years, there have been several court decisions recognizing and supporting aboriginal title and rights (Calder, Guerin, Sparrow, Delgamuukw, and Tsilhqot’in, among others).  These have forced the federal and provincial governments to negotiate various agreements, including comprehensive settlement agreements.  Some agreements have been finalized (e.g., Nisga’a, Tlicho, Tsawwassen, Maa-Nulth, and Tla’amin).  However, negotiations are slow and costly and often require extinguishment of rights and title.