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Starboard or port tack? : navigating a course to recognition and reconciliation of aboriginal title to… Brown, C. Rebecca 1999

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STARBOARD OR PORT TACK ? NAVIGATING A COURSE TO RECOGNITION AND RECONCILIATION OF ABORIGINAL TITLE TO OCEAN SPACES by C. REBECCA BROWN B.A., Mount Allison University, 1976 B.Ed., Mount Allison University, 1977 LL.B.,The University of New Brunswick, 1980 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 1999 © C. Rebecca Brown, 1999 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission of extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. -ii.-ABSTRACT In British Columbia, fifty-one First Nations have filed Statements of Intent signifying their interest in negotiating a treaty with Canada and the Province of British Columbia since the establishment of the British Columbia Treaty Commission in 1993. Twenty-seven of these First Nations participants claim ocean spaces within their traditional territories. Academic research and writing over the last decade has focussed on Aboriginal title to land, with little, if any reference, to ocean spaces. The concept of Aboriginal title was recently recognized by the courts in Delgamuukw v. British Columbia. My research will explore what information and legal principles could be utilized to recognize Aboriginal title to ocean spaces within the Canadian legal context, and therefore provide some bases for First Nations in substantiating their claims. My analysis will begin with a review of international law principles surrounding title to and jurisdiction over ocean spaces. Following which, I will delineate the sources available for recognizing such a theory, starting with a review of the concepts of Aboriginal title as determined in Delgamuukw and their applicability to ocean spaces. Delgamuukw has affirmed Aboriginal perspectives are an integral part of the investigation of Aboriginal title, and voices of members of two particular First Nations being the Haida Nation and the Tsawwassen First Nation, with whom I visited, will be included. Rounding out the sources will be a review of comparative legal concepts drawn from the United States and Australian experiences, and the principles espoused within international human rights -111.-materials. Having established the avenues for recognition of this concept, I then turn to discussion of its reconciliation within the Canadian legal context by reviewing theories of co-management and examining a number of settlement instruments that have yielded some degree of reconciliation between the federal government and the particular First Nation or Province involved. Comments from First Nations in respect of the obstacles that hold back reconciliation will be noted. In conclusion, my research will deduce Aboriginal title to ocean spaces is a viable legal concept in Canada, and First Nations have the resources necessary to substantiate their claims. Comments about the possibilities that may result at the treaty table or in the courts upon recognition of this concept will also be discussed. This analysis is timely and important as many First Nations are nearing the stage of the treaty process where discussions will be directed towards what territories these First Nations groups will retain and what ownership, jurisdiction and rights they will enjoy as to ocean spaces and resources. Such issues directly relate to the continued way of life, culture, and sustainable economic growth and stability of First Nation communities into the twenty-first century. -iv.-TABLE OF CONTENTS Abstract ii Table of Contents iv Acknowledgment viii Dedication x The Haida Story of Creation xii CHAPTER ONE: INTRODUCTION 1 1. Overview 1 2. The Legal "Seascape" of Claims to Ocean Spaces in British Columbia 6 (a) The British Columbia Treaty Commission Process 6 (b) Claims of First Nations to Ocean Spaces 13 (c) Observations and Comments 17 3. Methodology and Data Collection 18 4. Terminology 20 CHAPTER TWO: OCEAN SPACES IN BRITISH COLUMBIA 23 1. Introduction 23 2. Brief History of Boundaries and Jurisdiction of Ocean Spaces 24 (a) Today's Authority - United Nations Convention on the Law of the Sea 25 (b) Federal and Provincial Struggle Over Ocean Spaces 35 (c) Internal Waters and British Columbia's Jurisdiction 38 3. The Federal Perspective 42 4. The Provincial Perspective 45 5. Summation 48 -V.-CHAPTER THREE: THE SOURCES FOR RECOGNITION OF THE CONCEPT 50 Overview 50 PART A. THE CANADIAN COMMON LAW 52 1. Introduction 52 2. The History of Aboriginal Title in Canada 52 3. Delgamuukw 58 (a) The Content of Aboriginal Title 62 (b) Proof of Aboriginal Title 65 (c) Constitutional Protection and Justifiable Infringement by Government 70 (d) Limits on the Crown's Power to Extinguish Aboriginal Title 74 4. Application of the Principles of Use and Occupation to Ocean Spaces 76 5. Further Common Law Sources 87 6. Conclusions 98 PART B. ABORIGINAL PERSPECTIVES 99 1. Introduction 99 (a) Terminology 103 2. Two Distinct Ideologies 106 (a) Oral Traditions and Histories 106 (b) The Concept of Title to Land 110 (i) Haida Voices on Interests in Lands and Territories 114 (ii) Voices of the Tsawwassen First Nation on Interests in Lands and Territories. ..118 (in) The Haida Practice of Stewardship 120 (iv) Conclusions 124 3. The Haida Nation: An Ocean Culture 127 (a) Introduction 127 (b) The Geographic and Early Historic Perspectives 128 (c) Societal and Cultural Perspectives 134 (d) The Change in Haida Culture with European Contact 139 (e) The Haida Gwaii of Today 144 -vi.-(f) The Connections to Ocean Spaces 149 (1.) Haida Sea-faring and Fishing History 149 (i) Sea Transportation - Cedar Canoes and Boat Building 150 (ii) Fishing History 154 (iii) The Harvesting of Ocean Resources 163 (iv) The Yearly Food Gathering Cycle 167 (v) Local Knowledge of Ownership of Fishing Sites 174 (vi) Trading 177 (2.) Other Sources of the Sea Connections 179 (3.) Conclusions 186 (g) Today's Realties: Economies and Culture 186 (h) Future Development Aspirations in the Haida Context 189 (i) Observations and Comments 191 4. The Tsawwassen First Nation: "A People Facing the Sea" 201 (a) Introduction 201 (b) The Societal, Cultural and Historic Perspectives 203 (i) Pre-European Period. 203 (ii) Changes Following European Contact 208 (c) The Tsawwassen Connection with the Sea 214 (i) Fishing. 214 (ii) Property Rights and Ownership of Fishing Spaces 221 (iii) Fishing Today 224 (d) Nuisances and Impacts of the Roberts Bank Developments 228 (e) Sources of Substantive Information for Claims to Ocean Spaces 232 (f) Today's Realties and Tomorrow's Vision 237 (g) Observations and Comments 238 5. Conclusions 240 (a) The Obstacles That Hold Back Successful Settlement of Aboriginal Title Issues..242 (i) The Haida Nation Voices 242 (ii) The Tsawwassen First Nation Voices 247 (iii) Conclusions 252 PART C. INTERNATIONAL PERSPECTIVES 252 1. Introduction 252 2. The Use of International and Foreign Legal Materials to Interpret and Inform Domestic Law 254 3. Two Specific Foreign Jurisdictions 258 (a) Australia and the Impact of Mabo 260 (b) The United States and Indigenous Title Issues in Alaska 275 -vii.-{(i) Amoco v. Gambell 276 (ii) Inupiat v. United States. 278 4. Reference to International Materials 280 (a) International Labour Organization Convention #169 281 (b) Draft Declaration on the Rights of Indigenous Peoples 283 (c) Global Consciousness of Human Rights 287 5. Conclusions 292 CHAPTER FOUR: RECONCILIATION WITHIN THE CANADIAN LEGAL CONTEXT 295 1. Introduction 295 2. Comments From Non-First Nations 296 (a) The Royal Commission on Aboriginal Peoples 296 (b) The Courts 298 3. Co-Management 301 (a) Perimeters of the Concept 301 (b) First Nations Comments on Co-Management Schemes 304 (i) Reconciliation Potential Within the Haida Nation 305 (ii) Reconciliation Potential Within the Tsawwassen First Nation 310 (c) Conclusions 312 4. Examples of Reconciliation Instruments 314 (a) Canadian Federalism 317 (b) Historic Land Claims Agreements 319 (c) Nunavut Final Agreement 320 (d) Nisga'a Final Agreement 321 (e) Sechelt Agreement-in-Principle 323 (f) The Gwaii Haanas Agreement 325 (g) The Labrador Inuit Land Claims Agreement-In-Principle 331 (h) Oil and Gas Agreements 342 5. Conclusions 343 CHAPTER FIVE: CONCLUSIONS 347 BIBLIOGRAPHY 361 APPENDIX "A" 389 -viii.-ACKNOWLEDGMENT This work would not have been possible without the kind and generous assistance of the Haida Nation and the Tsawwassen First Nation, both of whom invited me to attend their communities and Reserves to speak with their members about my research. It has been an honour and a privilege for me to be welcomed into these communities and to share the histories, struggles, thoughts, views and lives of these members of First Nations. I owe much thanks to Kim Davidson, the former Chief of Old Massett Village Council, who initially voiced his interest in my work, and suggested that I come to Haida Gwaii, and to Ron Brown, the past president of the Council of the Haida Nation, who provided the formal invitation. To those of the Haida Nation with whom I have had the opportunity of spending time, talking and in turn learning about their connections with the ocean, I am eternally grateful. My sincerest appreciation goes to Chief Reynolds Russ, Ernie Collison, Charlie Bellis, Margaret Edgars, Christopher Collision, Harold Yeltatzie, Christian White, Gilbert Kelly, Vesta Helmer, Patrick Weir, Kevin Brown, Lucille Bell, Bonnie Dallyn, Ron Dallyn, and Vincent Collison, all of the Old Massett Reserve; and to Chief Dempsey Collinson, Guujaaw, Roy Jones, Sr., Rosalind Russ, Millie Pollard, Heather Richardson DuDoward, Robert DuDoward, Barbara Wilson, Robert Anthony Young, Roy Jones, Jr., and Russ Jones, all of the Skidegate Reserve. -ix.-I also want to express my appreciation to Marcell LaFlame, Margo Hearns, and John Broadhead, other residents of those "islands on the edge" for giving of their time and providing me with further perspectives on the uniqueness of Haida Gwaii. The Tsawwassen First Nation has also been very supportive of this work, and I am especially grateful to Chief Kim Baird who afforded me time from her extremely busy schedule to discuss her Nation's position and hopes for the future. Russell Williams provided me with much historical information and personal anecdotes and experiences which have added greatly to this work. The Law Foundation of British Columbia has provided financial assistance to my work under the Small Projects Grant awarded to the University of British Columbia Law Faculty in 1999. Such funding enabled me to travel to Haida Gwaii and Tsawwassen. Without such financial aid, the Aboriginal Perspectives section of this work and the recording of the voices of these two Nations' Peoples would not have been possible. Further financial assistance was provided by Canadian Airlines International in July 1999 in the form of an airline pass to Australia which provided me with the opportunity of attending the International Symposium on Society and Resource Management at the University of Queensland in Brisbane. This excursion provided me the chance to deliver a paper on Delgamuukw and its impact upon resources management in British Columbia, and the opportunity to meet with many scholars from around the world and discuss my thesis work. Such has aided in my development of the International Perspectives section of this work. - X -DEDICATION As one gathers years on the face of this earth, there are numerous people and experiences that play a part in the path one's life takes. Having now completed the writing of this thesis, I have a chance to reflect upon the many people who have had a hand in all of this. To those who I have forgotten to name personally, I sincerely apologize. From my years within the law on the East Coast of Canada, I thank the Honourable Judge John D. Comeau for acting as my principal and starting me on my career. I am deeply grateful to the Honourable Justice Charles E. Haliburton for the opportunity of working with him, and for his continued sage advice. I learned much about the intrigue and creativity of the law appearing before the Honourable Judge John R. Nichols. My sincerest thanks to the Public Trustee of Nova Scotia, M. Estelle Theriault, Q.C., for her support in my pursuit of further education in management and the law, as well as the support of Professor Brian Bruce of the University of New Brunswick and Dr. Joyce Kennedy of Mount Saint Vincent University. Coming back to law school to undertake graduate work has been a most rewarding experience for it has propelled me into areas I would never have sought out in practice, and led me down the "roads less travelled". My thesis supervisor, Professor Ian Townsend-Gault, has provided me with unfailing support, advice, inspiration, encouragement and friendship. I appreciate having been viewed as a colleague in the study of the law, and such has made returning to academia a very pleasant experience. Professor John Borrows, of the Faculty of Law at the University of Toronto, has acted as my reader, and another source of inspiration. It was he who suggested I read Billy Garton's article which thus set me upon this -xi.-voyage of discovery. I am grateful for his support and generous sharing of knowledge. While at UBC, I have had the opportunity to learn from and work with many other professors including Wes Pue, Jutta Brunnee, Gary Wharton, Stephen Salzberg and Richard Paisley (upon whose suggestion I considered this topic as my thesis work). The staff of the Law Library and the administration staff of the Law Faculty, especially Lillian Ong, Mary Mitchell and Frances Wong, have all given valuable assistance. Susan Alcott and Harry Slade, Q.C. have been constant sources of information from the practitioners' world, for which I am grateful. The comradery and fellowship of the other members of my class and the graduate program have added to my experiences; and my lifetime friendships with Cheryl and John, and Jean, have also added their support to this project. Finally, and by no means least, my family have been the foundation upon which the successfully completion of this project has been built. My Mother and late Father instilled the love of school and the desire to seek out new challenges without ever losing the sight of my East Coast roots. My husband, Mark, has provided his support and understanding without fail, even though I know on occasion he wished I had stayed in practice. And to Kubbi, my beloved cat, thanks for keeping me company after all had retired or left me to my work. This work is dedicated to you all, and to the Nations of the Haida and Tsawwassen Peoples, with my love and heartfelt thanks. - C. Rebecca Brown, January 2000 -xii.-The Haida Legend The Raven and the First Human Beings One evening after the great flood waters had receded, the Raven found a gigantic clamshell half buried in the sand at Rose Spit. Inside this shell were little creatures cowering in terror at the sight of the enormity of Raven's shadow. The Raven coaxed, cajoled and coerced these little creatures to come out into his wonderful shiny world. Eventually, one little shell dwellers appeared, soon followed by the others. The Raven eyed these little creatures with interest. They were two legged like him but that was where the resemblance ended. The creatures had no glossy feathers, nor thrusting beak, rather they were pale of skin, with black hair atop their heads with thin stick like appendages rather than wings, that waved and fluttered constantly. These tiny shell dwellers discovered by the Raven that evering were " the original Haidas - the first humans "... No timid shell dwellers these children of the wild coast, born between the sea and the land to challenge the strength of the stormy north Pacific and wrest from it a rich livelihood Their descendants would build on its beaches the strong, beautiful homes of the Haidas and embellish them with powerful heraldic carvings that told of the legendary beginnings of the great families, all the heroes and heroines, the gallant beasts and monsters that shaped their worlds and destinies. For many, many generations they grew and flourished, built and created, fought and destroyed, lived according to the changing seasons and the unchanging rituals of their rich and complex lives. It's nearly over now. Most of the villages are abandoned and in ruins. The people who remain are changed. The sea has lost much of its richness and great areas of the land itself lie in waste. Perhaps it's time that the Raven or someone found a way to start again. - As retold by Bill Reid. " The Haida Legend of the Raven" (1988, April) 82 Common Ground 6. -1-CHAPTER ONE INTRODUCTION 1. Overview First Nations have resided along the rugged ocean swept shores of the Pacific Northwest since time before memory. Their lives and cultures have been shaped by the ebb and flow of those waters and the resources found therein. Today, one can bear witness to this intrinsic link with the ocean as evidenced in the gathering activities on the beaches, in the river estuaries and on the open waters offshore. These ocean spaces provide the very sustenance of life for coastal First Nations through the food resources produced, the economic livelihoods derived from ocean activities, and the various cultural and community relationships, and sacred and spiritual dimensions that emanate from such ocean connections. For many First Nations, their very creation emerges from the ocean depths. Should these bonds to ocean spaces be placed in jeopardy, the very existence of many First Nations cultures would be tossed into peril. During the last few decades, much of the academic discussion in Canada on First Nations issues has centered around the concept of Aboriginal title with a definite focus on land and earth. Our Supreme Court of Canada determined in 1997 that Aboriginal title continues to exist in Canada, yet, the Court provided no comments on how such a concept interacts with ocean spaces. In British Columbia, many First Nations have expanses of ocean within their traditional territories. The question then becomes is it possible to recognize the concept of Aboriginal title to ocean spaces, and reconcile the dimensions of such a concept within the -2-Canadian legal context? A simple question in the asking, yet complex and elaborate in the answer. Such then is the focus of this work about ocean cultures and First Nations of British Columbia. My interest in this subject flows from my introduction to the 1989 article of Billy Garton and his discussion of Aboriginal title to the territorial sea off the west coast.1 Upon further examination, I noted how little academic attention had been focused in this direction. Canadian natural resources literature by scholars including Claudia Notzke, Michael Asch, and Richard Bartlett contain few if any references of substance to First Nations and their relations with ocean spaces or the resources found therein. Much is written on fishing and the Aboriginal right to the fisheries due to the proliferation of fisheries prosecutions, and the Supreme Court of Canada cases during the early to mid-1990s.2 After completion of the research for this work, I find there has been little discourse on Indigenous claims to ocean spaces. Countries like Australia whose development of 1 Billy Garton, "The Character of Aboriginal Title to Canada's West Coast Territorial Sea" (1989) 47:2 U. of T. Fac. L. Rev. 571. 2 R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C) [herein Sparrow] determined that an Aboriginal right to the fishery at a specific site existed. The definition of Aboriginal rights was expanded and refined in R. v. Van der Peet (1996), 137 D.L.R. (4th) 289 (S.C.C.) [hereinafter Van der Peet]. Another important fishing case is R v. Gladstone (1996), 137 D.L.R. (4th) 648 (S.C.C.) [hereinafter Gladstone] where an Aboriginal right to a commercial fishery was determined. The case of Claxton v. Saanichton Marina Ltd., [1989] 3 C.N.L.R 46 (B.C.C.A.) {hereinafter Claxton] discusses the right of First Nations on Vancouver Island, who held fishing rights by a Douglas Treaty, to protection of their fisheries from interference. The decision prevented the construction of a marina in the area where the First Nations fished, based upon evidence that the construction and use of the marina would lead to degradation of the habitat both on shore and in the sea. The case does not state that First Nations have a claim to the sea but does hold that where Aboriginal rights exist there is a guarantee of protection of such rights so that the rights, being an activity such as fishing, will continue. - 3 -Indigenous title predates our own, have only recently started to produce discussion on this topic.3 Dr. Nonie Sharp, a leading Australian anthropologist, suggests this lack of discussion has been due to the predomination of European society with land and its historic and present characterization as a commodity of economic value,4 and the perception Aboriginal groups are solely land-based. Canada with its multitude of fishing rights cases which deal with the right to catch fish for both food and commercial purposes have never strayed into the issue of title to the ocean. Title cases have only examined land interests. What is interesting and rather perplexing in all of this, is that Indigenous populations, both here and in Australia, view land and ocean with no distinction and actually construct them "into a seamless web of cultural landscape".5 The beginning story from the Haida Nation about Rose Spit and the creation of mankind tells of this innate bond with the ocean. Our 3 Australia developed the concept of Aboriginal title some five years before Canada, and presently has numerous sea claims before the tribunals and courts. For discussion on sea claims see Nonie Sharp, "Reimagining Sea Space: From Grotius to Mabo" in Nicholas Peterson & Bruce Rigsby, Customary Marine Tenure in Australia (Sydney: University of Sydney, 1998) [hereinafter Sharp] at 49; Bryce Barker, "Use and Continuity in the Customary Marine Tenure of the Whitsunday Islands" in Nicholas Peterson & Bruce Rigsby, Customary Marine Tenure in Australia (Sydney: University of Sydney, 1998) [hereinafter Barker] at 89 where he notes since the proclamation of the Native Title Act 1993(Cth) there has surprisingly been little discussion "about the status of sea-rights in regard to native title"; and Sandra Pannell, "The Promise of Native Title and the Predicament of Customary Marine Tenure" in Nicholas Peterson & Bruce Rigsby, Customary Marine Tenure in Australia (Sydney: University of Sydney, 1998) [hereinafter Pannell] at 232 where she knows the anthropology literature of Australia up until the laet 1970s was mute on references to the sea, and provides specific reference to the Kimberley region of Western Australia. Here she also concludes at 235 that "the lack of information about Aboriginal maritime cultures is a product of European perceptions and orientations" which focused on more land-based economic activities. *Ibid. Sharp at 49. 5 Ibid at 49 - 50. Dr. Sharp notes Reverend Dave Passi explaining how he could not sell his land because it was part of himself and his family line. The rights to the land and the responsibility for the land includes the obligation to care for the land, to receive its gifts, and to share the land and its gifts with those on whose behalf one acts as a landholder today and for future times and people. She also notes Yolngu elders saving how their feelings for sea territory were part of their body and blood forcing them to defend it. -4-voyage forward from this point through the research and analysis will clearly illustrate the strength and commitment of this bond. In the preliminary stages of this research, I had occasion to discuss this topic with a number of First Nations in British Columbia who informed me they do have claims to ocean spaces within their traditional territories which are those areas they "have owned, used, cared for, protected and exercised authority over since time immemorial".6 From this initial exploration, I concluded research of the concept of Aboriginal title to ocean spaces was a worthwhile endeavour, and I set myself upon a voyage of discovery. Being a practitioner of some years at the Bar, it was most important to engage a pragmatic approach to this research with the ultimate goal being to provide First Nations and the legal community with arguments and strategies which could be utilized in the advancement, support and substantiation of claims for title to ocean spaces before the courts and the British Columbia Treaty Commission. The research and analysis of this work is not only grounded in the law. It also contains much historic and anthropological information which aids in providing a more complete understanding of the sources from which Aboriginal title is derived. It is not purely from the common law nor from the Aboriginal culture. Therefore, I have included a fairly extensive, 6 First Nations Summit. Treaty Making (Vancouver: The Summit, 1996) at 3 [hereinafter Treaty Making]. -5-yet by no means exhaustive commentary from two First Nations in British Columbia. This Introduction Chapter includes information about the treaty process going on in British Columbia to give some perspective on the land and sea scapes present today. Chapter Two delves into the history of oceans law with examination of the international law of the sea principles and specific decisions regarding ocean spaces within Canada. I also discuss the federal and provincial government ideologies on ocean spaces and First Nations as gleaned from their policies in the treaty process. Chapter Three explores three specific mediums for sources from which to draw recognition of Aboriginal title to ocean spaces. The approach I have employed is rather unique in that one section provides some Aboriginal perceptive from two First Nations in the Province. This is a direct result of my invitation to met and participate with members of these communities during the past year. This information is a mere glimpse of their cultures and ideologies, and it is my hope that having been entrusted with such information I have accurately set it to paper. Another source for exploration in respect of recognition is that of the common law, and in such discussion I have provided analysis of the context and cases touching on Aboriginal title as found in Canada. Rounding out this exploration for sources, is the international arena and the utilization of international and foreign materials as interpretative aids to inform the Canadian domestic law. I have included theories and cases from two foreign jurisdictions, as well as human rights materials from the international community. -6-In the final analysis, I conclude that Aboriginal title to ocean spaces is a concept recognizable within the Canadian legal context, and the arguments and strategies that I have examined will add leverage to the advancement and support of claims by First Nations to title of ocean spaces at both the treaty table, and in future litigation. My discussion does not end with this determination, for in keeping with a pragmatic approach, it was important to consider the reconciliation of the concept within our legal system. In this respect, I have reviewed theories of co-management and specific precedent documents involving First Nations and land claims in Canada. The final Chapter is my short summation of conclusions derived from my research and analysis, with some suggestions as to where the treaty process in British Columbia on issues of ocean spaces may be headed. Before commencing on our voyage through these various topics, a short discussion on the present day treaty process is useful to provide some insight into the importance and timeliness of this research. 2. The Legal "Seascape" of Claims to Ocean Spaces in British Columbia (a) The British Columbia Treaty Commission Process The Government of Canada made a commitment in 1973 to resolution of Aboriginal land claims with the establishment of the comprehensive claims policy of the Department of Indian -7-Affairs and Northern Development.7 From this emerged over the next twenty years, a number of agreements in Canada's North and Quebec.8 The Province of British Columbia historically held the position that there was no Aboriginal title within the Province, and thus did not join in such negotiations. Even with the proclamation of the Constitution Act, 1982, the Province still continued to deny the existence of Aboriginal title, and would not negotiate with First Nations.9 However, during the 1980s with the growth of First Nations' activism, support of the general public for Aboriginal issues, and the Supreme Court of Canada decisions recognizing Aboriginal rights, the Provincial government became more responsive. In 1989, the Premier's Council on Native Affairs and the Ministry of Aboriginal Affairs were created.10 One recommendation from the Premier's Council advised British Columbia should move quickly to establish a process for the settlement of Aboriginal land claims. In August 1990, the Province agreed to be a partner in negotiations with the federal government and the First 7 David W. Elliott, Law and Aboriginal Peoples in Canada ( North York, Ontario: Captus Press Inc., 1992) at 163 [hereinafter Elliott]. 8 The comprehensive claim settlements concluded since 1973 include: the James Bay and Northern Quebec Agreement (1975), the Northern Quebec Agreement (1978), the Inuvialuit Final Agreement (1984), the Gwich'in Final Agreement (1992), the Tungavik Federation of Nunavut Final Agreement (1993), and the Council for Yukon Indians Umbrella Final Agreement (1993) and four Yukon First Nations Final Agreements. These are all set out in Elliott ibid, at 168 and following. 9 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Constitution Act, 1982]. The Report of the British Columbia Claims Task Force (Vancouver.The Task Force, 1991) at 13 [hereinafter Task Force]. Ibid. Task Force at 14. -8-Nations, and entered into the negotiations already underway between the Nisga'a and the federal government.11 A Task Force was created later that year by the two levels of government and the First Nations of British Columbia to recommend the negotiation process that should be employed.12 The report dated 28 June 1991 described the six stage negotiation process that has now been incorporated into the B.C. Treaty Commission mandate.13 The Task Force presented recommendations on a number of issues including "land, sea and resources", and noted these issues have always been sources of contention between the three parties.14 The importance of the land, sea and resources is acknowledged as a foundation "of the Aboriginal spiritual, philosophical and cultural views of the world". The land, sea and resources have supported First Nations families, communities and government over the centuries and the Task Force acknowledged these three elements will provide the foundation of new economic opportunities.15 It is interesting to note that the Task Force foresaw that the sea would be part of the negotiation process as they state in their report "[i]nterim 11 Ibid, at 15. 12 Ibid, at 1. 13 British Columbia Treaty Commission Agreement, 21 September, 1992 (Vancouver: The Commission, 1992) at para. 7.1(g) [hereinafter Agreement]. 14 Supra Task Force at note lOat 24. 15 Ibid, at 24 - 25. -9-measures may affect the management and use of lands, sea and the creation of new interests". ie Negotiations on the matters of the land, sea and resources must address the certainty of ownership and jurisdiction, and coordination of management schemes to ensure efficient and effective resource development and sustainability.17 A study performed by KPMG consultants noted that First Nations increased control over lands and resources would increase their self-sufficiency and independence.18 The British Columbia Treaty Commission Agreement was signed on 21 September 1992, as a result of the Task Force. The Commission's role is "to facilitate the negotiation of treaties and, where the Parties agree, other related agreements in British Columbia".19 Enabling legislation on the part of both governments was implemented,20 and the Commission began receiving Statements of Intent from First Nations in December, 1993.21 It was determined that those First Nations who signed the Douglas Treaties on Vancouver Island in the mid-16 Ibid, at 63. 17 Ibid, at 26. 18 Understanding the B.C. Treaty Process: An Opportunity for Dialogue (Vancouver :B.C. Treaty Commission, 1997) at 24. 19 Supra Agreement at note 13 at para. 3.1. 20 British Columbia Treaty Commission Act, S.C. 1995, c. 45, and Treaty Commission Act, R.S.B.C. 1996, c.461. Both Acts were proclaimed in force on 1 March 1996. 21 British Columbia Treaty Commission Annual Report 1997 (Vancouver: The Commission, 1997) at 14 [hereinafter Annual Report}. -10-1850s could also be part of this modern day process.22 The Treaty Commission's position is that of facilitator of negotiations between the three parties, and not to negotiate the treaties. The six stage treaty process is designed to enable the process of negotiation to go forward ensuring that all the parties are ready to participate. The six stages are as follows: stage 1, statement of intent is filed by First Nation indicating the desire to begin negotiations; stage 2, preparation for negotiations are undertaken by all the parties and the Commission assesses if the parties are ready to commence negotiations; stage 3, negotiation of a framework agreement which sets out what issues will be on the table; stage 4, negotiation of an agreement in principle where the major points of agreement being the basis of the treaty are determined; stage 5, negotiations to finalize a treaty which formally sets out the principles which are the basis for the treaty and will include the implementation plan; and stage 6, implementation of the treaty sets out the details of the carrying out of the treaty and the implementing legislation.23 It is important to remember that this is a negotiation process between the three parties, so the law and its rules will not necessarily be strictly adhered to. The very term "negotiations" 22 There were fourteen treaties signed between a number of First Nations and Governor James Douglas of the Hudson Bay Company, as representative of the British Crown, for about one-fortieth of the area of Vancouver Island during the period of 1850 -1854. These treaties included eleven treaties at Victoria, one at Nanaimo, and two at Fort Rupert (Port Hardy). See Hamar Foster. "The Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title" (1989) 23:3 U.B.C. L. Rev. 629 at 630-634. The Task Force recommended that all First Nations be included in the new treaty process whether they had previously signed Douglas Treaties or not; see supra Task Force at note 10 at 48-49. This was approved by the B. C. Treaty Commission; see supra Annual Report at note 21at 6. Ibid. Task Force at 14-15. -11-denotes a process of give and take on all sides. The parties at the table determine what are the important factors to consider in relation to territory area, resources, social and economic matters unique to the groups involved. In this way, consideration is given to the social and economic values and ideals of the parties. The area described as "traditional territory" in the Statement of Intent as filed by the First Nation at the table is a starting place for the negotiations that is envisioned to lead to settlement of the actual territory that will be owned by that First Nation. If the parties are not satisfied, they may leave the treaty table at any time and proceed to the courts where the standards and rules of law will be enforced. There are 197 First Nations bands in British Columbia with 112 of them being included within the fifty-one filed Statements of Intent. This represents more than 70% of the First Nations population in the Province.24 As of 20 March 1999, the Sechelt Indian Band became the first group under the process to reach stage 5, negotiations to finalize a treaty, having negotiated an agreement in principle late in 1998. There are thirty-seven other First Nations groups presently at stage 4, negotiation of an agreement in principle; twelve at stage 3, negotiation of a framework agreement; and one at stage 2, preparation for negotiations™ " The First Nations Summit. "BC Treaty Process Facts" , 1 April 1998. 25 This information was obtained on 14 October, 1999. Information about the participants and their progress may be obtained directly from the B. C. Treaty Commission office via their website at <www.bctreaty.net>. The recently finalized Nisga 'a Final Agreement (see note 820) which will be discussed later in Chapter Four is not a party to this process. -12-There is much optimism that this process will be successful in determining treaties between the parties and thus resolving the issues between First Nations and the governments. The present Chief Commissioner of the Commission is Miles Richardson,26 who has extensive knowledge on the treaty process and what it endeavours to achieve. The then Honourable Minister of Indian Affairs, Jane Stewart, said of his appointment: "he has been one of the main proponents of the creation of an independent treaty commission in BC..."27 Having been very involved during the creation and evolution of the treaty process, it would appear Chief Commissioner Richardson believes strongly in the process as a viable route to settling land claims and providing First Nations with lands and resources which in turn will enable them to become self-supporting. Chief Commissioner Richardson identifies "two major challenges facing the treaty process being that of keeping the public informed, and invigorating the treaty tables."28 He feels certain that when people think about the options that are available to deal with land claims issues, he knows that they will choose negotiations over any other options. He goes on to note that "[T]here is a lot of frustration with progress on the substantive issues, land...governance...and all that entails." He then notes that there is clear direction form the British Columbia Treaty Commission, "Update February 1999" (Vancouver: Commission, 1998) at 2. Chief Commissioner Richardson was the first President of the Council of the Haida Nation from 1984 -1996, and was nominated by the First Nations Summit to the Commission with his appointment commencing in October 1995. He became the Chief Commissioner in November 1998 for a three year term. He was also a member of the British Columbia Task Force set up in 1990. 27 Ibid, at 2. Ibid, at 1. -13-courts in this country with the case of Delgamuukw and that the treaty process must be adapted to reflect the realities of the case.29 (b) Claims of First Nations to Ocean Spaces Of the fifty-one filed Statements of Intent, twenty-two Statements include ocean spaces within the described "traditional territory".30 Most of these Statements when filed in December 1993 included a map depicting the traditional territory. There are various ocean spaces described in these documents. The Ditidaht First Nation, situate about midway on the western side of Vancouver Island, show ocean spaces within their traditional territory depicted between lines running out into the Pacific Ocean with the wording "Traditional Territory extends seaward to where Vancouver Island no longer visible from a canoe'.31 This ocean space would run to seaward about seventy-five miles offshore. The Oweekeno Nation, " Ibid. atl. 30 Burrard Indian Band (Tsleil Waututh); Ditidaht First Nation; Council of the Haida Nation; Homalco Indian Band; Heiltsuk Nation; Hul'qumi'num Treaty Group representing six groups being: the Cowichan Tribes, Chemainus Band, Lyackson Band, Penelakut Tribe, Halalt Band, and Lake Cowichan Band; Klahoose Indian Band; Kwakiutl Laich-Kwil-Tach Council of Chiefs representing five First Nations being: the Campbell River (Wei Wai Kum Nation), Cape Mudge (We Wai Kai Nation), Kwiakah, Tlowitsis-Mumtaglia, and Mamaleleqala-Qwe-Qwa-Sot-Enox; Nanaimo First Nation; Musqueam Nation; Nuu-Chah-Nulth Tribal Council representing thirteen nations being: Ahousaht, Ehattesaht, Hesquiaht, Huu-ay-aht, Ka:yu:TcTh/Che:k'tles7et'h', Mowachaht/ Muchalaht, Nuchatlaht, Opetchesaht, Tla-o-qui-aht, Toquaht, Tseshaht, Uchucklesaht, and Ucluelet; Oweekeno Nation; Pacheedaht Band; Quatsino First Nation; Sechelt Indian Band; Sliammon Indian Band; Squamish Nation; Te'Mexw Treaty Association representing five First Nations being: Beecher Bay, Malahat, Nanoose, Songhees and T'Sou-ke First Nations; Tsimshian Nation representing over fourteen tribes including: Gidzalaal, Ginaxangiik, Gisp'axlo'ots, Gitandoyks, Gitlan, Gilutsau, Gitwilgvots, Git'andoo, Git'tsiis, Gitga'at, Kitasoo, Kitkatla, Kitselas and Kitsumkalum, and others; and Tsawwassen First Nation. These Statements of Intent are on file with the British Columbia Treaty Commission office at 203-1155 West Pender Street, Vancouver, B.C., and available to the public. 31 Ditidaht First Nation Statement of Intent to British Columbia Treaty Commission (15 December, 1993, filed with Commission). -14-located along Hecate Strait on the mainland of British Columbia, set out in their Statement of Intent that "sea claims will...extend to the two hundred mile limit at sea".32 The Council of the Haida Nation describes its ocean space as follows: "Haida Gwaii" (being the Queen Charlotte Islands), the surrounding waters, the air space and the Kaigainaa Archipelago. The waters include the entire Dixon Entrance, half of the Hecate Straits, halfway to Vancouver Island and westward into the abyssal ocean depths.33 The map of traditional territories for the Tsawwassen First Nation includes ocean spaces within Boundary Bay, the Strait of Georgia, channels and passes in the Gulf Islands and Boundary Pass.34 As one can see, descriptions of ocean spaces within traditional territories vary greatly, partly attributable to the uses of these ocean spaces by the First Nation involved. There are a variety of reasons that underlie First Nations claims to specific ocean spaces which include access to their traditional fisheries, both those on or close to the foreshore and those fisheries well offshore, protection of the fisheries from over-exploitation by others and their habitats from destruction, protection of gathering areas and the lands they inhabit from environmental damages, access to and protection of the sacred and spiritual places in and around the ocean, and the potential economic gains to be had from controlling exploitation of 32 Oweekeno Nation Statement of Intent to British Columbia Treaty Commission (15 December 1993, filed with Commission). 33 Council of the Haida Nation Statement of Intent to British Columbia Treaty Commission (12 December 1993 filed with Commission) [hereinafter Haida Statement]. "Abyssal" is defined in Webster's New Collegiate Dictionary (Springfield, Mass.: G. & C. Merriam Co., 1975) as "bottom waters of the ocean depths" at 6. Tsawwassen First Nation Statement of Intent to British Columbia Treaty Commission (16 December 1993 filed with Commission; revised on 29 June 1994) [hereinafter TFN Statement]. -15-the sea bed and subsoil. Ultimately First Nations are seeking Aboriginal title to the ocean spaces included within their traditional territory, as Aboriginal title is more valuable than any entitlement to rights for specific activities in a specific area. The granting of ownership would give the First Nation involved the right to use ocean spaces for modern purposes as discussed in the case of Delgamuukw which include mining, and oil and gas exploitation rather than just the traditional uses of hunting, fishing and gathering.35 Having ownership of such offshore resources provides opportunities for economic well-being and self-reliance for First Nations peoples, which are some of the goals sought via the treaty process.36 In my initial exploration of this topic, I had the occasion for discussion with a number of First Nations who had filed Statements of Intent. As I expanded my work and research, I had extensive discussions with some members of the Haida Nation and the Tsawwassen First Nation which will be shared and expanded upon in Chapter Three. From the initial information I collected from various First Nations within the process during May 1998, it became clear the basis of most claims is traditional use and occupation following the principles of Delgamuukw. Some suggested that an analogy could be made between the 35 The ability to use the land for modern purposes is one of the principles determined in Delgamuukw v. British Columbia (1997), 153 D.L.R. (4*) 193 (S.C.C.), rev'd and ord'g new trial in part (1993), 104 D.L.R. 470 (B.C.C.A.) at paras. 119 -123 [hereinafter Delgamuukw]. The case will be discussed in more detail in Chapter Three, Part A. 36 First Nations Summit, (paper presented to the Select Standing Committee on Aboriginal Affairs, 4 December 1996) at 11 -12; and Task Force at note 10 at 24 - 25. -16-utilization of ocean spaces as fishing banks with use and occupation of the sea bed area as they fished the bottom feeding fish such as halibut. Many of these First Nations hunted whales far out to sea. Many claim jurisdiction over ocean spaces to ensure their ability to manage the resources upon which they depend. Others suggest their claim to ocean spaces is the natural progression and evolution of their traditional uses into modern day uses. A copy of the Nuu-Chah-Nulth Declaration and Claim dated 16 October 1980 states they are the "sovereign occupants and users of the lands and waters" depicted on the map "being the west coast of Vancouver Island, adjacent islands, and surrounding waters". Such Declaration goes on to say that: [f]or thousands of years, without break, we have traditionally occupied and used these lands and waters to sustain our way of life. Our Aboriginal interest in these territories and their natural resources has never been extinguished...37 Chief Simon Lucas, a member of the Nuu-Chah-Nulth Tribal Council, related his knowledge of his people fishing for humpback whales within the traditional territory they claim. As an elder, Chief Lucas is responsibility to recount his peoples' history which is often done through story and song. During a workshop of the British Columbia Aboriginal Fisheries Commission when asked about the ocean spaces his people claim, he related a traditional song which describes such spaces of the Nuu-Chah-Nulth being "several times past the horizons after the mountains disappear".38 37 This Declaration is one of the documents included with the Nuu-Chah-Nulth Tribal Council Statement of Intent to British Columbia Treaty Commission (15 December, 1993, filed with Commission). 38 British Columbia Aboriginal Fisheries Commission, (CD Rom recording of Delgamuukw Workshop at their Annual General Meeting held in Kelowna, March 1998) at part 2 at 1:20:51 minutes. -17-(c) Observations and Comments As the majority of First Nations involved in the British Columbia Treaty Commission process are at stage 4, they will be negotiating and discussing the topics, including determination of their land areas, at this time. As many of the described traditional territories include ocean spaces, the topic of Aboriginal title to such spaces can not be ignored. Oral histories, detailed in songs and stories, relate the First Nations' use and occupation of the sea areas since time immemorial as evidenced by Chief Lucas' song and the Nuu-Chah-Nulth Declaration. There is no denying the fact that historically the Crown has recognized the vital importance of fishing and access to ocean spaces to the coastal First Nations of British Columbia, during the signing of the Douglas Treaties in the 1850s, and in the Crown policy of creation of smaller reservations based upon the reasoning that First Nations on the west coast needed access to the fishery to be self-sufficient.39 These past acknowledgments by the Crown coupled with the recent and consistent recognition by the courts of the integral connection between the First Nations and fishing, can not today be overlooked during treaty This was reiterated in my conversation with Edwin Newman, treaty negotiator for Heiltsuk First Nation, on 3 April 1998. The smaller acreage for coastal reservations is a well documented fact; see Dianne Newell, Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries (Toronto: University of Toronto Press Incorp. 1993, 1997) at 56 [hereinafter Newell]; Douglas C. Harris, Legal Capture of B.C. 's Fisheries: A Study of Law and Colonialism (LL.M. Thesis, University of British Columbia, 1998) at 41 [hereinafter Harris]; Rebecca Brown & Alan Grove. "A Solution for the Future, Returning to the Past? Exploring the Possibility - First Nations Co-Managing the Fraser River Fishery" (paper for International Law of the Sea class, University of British Columbia, 12 March 1998) [unpublished] which at pages 3 and 8 references the following materials: Memo, "British Columbia Reserves" 1 March 1874, cited in Paper Connected with the Indian Land Question (Victoria: Government Printer, 1875) at 131; and Rolf Knight. Indians at Work: An Informal History of Native Indian Labour in British Columbia, 1858-1930 (Vancouver: New Star Books Ltd., 1978) at 56. -18-negotiations. To do so, could place the honour of the Crown in jeopardy.40 3. Methodology and Data Collection This work incorporates a number of approaches in its examination of the concept of Aboriginal title to ocean spaces. There is review of the Canadian case law on Aboriginal title and the international law of the sea so that we have some basis of understanding the principles inherent in both these areas of law. To augment this review, I have included a comparative approach by drawing in foreign cases from both Australia and the State of Alaska, in the United States. These decisions involve issues of Aboriginal title and provide insight into other jurisdictions development of this legal concept. The Alaskan cases are examples of what an Indigenous claim to ocean spaces has entailed, and what the court has found of importance in its deliberations. There are other jurisdictions that could be examined and many of their decisions found useful; however, the intent was not to produce an exhaustive work but rather research and analysis that would aid First Nations and legal counsel with fleshing out arguments and strategies that could support and advance the recognition of the concept. I have undertaken some exploration of the arena of international human rights as it embodies the developing global ideals in relation to Indigenous Peoples, their territories and resources. Supra Delgamuukw at note 35 at para. 186 discusses that the honour of the Crown must be upheld in its deliberations with First Nations. -19-Reference to recent academic writings from Australia also provides some detail on the processing of Indigenous claims before the courts and tribunals there. These articles also review some of the colonial ideologies inherent in the systems of Australia, and in turn Canada, which in the new world order may be viewed as discriminatory and inappropriate. This thesis has not limited its focus to just the law and legal materials but has also incorporated a somewhat interdisciplinary approach with the inclusion of historical and anthropological information about First Nations in British Columbia. The law does not change and develop in a purely legal environment. Often discourse from other disciplines are the driving force behind legal change. In the area of First Nations' issues, these two disciplines have been integral to the issue of Aboriginal title to land, and will play a large part in the discourse of such title to ocean spaces. The final medium, and by far one of the most important, that I have utilized in this work is the discourse of members of the First Nations themselves. To produce a full and through discussion of this topic, there must be inclusion of comments and ideologies from all who are party to the issue. In order to learn about and understand First Nations and their relations to ocean spaces, I spent some time with the Haida Nation, and with the Tsawwassen First Nation. It is from those privileged experiences that my comments and information are drawn. Appendix "A" sets out those First Nations members with whom I had the opportunity to speak, and the details of such interviews. -20-This work has been over a year and a half in the research and production phases, and during this voyage of discovery, I have not been able to make passage through every reach that beckoned. This is but an introductory discussion of the concept of Aboriginal title to ocean spaces which will hopefully facilitate discussion and development of this very concept for use at the negotiation table, and in the possible court challenges ahead. 4. Terminology (i) "Aboriginal", "First Nations" and "Indigenous" I have used the term "Aboriginal" in most instances as the adjective to describe rights and or title as in keeping with the courts in Canada. I have used "First Nations" to describe the Indigenous Peoples of British Columbia. Many use the terminology Aboriginal Peoples. "Indigenous" I have utilized in writing about other countries first peoples. Use of one term or another does not in any way suggest one has a lesser meaning than the others. One point I do want to stress is that I have not followed the usual trend of non-capitalization of the term "Aboriginal" as is so evident within the vast majority of decisions from the courts of Canada. When quoting such decisions, I have used the spelling as "[A]boriginal",41 as this is an adjective derived from a proper noun deserving of capitalization. Such non-capitalization is in my opinion a display of disrespect, as all adjectives derived from the proper names of the colonizing European countries receive capitalization as a matter of 41 This first became apparent to me after reading John Borrows, "Frozen Rights in Canada: Constitutional Interpretation and the Trickster" (1997/98) 22 American Indian Law Review 37 {hereinafter Borrows]. -21-course. (ii) "Claims" and "Interests" The term "claims" has caused me some concern for its use automatically suggests First Nations must provide evidence and prove their right to title. That is in essence what the Supreme Court of Canada has stated; yet, when one studies First Nations' issues and spends time in First Nations communities, one comes to question this premise, and understand the comment by some First Nation members that it is they who have the right to title, and the Crown is the party who should be put to proving their interests. By using the term claims I do not suggest that First Nations have no interests presently within their territories. At times I have utilized the term "interests" as it denotes a real and present involvement with the right or territory being dealt with. (iii) "Ocean", "Offshore" and "Sea" I have used these terms interchangeably. (iv) "Land!' Chapter Three, Part B. will discuss in detail the concept of land and how it is defined within the common law and within the First Nations ideologies. For simplicity at this point, it is a holistic term with First Nations inclusive of all elements of the biosphere including earth, water, oceans, air and resources. With the common law it truly only denotes earth and terra firma. -22-(v) "Aboriginal Rights" and "Aboriginal Title" "Aboriginal rights" includes "Aboriginal title", and through this work there will be reference at times only to "Aboriginal rights" which should be read to include "Aboriginal title". With this background information on the importance of this topic to First Nations and the treaty process in British Columbia, and the framework of our examination, we are now ready to put to sea, so to speak, and commence our voyage of discovery in search of the concept of Aboriginal title to ocean spaces and its recognition within the Canadian common law. -23-CHAPTER TWO OCEAN SPACES IN BRITISH COLUMBIA 1. Introduction Two-thirds of the western boundary of British Columbia is washed by the waters of the Pacific Ocean. This vast expanse of ocean frontage has provided those who reside along it shores, First Nations and non-First Nations, with a history of deep and abiding connections to specific ocean spaces. In this chapter, I will review briefly the history of maritime law dating from the 1600s, and its evolution into the code of international law as set out in the United Nations Convention on the Law of the Sea 42 of today. The applicability of these principles in Canada, how ocean boundaries are created and who has jurisdiction over ocean spaces are some of the topics that will be canvassed. A thorough discussion in respect of Aboriginal title to oceans spaces includes some review and examination of the principles that regulate the sea. As with any proposition made for recognition of a legal concept, one must deal with all the areas of law that touch upon the topic. In the case of Aboriginal title to ocean spaces, the laws that pertain to the ocean spaces must be canvassed. These principles establish the foundation of Canada's concepts on ownership and jurisdiction of the ocean waters off her coasts. Armed with this information, our examination and analysis of the topic of Aboriginal title and its United Nations Convention on the Law of the Sea, Montego Bay, Dec. 10 1982, (in force Nov. 14 1994, U.N. Doc. A/CONF.62/122 (1982)), 211.L.M. 1261 [hereinafter UNCLOS]. This was actually the third convention on this topic to use this name so it is often referred to as the Third Convention. -24-recognition within the legal framework of Canada becomes stronger and becomes more credible. Governments involved in the treaty process, and those parties involved in possible future court applications on this topic will be arguing law of the sea principles, and that such do not incorporate Aboriginal title to ocean spaces. Therefore, it is most important that our discussion on this topic includes some insight into this area of the law. The final area to be reviewed in this chapter will be the present perspective of the two government parties presently at the treaty table in British Columbia in respect of Aboriginal title to ocean spaces. This discussion provides some insight on what arguments one can contemplate the governments to make when they are faced with an application by a First Nation for recognition of its title to specific ocean spaces whether in treaty negotiations, or in a court action. So, let us begin with a review of the origins of the rules of ocean spaces, and their evolution to today's regime under UNCLOS. 2. Brief History of Boundaries and Jurisdiction of Ocean Spaces UNCLOS has been termed the "modern international Constitution for the world oceans" which account for seventy-one per cent of the world's surface.43 The debate surrounding many of the issues addressed in UNCLOS started some 400 years ago with the infamous chapter written by the Dutch jurist, Hugo de Groot, (known as Grotius) entitled Mare Liberum published in De Jure Praedae, a book dedicated to the topics of booty and prizes in 43 Words of Norwegian lawyer Jens Evensen as quoted in Clyde Sanger, Ordering the Oceans: The Making of the Law of the Sea (Toronto: University of Toronto Press, 1987) at 3, and also termed by Tommy T. B. Koh, President of the Third UNCLOS over a two year period, at 6 [hereinafter Sanger]. -25-1604. ** Even though Grotius expounded the theory of "freedom of the seas", his treatise was in essence a justification for the Dutch East Indian Company's seizure of a Portuguese ship in the Straits of Malacca. For some one hundred years following Grotius' essay, debate was waged between international jurists about various law of the sea topics including sovereignty, exclusive zones for fishing, "the right of innocent passage" 45, freedom of the seas, and a coastal state's right to claim a territorial sea. In 1617, John Seldon, an English jurist wrote in defence of England's seizure of Dutch ships in his Mare Clausum: the Right and Dominion on the Sea. Further arguments on these issues arose again with the dissertation, De Dominio Maris, in 1703 by Cornelius van Bynkershoek.46 Resolution of these issues was not fully settled until the last twenty years of this century with UNCLOS in 1982. In our quest for recognition of Aboriginal title to ocean spaces, we will review this code of principles and its impact on this concept. (a) Today's Authority - United Nations Convention on the Law of the Sea In this century there have been three world conferences convened to discuss the law of the sea under the name the United Nations Convention on the Law of the Sea. The forerunners 44 Ibid, at 12. 45 This concept permits the passage of ships through the territorial sea of a coastal state as long as such ships are there without aggressive intentions against the coastal state It is often denied to warships. It is fully described in supra UNCLOS at note 42 at Part II., Article 17. The concept of territorial sea will be discussed shortly. Supra Sanger at note 43 at 11. -26-of these UNCLOS conventions was the Hague Codification Conference of 1930 involving mainly European states who had come together to try to reach an agreement on the standard limits/widths of territorial seas. At that time, there were as many different limits as there were maritime countries claiming territorial waters. The concept of the territorial sea is the product of the theory first proposed by Grotius, and later modified by Pontanus, whereby a coastal state is recognized as having control and authority over, and title in the sea that touched its shores ,47 By the mid-nineteenth century, this concept had become well recognized as a three mile band of sea adjacent to all coastal states, with the distance of "three miles" being attributable to the historical range of cannon ball fire.48 The different widths of territorial sea limits claimed by various coastal states in this century is directly related to the individual purposes being sought by such coastal states. Some asserted jurisdiction over an area of their coast for national security, others for control of fisheries, some for customs purposes, and lastly some for general civil and criminal jurisdiction.49 The Hague Convention in the end neither clarified or adapted any international standard for the Richard Cullen, Federalism in Action: the Australian and Canadian Offshore Disputes (Sydney, Australia: Federation Press Ply Ltd., 1990) at 11 [hereinafter Cullen]. Ibid, at 11. See also Richard Cullen. "The Encounter Between Natural Resources and Federalism in Canada and Australia" (1990) 24:2 U.B.C. L. Rev. 275 at 291 [hereinafter Cullen 2]; and Ian Brownlie. Principles of Public International Law, 3rded. (Oxford: Clarendon Press, 1979) at 185 & 191 -194 [hereinafter Brownlie]. Supra Sanger at note 43 at 13. -27-territorial sea.50 The topic of territorial sea limits arose again at the United Nations conference, known as UNCLOS-1, during 1958. Many years of preparatory work on some seventy-three draft articles preceded the convention which saw approval by the majority of the eighty-six countries participating.51 Some issues though were not resolved including fishing zones and the limits of the territorial sea. These were again tackled by UNCLOS-2 during a two month schedule of meetings in 1960. The eighty-eight delegate countries almost succeeded in their aim to codify the law of the sea.52. By this time, coastal states had come to realize that the oceans held tremendous wealth of resources including fish and minerals,53 and were in grave need of being protected by a code of conduct. And thus in 1967, Ambassador Arvid Pardo, a scholar and lawyer, determined to see this mission through, made a historic speech to the United Nations General Assembly whereby he proposed creating a framework for the management of the world's oceans. That speech coined the phrase "the Common Heritage of Mankind",54 and led to coastal states once again gathering and finally successfully producing the constitution for the world oceans 30 Ibid, at 14. 51 Ibid, at 15. 52 Ibid, at 17. 53 Ibid, at 13. 54 Ibid, at 18. -28-under the title UNCLOS-3. The Law of the Sea Convention of 1982 saw a number of new concepts introduced into international law including: an exclusive economic zone (known as EEZ), an archipelagic state, rights of access for landlocked states, rights and responsibilities in matters of pollution, the sea bed as "the common heritage of mankind" and the continental margin being an extension of the continental shelf to include the slope and rise just before the ocean floor.55 The Convention also dealt with issues of: the extent and nature of coastal state jurisdiction over specific ocean spaces and the living resources therein; freedom of marine scientific research; navigation and overflight rights on the high seas, territorial seas, in straits and archipelagos; mechanisms for the peaceful settlement of disputes; and the delimitation of boundaries between states. Explicit definitions of various ocean spaces such as the territorial sea, continental shelf, exclusive economic zone, to name a few are also included within the convention. There were 119 countries that signed UNCLOS at Montego Bay, with a number of major countries such as the United State, Great Britain and the former West Germany, abstaining mainly on the grounds of the contentious issue of Deep Seabed Mining set out in Part XI.56 The Convention stayed open for two years for signatures, with 159 countries as signatories Ibid at 6. The importance and controversies surrounding sea bed mining have diminished since Montego Bay as it is not economically feasible; see Ibid, at 5. The United States has however still not signed on. -29-by the deadline of December 1984. Canada was an original signatory at the convention, but has not as yet ratified the Convention due to international issues in respect of fisheries, in particular straddling stocks.57 Even though we have not ratified UNCLOS, Canada still relies upon its principles in many instances as the customary law for determining issues on international law of the sea. The jurisdiction for settling disputes under UNCLOS lies with the International Court of Justice at the Hague. In 1994, Canada removed itself and matters of fisheries disputes from the compulsory jurisdiction of the Court, based upon grave concerns for conservation measures in respect of the Atlantic's fish stocks.58 Thus, Canada's involvement in any international Ibid, at 200. Straddling stocks are those fish species which have migratory paths that take them into two or more jurisdictions being coastal states' 200 mile EEZs during their travels, and thus raise the question of who owns these fish. Many coastal states are most concerned about management and conservation policies to ensure the sustainability and return of straddling fish stocks to their jurisdictions. Canada has had in this regard disputes with Spain and Portugal for their alleged over-fishing of the Grand Banks off Newfoundland beyond Canada's 200 mile EEZ. This lead to the "Turbot War" in 1995; see next note. The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was completed as a final agreement in 1995, (see U.N. Doc. A/CONF. 164/37 (1995) [hereinafter U.N. Conference on Straddling Fish Stocks] and was open for signatures as of 4 December 1995. It created a regulatory scheme that promotes a sustainable use offish stocks as a whole rather than allowing them to be exploited by individual states. For further information see Donald M. Grzybowski, ed. "A Historical Perspective Leading Up to and Including the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks" (1995) 13:1 Pace Environmental L. Rev. 49. 58 See Andrew Schaefer. "1995 Canada-Spain Fishing Dispute (the Turbot War)" (1995/96) 8:2 Georgetown Int'l E. L. Rev. 437. As the International Court of Justice draws its authority from the will of the states before it, the withdrawal by Canada from the Court's jurisdiction in 1994, was the reason the action filed by Spain was dismissed in the Fisheries Jurisdiction Case (Spain v. Canada), [1998] I.C.J. Rep. 96. Spain claimed that Canada had exceeded its jurisdiction in legislating regulations whereby Canada could exercise jurisdiction over foreign fishing vessels outside its EEZ, and that Canada had literally committed "piracy" by its violation of the rules of international law of the sea. The action arose from the boarding and arrest of the Spanish fishing vessel, Estai, some 245 miles off Canada's east coast, in the high seas, for what Canada alleged was illegal fishing under the new conservation regulations brought in under the Northwest Atlantic Fisheries Organization (NAFO) that year to which Spain was a party by its inclusion within the European Union. The "turbot war" as this incident became known was successfully concluded by negotiations between -30-fishing dispute is not reviewable by any world court. So, it appears that Canada avails itself of the provisions of UNCLOS when it is advantageous for it to do so, and yet in other circumstances, Canada takes full advantage of not having this international law regime on its books. There are a number of definitions within UNCLOS which have been incorporated by Canada into its legal framework which have bearing on our discussion. The first is the definition of the territorial sea as described at Part II, Section 2., Article 2 which provides: "the sovereignty of a coastal state extends beyond its land territory and internal waters ... to an adjacent belt of sea described as the territorial sea". This sovereignty extends also to the air space above such waters, and to the sea bed and subsoil of the territorial sea. The breadth of this sea is set at up to "12 nautical miles", as per Article 3. The only exception to this ownership and jurisdiction by the coastal state is the right of innocent passage for foreign shipping as provided for in Articles 17-26.59 Canada and the EU which included some of the provisions included within the U.N. Conference on Straddling Fish Stocks as set out in the previous note. For further information see Paul C. Missios & Charles Plourde, "The Canadian-European Union Turbot War: A Brief Game Theoretic Analysis" (1996) 22:2 Can. Public Pol. 144; and Kevin Cox, "Who Won The Great Turbot War?" The [Toronto] Globe and Mail (16 March 1996) as found at <www.docuweb.ca/~pardos/globe.htm> . Supra UNCLOS at note 42. - 3 1 -Canada has a twelve mile territorial sea off all its coasts,60 and the federal government thereby claims jurisdiction and ownership of these waters and all the living and non-living resources found therein pursuant to the provisions of UNCLOS.61 By definition "state" within UNCLOS are those states which have consented to be bound by the Convention.62 It does not provide any further description as to what is necessary to categorize a state. In Canada, by the division of powers set out within the Constitution Act, 1867, the federal government is seized with the jurisdiction for ocean waters and international matters rather than the provinces.63 Therefore, Canada was the signatory of UNCLOS and not the provinces. Yet, under our scheme of federalism, UNCLOS to be ratified and fully effective, many believe, must be approved by all the provinces and not just the federal Parliament.64 Canada originally claimed a three mile territorial sea which was extended to twelve nautical miles in 1970 by the Territorial Sea and Fishing Zones Act, R.S.C. 1970, later included in the amended Act by the same name in R.S.C. 1985, c.T-8, s. 3(1). This was repealed by the Oceans Act, S.C. 1996, c. 31 which sets out at section 4 (a) that the territorial sea of Canada is of a width of twelve nautical miles. See also Cullen 2 at note 48 at 297. Our twelve nautical mile territorial sea is consistent with most world coastal states; see Robert Smith. "Global Maritime Claims" (1989) 20:1 Ocean Dev.& Int'l L. 83 at 94[hereinafter Smith]. 1 Ibid. Smith at 83 where he notes that even though Canada has not ratified UNCLOS, it is still able to avail itself of its provisions. Supra UNCLOS at note 42 at Part 1, Article 1, section 2. (1) which sets out the definition. 63 See Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(24) (formerly known as the British North America Act 1867) [hereinafter Constitution Act, 1867] at section 91(12) for "Sea Coast and Inland Fisheries" and at 91(10) for "Navigation and Shipping", and other general provisions at the beginning of section 91. 64 The federal executive has the power to sign treaties that are binding on Canada within international law; however, implementation of such treaties by Parliament can only be to the extent that the matters the treaty touches upon are within the federal heads of power. If the treaty interferes with provincial matters, then to be effective the provinces must ratify and implement the treaty as well. For more discussion -32-There are suggestions that the actual Nations of our First Nations peoples are able to qualify as "states" in these types of situations.65 Certainly, the Haida Nation has some exceptional circumstances, as we shall note in Chapter Three, which strongly suggest it is indeed a sovereign state and thus has the capacity to sign such an international convention. It is interesting to note that the Haida Nation did give Canada its support when the federal government declared a 200 nautical mile exclusive economic zone, not as acquiescing in Canada's jurisdiction but rather as the one way to conserve and protect the fish stocks the Haida depended upon.66 The one other definition that has bearing on this examination, is that of the exclusive economic zone, or EEZ, pursuant to Part V of UNCLOS. This zone is the expanse of sea up to 200 nautical miles from the baselines used to determine the territorial sea.67 Within this on this point see Bernard W. Funston & Eugene Meehan, Canada's Constitutional Law in a Nutshell (Toronto: Carswell, 1998) at 93 - 94 and 241 - 242; and P. Macklemera/, Canadian Constitutional Law, 2d ed. (Toronto: Edmund Montgomery Publications Ltd., 1997) at 319. 65 International law is the product of the relationship between states. As to what constitutes a state, the definition most widely referred to is that found within the Montevideo Convention on Rights and Duties of States (1936), 165 L.N.T.S. 19; (1934) 28 AJIL Supp. 75. Article 1 prescribes a state "should possess ... a permanent population; a defined territory; a government and capacity to enter into relations with other States." For a more complete commentary on the determination of a state in international law see Rebecca M.M. Wallace, International Law, 2d ed. (London: Sweet & Maxwell, 1992) at 58 - 67; and Hugh M. Kindred et al, International Law Chiefly as Interpreted and Applied in Canada, 5th ed. (Toronto: Edmond Montgomery Publications Ltd, 1993) at 13 - 27 and 247 - 279. A complete examination and analysis of whether the Haida Nation and the Tsawwassen First Nation can conclusively demonstrate they are states within the criteria determined within international law is too lengthy a process to undertake here. I have mentioned this point solely for the purposes of suggesting other avenues of argument that can be researched and developed to aid in advancing the concept of Aboriginal title to ocean spaces. 66 Personal interview with Chief Reynold Russ, Ijawass, Eagle Clan, hereditary chief of Old Massett, Haida Gwaii, on 28 January 1999 [hereinafter Russ Interview]. Supra UNCLOS at note 42 at Part V, Article 57. -33-ocean space, the bordering coastal state has the sovereign rights to explore and exploit, conserve and manage all the natural resources.68 As with the territorial sea, there are rights afforded all other states, even land-locked, for purposes of navigation, overflight, laying of cable and pipelines, and other international uses of the sea.69 The rights afforded the coastal state in respect of the EEZ is of a lesser degree than the territorial sea.70 Yet, one can see the great importance both these ocean spaces have for a coastal state like Canada. These provisions of UNCLOS provide Canada with the ability to control and manage ocean spaces of a breath of over 200 miles offshore. Canada is the owner of the territorial sea, its sea bed and resources within off its British Columbia coast. Can this title be encumbered so to speak by the concept of Aboriginal title to such an ocean space? As we shall see in Chapter Three, Aboriginal title to land is indeed an encumbrance on Crown land title in British Columbia if sufficient proof of use and occupation at the time of sovereignty, 1846, is demonstrated.71 By way of analogy, it is possible to say that Aboriginal title to the territorial sea is also an encumbrance upon 68 Ibid, at Article 56. 69 See Ibid, at Article 58. 70 The territorial sea under the international law regime is owned, including its sea bed and subsoil, by the coastal state to which it is adjacent. The coastal state's sovereignty of the territorial sea must only yield to the innocent passage of ships through such waters; see Part II, Section 3 of supra UNCLOS at note 42. A coastal state is seized with the territorial sea that lies off its shores, while on the other hand, to demonstrate sovereignty over an EEZ, a coastal state must announce its intention and specific how large an area is included. The coastal state only has jurisdiction over the resources found within its EEZ, with no ownership of the water column, or sea bed and subsoil, as with the territorial sea. See Part V. of UNCLOS. See Delgamuukw supra at note 35 at paras. Ill and 143. -34-Canada's assertion of its ownership of such an ocean space. The theory of ownership of the territorial sea is, as we have noted, well documented throughout the last 400 years of antiquity. Thus it is a concept to which Aboriginal title could attach. There are suggestions that as the EEZ and even the nine miles between the ancient three mile territorial sea and the newer twelve mile territorial sea are such recent legal principles that Aboriginal title could not attach, as the First Nations were not exercising their title or rights to these ocean spaces at the time these principles were solidified in the international arena. It is not appropriate to terminate an argument based on the premise that as there were no discussions about or thought put to the concept of Indigenous title to ocean spaces during the deliberations on the law of the sea, and such does not appear within the code of UNCLOS. Lack of recognition of a concept does not mean it is non-existent; it just lacks recognition.72 Canada at the date of signing of UNCLOS had not as yet recognized Aboriginal title to land, let alone even thought about the concept in relation to ocean spaces. If Aboriginal title had attached to some ocean spaces, then Canada can only apply the principles of UNCLOS to what it has, which could be in some ocean spaces no title at all. One must be cognizant of the impetus behind the law of the sea discussions down through the ages. It was indeed fuelled by the colonizing and trading European countries for their use and benefit alone most often to the detriment of those new world lands and seas they 72 See Peter Kilduff & Neil Lofgren, "Native title fishing rights in coastal waters and territorial seas" (1996) 3:81 Aboriginal Law Bulletin 16 at 17. They state that native title rights are present within the total 200 mile EEZ claimed by Australia. -35-explored.73 With the recent change in attitude on issues of the rights of Indigenous Peoples, courts, academic writings and the international conscience,74 have started to condemn the discriminatory and racist attitudes and policies employed by the colonizing countries of the last two centuries. This development provides some basis for the possibility that Aboriginal title to ocean spaces can be determined as a concept in Canada's waters compatible with the principles of international law of the sea. (b) The Federal and Provincial Struggle Over Ocean Spaces Within Canada, historically there has been tension between the provinces and the federal government over who had the authority to manage the offshore. The federal government has traditionally argued provincial ownership of natural resources ends at the low water mark based upon the English common law as determined in the case of R. v. Keyn7S, and confirmed by the Supreme Court of Canada in the 1967 case of Reference Re Ownership of Off-Shore Mineral Rights 76 which concluded the federal government had jurisdiction over the territorial sea off the coast of British Columbia. The matter was important to the provinces as there loomed possibilities of great sources of future revenues generated by the exploitation of whatever amounts of mineral deposits lay offshore. The outcome of the 73 This argument is more fully developed in Chapter Three., Part C, International Perspectives, in regards to some of the Australian academic writing, and in particular supra Pannell at note 3. 74 These sources will be noted in Chapter Three, Part C, International Perspectives, later in this work. 75R. v. Keyn (1876), 2 Ex.D. 63, 13 Cox C.C 403 (Crim. App.). 76 Reference Re Ownership of Off-Shore Mineral Rights, [1967] S.C.R. 792; (1968), 65 D.L.R. (2d) 353 (S.C.C.) with references to D.L.R. [hereinafter referred to as Offshore Reference]. -36-Offshore Reference did little to quiet the debate with other provinces, and the federal government attempted to negotiate a multi-provincial settlement with no success.77 In the late 1970s, the newly elected Progressive Conservative federal government stated its intention to transfer "ownership" of all offshore mineral resources to the provinces. Discovery of natural gas near Sable Island, off Nova Scotia, and reserves of oil at the Hibernia site off Newfoundland, coupled with a world oil pricing crisis, and the election of Brian Peckford as Premier of Newfoundland (having campaigned adamantly for his province's right to control the mineral resources off its coast), all added pressure for resolution.78 The defeat of the Progressive Conservative government in its second year of office in 1980, did not stop the momentum for resolution. The new Liberal government finalized the Nova Scotia Agreement in 1982 which placed the ultimate offshore management with the federal government while all direct offshore revenues flowed to the province until such time as its per capita fiscal capacity was above the national average.79 Newfoundland, under Peckford, would have no part of such a deal. It argued its economic and historical links to the sea unequivocally gave the Province the authority over the minerals situate in the offshore. Two court challenges ensued, both of which were unsuccessful for Newfoundland.80 The new 77 Supra Cullen 2 at note 48 at 298 - 299. 78 Ibid, at 299. 79 Ibid. 80 Ibid, at 300. -37-federal government under the Progressive Conservatives settled the Newfoundland issue by enactment of the Atlantic Accord in 1985.81 Such legislation set up an offshore management scheme steered by the Province, with provincial access to all direct offshore oil and gas related revenues without any cap (as had been the case in the Nova Scotia Agreement), and a commitment to entrench the Atlantic Accord within the constitution.82 In time, Nova Scotia renegotiated its Agreement to provide for much the same scheme as Newfoundland.83 This brief discussion of the history of the Canadian east coast offshore debate provides good illustration of the federal government's position in regards to the sovereignty of the offshore of Canada. It is evident that it is squarely within their grasp. Yet at the same time, the federal government as noted, has seen fit to negotiate with the provinces on provisions of control and allocation of benefits arising from ocean spaces.84 These Agreements and their outcomes will be revisited later in this work in the discussion of reconciliation instruments in Chapter Four. For the purposes of this work, the important points to take away from this review of international law of the sea principles is that the territorial sea which Canada claims at twelve nautical miles off all her coasts and the EEZ which is 200 miles offshore are viewed as being Sl Ibid, at 301. -38-under the control and authority of Canada. Yet, as I have noted, there are possible arguments that Aboriginal title can intrude on this jurisdiction. There is another dimension to add to this discussion of jurisdiction of Canada's ocean spaces. The actual delimitation of the baselines of the territorial sea off British Columbia's coast may well bring British Columbia into play within this whole discussion. (c) Internal Waters and British Columbia's Jurisdiction Even though we have seen how Canada derives its jurisdiction over the ocean spaces off British Columbia's coast, there is an added dimension to this principle. The Supreme Court of Canada in the Offshore Reference determined the territorial sea started at the outward limits of the "internal waters". What then are "internal waters", what part do they play in this analysis, and who has ownership of these? Part II, Section 2, Article 8 of UNCLOS describes internal waters as "...waters on the landward side of the baseline of the territorial sea..." Great discussion has ensued over the words "internal" and "inland" waters with many concluding the terms are not synonymous.85 For the purposes of this work, these varying points of view have little bearing. Suffice it to say, in international law, internal waters are those that are inside or landward of the baseline or beginning line of the territorial sea and are owned by the coastal state.86 85 Supra Cullen at note 47 at 58 for the arguments involved with this point. QfT Peter Finkle and Alastair Lucas. "The Concept of the British Columbia Inland Marine Zone" (1990) 24:1 U.B.C.L. Rev. 37 at 40 [hereinafter Finkle]. This is also set out in the Oceans Act, supra at note 60, at section 6 which states that "the internal waters of Canada consist of the waters on the landward side of the -39-British Columbia in 1981 by Order in Council87 declared a provincial Inland Marine Zone over all its adjacent submerged land and waters. Such a zone covered all the ocean waters located to the east of a boundary line demarcated from a point commencing in the south at the Canada - United States border in the Juan de Fuca Strait, continuing north along a bearing consistent with the western most headland of Vancouver Island along the western coast of Vancouver Island, to the north end of Vancouver Island, continuing in a straight line across Queen Charlotte Sound to the southwest tip of the Queen Charlotte Islands, then continuing north along the Islands at a bearing consistent with the western most headland to Dixon Entrance, and continuing in a straight line across the Entrance until it intersects the United States border off Alaska.88 This British Columbia coastal zone would thereby take in all ocean spaces of Juan de Fuca Strait, the Strait of Georgia, Johnstone Strait, Queen Charlotte Strait and Sound, Hecate Strait and one half of Dixon Entrance, as well as a stripe of ocean spaces along the western shores of Vancouver Island and the Queen Charlotte Islands. This line of demarcation has also been described as the baseline for the start of the territorial sea of Canada as noted in the Territorial Sea Geographical Coordinates Order made baselines of the territorial sea of Canada". Further, section 7 goes on "[fjor greater certainty, the internal waters of Canada and the territorial sea of Canada form part of Canada." 87 British Columbia Order in Council 1347, June 4 1981, made under s. 87(g) of the Petroleum and Natural Gas Act, R.S.B.C. 1979, c.323. Supra Finkle at note 86 at 37. -40-pursuant to the Oceans Act}9 This agreement of description of the location of the line though does not indicate the federal government concedes the ocean spaces to the east or landward of that line belong to British Columbia. On the contrary, most likely Canada would claim these waters are within federal jurisdiction if involved in litigating this issue. By positioning the baselines in this way, Canada retains control over more ocean waters both near her shores, and pushes her 200 mile EEZ further out to sea. There are experts who suggest British Columbia has good arguments to advance on a claim to these internal waters as described.90 A review of these arguments and their merits is not necessary here, other than to note, that the Province's claim of 1981 coupled with the decision in the Strait of Georgia Reference 91 in 1984, makes a rather compelling argument that this inland marine zone all along the British Columbia coast is owned by the Province.92 Territorial Sea Geographical Coordinates Order, C.R.C., c. 1550, made pursuant to the Oceans Act, supra at note 60, sections 4 and 5. 90 Supra Finkle at note 86 at 52. Re Attorney-General of Canada and Attorney-General of British Columbia et al. commonly referred to as Reference Re Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388; (1984), .8 D.L.R. (4th) 161 (S.C.C.) [hereinafter Strait of Georgia Reference]. This case determined that British Columbia owned the sea bed of the Strait. There are differing opinions about whether this claim by British Columbia could stand. Dr. Charles Bourne, Professor Emeritus at the Faculty of Law, the University of British Columbia, is of the opinion that it is not a valid argument under the rules of international law. However, there is the principle of "historic bays" in international law of the sea which might be able to be utilized by First Nations to show certain bays, harbours or inlets of the sea as part of their traditional territories. There have been a number of cases of the Supreme Court of the United States on the issue of historic bays including United States v. Louisiana, 394 U.S.ll (1969), United States V.Alaska, 422 U.S. 184(9175), United States v. Louisiana etal, 105 S. Ct. 1074 (1985), and United States v. Maine et al., 106 S.Ct. 951 (1986). The Courts in these cases review the principles and evidence necessary for a state to prove its ownership of the sea area by historic use and control. See also the discussion in William T. Burke, International Law of the Sea, Documents and Notes (Lansing, Michigan: Lupus Publishing, Ltd, 1997) at 5-69 - 5-81. -41-Such a decision would thus include the Province as a major player in the question of First Nations' claims to ocean spaces lying east and landward of the baseline of the territorial sea. And as previously noted, there are many First Nations in this area who claim ocean spaces within their traditional territories. For the purposes of this work, the Haida Nation claims ocean spaces within this area claimed by British Columbia, while the Tsawwassen First Nation claims ocean spaces within the Strait of Georgia whose sea bed is owned by British Columbia, and in the Juan de Fuca Strait which is claimed by the Province. In light of this, it would appear that both levels of government would be involved in negotiations, and litigation in respect of title to ocean spaces. It should be noted that Aboriginal interests in ocean spaces was never discussed by the courts in either the Offshore Reference or the Strait of Georgia Reference cases. The Oceans Act, interestingly, does include in section 2.1 that "nothing in the Act shall be construed so as to abrogate or derogate from any existing [A]boriginal or treaty rights of the [A]boriginal peoples of Canada under section 35 of the Constitution Act, 1982."93 One might argue that this section signifies the federal government's recognition of First Nations' rights and title to the ocean spaces; yet on the other hand, the provision is most likely only the federal government's reaction to the Supreme Court of Canada's findings of Aboriginal fishing rights in specific areas of the sea. Having noted that both government levels may well be involved as interested parties within the determination of Aboriginal title to ocean spaces, I now will review some of the public 93 Oceans Act supra at note 60 at section 2.1. -42-policy information produced by both governments for use in negotiations under the British Columbia Treaty Commission process which clearly demonstrate title to ocean spaces is not a topic open for discussion. 3. The Federal Perspective The starting point for the federal policy on the treaty process is found in the Comprehensive Land Claims Policy in 1986, 94 which made a pledge that the government would negotiate concerning Aboriginal participation in not just terrestrial but also offshore environmental management schemes and resource revenue-sharing arrangements.95 The Government of Canada stated in its 1996 policy paper on the British Columbia treaty process that the treaties produced would recognize the rights of all residents of the Province to benefit from the natural resources, which would in turn benefit the aspirations of the First Nations for sustainable communities and self-reliance.96 The federal government clearly notes its preference for negotiation over litigation on Aboriginal issues. The end result The Comprehensive Land Claims policy was an initiative of the federal government in 1986 for response to concerns expressed by First Nations groups in respect of the treaty-making process. See Information Sheet: Comprehensive Claims (Modern treaties) in Canada at the Department of Indian Affairs and Northern Development, Canada, at <www.inac.gc.ca/ pubs/ information/treaty.html> and further information at <www.inac.gc.ca/subject/ claims/ comp/ briem.html> [hereinafter Comprehensive Land Claims]. Mark J. Valencia & David VanderZwaag, "Maritime Claims and Management Rights of Indigenous Peoples: Rising Tides in Pacific and Arctic Waters" (1989) 12:2 Ocean & Shoreline Management 125 at 141 [hereinafter Valencia]. British Columbia Treaty Negotiations: the Federal Perspective (Ottawa: Federal Treaty Office, November, 1996) at 6 [hereinafter Federal Perspective]. -43-contemplated by successful negotiation throughout the country, is the abolition of the Department of Indian Affairs and the Indian Act, with First Nations taking charge of their futures.97 These are pragmatic goals, and suggest a determination on the part of the federal government to negotiate all Aboriginal issues and finalize treaties. As to natural resources, the federal position suggests a balancing act between achieving certainty, promoting First Nations self-reliance, ensuring conservation of resources, and integrating and coordinating land and resources management.98 They do not speak of ownership of the sea, and the silence on this issue suggests the federal government views the sea and its resources as federal territory. Under the heading of "resources" within the federal position paper are included "fish,..., offshore areas and ocean management". The exclusive power for fisheries resources is retained by the federal government in keeping with its historical control of the resource. The reasons set forth for such federal control are the conservation and integration of the management of all fisheries.99 97 Note Ibid, where it speaks of these results. Indian Act, R.S.C. 1985, c.I-5. no Ibid. Federal Perspective at 14-15. The federal jurisdiction for fisheries is found in supra Constitution Act, 1867 at note 63 at section 91(12). This is discussed at ibid. Federal Perspective at 18. The federal government has recently started to hand over some control and management of fisheries to local groups under co-management schemes. Such schemes note the ultimate responsibility for fisheries policy and management still rests with the federal government. A good and recent example is the Aboriginal Fishing Strategy (AFS) a 1992 policy creation of Department of Fisheries and Oceans in response to Sparrow, supra at note 2. AFS provides regulations for an Aboriginal fishery, monies for the purchase of licenses and boats by First Nations, pilot projects for the Aboriginal commercial sale of salmon in British Columbia, and programs to ensure First Nations are part of -44-An interesting point mentioned in the federal policy is that treaty provisions will be made in the context of a coast-wide strategy,100 suggesting that the federal government will be at the treaty table armed with its overall plan for the fisheries off the British Columbia coast, and First Nations will be expected to fit into that plan. This stance does not suggest much ability to negotiate on the issues of fisheries or ocean management. As to the matter of "offshore areas and ocean management", the federal policy is extremely short, comprising all of two paragraphs, stating Canada supports negotiations on offshore topics that deal with wildlife, protected areas, artifacts and the environment. In the last paragraph, the federal government states that it will "seek to preserve its (Canada's) ability to safeguard the nation's self-sufficiency of ocean resources, particularly those that are non-renewable such as minerals (including hydrocarbons) and geothermal resources."101 This present policy in regards to the British Columbia Treaty Commission process strongly suggests that Canada will not be negotiating a treaty that would see First Nations with ownership or authority over ocean spaces or the mineral, or oil and gas resources that lie therein. the management of the fisheries. Canada Department of Fisheries and Oceans, Aboriginal Fishing Strategy (Ottawa: Fisheries and Oceans, 1992-1994) [hereinafter AFS]. Supra Federal Perspective at note 96 at 18. Ibid, at 21. -45-4. The Provincial Perspective In 1991, the provincial government accepted the recommendations made by the Task Force and joined with the federal government and the First Nations Summit in creating the British Columbia Treaty Commission process. 102 The Province may have been slow to get involved yet they have been most prolific in publication of their policies and vision for the Province vis-a-vis the treaty process. In regards to natural resources, the Province's main objective is for treaties to create "economic certainty" by ending the questions over the ownership and use of Crown lands and resources, and thus encourage continued development in the province.103 John Cashore, the then Minister of Aboriginal Affairs, stated in 1995 that "any proposed treaty which doesn't support regional economic development will be rejected by Cabinet and sent back for more work."104 The Province and the First Nations both agree that only Crown land is being considered in treaty negotiations, not lands of third parties.105 The Province has stated the target for land transfer to First Nations is five per cent being representative of their population within the Province of British Columbia, Ministry of Aboriginal Affairs, "Quick Facts About Treaties" undated [hereinafter "Quick Facts"]. 103 Ibid. mIbid 1 Ibid for the British Columbia position. The agreement of the First Nations Summit is found in the remarks Chief Joe Mathias on behalf of the First Nations Summit in British Columbia Treaty Commission, "Key Questions" (video produced by the Commission, 1995). -46-province. m This position, like the federal government's coast-wide strategy for fisheries, suggests that there is little room for negotiation. The literature produced by the Province has no mention of the sea and its resources; the words employed are strictly those of "land". This is understandable as the common law recognizes the sea from the low water mark to be owned by the federal government.107 However, as previously mentioned, the Strait of Georgia and its sea bed and subsoil was determined to be property of the Province.108 It is essential then that British Columbia articulate its stance on title to ocean spaces as numerous First Nations have included specific ocean spaces within their traditional territories. The Province sets out it will negotiate with a view towards producing clearly-defined rights for the First Nations "to land and resources in a manner that fits with contemporary realities of economics, law and property rights in British Columbia, and treaties that respect the rights and interests of all British Colombians" and provide the basis for sustainable economic and social development.109 The Province does note that "hunting and fishing rights of First Ibid. "Quick Facts". Supra Offshore Reference at note 76. Supra Strait of Georgia Reference at note 91. Province of British Columbia, Ministry of Aboriginal Affairs, "British Columbia's Approach to Treaty Settlement Lands and Resources", 12 June 1996, at 2 [hereinafter "B.C. Approach"]. -47-Nations people" will be included in treaties. n o The identification by First Nations of their traditional territory on the initial Statement of Intent will serve as a starting point for negotiation of territory. The Province has stated "[t]he area of Treaty Settlement Land to be included in a treaty will represent only a small part of the traditional territory", and will not be calculated on a percentage of the traditional territory.1U The Province does acknowledge the interests of each First Nation and non-Aboriginal communities will aid in determining the actual area of land.112 The Province has unequivocally stated "[o]wnership of Treaty Settlement Land will also include ownership of subsurface resources by First Nations."113 One has to ask if this policy extends to the Strait of Georgia as it is Crown Land. The Province has expressed the opinion that for treaties to be meaningful in a contemporary world, they will not be based solely on the evidence from the past, and that negotiations will focus on current and future interests of the parties.114 It may be that the Province will agree to First Nations having only specific rights for certain activities over large areas of what they Province of British Columbia, Ministry of Aboriginal Affairs, "British Columbia's Approach to Treaty Settlements", 8 October 1996 at 4. 111 Ibid, at 2. 114 Supra "B.C. Approach" at note 109 at 3. -48-claim as their traditional territories. Achieving co-operative management and land use planning for both land and resources with First Nations by their participation in the present structures and regimes that exist is an ideal expressed by the Province.115 Under the Memorandum of Understanding between Canada and British Columbia Respecting the Sharing of Pre-Treaty Costs, Settlements Costs, Implementation Costs and the Costs of Self-Government, or Cost Sharing MOU, the primary responsibility for the cash portions of the treaty settlements rests with the federal government and the provision of Crown lands with the provincial government.116 This joint statement by the governments suggests the formula for cost-sharing will play an important role in the positions of the government at the treaty table in respect of recognition of First Nations' interests in ocean spaces. 5. Summation In this Chapter, we have reviewed the history that has lead to the principles we have today in respect of the international law of the sea, and Canada's position of sovereignty to the ocean spaces off British Columbia's coast. The Courts have seen fit to apportion some of the sea bed of the British Columbia offshore to the Province which then brings the Province into discussions about title to ocean spaces that are being claimed by First Nations as part of their traditional territories. We have also canvassed some of the materials produced by each 115 Ibid, at 6. 116 Ibid, at 7, and see Province of British Columbia, Ministry of Aboriginal Affairs. "Federal-Provincial Cost-Sharing for Treaties", November 1997. -49-government in respect of policies and positions they will advocate during treaty negotiations to have some idea what may transpire in discussions about Aboriginal title to ocean spaces. Let us now examine a number of sources that can be cited and utilized to recognize this concept within the legal framework in Canada, starting with the common law. -50-CHAPTER THREE THE SOURCES FOR RECOGNITION OF THE CONCEPT Overview In this Chapter, I will explore various areas of the law that touch on Aboriginal title, and will examine how those sources could be formulated and incorporated into building the foundation for recognition of Aboriginal title to ocean spaces. First, I will begin with reviewing the common law in Canada and the origins of Aboriginal title. This discussion will start with the Royal Proclamation, 1763, U1 and lead on through some of the Supreme Court of Canada cases of the last twenty years where the Court often in its discussion of rights has made comments about title, ending with a full examination of the principles delineated in Delgamuukw U8 in 1997. The principles and elements set out in Delgamuukw will be analysed with a view to demonstrating how these can be utilized to substantiate First Nations claims to ocean spaces. As well within this section, I will incorporate ideas from the legal discourse on title and comment on how Aboriginal title to ocean spaces may develop. Chief Justice Lamer writing for the majority in Delgamuukw stated at paragraph 112 that "reference to both common law and [A]boriginal perspectives" must be made in order to 117 The Royal Proclamation of 7 October 1763, R.S.C., 1985, App. II, No.l, also text found at <www.bloorstreet.com/200block/rpl763.htm> [hereinafter Proclamation]. Supra Delgamuukw at note 35. -51-understand Aboriginal title and its characteristics. With this as a guiding principle from the first decisive pronouncement on Aboriginal title, I determined that to have a full and comprehensive discussion of this topic, I needed to learn about the Aboriginal perspectives. I therefore, spent time gathering comments and information from two First Nations of British Columbia, and present their voices within Part B. of this Chapter. This section is a lengthy commentary which begins by setting the stage both in a geographical and historical sense to provide some appreciation of the ocean cultures embodied in both these Nations. Actual data and sources of information about the use and occupation of ocean spaces is provided through the First Nations voices and other mediums. In conclusion, I provide some suggestions about how this information can be utilized to strengthen and support their title to ocean spaces. The third and final source of materials for use in recognizing Aboriginal title to ocean spaces is found within the global forum in both case law of other countries and international human rights materials. The Supreme Court of Canada will when facing new concepts and questions of law often refer and consider cases that have dealt with such matters from other countries. I will review a number of cases and some academic literature from Australia and the United States whereby issues of Indigenous title to areas of the ocean have been discussed. As Canada is a member of the United Nations, the human rights documentation that has developed and which is still evolving is important to this research and discussion for it is the global conscience illuminating the direction the world is taking in respect of Indigenous issues. -52-All of these sources provide ways and means of developing and validating the theory of Aboriginal title to ocean spaces within the Canadian legal context. This is especially important, for as previously noted, there are over twenty First Nations groups involved in the British Columbia Treaty Commission process who have included within their traditional territories various configurations of ocean spaces. Let us turn then to a review of the Canadian common law and the development of the concept of Aboriginal title. PART A. THE CANADIAN COMMON LAW 1. Introduction The theory of Aboriginal title is not a recent development within the body of Canadian law. It was first mentioned by the colonial government of Britain about the time that the Pacific coast was first explored by the Europeans, and has since then been sporadically mentioned. The defining year of this concept came with Delgcanuukw in 1997 when for the first time, the Court delineated the actual characteristics and elements that make up Aboriginal title. The following section chronicles this passage from pronouncement of the theory to its definition. 2. The History of Aboriginal Title in Canada The inaugural discussion of Aboriginal title in Canada is found in the Royal Proclamation, 1763. The British having defeated the French in North America produced this document with the intention of setting out Britain's scheme of governance and colonial settlement of the -53-continent. The British also wanted to assure the Indians that the dishonesty and exploitation to which they had been previously subjected would be halted.119 The Proclamation specifically acknowledges that there are lands of the "Nations" and "Tribes of Indians" within the British Dominions that have not been ceded to or purchased by Britain, and further states the possession of these lands is not to be interfered with. These lands are "reserved" to the Indians as "their Hunting Grounds"120, and thus the Proclamation sought to stop colonization beyond the western boundary of the Mississippi River and the Great Lakes.121 The document provides a number of other safeguards for the Indian population by first recognizing the "great Frauds and Abuses" that has transpired with previous purchases of land from the Indians by colonists. All colonists were forbidden to enter into any type of negotiations with the Indian population in respect of land. The only entity that had authority to purchase Indian lands should they decide to sell, was the Crown. As well, any colonists inhabiting lands of the Indians were directed to remove themselves immediately.122 The Proclamation had good intentions, yet in the end it did not deter westward settlement into Bill Henderson, "A Brief Introduction to Aboriginal Law in Canada" at 1 found at <www.bloorstreet.com/200block/brintro.htm>. 120 Supra Proclamation at note 117; see specifically the section entitled "The Indian Provisions". 121 Ibid. Note the beginning paragraphs where the actual four distinct and separate governments and territories of Quebec, East and West Florida, and Grenada are described as ceded by the French to Britain. 122 Ibid. All these provisions are found within the section "The Indian Provisions". -54-the "reserved" Indian lands. The Proclamation is referred to within section 25 of the Canadian Charter of Rights and Freedoms123 thus incorporating this historic document into our Constitution}2* The next mention we find of the concept of Aboriginal title is within the Privy Council decision in St. Catherine's Milling and Lumber Co. case of 1888,125 where the Court described Aboriginal title as a "personal and usufructuary right"126 As to what this terminology means, Chief Justice Lamer notes in Delgamuukw that courts have wrestled with this phrase since 1888 attempting to explain the boundaries of the concept with no real satisfactory conclusion.127 It has been described as involving "the right to use something owned by someone else, as long as that use does not destroy the thing or interfere with the rightful ownership."128 St. Catherine's Milling acknowledged the existence of Aboriginal title and noted its origins came from the Proclamation.129 It further noted that Aboriginal Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 124 Supra Constitution Act, 1982 at note 9. 125 St. Catherine's Milling and Lumber Co. v. R. (1888), 14 A.C. 46 (P.C.)[hereinafter St Catherine's Milling]. 126 Ibid, at 54. 127 Supra Delgamuukw at note 35 at para. 112. 128 Peter Kulchyski, ed. Unjust Relations: Aboriginal Rights in Canadian Courts (Toronto: Oxford University Press, 1994) at 22. 129 Supra St. Catherine's Milling at note 125. -55-title was "dependent upon the good will of the Sovereign".130 It is from this questionable meaning set out in 1888 that courts have since made their comments on Aboriginal title. As there were few treaties signed with the First Nations in British Columbia,131 and the Province maintained the view that Aboriginal title did not exist,132 the question of Aboriginal title was bound to be discussed before the courts. The case of Calder m in 1973 brought the issue into full view when the Supreme Court of Canada wrestled over whether Aboriginal title still existed in respect to areas of the Nass River Valley in northern British Columbia as claimed by the Nisga'a Nation. The issue of title had been silenced with the passing of the provision that outlawed the raising of funds or retaining counsel to advance a First Nations' claim between 1927 and 1951.134 In Calder, the Court recognized Aboriginal title as a legal right derived from the occupation and possession by the First Nations of their ancestral lands. The Court split evenly on the question of whether Aboriginal title had been extinguished by the various general land enactments in the Province. Three justices determined that Aboriginal title had not been 130 Ibid, at 54. 131 There were fourteen treaties negotiated on the southern part of Vancouver Island called the Douglas Treaties, and for the eastern slope of the Rockies with Treaty No. 8. 132 The Province maintained that the Royal Proclamation did not apply to lands of British Columbia, and thus there was no underlying Aboriginal title to deal with. Supra Proclamation at note 117. 133 Calderv. British Columbia (A.G.), [1973] S.C.R. 313. Indian Act, R.S.C., 1927, c. 98, section 141 brought in this provision It was repealed by the Indian Act, S.C. 1951, c. 29, section 123 (2). -56-extinguished and that the Proclamation did extend to British Colombia, while the other justices agreed the Proclamation did not apply and that colonial legislation prior to Confederation had effectively ended the existence of Aboriginal title within the province. The seventh justice on the Court did not rule on the issue and rather dealt with the matter of whether the Crown had granted permission to have the action commenced against itself. As a result of the Calder decision, the federal government declared it would commence dealing with land claims even though there had been no definitive formulation of Aboriginal title by the courts, or set out within legislation. Thus commenced the era of "comprehensive land claims" which produced many of the modern day treaties which will be reviewed in the Chapter Four of this work. The next discussion of Aboriginal title is found within the judgment of Dickson, J., as he then was, in the 1985 Supreme Court of Canada case of Guerin v. R. 135 The Court was asked to rule on the question of whether the Musqueam Band could recover damages from the federal government who had acted on their behalf in negotiating a lease of their lands for use as a golf course. In reviewing this issue, the Court noted the existence of "Indian title" and found this interest in land was a pre-existing legal right that was not created by the Royal Proclamation or any other legislation such as the Indian Act.136 The Court found previous cases that had discussed Indian title had been somewhat inconsistent in their description of 135 Guerin v. R. (1984), 13 D.L.R. (4th) 321 (S.C.C.) [hereinafter Guerin]. 136 Ibid, at 336. This followed the reasoning of Hall, J., in Calder, supra at note 133 at 390. Indian Act supra at note 97. -57-the concept due to their use of different terminology. To put this inconsistency to rest, Dickson, J., defined title as a sui generis interest with distinct characteristics. Such title was only able to be alienated to the Crown, and the Crown owed a fiduciary obligation to First Nations in its dealings with such lands (a concept that will be expanded upon later in this Chapter).137 Use of this term denotes the uniqueness and difference of Aboriginal rights and title, as literally translated it means "of its own kind or class".138 In coining this term, sui generis, the Court found a way to reconcile the Aboriginal system of laws and principles with that of the Crown and its assertion of sovereignty.139 The Supreme Court of Canada cases that followed Guerin into the next decade dealt mainly with Aboriginal rights issues that revolved around fishing and hunting, until 1997 with the decision in Delgamuukw. The next section will explore the judgment in some detail by reviewing the characteristics of title as outlined by the Court, and the elements required for substantiating title. The principles delineated in this case will then be analysed for use as tools in asserting and substantiating Aboriginal title to ocean spaces. " ' Ibid. Guerin at 339. 138 The development of the term and doctrine sui generis is related in an article by John Borrows and Leonard I. Rotman where they conclude the doctrine is a balance between the common law and Aboriginal perspectives. The authors suggest this doctrine can aid the common law by recognizing and accommodating cultural differences, and reconcile Aboriginal issues within the framework of the common law. See "The Sui Generis Nature of Aboriginal Rights: Does It Make A Difference?" (1997) 36:1 Alta. L. Rev. 9 [hereinafter Borrows & Rotman]. Ibid at 21. -58-3. Delgamuukw14° This judgment of the Supreme Court of Canada case has been hailed as a landmark decision for First Nations in their pursuit for recognition of title to their traditional territories. It represents a paradigm shift in the landscape of title to land in British Columbia, and has created a degree of uncertainty within the resources sector of the Province. Now government granted leases and licenses for resource extraction are viewed with suspicion for they may well be fraught with and encumbered by issues of Aboriginal title. The determination of the case is being relied upon by many of the First Nations involved in the British Columbia Treaty Commission process to substantiate their title to their traditional territories as demonstrated by their use and occupation of such areas.141 At present, a number of First Nations in British Columbia, not involved in the treaty process, are also making use of Delgamuukw as the authority for them to proceed to fell trees on their traditional territories to ensure the economic well-being of their communities without timber licenses or other government issued permits.142 Supra Delgamuukw at note 35. 141 Many of those First Nations I initially spoke with in the preliminary stages of my research advised me that Delgamuukw was being relied upon by them to validate title to their territories. 142 The Westbank Tribal Nation commenced logging operations on the area claimed as their traditional territories, near Kelowna, on 7 September 1999 without any authorization from the Provincial government. The Chilcotin Nation and the Okanagan Band are poised to follow this lead, which has been supported by the First Nations Summit at a meeting held on 15 September 1999. See Kim Pemberton, "More Indian Bands poised to defy logging order" The Vancouver Sun (22 September 1999) B7c. See also Jim Beatty with Kim Pemberton, "Defiant Westbank band begins logging Crown land" The Vancouver Sun (8 September 1999) Al; Kim Pemberton with Gordon Hamilton, "Native defiance in the woods pressures B.C. to take action" The Vancouver Sun (16 September 1999) Al; Kim Pemberton, "Interior natives launch logging ad campaign" The Vancouver Sun (17 September 1999) A6c; and "Westbank band sets up camp on claimed land" The Vancouver Sun (18 September 1999) A9. -59-The court history of Delgamuukw started with its filing in 1984 in the Supreme Court of British Columbia. Thirty-nine hereditary chiefs of the Gitksan Nation and twelve hereditary chiefs of the Wet'suwet'en Nation requested an order declaring ownership of and jurisdiction over some 58,000 square kilometres of land in northern British Columbia. The trial before Chief Justice McEachern took some 374 days over a period of three years.143 The decision rendered in 1991 was nearly 400 pages in length with another 100 pages of schedules.144 At trial, the contemporary practices of the Elders and evidence of oral histories dating back to time immemorial were presented. Evidence in the forms of sacred stories, songs and plays as presented through the adaawk of the Gitksan houses and the kungax of the Wet'suwet'en houses was also included.145 These sources all told of the relationship of these Nations with their traditional territories. Expert evidence was led in the areas of archaeology, anthropology, linguistics, genealogy and many other disciplines. Historical documents, in particular the diary of a Hudson Bay trader in 1820 who made the first contact with the Gitksan, were entered. The judgment rendered by McEachern, C.J., found the Nations had subsistence rights such as hunting and fishing in these territories, but there was no title to the lands. Included in this decision were a number of very disparaging remarks about the evidentiary value of the oral 143 Delgamuukw v. British Columbia (1991) 79 D.L.R. (4*) 185 (B.C.S.C.) at 199. 144 Supra Delgamuukw at note 35 at paras. 5 and 6; and para. 89 as to numbers of witnesses, affidavits filed, and like information. w Ibid. at paras. 93-98. -60-histories of the Gitksan and Wet'suwet'en Nations that had been presented. McEachern, C.J., found them to be unreliable sources of evidence as they contained myth, romance, metaphor and other like elements. He further discounted evidence from the anthropologists on the basis their long association with the two Nations made their testimony biassed. The Gitksan and Wet'suwet'en Nations were undeterred, and they appealed to the British Columbia Court of Appeal. The Crown cross-appealed. In 1993, the decision of the Appeal Court confirmed the finding of lack of Aboriginal title, on a three - two split of the Court. The minority, however, found there was indeed evidence to substantiate Aboriginal title to the territories claimed based upon the historic information presented which conclusively demonstrated occupation. The matter eventually made its way to the Supreme Court of Canada in June 1997 with over twenty-five lawyers on the record representing the Appellant, the Crown and a number of interveners. The issue before the Court became transformed into a claim for Aboriginal title over the lands originally described.146 British Columbia sought a declaration that the Gitksan and Wet'suwet'en Nations had no right or interest in and to the territory, or in the alternative, that their cause of action lay with the federal government on the issue of compensation.147 It must be noted at the outset of this discussion that the territory claimed included no ocean 146 Ibid. at para. 7. 147 Ibid, at para. 7. -61-spaces as the traditional territories are located well inland. The arguments before the Court and its decision dealt solely with a claim for territories made up of land, waters of lakes and rivers and the air space above. On 11 December 1997, the Supreme Court of Canada rendered a unanimous determination that the trial judge had erred in law. The weight he had attached to the evidence of oral histories, and the adaawk and the kungax148 was not appropriate in light of the principles set out in Van der Peet,149 and thus a new trial was ordered. The remainder of the decision which for the first time describes the characteristics, content and elements of Aboriginal title is obiter dicta of a most persuasive nature.150 Lamer, C. J., in writing the majority decision noted that Aboriginal rights to land were of three different types. The first two categories due to lack of substantial information about occupation only gave rise to Aboriginal hunting, fishing and other sustenance rights in the first situation over general tracts of land, and in the second instance to specific areas. The third category was actual Aboriginal title as occupation could be established.151 The Court 148 The adaawk is an oral history of the Gitksan Nation. The kungax is an oral history of the Wet'suwet'en Nation. They are described in Delgamuukw ibid, at para. 93 as the "sacred official litany, or history, or recital of the most important laws, history, traditions and traditional territories of a House". 149 Ibid, at paras. 93 - 108. Supra Van der Peet at note 2. 150 The Hon. Mr. Justice Douglas Lambert, "Van der Peet and Delgamuukw: Ten Unresolved Issues" (1998) 32:2 U.B.C. Law Rev. 249 at 255 [hereinafter Lambert]. See also Susan J. Alcott and Harry A. Slade, Q.C., "Aboriginal and Treaty Rights: The Right To A Moderate Livelihood" (paper presented at the Canadian Aboriginal Law 1999 Conference of Pacific Business and Law Institute, Vancouver, September 1999) [unpublished] at 3. Supra Delgamuukw at note 35 at para. 138. -62-noted the main characteristics of Aboriginal title as encompassing the right to exclusive use and occupation of the lands held under Aboriginal title with the right to determine the uses of such lands within certain described boundaries.152 The majority decision opens with discussion about the significance and use of oral history; following which it proceeds to discuss the principles of Aboriginal title under the following headings: the content of Aboriginal title, the test for proving Aboriginal title, the scope of constitutional protection that is afforded to Aboriginal title, and the limitations on extinguishment of Aboriginal title by government actions. In my examination and analysis of the decision, I will discuss the Court's comments on each of these areas, some in more detail then others, and provide some suggestions as to how the principles illuminated by the Court can be utilized to prove Aboriginal title to ocean spaces. (a) The Content of Aboriginal Title The Court commences its discussion of the substance of Aboriginal title by noting the definition as found in St. Catherine's Milling.153 The Court again makes use of the term sui generis when describing Aboriginal title, and notes this is the one principle which unifies all characteristics of title.154 Aboriginal title is characterized as being a concept that must be viewed from both the common law and Aboriginal perspectives, as it is not purely a concept 152 Ibid, at para. 117. 153 Supra St. Catherine's Milling at note 125 where the Court described Aboriginal title as a "personal and usufructuary right". 154 Supra Delgamuukw at note 35 at para. 112 - 113. -63-from the Aboriginal legal systems or the common law. 155 There must be equal weight given to both these ideologies.156 The Court further notes the source of Aboriginal title is not legislation or grant of the Crown, such as the Royal Proclamation, but rather it flows from the original occupation of the land by the Aboriginal peoples.157 Other characteristics delineated by the Court included that of the inalienability of Aboriginal title to only the Crown,158 and its communal nature in that it is a collective right held by all members of an Aboriginal Nation.159 Delgamuukw tells us that Aboriginal title is more than a mere right to engage in specific activities upon a specific parcel of land 16° as held in many of the previous fishing cases.161 Aboriginal title goes a step further and confers the right to the land itself,162 which is the right to exclusive use and occupation of such land. As noted in the beginning of this section, Aboriginal title permits land to be used for a variety of purposes, and not necessarily those 155 Ibid, at para. 112. See also Brian Slattery. "The Definition and Proof of Aboriginal Title" (Paper presented to the Pacific Business & Law Institute conference, 12 February 1998, Vancouver) [unpublished] at 3.4 [hereinafter Slattery]; and supra Borrows & Rotman at note 138. 156 Supra Delgamuukw at note 35 at para. 81. 157 Ibid, at para. 114. 158 Ibid, at para. 113. This characteristic was mentioned in Guerin supra at note 135. 159 Ibid, at para. 115. 160 Ibid, at para. 111. See supra Sparrow, Gladstone and Van der Peet, all at note 2; as well as R. v. N.T.C. Smokehouse Ltd. (1996), 137 D.L.R. (4th) 528 (S.C.C). In all of these cases, the Supreme Court of Canada is engaged in reviewing a claimed specific Aboriginal right at a specific location. Supra Delgamuukw at note 35at para. 138. -64-that originate from Aboriginal practices, customs and traditions. There are, however, inherent limitations to such land uses based upon the premise that the uses do not separate the land from the nature of the Aboriginal group's attachment to it, nor destroy it for use by future generations 163 For example, if the land claimed had been used by the First Nations as a hunting area, they could make use of those lands as a game reserve or farm, open it to other members of the public, even charge admission, yet they could not build a shopping mall complex upon the lands, as such a use would detach the nature of the Aboriginal attachment, being hunting, with those lands. Aboriginal title includes the right to choose how the land will be used subject always to the limitation as just noted.164 Mineral rights are included within Aboriginal title, and lands are open to be exploited for such purposes even though mineral exploitation is not a traditional use.165 The inherent limitation as previously noted is the only qualification on this right of mineral exploitation.166 From the standpoint of First Nations the right of exploitation of minerals provides a new source of possible economic benefits and social independence. This inclusion also demonstrates some degree of evolution in the Court's thinking beyond Aboriginal rights having to be tied to First Nations' historic traditions. Ibid, at para. 117. Ibid, at para. 168. Ibid, at paras. 122-124. Supra Slattery at note 155 at 3.10. -65-One can see from the delineation of these characteristics of Aboriginal title by the Court that it is not a familiar concept within the Canadian common law. Its true meaning is to be derived from a blending of two cultures and their ideologies. How then does one prove title to First Nations' territories? (b) Proof of Aboriginal Title Courts prior to 1997 have mentioned Aboriginal title in passing as we have noted, but until Delgamuukw there was little discussion of its characteristics. There have been comments by courts about the proof of Aboriginal title being problematic partly due to the antiquity from which it originates and partly due to its very nature. In 1978, Dickson, J., stated "[c]laims to aboriginal title are woven with history, legend, politics and moral obligations".167 These factors made it difficult for courts to review and determine title based upon what was viewed as sketchy and unreliable evidence sources. The Haida legend about the clamshell dwellers, as noted at the beginning of this work, and the several stories that will be related through the First Nations voices included in Part B. of this Chapter, stem from those sources as noted by Dickson, J., being Aboriginal history, legends, customs and beliefs. In further comments, Dickson, J., noted: [i]f the claim of any Band in respect of any particular land is to be decided as a justiciable issue and not as a political issue, it should be so considered on the facts pertinent to that Band and to that land, and not on any global basis.I68 This very guiding principle has been restated by the Supreme Court of Canada on a number 167 Krugerv. R., [1978] 1 S.C.R. 104, at 109. 168 Ibid, at 109. -66-of occasions. 169 It also is reiterated in Delgamuukw when the Court directs Aboriginal title is to be viewed from the two ideologies, being the common law and Aboriginal perspectives.170 Inclusion of Aboriginal perspectives brings into consideration those very elements of which Dickson, J., spoke, being the facts pertinent to the Band and the land. Inclusion of these factors may well place a different definition to "occupation" than what the common law states. 171 For First Nations to substantiate their Aboriginal title to specific lands, the Court enumerated certain criteria that must be shown. There are two elements that must be established: (a) the First Nation occupied the land prior to sovereignty being 1846 in British Columbia, (b) the occupation at the time of sovereignty was exclusive to the First Nation claiming such land, and if present day occupation is relied upon as proving occupation at 1846, (c) there must be continuity between these two periods of occupations.172 In allowing this last rule of evidence, the court has recognized there could be situations where a lapse or disruption has occurred in the chain of occupation. See R. v. Adams, [1996] 3 S.C.R. 101, per Lamer, CJ.C. at para. 26 where he discusses the spiritual and mythological linkage of the claimant group to the lands in question. 170 Supra Delgamuukw at note 35 at para. 147. This follows along the lines of Sparrow, when the Court spoke of being careful not to apply the traditional common law concepts of property when dealing with Aboriginal rights; see supra Sparrow at note 2 at 411. 171 Keith Lowes. "Proving Aboriginal Title: The Delgamuukw Test" (Paper presented to the Pacific Business & Law Institute conference, 12 February 1998, Vancouver) at 5.3. Supra Delgamuukw at note 35 at para. 143. -67-Evidence as to the issue of occupation can be established through two different methods. First the most ususal source is that of the common law freehold land system which is oriented in elements that show actual physical possession. The second method is from the Aboriginal perspectives which demonstrates occupation more often as a communal system.173 When a court is examining title, it must take into account the activities that have taken place on the lands, and how the lands have been used by the particular First Nations group claiming them.174 The inclusion of the First Nations ideologies of land holding and use are in keeping with the words of Dickson, J., for these are the "facts pertinent to the Band and to the land". Louise Mandell, a lawyer on behalf of Gitksan Hereditary Chiefs, notes the Court did not endorse the government's theory that occupation must be shown by proof of "intense occupation" such as village sites and cultivation.175 Instead activities such as housing, cultivation, regular use of the lands for hunting, gathering of resources, were determined as elements of reliable evidence of occupation.176 Other facts of which a court must be mindful are the group's size, manner of life, material resources, technological abilities and the character of the lands claimed.177 112 Ibid, at para. 147. 174 Ibid, at para. 128. 175 Louise Mandell, "The Delgamuukw Decision" (Paper presented to Aboriginal Title Update, Continuing Legal Education conference, 25 March 1998, Vancouver) at 7.2.18. 176 Supra Delgamuukw at note 35 at para. 149. 177 Ibid.sO.paia. 149. -68-It is not an easy exercise for a claimant to produce evidence for over one hundred and fifty years of use and occupation as the relationship with the lands claimed may have changed from the time of sovereignty in 1846 to this modern day. In recognition of that fact, the Court adopted the reasoning of the High Court of Australia in Mabo v. Queensland178 which provides that as long as there is a substantial maintenance of the connection between the lands so claimed and the people claiming them, then occupation is proven.179 The manner of proving occupation is by no means definitively set out in the comments of Chief Justice Lamer, and will most likely be shaped as courts deal with these issues in time to come. Some suggest that these issues will be determined by exploring questions of what kind of presence on the land did the First Nation enjoy - was it casual, seasonal, sporadic or permanent; further was that presence an aspect of the traditional way of life and was it central to that way of life.180 The second point that the Court requires is proof of Aboriginal title is exclusivity of occupation. In some situations, the Court noted there could be evidence of two or more groups using and occupying the same area. Exclusivity by one group could be demonstrated by the intention and the recognition of that intention of having exclusive control and 1'" Mabo and Others v. State of Queensland (1992), 107 A.L.R. 1; 66 A.J.L.R. 408 (H.C.A.) [hereinafter Mabo]; all cites to A.L.R. except if otherwise noted. 179 Supra Delgamuukw at note 35 at para. 154. Supra Lambert at note 150 at 258 - 259 where he notes this is "a very large question" that emerges from the decision. -69-occupation.181 Often, one Aboriginal group would occupy lands and allow others to use their lands with permission. As we shall see in the information about the Haida Nation, their territories including ocean spaces were used by other First Nations after permission had been granted, and those other First Nations always viewed the Haida as the occupiers of such territories. The Court did recognize that there could arise instances where an area was actually used and occupied by a number of First Nations, and related the reasoning set out in United States v. Sante Fe Pacific Railroad Co.182 This case determined that there could be joint and shared exclusivity of a parcel of land by a number of Aboriginal groups. As to the finer points of what would be involved in proving joint Aboriginal title, the Court left such matters to another day.183 The two further matters discussed in Delgamuukw that have some bearing on the issues of Aboriginal title and have some possible impact on this particular analysis in relation to ocean spaces are justifiable infringement and the ability of the Crown to extinguish title. Supra Delgamuukw at note 35 at para. 156. 182 United States v. Sante Fe Pacific Railroad Co., 314 U.S. 339 (1941) atpara.158 of ibid. Delgamuukw. 183 Ibid. Delgamuukw at para. 158. -70-(c) Constitutional Protection and Justifiable Infringement by Government Having established Aboriginal rights and/or title, section 35(1) of the Constitution Act, 1982, guarantees their constitutional protection from arbitrary extinguishment.184 However, a determination of Aboriginal title to a specific area coupled with its subsequent protection under s. 35(1) does not provide absolute protection from federal or provincial government infringement. The matter of justifiable infringement was first discussed in Sparrow in 1990 by the Supreme Court of Canada. There the Court found that priority right to fish of the Musqueam Nation was still susceptible to regulation made in respect of conservation measures.185 The Court laid out a process for determining if an infringement was justifiable.186 The individual or group challenging the regulation carries the onus of proving there is a. prima facie infringement.187 To determine if there is a. prima facie mfiingement, the first question is be reviewed is whether the legislation interferes with an existing Aboriginal right. In determining this, one must investigate a number of other matters that include whether the limitation set out in the regulation is unreasonable, whether the regulation imposes undue hardship and whether it 4 Supra Constitution Act, 1982 at note 9. In Delgamuukw, the Court determined that Aboriginal title was an "existing Aboriginal right" as described in the Constitution, see ibid. Delgamuukw at para. 137. 185 Supra Sparrow at note 2 at 414. li6Ibid. at 411-417. Ibid, at 411. -71-denies the holders of the right their preferred means of exercising that right. If the answers to these questions lead to the conclusion that the purpose or effect of the regulation unnecessarily infringes the interest protected by the right, then there is a prima facie infringement of section 35(1) of the Constitution Act}i% Once a prima facie infringement is determined, the analysis then turns to the issue of justification and whether this is legitimate regulation of a constitutionally protected Aboriginal right.189 In dealing with this issue, the court will first review whether there is a valid legislative objective to the regulation. In reviewing this issue, the Court in Sparrow determined that regulation of an Aboriginal right to fish due to conservation was valid as it sought as its objective the sustainability and management of the resource.190 If a valid legislative objective is determined then the Court must also review whether the Crown has upheld its fiduciary duty owed to the First Nation involved.191 This analysis is undertaken by looking at whether there has been as little infringement as possible in order to put effect to the desired legislative objective, and if not, if there is fair compensation available, and whether there was consultation with the First Nation so infringed upon.192 The ™Ibid 189 Ibid, at 412. 190 Ibid 191 Ibid, at 413. 192 Ibid, at 416. -72-Court in Sparrow does note that the issue of justifiable infringement places a heavy burden on the Crown.193 It further notes that the list of factors as noted by it to be considered on the assessment of justification is not exhaustive, and that courts must be sensitive to and respectful of the rights of First Nations.194 Sparrow determined conservation to be a valid legislative objective, and thus a justifiable infringement. Since that decision, the area of justifiable infiingements has been expanded. In 1996, the Supreme Court of Canada in Gladstone added the legislative objectives of economic and regional fairness and the recognition of the historical reliance upon and participation within the fishery by non-Aboriginal groups that could be justified.195 The recent case of Seward,196 was an appeal heard by the Supreme Court of British Columbia brought by the Crown in respect of the acquittal of First Nations respondents on charges of hunting deer at night with rifles and with the use of a light. The Court reviewed the justifiable infringement test laid down by Sparrow and concluded that there was no infringement by the legislation of the Aboriginal hunting rights.197 The Court did add though 193 Ibid. 194 Ibid, at 417. 195 Supra Gladstone at note 2 at para. 75. 196 R. v. Seward, [1998] 3 C.N.L.R. 237 (B.C.S.C.) [hereinafter Seward]. 197 The Court dealt with the issue of hunting at night and whether such was a separate and distinct right to be claimed, and if such right was subject to the provisions of the Wildlife Act, R.S.B.C. 1996, c.488;see para. 29 ibid. Seward. The respondents contended that night hunting was a method of hunting included within their Aboriginal right to hunt. They further suggested there was no basis upon which to limit the exercise of their hunting rights; see para. 44. It is from this point that the Court commences its examination of the justifiable infringement as set out in Sparrow supra at note 2 at paras. 53 - 85, and concludes that the evidence lead at trial produced nothing that suggested the Respondents being prevented -73-that if there was an infringement, it was justifiable as the legislative purpose was based solely upon safety concerns for all people. 198 These justifiable infringements as noted in Sparrow and Gladstone were focussed on public standards of conservation, sustainability and protection of the public. In Delgamuukw, we see the Court moving away from justifiable infringements that are based on global ideals. New matters with a focus on regional economic development are added, which include: the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment of endangered species, the building of infrastructure and the settlement of foreign populations to support those aims... '" There are a number of paternalistic based principles provided for in Delgamuukw that lessen some of the sting of these noted justifiable limits. The Court found that the Crown must consult with First Nations on such projects, accommodate the involvement of First Nations in the development of the resources and pay compensation when an unjustifiable infringement has been made by government on Aboriginal title.200 The principles laid down in Delgamuukw do facilitate the process of proving Aboriginal title, yet at the same time, provide a broader basis for the Crown to make a case for justifiable infringement. from hunting at night imposed an undue hardship upon them. Further, the Court found no night hunting was a reasonable limitation having regard to the obvious dangers of the use of firearms in the dark; and the fact the Respondents had not disputed that safety was one of the motives behind the legislation. In the end, the Court found conservation and safety as valid legislative objectives, and convictions were entered. See paras. 82 - 86. 198 Ibid. Seward at para. 80. 199 Supra Delgamuukw at para. 165. Ibid, at para. 167-169. -74-The Supreme Court of Canada does not provide much guidance in respect of the topics of consultation and compensation, and leaves open the questions of how much consultation is enough, and how to calculate compensation. These are presently important topics of legal discussion for those representing First Nations in the treaty process.201 From this analysis of Delgamuukw about the justifiable infringement test and Court approved infringements, we are left wondering what impact this may have on a claim for Aboriginal title to ocean spaces. I will touch on that within the Conclusions at the very end of this work. The last area of Delgamuukw that requires some comment is that of the relationship of British Columbia to the issue of Aboriginal title. (d) Limits on the Crown's Power to Extinguish Aboriginal Title The Court firmly laid to rest any question of the ability of the Provinces to extinguish Aboriginal rights prior to the Constitution Act, 1982, in holding that the federal government was the only entity that had the power to legislate in relation to "Indians and Lands Reserved See the papers on fiduciary obligations of Cathy Figol, " Delgamuukw v. British Columbia: Views for Discussion on the Fiduciary Relationship and Corresponding Obligations Between the Federal Government and Aboriginal Peoples"; and Stuart Rush, Q.C., "The Fiduciary Obligation in Delgamuukw". As well papers on compensation by Jack Woodward, " Damages for Infringement of Aboriginal Title"; and by Susan Alcott, Robert Botterell and Harry Slade, Q.C.," Aboriginal Title Post-Delgamuukw"; all of which are contained in the materials of the Aboriginal Title Update conference (papers presented to the Continuing Legal Education Society of British Columbia conference, Vancouver, 25 March 1998) [unpublished]. -75-for Indians" pursuant to section 91(24) of the Constitution Act, 1867}02 Thus, British Columbia has not through any of its legislation extinguished what Aboriginal title may exist within its boundaries. One is left to ask the question of whether the federal government has by its legislation extinguished any and all rights that First Nations have, including Aboriginal title, in the territorial sea. The answer lies within Sparrow2a3 which described the criteria for extinguishing legislation. The legislation must show a clear and plain intention to extinguish Aboriginal rights. Conducting a review of the federal legislation touching on the territorial sea, there is no mention of Aboriginal rights or title until the recent Oceans Act which specifically states "Aboriginal rights are not abrogated or derogated".204 Even though the fisheries legislation205 which was the topic of review in Sparrow was noted as lengthy and complex with regulations that had been in place for well over a century, it was determined that it included no clear and plain intention of extinguishing Aboriginal rights to fish.206 A review of Canada's ocean related legislation reveals no clear and plain intention of extinguishing Aboriginal rights in regards to ocean spaces in the territorial sea. 202 Supra the Constitution Act, 1982 at note 9, and the Constitution Act, 1867 at note 63. Also supra Delgamuukw at note 35 at para. 175. 203 Supra Sparrow at note 2. Supra Oceans Act at note 60 at section 2.1. 205 Fisheries Act, R.S.C. 1985, c. F-14 . Supra Sparrow at note 2. -76-As we can see from our review of the elements set out in Delgamuukw, the concept of Aboriginal title is sill evolving. Let us now turn our analysis to actually applying these delineated principles and elements to the concept of Aboriginal title to ocean spaces. 4. Application of the Principles of Use and Occupation to Ocean Spaces Our starting point for this analysis is the meaning of "land".207 Is it just ground, earth and soil, as appears to be the case in Delgamuukw? From the First Nations perspectives which will be explored in some detail in Part B. of this Chapter, land does not refer to the element of land alone, but rather includes the whole environment made up of the earth, water, airspace, seas, and resources.208 The Court as noted has directed that Aboriginal perspectives be a source of reference in determining issues of Aboriginal title. This statement leads us to In reviewing Henry Campbell Black, Black's Law Dictionary, revised 4th ed. (St. Paul, Minn.:West Publishing Co., 1968) at 1019 [hereinafter Black's], the various meanings included for land make no reference to the ocean. There is included the words "waters" which refer to those waters found upon the earth and soil such as rivers, streams, lakes, etc. Interesting enough though land is noted as including all things above and below its surface. 208 The Report on the Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply & Services, 1996) [hereinafter RCAP Report] at 448 where the Commission notes land has a broad meaning including the whole biosphere. The First Nations Summit in their pamphlet Treaty Making supra at note 6 at 1 state "[o]ur territories include lands, resources, waters, sea, and air." In the federal policy, supra Federal Perspective at note 96, it is evident that the federal government uses the narrow view of land as they have placed "offshore areas and ocean management" as a separate section from "land". The publications by the Province suggest that lands are of the narrow meaning and ocean spaces are not included. In fact, the "Glossary of Treaty-Related Terms"does not include definitions of land. It does refer though to "traditional territory" as the geographic area identified by a First Nation to be the area of land which they and/or their ancestors traditionally occupied or used; see Province of British Columbia, Ministry of Aboriginal Affairs, "Glossary of Treaty-Related Terms" 1997 at 14. The term traditional territories is mentioned at Supra Task Force at note 10 at 42 where it is suggested one of the first steps in the treaty negotiation process is for a First Nation to identify the general geographic area of its traditional territory when filing its Statement of Intent. This recommendation was accepted by the three parties involved in the treaty process, and is part of the notice form. This suggests that the parties to the treaty process were cognizant that territories would include other areas than just the ground, earth and soil. -77-conclude the wider, more encompassing meaning of land as defined within First Nations' ideologies is appropriate. As the First Nations voices in the next section will relate, land in their view denotes their whole territories, not one element separated from the whole environment. The words of "ocean", "sea", "offshore", or "coast" are not mentioned in the Delgcanuukw decision as there were no ocean spaces included within the traditional territories of the Gitksan and Wet'suwet'en Nations. Lack of such terms does not mean the principles of the case are not transportable to issues of Aboriginal title to ocean spaces. Certainly, any future court considering the topic of Aboriginal title to ocean spaces will make use of these principles found in Delgcanuukw. The most widely recognized common law dictionary states "land is the same above or below the water",209 thus suggesting those principles as defined for land above the water, will be a source of principles for the land below the water. It is of note that in the Offshore Reference case210 discussed in Chapter Two, the questions proposed to be answered by the Supreme Court of Canada were framed in terms of lands underneath the water.211 The next step in our analysis is the application of the two elements required to demonstrate Aboriginal title. These two elements as noted in Delgcanuukw are: 1. occupation at a specific 209 Supra Black's at note 207. 210 Supra Offshore Reference at note 76. 211 Ibid, at 356. The actual question was framed in terms of "lands including mineral and other natural resources of the sea-bed and subsoil". -78-date, and 2. exclusivity by the group claiming such occupation. So by use of analogy, let us take these two elements and apply them in respect of an ocean space to demonstrate Aboriginal title. The sources of evidence and information for matters of Aboriginal title have been expanded to include both the common law and those of Aboriginal perspectives. In particular, the Court in Delgamuukw confirmed oral histories of First Nations as worthwhile and appropriate sources for courts to consider in their deliberations. The Court actually directed that the rules of evidence be adapted so that Aboriginal perspectives "are given due weight by the courts". Aboriginal perspectives were characterized by the Court as including practices, customs, traditions and the relationship of the First Nations and their lands.212 First Nations sources will most likely be of the oral history variety which the Court noted will include legends, stories and accounts handed down from one generation to another.213 In the aftermath of Delgamuukw, there has been some discussion about the information that will be employed. Some practitioners suggest illustrations of types of occupation or factors tending to prove title which directly relate to specific aboriginal land tenure systems and aboriginal laws governing land use will be of value.214 Professor Slattery states that occupation in accordance with Delgamuukw must be established by reference to two factors: ^ Ibid, at para. 85. 214 Maria Morellato, "Proving Aboriginal Title: the Delgamuukw Test" (Paper presented to the Pacific Business & Law Institute conference, 12 February 1998, Vancouver) at 6.5 [hereinafter Morellato]. -79-actual physical occupation, and the aboriginal laws relative to that area which is claimed.215 Other comments suggest oral histories relating the nature and centrality of the relationship between the traditional territory and the First Nation will be insightful for the court.216 Brian Thorn provides some insight into how anthropological information needs to be developed for presentation to courts on matters of Aboriginal title.217 As Canadian courts to date have not made comments on First Nations' claims to ocean spaces, when faced with such an issue may seek out information from the international law of the sea. In determining possession and occupation issues of sea areas, foreign courts have resorted to reviewing the dependence of the sea upon the land domain and the close geographical relationship between the sea areas and land formations and economic interests peculiar to the region involved.218 In such cases most often there is a date in time that becomes critical to proving occupation. As we have seen in the Aboriginal rights cases, the Supreme Court of Canada has established a certain time frame at which the right whether it be to fish at a specific site, or Aboriginal title to land, must refer. In the case of Aboriginal rights, the applicable date is the time of first Supra Slatteiy at note 155 at 3.15 - 3.16 discussing para. 147 of Delgamuukw supra at note 35. 216 Supra Morellato at note 214 at 6.5. 217 Brian Thom, "Aboriginal Rights and Title in Canada After Delgamuukw: Anthropological Perspectives" (January 1999) [submitted for publication to Native Studies Review] at 17 - 22 found at <http://home.istar.ca/%7Ebthom/rights.htm>. 91 8 Supra Brownlie at note 48 at 186-190. -80-contact as noted in Van der Peet219, and with Aboriginal title, the applicable date is less stringent being at the date sovereignty was asserted which for British Columbia is 1846.220 In considering Aboriginal title to ocean spaces, a court would need to determine a date from which use and occupation can be viewed. It will no doubt be a date attached to something relevant and cogent to the facts and acts prior to the date of the claim, as has been the usual course held in the law of the sea cases.221 I have noted the variation made by the Supreme Court of Canada in the time frame reference necessary for establishing Aboriginal title in Delgamuukw as opposed to that required for Aboriginal rights in Van der Peet. This change illustrates the Court's continuing progress in defining the standards of proof and reasoning, as it develops Aboriginal issues. From these past rulings, it would appear that a future court would be mindful that the standard of proof must be of a reasonable nature, and would set a time frame accordingly. Most likely the date would not be earlier than the assertion of sovereignty as in Delgamuukw; yet that may not be the time frame determined. International cases that have involved the question of possession and occupation of ocean spaces have defined "occupation" as synonymous with possession in the private law sense. As there are usually no title registries for ocean spaces, the court emphasis the presence of an 219 Supra Van der Peet at note 2. 220 Supra Delgamuukw at note 35 at para. 143. This is the date of the Oregon Boundary Treaty signed by Britain and the United States which delimitated the border between what is now British Columbia and the State of Washington. Supra Brownlie at note 48 at 133. -81-interest worth protection under the law.222 State activity in the form of administrative acts has been viewed as an important factor. Interestingly, the lack of settlement and physical holding has been of little consequence in these cases.223 The objective facts of state activity have been found to be of great importance.224 As we have previously noted, the Court in Delgamuukw steered away from using intense occupation denoted by settlements and cultivation as the overriding criteria for proof of Aboriginal title, and instead included these with other factors as reliable evidence of occupation. The adoption of this multi-dimensional approach to proof of title is much in keeping with the international view on occupation ,and thus suggests that a court dealing with title to ocean spaces would most likely follow the Delgamuukw line of evidentiary information. How then do these factors utilized in the international arena to establish possession and occupation translate into a claim by First Nations in Canada to ocean spaces? Use and occupation of an ocean space is not as easy visible as that of land. Delineation of boundaries by fences or sign posts is near impossible. Landmarks as boundaries are less distinguishable, yet often landmarks on the coastline are utilized in such a manner as will be discussed in the next section. The ocean waters off British Columbia do not freeze, and thus does not provide 222 Ibid, at 141. 223 Ibid, at 142. 224 Ibid at 143. -82-land-like characteristics as the ice packs found in the North where people can through out the winter live, hunt and traverse, and thus exhibit more visible evidence of use and occupation. Some sources available to First Nations in their quest to demonstrate their title to ocean spaces will include those usual information works that courts have been comfortable in previously depending upon in Aboriginal rights cases. These sources include written historical accounts and records of colonists, the works of anthropologists and historians, the qualified testimony of these experts, and the other forms of data that we as lawyers have always termed as the best evidence. Now though, there will be a new area of valid and informative data that can be utilized being that found within the First Nations community. These sources will include histories, songs and stories that tell of the territories they claim, most of which are of the oral tradition. The highest Court's recognition of these accounts as good evidence22S will in future permit First Nations to establish their title to ocean spaces. Grand Chief Edward John of the Tl'azt'en Nation relates First Nations know the names and stories of all the different areas of their territories including mountains, streams and lands from time immemorial.226 As we will see, the Haida Nation and Tsawwassen First Nation possess many histories and stories ripe with genealogical information about the use and occupation of their territories. Supra Delgamuukw at note 35 at para. 87. Grand Chief Edward John. Address (First Nations Futures Luncheon Series, 22 October 1997, Vancouver) at 2. -83-First Nations in British Columbia can specifically provide evidence of their use and occupation of various ocean spaces by the activities carried on within their traditional territories, including information about: the fishing for groundfish offshore while fishing for salmon within river estuaries, the digging and gathering of sedentary shell fish found in the intertidal areas and along the foreshore, the gathering of seaweed and other types of sea plants, the travels by canoe and boats, and the spiritual and sacred ocean spaces their culture hold dear. At the beginning of this work, the story of the beginning of mankind at Rose Spit is indeed an information source from the Haida perspective that must be considered and viewed as a valid medium for showing Haida use and occupation of the ocean space at this location. As to the second element that must be shown, being that of exclusivity, Delgamuukw is clear such can be demonstrated by the acts of the First Nation to ensure the ocean space was under their control, and solely used by them or those to whom they granted access. This is analogous to the aforementioned international law concept of state activity in the form of an administrative act. The Court's comments about what constitutes exclusivity are by no means definitive. In Australia where they have been dealing with claims for territories under both the Aboriginal Land Rights (Northern Territory) Act 1976 and the Native Title Act 1993 227, there has been Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and the Native Title Act 1993 (Cth) [hereinafter Native Title Act]. -84-much discussion within the anthropology community about what first constitutes identity of people to the group claiming the territory and what are the modes of belonging to that land.228 The concepts of occupation and exclusivity of occupation as seen by Aboriginal Peoples are not necessarily the norms courts are familiar with. Anthropologists and historians involved in drawing out the evidence to be used on such claims are grappling with issues of belonging and identity, for they have found great diversity within the Aboriginal communities in relation to these notions from which occupation occurs.229 In respect of the notion of exclusivity, it may appear to those of us schooled in the freehold land system as a characteristic easy to prove. Yet, when dealing with territories of First Nations, boundaries are not just lines drawn to demarcate areas. It has been observed by Professor Nicholas Peterson in writing about the Australian experience that boundaries are difficult to define for rarely will there be true closure in terms of people and land.230 There will always be questions surrounding membership of the community claiming territory, the intrusion and access rights by neighbouring communities, coexistence of non-Aboriginal usage, and other factors that when all added up provide less than satisfactory evidence of exclusive occupation. In fact, there is suggestion that "the only true exclusive possession See generally Francesca Merlan, "Formulations of claim and title: a comparative discussion" in Julie Finlayson & Ann Jackson-Nakano, eds. Heritage and Native Title: Anthropological and Legal Perspectives (Canberra: Australian Institute of Aboriginal & Torres Strait Islander Studies, 1996) at 165. 229 Ibid, and note the works she cites at 176 -177. 230 Nicholas Peterson, " 'Peoples', 'islands' and succession" in J. Fingleton & J. Finlayson, eds. Anthropology in the Native Title Era (Canberra: Australian Institute of Aboriginal & Torres Strait Islander Studies, 1995) 11 at 20. -85-claim from an ethnographic viewpoint would be the 'big island claim' " being the whole of the Australian continent.231 It is well known that many fishing areas off British Columbia were owned and controlled by one First Nation, and other First Nations were only allowed to fish those areas upon asking and receiving permission usually with some cost factor included.232 Anthropological information has been lead in courts to prove the existence of Aboriginal fishing rights at specific sites in cases such as Sparrow and Gladstone.233 These are good examples of how the usual common law tools of evidence are enhanced by the oral histories of the First Nations to illuminate the acts undertaken to control and possess ocean spaces by a First Nation. Certainly, the greater the control and use of an ocean space, the more solid the foundation will be for establishing use and occupation, and exclusivity of such occupation within the determined time frame, and in turn Aboriginal title. The Australian experience provides some further information sources for us in how a claim to title of an ocean space might be dealt with as there have been well over one hundred land-sea Ibid, at 23, and see Paul Memmott, "Elements of native title applications: the issues of 'exclusive possession'" in Julie Finlayson & Ann Jackson-Nakano, eds. Heritage and Native Title: Anthropological and Legal Perspectives (Canberra: Australian Institute of Aboriginal & Torres Strait Islander Studies, 1996) 178 at 180 [hereinafter Memmott]. 232 In the next section, Aboriginal Perspectives, a number of members of the First Nations I interviewed will relate their knowledge about other Nations seeking permission to fish within their territories even though there were no actual physical demarcation of boundaries, or some edict registered. Supra Sparrow and Gladstone at note 2. -86-claims before the National Native Land Title Tribunal, and many others being readied.234 Within the sea component of these claims there are a variety of spaces included such as areas more in-shore where use and occupation have been well established over the years by the gathering and harvesting of resources on reefs, sand bars and ocean grass beds. There may be other areas further distanced out from shore where fish are regularly found, and outer areas in what might be termed the offshore claimed in more abstract terms where there is little evidence of usage. The claimant group still maintain a real and intimate connection, albeit in an abstract sense, with these outer areas on a spiritual and sacred plain in that these are destinations of the souls of deceased group members, or areas that produce weather patterns.235 In Part B. of this Chapter, I will provide some insight from the First Nations communities I have visited in respect to the ocean spaces within their traditional territories and their bonds with same. From the discussion of these connections, it will be evident that many are similar in nature to those in Australia, and will require the same task of assembling persuasive evidence to meet the required elements of occupation and exclusivity. Supra Sharp at note 3 at 59. Supra Memmott at note 231 at 183 -184, where he notes the claim of Gove Peninsula as set out in Ronald Berndt, "The Gove Dispute: The Question of Australian Aboriginal Land and the Preservation of Sacred Sites" (1964) 1:2 Anthropological Forum 258, and the various marine sites included in the claim which were more in the abstract sense of being used for environmental control of the weather. A sampling of these place names claimed in outer ocean areas include: "cloud comes together and rain spreads"; "clouds join and thunder"; and "lightning snake 'flashing' and rain falling". -87-From this analysis, we have been able to demonstrate that the principles set out in Delgamuukw that characterize Aboriginal title to land can be utilized to provide a basis for recognizing and substantiating the concept of Aboriginal title to ocean spaces. There are a number of other sources in the common law that aid in our quest for recognition which I will explore. 5. Further Common Law Sources In reviewing the history of Aboriginal title, we have touched on and looked at some of the cases that dealt with Aboriginal rights. There are some principles from these cases that by way of analogy can be adopted to support Aboriginal title to ocean spaces, and I will now discuss three theories. As well in this section, I will comment briefly on the newest Supreme Court of Canada case touching on First Nations issues. First, the rights afforded the First Nations in regards to fish are of a priority, and some would suggest superior, nature than those afforded the Canadian public. As we have noted, the Supreme Court of Canada recognized the priority right of Aboriginal fishing at specific sites in Sparrow in 1990. This principle was noted and confirmed in a number of later cases such as Van der Peet and Gladstone. The recognition of this right has moved First Nations out of and beyond the historic principle of the public right to fish as found in the English common law. This common law principle of the public right to fish originates in England with the signing of -88-the Magna Carta in 1215,236 and as English law is the foundation stone of Canadian law, this principle became a right afforded to the Canadian public. It provides that all members of the public have the right to fish in the oceans in common with each other without restriction. Today as a result of this principle fisheries is referred to as a common property resource. Sparrow recognized Aboriginal rights to fish for the Musqueam Band within a specific area of the ocean waters. These ocean waters are a domain exclusively controlled and granted by the Constitution Act, 1867, to the federal government.237 As the Supreme Court of Canada had no hesitation with intruding on this federal power and granting specific fishing rights for First Nations to exact ocean spaces under federal jurisdiction, the Court if faced with the question of Aboriginal title to specific ocean spaces, may again be prepared to intrude on this area of federal control and grant title to the First Nation involved.238 The second principle that could be utilized as a source for Aboriginal title to ocean spaces lies in the very description of Aboriginal title. As we have noted, the description of Aboriginal title has evolved from St. Catherine's Milling in 1888, 239 being "a personal and usufructuary 236 Historians and legal scholars state that Chapter 33 is the operative section that provides the public with the right to take fish in any public waterway. Chief Justice Lamer refers to this in supra Gladstone at note 2. See Magna Carta [hereinafter Magna Carta] as found and discussed in A. E. Dick Howard, Magna Carta: Text and Commentary (Charlottesville, Virginia: University Press of Virginia, 1964, 1998). There are four originals of the Charter, as it is known, still in existence in England. There is still disagreement between scholars as to the best translation of the Latin into English (see at 34). Supra the Constitution Act, 1867, section 91 (12) at note 63. 238 Supra Garton at note 1 at 586 where he mentions this theory. Supra St. Catherine's Milling at note 125. -89-right"240 and a "mere burden upon the Crown's proprietary estate",241 to being defined in Guerin as a "sui generis interest".242 This description of sui generis has been expanded and elaborated upon in Delgamuukw with one of its unique characteristics being that of its inalienability, and that it may only be transferred to the Crown and not third parties.243 The Crown in such a case would be the federal government under its authority for Indians pursuant to section 91(24) of the Constitution Act, J982, as previously noted. The notion of First Nations having Aboriginal title to ocean spaces is not in any way incompatible with the concept of ownership of the territorial sea by Canada pursuant to the principles of international law of the sea and the provisions of UNCLOS. The federal government of Canada is the only entity to which a First Nation can transfer, surrender or sell its title, and thus no other entity has the ability to hold ownership of such ocean interests. Recognizing First Nations' title to ocean spaces does not place Canada in jeopardy of ever losing these areas to another entity. zwIbid. at 54. 241 Ibid, at 58. Supra Guerin at note 135 at 382. Reaffirmed in supra Delgamuukw at note 35 at para. 112. This is stated in ibid. Guerin in the majority judgment of Dickson, J., which is reaffirmed in ibid. Delgamuukw at para. 113. -90-The third theory that bears some discussion is that of fiduciary duty and how it can be drawn into aid in recognizing the concept of Aboriginal title to ocean spaces. The Supreme Court of Canada's decision in Guerin244 in 1984 determined the Crown owed First Nations a fiduciary duty to act in their best interests when dealing with their lands. The paternalistic intent of both the Royal Proclamation and the Indian Act, coupled with the special nature of Aboriginal title, were the deciding factors upon which the Court based such a duty. The Court noted that the reliance of First Nations peoples and their lands upon these Acts made their title vulnerable to possible discretionary decisions of the federal government, and thus in such a relationship, the government had a fiduciary obligation to First Nations.245 The concept of a duty owed by the Crown was again discussed in the Aboriginal fishing rights case of Sparrow.246 Here, the Supreme Court of Canada determined the Musqueam Band had an Aboriginal right to a food, social and ceremonial fishery in priority to all others except in matters of conservation. The Court also noted Aboriginal rights mandated "a trust-like and non-adversarial relationship" between the First Nations and the federal government.247 The Court spoke about the "honour of the Crown" being of importance in all dealing with the First Nations.248 The federal government in this "fiduciary" role must not act Supra Guerin at note 135. Ibid, at 329 - 337. Supra Sparrow at note 2. Ibid, at 408. Ibid. stAU. -91-against First Nations interests and must act to preserve and protect Aboriginal rights. Thus the Crown must justify government regulations which infringe upon Aboriginal rights. What can we take from this doctrine that will add to substantiate the concept of Aboriginal title to ocean spaces? Let us review the most recent Supreme Court of Canada decision on treaty fishing rights in R v. Marshall249 and its comments on Crown fiduciary duty and parol evidence. This case centred around the question of whether Mr. Marshall possessed a treaty right to catch and sell fish under the Mi'kmaq Treaties of 1760-61 that were signed with the British in what is now the Province of Nova Scotia. At trial, there were three charges involved: one for selling 463 pounds of eels for $787.10 without a license, the second for fishing without a license, and the third for fishing during a closed season with illegal nets. Both the Crown and the accused led expert evidence in respect of the negotiations leading up to the signing of the Treaties of 1760-61 which were based on the intentions of reconciliation between the Mi'kmaq and the British and mutual advantage.250 During negotiations, the Mi'kmaq leaders had asked for "truckhouses"251 ^ R. v. Marshall (17 September 1999), S.C.C. # 26014 (S.C.C.)[b.eremaft<ir Marshall]. The decision of the Supreme Court of Canada on the motion for rehearing and stay as applied for by the West Nova Fishermen's Coalition in this case had not been rendered at the time of writing of this Chapter. 250 Ibid, at para. 3. 251 Ibid, at para. 19. A"truckhouse" is a type of trading post which were prevalent in the 1760s, and disappeared by 1780. There were six such trading posts established after the signing of the Treaties see paras. 6 and 32. Reference to a number of historical documents at trial established these were set up by the British to ensure a flow of advantages to the Mi'kmaq for trading there, and thus would aid in the preservation of peace. The Mi'kmaq had historically been aligned with the French against the British. -92-which would furnish them with necessaries in exchange for their trade in pelts. The actual treaty document contained only the promise that the Mi'kmaq would not "traffick, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majesty's Governor".252 The trial judge found this restraint of trade clause provided the Mi'kmaq with a right to bring their products to the truckhouses for trading, and that the treaties contained all the promises made and mutually agreed to.253 However, when this exclusive trade obligation and the truckhouses fell into disuse, the Aboriginal right to trade disappeared, and thus the accused was guilty on all three counts.254 The Nova Scotia Court of Appeal upheld the convictions and narrowed the trade clause. In their view, the Treaties did not grant any rights to the Mi'kmaq, and were in reality only a way to ensure the Mi'kmaq did not trade with the enemies of the British and thus ensured peace.255 The Court took a strict approach to the use of parol evidence when interpreting Indian treaties in stating that such "evidence cannot be used as an aid to interpretation, in the absence of ambiguity".256 Ibid, at para. 5. Ibid, at para. 19. Ibid, at para. 38. Ibid, at para. 21. Ibid, at para. 9. -93-The majority decision of the Supreme Court of Canada, penned by Binnie J., with Gonthier and McLachlin J.J., in dissent, came to a very different decision. Binnie J., rejected the strict approach to interpretation citing the fact that in the modern context of commercial transactions and contracts, extrinsic or parol evidence may be utilized. The Court had in previous judgments stated that such evidence may be admitted to provide clarity to the historical and cultural context of a treaty even when there was no ambiguity. For in the circumstances surrounding this treaty, the evidence showed the full intentions and understands of the negotiations were not included within the treaty. The terms of the treaty were verbally agreed to and then set to writing, and the Court concluded it would be unconscionable for the Crown to ignore the oral terms and only rely on the written ones.257 For to allow such a practice "would not uphold the honour and integrity of the Crown".258 The Court concluded that Mr. Marshall had a right to fish and to trade (sell) his fish on a limited basis being determined by the historic wording "necessaries" which can be interpreted today to mean a modest livelihood and not the accumulation of wealth.259 This treaty right is a regulated right and can be contained by regulation within proper limits such as catch limits that can be reasonably expected to produce a moderate livelihood for individual Mi'kmaq families at present day standards. These regulations can be established and enforced without 257 Ibid, at paras. 10-12. 258/Aid at para. 4. 259 Ibid, at para. 59. Binnie, J., sets out that "[a] moderate livelihood includes such basics as "food, clothing and housing, supplemented by a few amenities" but not the accumulation of wealth. It addresses day-to-day needs". offending the treaty right. -94-The Court found that the closed season, the licensing system and the ban on the sale offish were all regulations that infringed upon the treaty right and thus were invalid. Mr. Marshall was acquitted of all the charges. The Court reiterated again the principle found in Van der Peet and Delgamuukw of "[t]he need to give balanced weight to the [A]boriginal perspective" when dealing with Aboriginal issues.261 la Marshall, the Aboriginal perspective that the Court found to be missing from the judgements of the courts below was that of their understanding of what they had negotiated and agreed to with the British. The documents from the negotiations and events that transpired after the signing of the Treaties coupled with the expert testimony, showed that the terms of the Treaties did not give full effect to what the Mi'kmaq had agreed to. Therefore, the treaties had to be interpreted by reference to these extrinsic documents and information. The other significant point to be taken from Marshall is that of the Court's very direct and repeated comments about the honour of the Crown and its fiduciary duty to First Nations.262 This has been a principle long emphasized by the Court as noted in such cases as Guerin and ""Ibid, at para. 61. 261 Ibid, at para. 19, and supra Van der Peet at note 2 at paras. 49 - 50, and Delgamuukw at note 35 at para. 81. 262 Ibid. Marshall at paras 49 - 52. -95-Sparrow.263 The Court in Marshall,264 quotes Cory J.'s, comments in Badger, 265 where he stated the integrity of the Crown must be maintained and "sharp dealings" will not be sanctioned. This very strong statement of the Supreme Court of Canada in respect of the principle of Crown honour and integrity and no sharp dealings adds to substantiating the concept of Aboriginal title to ocean spaces. It is a well known and documented fact that many of the Indian Reservations created in the late 1800s in British Columbia were of lesser land acreage than those elsewhere in Canada as the residents depended upon fishing for their food and livelihood and thus did not need large tracts of land to sustain themselves.266 This is commented upon in Marshall when Binnie J., discusses at paragraph 25, the colonialist government policies determined for different areas of the country. He notes the east coast protected the traditional Mi'kmaq economy which including hunting, fishing and gathering to ensure they did not become a burden on the public purse, and that a similar policy was Supra Guerin at note 135, and Sparrow at note 2. 264 Supra Marshall at note 249 at para. 49. 265 R. v. Badger, [1996] 1 S.C.R. 771. This case involved Treaty 8 members of the Cree Nation on various charges of hunting moose out of season without licenses. The three accused relied upon their treaty right to hunt, and the major issue was whether the treaty right had been extinguished or replaced by legislation. Convictions of two of the appellants were upheld as the Court determined they were hunting on lands that were outside the Treaty 8 territories while the third appellant had a new trial ordered to deal with the issue of justification of the infringement created by legislation requiring a hunting license. The important points from this decision are the comments about Crown integrity and honour which can be expanded to include Aboriginal rights that arise without a treaty. See historical information presented on this very point in Newell supra at note 39 at 56 - 57. -96-followed on the west coast at a later time.267 In deliberating on the topic of Aboriginal title to ocean spaces, these Aboriginal perspectives of the last century will be included within the balanced approach directed by the Court. The Crown held out to the First Nations unlimited access and rights to ocean spaces that were traditionally used and the resources therein. The First Nations were encouraged to continue their connections with their ocean spaces, and to continue deriving their livelihoods and cultures therefrom. The Crown has no ability to now suggest Aboriginal title does not exist as to do so would place the honour and integrity of the Crown in jeopardy. To add further to the argument that it is Aboriginal title that was recognized by the Crown at that time and not just the right to fish, one can incorporate the concept of implied rights to support the meaningful exercise of express rights as discussed in Marshall.268 The Court in Marshall recognizes this concept and coupled with the decision in Claxton v. Saanichton Marina Ltd}69 we can state that the First Nations of the British Columbia coast in having Supra Marshall at note 249 at para. 25. He quotes Dickson J., in his dissent in Jack v. The Queen, [1980] 1 S.C.R. 294 at 311 where he noted that government policy before British Columbia joined Confederation clearly showed that "Indian fishermen were encouraged to engage in their occupation and to do so both for food and barter purposes". It is interesting to note that Dickson in this judgment is of the opinion the Terms of the Union which brought British Columbia into Confederation at Article 13 specifically call for protection of the Indian fishery which has priority in respect of the Indian food fishery. The only qualification on this priority he notes is conservation measures. These same comments form the basis of the majority judgment of the Court, as written by Dickson, then C.J., and LaForest J., ten years later in Sparrow supra at note 2. 268 Supra Marshall at note 249 at para. 44. 269 Supra Claxton at note 2 at 168. This case involved the interpretation of one of the Douglas Treaties of 1852 on Vancouver Island and the continuation of the right to fish of the Tsawout Band. The court found that the proposed marina would infringement upon their Treaty right to carry on their fishery, -97-their rights of fishing, other activities and connections to ocean spaces recognized by the Crown in turn have the implied rights of ownership to these ocean spaces. For without ownership, they have no meaningful way to exercise their express rights of fishing and connecting with these ocean spaces. As will be discussed within Part B. of this Chapter, it is evident that Crown policies and legislation over the decades have led to the diminution of their ocean derived livelihoods and cultures. As in Marshall, disappearance of the truckhouses did not extinguish the right to trade for the Mi'kmaq, and so too can it be said that mere disappearance of the fishing resources or the First Nations use of ocean spaces extinguishes their title and rights in same. Ownership is the only course that will place back into their hands the ability to manage and be responsible for the sustainability of their express rights. The Marshall decision has sent the East Coast fisheries into a tail spin as the non-First Nations fishermen believe their livelihoods and way of life are now threatened.270 DFO will and thus a permanent injunction was granted to halt the development. There were no claims or arguments put forth by the Tsawout in respect of ownership of the ocean spaces or the sea bed, and thus the comment by the Court that the rights granted by the Treaty were not of a proprietary nature are of little consequence. 270 Since Marshall supra at note 249, First Nations in various locations of Nova Scotia, New Brunswick and Prince Edward Island have set lobster traps during a closed season for lobster fishing under DFO regulations. "Ottawa is rushing to understand the implications" of the decisions according to the Minister of Fisheries and Oceans, Canada. Commercial fishers and the Fisheries Council, an industry group which represents harvesters and processors, are asking the Minister to temporarily suspend the judgement. The issue is what is a "moderate livelihood". The Council states that if it means $30,000 - $40,000/year that translates into a couple of million dollars annually, an amount which they claim the current industry does not have the capacity to include. There is of course the alterative of taking that amount of capacity away from the present Ucensed fishers and place with the First Nations. Both these scenarios have produced grave concerns about lose of livelihood for the present fishers, and have created a situation of mounting verbal threats of violence by some factions of commercial fishers. See Chris Morris, "Tensions mount over fisheries ruling" The Vancouver Sun (25 September 1999) A15 and "Keep Fishing, chiefs tell Atlantic Indians" The Vancouver Sun (30 September 1999) A13; and "N.B. fishermen threaten to cut lobster lines" CBC Newsworld Online (27 September 1999) at <http://newsworld.cbc.ca/cgi-bin/templates/view.cgi> and -98-eventually provide regulations that define a moderate livelihood with the possibility of further litigation down the road. Whatever the end results in Marshall, we can utilize at this time the two points we have discussed to augment our case for recognition of Aboriginal title to ocean spaces. One further point from Marshall, is the impact it will have upon the present treaty process in British Columbia. It is certain that the government parties around the table will now ensure that all possible be done to have the agreements negotiated as tight as possible. There will be very precise and specific wording included that will attempt to ensure that no extrinsic evidence can be drawn in should there be a judicial review of the treaty. 6. Conclusions Our review of the history of the discourse on Aboriginal title in Canada has provided some insight into the development and recognition of this concept, and the delineation of its principles as set out in Delgamuukw. By way of analogy, we have then taken these principles and successfully applied them in the context of a claim for Aboriginal title to ocean spaces. In so doing, we have noted that recognition of this concept is reasonable and possible. The inclusion of Aboriginal perspectives, including oral histories of First Nations, as authoritative sources of information to be utilized and adopted by courts will reshape how "Ottawa's move in Atlantic fishery debate uncertain" CBC Newsworld Online (1 October 1999) at <http://www.cbcnews.cbc.ca/cgi-bin/templates/view/cgi>. -99-occupation of ocean spaces is perceived and established. The uniqueness of the sui generis interest of Aboriginal title will provide a court with the basis upon which they may intrude into the federal government domain and determine Aboriginal title over areas of the sea. The recent case of Marshall provides further solid grounds upon which to substantiate the concept with the principles of inclusion and balancing Aboriginal perspectives and the insistence of the honour and integrity of the Crown. Having reviewed the common law, we now move on to explore and include the Aboriginal perspectives on Aboriginal title to ocean spaces in order to provide a comprehensive examination of this topic. PART B. ABORIGINAL PERSPECTIVES 1. Introduction The Supreme Court of Canada in Delgamuukw reiterated the Court's description of Aboriginal title as a sui generis interest in lands and thus its distinction as a different interest than the usual proprietary interests found within the common law.271 The Court for the first time provides some development of the concept of Aboriginal title noting that to understand its characteristics, reference must be made to both the common law and Aboriginal Supra Delgamuukw at note 35 at para. 112. The most recognized proprietary interests found in the common law are fee simple and leasehold. The Supreme Court of Canada had used sui generis to describe Aboriginal title previously in the cases of Colder supra at note 133; Guerin supra at note 135; and Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654 [hereinafter Canadian Pacific]. There is further academic discussion about this concept in Kent McNeil, "The Meaning of Aboriginal Title" in Michael Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: TJBC Press, 1997) [hereinafter McNeil]; and supra generally Borrows & Rotman at note 138. -100-perspectives.272 In utilizing the term "Aboriginal perspectives", the Court is including a wider expanse of information than a mere review of Aboriginal legal systems. The term encompasses a wide range of reference sources resulting in a more holistic approach to examining the concept of title of First Nations' territories. Such an approach includes the incorporation of Aboriginal principles, beliefs and ideologies. This interdisciplinary approach determined by the Court follows the Aboriginal view that land is not an entity in and of itself; but rather is interconnected with other elements such as the earth, sea, sky and resources, and together these are regarded as the land. "Aboriginal perspectives" takes into consideration the reality of a number of different sources to be explored, just as there are many First Nations in British Columbia, all with their own individual systems of laws and ideologies. This collective approach as advocated by the Supreme Court of Canada provides in essence a learning experience for those schooled in the common law to become acquainted with the Aboriginal ideologies and concepts of title.273 The Court does not provide direction as to the exact sources to be included in "Aboriginal perspectives", yet anyone who is familiar with the Ibid. Delgamuukw at para. 112. 273 John Borrows, "With or Without You: First Nations Law (in Canada)" (1996) 41 McGill L. J. 631. In this article, Professor Borrows discusses the need for courts to "draw upon First Nations legal sources more often and more explicitly in order to assist them in deciding Aboriginal issues".(at 634) Lawyers and judges schooled only in the common law will have trouble interpreting First Nations laws, and he notes there has been discussion about the creation of an institution where First Nations and non-First Nations people can go to learn about such laws and legal systems (at 657). He concludes the Aboriginal legal system is compatible with the Canadian and that the principles of both can co-exist without conflict. -101-Royal Commission on Aboriginal Peoples274 and First Nations communities would suggest that the history, culture and laws of the Nation involved are the sources to be reviewed and included in deliberations on Aboriginal title. In light of this direction from the Supreme Court of Canada, it was apparent to me that to have as complete and effective a discussion of the concept of Aboriginal title to ocean spaces as possible, I must have reference to Aboriginal perspectives on this very concept. To accomplish this, I was invited to spend time in two First Nations within British Columbia. This next section is thus the culmination and result of discussions and observations while a visitor to the Haida Nation during January and February 1999, and to the Tsawwassen First Nation in March 1999. It must be understood from the outset I am a non-Aboriginal Canadian, born, raised and schooled in Eastern Canada, possessing minimal education in First Nations issues prior to undertaking this research. My work experience has been as a practicing lawyer with no formal education in the areas of anthropology, ethnography or First Nations history. I am truly a novice carrying out historical and anthropological research, and therefore, my work must be viewed in that context. None the less, the information that I have collected and the experiences I have had are worthy of recording as they provide some insight into the views held by those I have spoken with. Supra RCAP Report at note 208. -102-The comments set out within this section of Chapter Three are my sole interpretations of what I observed and the viewpoints and ideas that I believe I heard. It may well be that many of my statements and conclusions contain inaccuracies, and if that be the situation, I most sincerely apologize, especially to those who have been so kind in teaching and assisting me during this learning process. It has been a privilege for me to attend and be welcomed within these communities, and granted the opportunity to enrich my research with views and comments from these two Nations. Some of those I met and interviewed were skeptical of my work based upon their prior experiences with researchers coming to their communities, placing it and its people under a virtual microscope, extracting data and information, writing about their experiences, and then never giving anything tangible back to the people and the communities.275 After hearing these comments, I could understand the concerns. My goal in undertaking this work is to provide useful and effective information and foundations for these two Nations and their Peoples, and in the wider scope First Nations and their counsels, to utilize in their quests for settlement of issues touching on title to ocean spaces and sea resources. My comments are not to be viewed as any kind of definitive comment or statement on behalf of the Haida Nation or the Tsawwassen First Nation, nor are my statements provided as some commentary on who they are as a culture. My comments are purely reflections, as accurate Personal interview with Christopher Collison on 29 January 1999 at Massett [hereinafter C. Collison interview]. -103-as possible, of a non-Aboriginal afforded the privileged opportunity of learning first hand what the sea and its resources mean to these First Nations. What I have recorded are mere glimpses into the world of these two Nations as no one can provide one true picture of places on this earth that are so rich, so diverse and so complex. It is only the Nations who can speak in that manner. This section then is a chronicle of my journey and passage through a series of recent times and places. There will be those who view my field research as insignificant due to my lack of expertise; however, I do point out the fact the vast majority of legal academic works do not incorporate First Nations perspectives. Rather they deal purely with the common law. I am hopeful this work will lead other academic writers to follow the direction of the Supreme Court of Canada, and explore and experience Aboriginal perspectives when dealing with Aboriginal title issues in future. For by viewing both cultures' ideologies, the difference and similarities will be better understood, and the passage to satisfactory settlement of issues will be attained. (a) Terminology During the research and writing process, I spent some time contemplating what appeared to me as the inequality of terms utilized by the Court in Delgamuukw. The terms "common law" and "Aboriginal perspectives" at first blush, did not appear to be of the same weight. For the ordinary person, the common law denotes the foundation of our legal system in Canada based upon the long traditions of the English system, and thus the ultimate set of principles by which our lives are governed. The word "perspectives" on the other hand -104-suggests beliefs, ideals and principles held by a group of people as their cultural and social values, and as it is not codified, it is viewed as having less authority. In reflecting on this issue and looking at other terms to use, I have determined using the term "perspectives" as the Court has in Delgamuukw, is not in any way a term of lesser authority and importance than "the common law". The Court at paragraph 112 of the decision indicates that included in the term "Aboriginal perspectives" are Aboriginal laws and the principles of Aboriginal communities. By using this term, the Court has acknowledged the First Nations ideology of a holistic approach to their culture and concepts, especially in regards to land, and recognized it on the same plain as the common law. One could go so far to say that the Court assigned Aboriginal perspectives greater weight than the common law for perspectives encompasses the wide ranging foundations and roots of a culture as seen through its laws, organizations, social structure, histories, philosophies, and speech. I have attempted throughout this chapter to chose my words carefully to ensure they do not suggest meanings other than those I mean to convey, or to diminish the value of the concepts imparted. It was pointed out to me by one member of a First Nation that words such as "stories, legends, oral histories, and beliefs" all can be interpreted to suggest views and events that may not be based in fact, and thus are not valuable sources of information. There is much truth in that statement, yet, with the decision in Delgamuukw recognizing oral histories as authoritative forms of evidence before a court, such comments are no longer valid and -105-must be dismissed.276 The original term "marine spaces" which I used was suggested as too narrow, and "ocean waters" more appropriate. I have contemplated this suggestion, and noted the present day usage in Australian legal and resources management circles of "ocean spaces" to describe areas of the sea claimed by Aborigines under the Native Title Act 1993 (Cth).277 "Ocean spaces" describes areas of salt water where marine life is found whether that be in the large oceans of the world, or in the case of British Columbia along the shores of the Strait of Georgia, or the salt water reaches flowing inland for some miles such as Massett Inlet. In keeping with the world usage, I have chosen to utilize the term "ocean spaces". Before presenting the results of my field experiences, I must provide some discussion about two particular topics, one being that of oral histories and the other being that of the concept of title to land as held by the common law and the First Nations. These two topics are vital components of this discussion, and this need some explanation. These two topics are viewed differently within the First Nations culture and the common law, yet there are similarities and parallel points. Supra Delgamuukw at note 35 at paras. 84 - 87. Supra Native Title Act at note 227. -106-2. Two Distinct Ideologies (a) Oral Traditions and Histories First Nations cultures are based on the oral tradition whereby history, genealogies, stories and other information are handed down from one generation to another by expression within a story, a song, or some other like medium. Such sources provide information from the "inside"of a culture. These oral traditions play a key role in reconstructing the past.278 The courts in Canada have been reluctant to view oral traditions as reliable sources of information for they are categorized as hearsay evidence and are inadmissible under the common law which is accustomed to dealing with facts and figures, and written sources for providing tangible and valid evidence. As a result of the decision in Delgamuukw, this attitude has had to change as the Court specifically stated oral histories must be afforded recognition by the courts and accommodated within the evidentiary process.279 Chief Justice Lamer provides some comment on oral histories, in particular stating that for many First Nations the oral form of history is all they have.280 He quotes the RCAP when he notes oral histories contain a good deal of subjective experience and are to be viewed as "facts enmeshed in the stories of a lifetime" as well as rooted in specific locations.281 He 278 Jan Vansina, Oral Tradition As History (Madison, Wisconsin: University of Wisconsin Press, 1985) at 197 -199 [hereinafter Vansina 1]. 279 Supra Delgamuukw at note 35 at paras. 80 - 87. 280 Ibid, at para. 84. 281 Ibid, at para. 85. Supra RCAP Report at note 208. -107-further notes oral histories represent a repository of historical knowledge and also express the values of the culture.282 Studies of oral traditions through out the world have been carried out by anthropologists but only within the last fifty years.283 The work of Jan Vansina is some of the earliest in this field of study. Vansina has written several books on his field work in the Belgian colonial territories of the Congo, Rwanda and Burundi during the 1950 - 60s.284 He defines oral traditions as historical sources of a special nature because they are unwritten yet in a form suitable to oral transmission with their preservation dependent solely upon the powers of successive generations. His work concluded that the oral traditions he studied were trustworthy to rely upon as sources of history, for history is always an interpretation.285 In reading Vansina's work, I was struck by the fact that the written histories we rely upon in the colonial world have their origins in the oral tradition, and are then set to paper. Most of us grow up hearing the stories about the lives of our parents, grandparents, and other generations before us from which emanates our family history and traditions. David Henige, 292 Ibid at para. 86. 283 Supra Vansina 1 at note 278 at xiii. 284 Ibid. generally Vansina 1; and Jan Vansina, Oral Tradition (Chicago: Aldine Publishing Co., 1965) [hereinafter Vansina 2]. 285 Ibid. Vansina 2 at 183. Every historian is obliged to interpret the sources they deal with whether they be written or oral, and by disclosing the sources relied upon, the reader is then informed as to why the historian has interpreted their sources in the way they have and the evaluation process they have undertaken (at 184 -185). In the end, a historian arrives at some approximation of the historical truth (at 186). See also ibid. Vansina 1 at 196 -197. -108-a student of Vansina's, devotes a whole chapter to discussion on the various cultures that have relied upon and made use of oral sources down through history including the Greeks, Romans, medieval western Europe (with the Celts, the Normans, the monks, and the Norse), and those in Oceania.286 In the foregoing paragraphs I have spoken of oral traditions and oral histories, and Vansina describes the difference between these two concepts. Oral histories are given by those who are alive when the event about which they speak happened. Thus suggesting the information provided is within the recent memory of the narrator. On the other hand, oral traditions happened before the lifetime of the informant.287 These differences noted by Vansina suggest the Supreme Court of Canada may not truly understand the subtlety of these two concepts when they speak of oral histories in Delgamuukw. The Court describes oral histories as a narrative of events that has happened in the past before the life of the narrator in most instances when in fact according to Vansina, this is oral tradition they are describing. David Henige, Oral Historiography (London: Longman Group Ltd., 1982) [hereinafter Henige]. This book is a good resource guide for those undertaking actual field work with cultures who use oral traditions. Henige's comments brought to mind research I had done many years ago in respect of Homer's epic, the Odyssey, and the voyage carried out by Ernie Bradford, an English classical scholar, who studied and sailed the Mediterranean Sea in search of proof that the voyages of Ulysses were not fiction but based on true events and fact. His interest had been perked by an encounter he had as the bridge watch aboard an Allied Forces ship in the Gulf of Salerno during the Second World War. During his watch, he heard voices calling out, but the day long search of the waters found no one. In his book, Bradford concludes the voices he heard that night were those of the Sirens as heard by Ulysses and recorded by Homer so many centuries before. Bradford's investigation produced data about tides, currents and winds in the Gulf which would have created waves lapping upon rock formations creating sounds similar to the human voice. The research and data provided by Bradford concludes the voyages of Ulysses were based upon nautical facts, and could well have happened. See Ernie Bradford, Ulysses found (London: Hodder & Stoughton, 1963). Supra Vansina 1 at 12. Henige also makes this distinction, see ibid. Henige at 2. -109-A study of oral tradition carried out with the thorough knowledge of the culture and language of the Peoples whose oral traditions are being studied Vansina suggests, is imperative to understanding the oral tradition.288 There has been much study of First Nations cultures and languages in British Columbia by the disciplines of anthropology and history but little by the members of the Bar, and very minimal if any, by the Bench. Vansina's comments leave one with the nagging feeling that even though Lamer C. J., decrees oral traditions will be incorporated into the common law court process, they are few involved within the system who will be able to fully appreciate and understand the oral traditions presented. Oral traditions are not new to the evidentiary process, for in my years of practice at the Bar, I have had occasion to be involved in Quieting of Titles actions which make extensive use of oral tradition albeit it through oral sworn evidence or affidavit. The situation is much the same in that there is no paper title, no specific written record of title to a specific piece of land, and thus the only way to prove title and have the court place the title into one's name at the Land Title Office is to bring forth seniors of the community who are armed with the knowledge of the land, who lived there, how the land was used and occupied, who claimed it, and the other pertinent factors they recall. This evidence often includes information that springs from the seniors' realm of knowledge and not from their first hand experiences. This information has been passed on to them through the common knowledge within their family or community. Supra Vansina 2 at note 284 at 183; supra Vansina 1 at note 278 at 200. -110-The oral traditions of the First Nations provide sources of information and history which are different than those most often utilized by the common law, yet are known, and in some circumstances, used by the dominant culture. The one other distinct ideology that bears some review is that of the concept of land and its title before we move on to the actual First Nations comments. Here again, we find differences and similarities. (b) The Concept of Title to Land My research focuses on finding within the common law, bases for recognition of the concept of Aboriginal title to ocean spaces. As there has been little written or discussed about this topic, I have referred extensively in my research to cases and academic works that involve title to areas of earth (terra firma) referred to most often as land, attempting to utilize and equate these theories and concepts to my quest. Now that I am ready to begin discussing Aboriginal perspectives on title and ocean spaces, it is appropriate there be some discussion about the way the legal system in Canada and First Nations structure their relationships with land. In Canada, the legal system bases relationships to land upon concepts of rights and entitlements of property which include rights to use and enjoy lands by various entities (both owners and users) and various types of title (fee simple, lease, life estates). Land can also be subject to the competing demands of the community and thereby regulated and even - I l l -expropriated. 289 Courts have had difficulty in describing the First Nations' principles of their interests in land within the Canadian legal conceptions of property and jurisdiction, and thus they have coined the term sui generis to denote the unique interest held by First Nations in lands.290 The Royal Commission on Aboriginal Peoples in its RCAP Report noted that land is absolutely fundamental to the identity of the First Nations. The First Nations concepts of territory, property and tenure, of resources management and ecological knowledge, differed greatly from the concepts held by other Canadians.291 The RCAP Report described the First Nations relationship with land as "both spiritual and material, not only one of livelihood, but of community and indeed of the continuity of their cultures and societies".292 "Land" for First Nations is a broad term incorporating the whole biosphere which includes the earth, rivers, lakes, winter ice, shorelines, the marine environment and the air. It is the very basis of life, and touches every aspect of life by providing shelter, food, clothing, economic activities, social organization through recreational and ceremonial events, systems Royal Commission on Aboriginal Peoples Treaty Making in the Spirit of Co-existence: An Alternative to Extinguishment (Ottawa: Minister of Supply and Services Canada, 1995)[hereinafter Treaty Making]. 290 Supra Delgamuukw at note 35 at paras. 112-115. Lamer, C. J. notes in para. 112 this long standing dilemma. See also supra Slattery at note 155 at 3.4; Guerin supra at note 135 at 378; and Canadian Pacific supra at note 271 at 678. 291 Supra RCAP Report at note 208 at volume 2 at 425. 292 Ibid, at 448. -112-of governance and management, and conceptual and spiritual philosophies.293 In my research, I found that both the Haida and Tsawwassen First Nations incorporated this holistic vision of land including sea and skies, as a foundation of their culture. In their view when the tide goes down, the land continues underneath the waters, and the skies start at the surface of the earth and the sea.294 As land is viewed as the all encompassing source and sustainer of life, First Nations look upon themselves as the stewards and caretakers of the earth.295 These added values incorporated into the concept of land move the principle of ownership as found in the common law to a higher ideal being one of responsibility and stewardship to ensure sustainability. The common law concepts of ownership and governance stress domination and control296 with no reference to guardianship or caretaking. In the First Nations communities, there is responsibility placed on each member to respect and benefit their environment, and to follow the laws of nature.297 The common law community has a set of regulated principles for owners to adhere to which do not have as one of their basis, responsibility. The principles of stewardship and respect were related to me on numerous occasions during Personal interview with Roy Jones, Jr., at Skidegate on 6 February 1999 [hereinafter Jones, Jr. interview]. 295 Supra ibid. RCAP Report at note 208 at 117. 296 Ibid, at 118. 297 Generally Ibid, at 118 -119. -113-my visits in both Haida Gwaii and Tsawwassen, and are illustrated in the following words: These lands were given to us by the Creator; we own this land, not so much so that we can go and sell it, that we are responsible for the maintenance and upkeep of it, forever.298 ... no actual ownership of places; stewardship of places; absolute respect of the land. It there not to be abused or taken for granted. Always looked upon as place of sustenance and protected in that way.299 In the past, we always told land, resources and sea were gifts from the Creator for us to manage and take care of, be stewards of it, with no one really owning it. m There has been much written on First Nations' systems of land tenure and governance which clearly shows their systems differ somewhat from region to region in keeping with the unique character of the First Nations peoples living there.301 First Nations relationships with lands merge concepts of ownership with those of stewardship. The authority to use the land goes hand in hand with the duties and responsibilities that are owed to the land. The Canadian common law does not capture these higher ideals and concepts within its land system, nor 298 Supra C. Collison interview at note 275. Mr. Collison noted that Haida decision-making in respect of their territories encompasses the concerns and issues of a multitude of generations, including the present, those who have come before and those who are yet to be born. This process ensures respect of the ideals held by the Ancestors is not lost, and the effects on future generations are considered. 299 Personal interview with Vincent Collison, councillor, Old Massett Village Council, on 3 February 1999at01dMassett. 300 Personal interview with Kim Baird, now the Chief Councillor of the Tsawwassen First Nation, at Tsawwassen Reserve on 26 February 1999 [hereinafter Chief Baird interview]. 301 The coastal nations of British Columbia tended to be rank societies while the interior nations can be described as band egalitarian societies. The hierarchies of the ranking systems also vary widely. For discussion on these points see Greg Poelzer, "Land and Resource Tenure: First Nations Traditional Territories and Self-Governance" in Roslyn Kunin, ed., Prospering Together: The Economic Impact of the Aboriginal Title Settlements in B.C. (Vancouver: The Laurier Insitituion, 1998) at 89 and Paul Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989 (Vancouver: UBC Press, 1990). -114-are different systems for different areas permitted in keeping with various peoples' needs.302 The Canadian system is generalized and centralized caught up in the concept of who owns what. The First Nations' concept of property reflects a mixture of principles of ownership, responsibility, stewardship and governance,303 and thus goes beyond the narrow common law principle. It is local and intensively specific in nature, and deals with resources allocation rather than ownership concepts.304 It is appropriate to include at this juncture a sampling of the comments and views about lands and territories as voiced by members of the two Nations I visited. These comments will illustrate the uniqueness of each Nation in character, values and location, yet will also illuminate the similarity of their prime values and principles in regards to lands and their responsibility thereto. (i) Haida Voices on Interests in Lands and Territories The Haida Proclamation found at the beginning of the Constitution of the Haida Nation reaffirms in writing the connection and responsibility of the Haida to their lands: The Haida Nation is the rightful heir to Haida Gwaii. Our culture, our heritage is the child of respect and intimacy with the land and sea. Like the forests the roots of our people are intertwined such that the greatest troubles cannot overcome us. We owe our existence to Haida Gwaii. The living generation accepts the responsibility to insure that our heritage is passed on to 302 Supra Treaty Making at note 289 at 9. 303 Ibid, at 14. 304 Supra Harris at note 39 at 220. -115-following generations. On these islands our ancestors lived and died and here too we will make our homes until called away to join them in the Great Beyond.305 One of the comments related to me that best sums up the Haida relationship with land is from Lucille Bell, a young member of Old Massett Village, when she stated: [The] treaty process is not about what is to be owned but what are we responsible for. What are we going to care for. That is my idea of treaty negotiations, not how am I going to benefit but how can I offer my protection to what is out there.306 The foundation principle that has permeated this connection to flourish throughout the centuries is one not of "ownership" as the common law world knows it; rather it is a holistic vision where land includes water, seas, air, and resources, and incorporates the principles of ownership, control and jurisdiction based upon protection and sustainability of the environment and resources rather than only notions of exclusivity. Stewardship and responsibility for conservation and sustainability of the environment and the resources are the hallmarks of the Haida concept of title. Chief Kimball Davidson of Old Massett Village Council related to me his understanding of the Haida concept of "ownership". The Haida are part of the land and the total environment. They do not own their lands as it would place them above the other creatures on the earth. Constitution of the Haida Nation, January 1987 [hereinafter Constitution of the Haida Nation]. The Preamble has an additional line included at the end: "The living generation accepts the responsibility to insure that our heritage is passed on to the following generations" as found at "Haida Spirits of the Sea" a website created by the Haida Nation in conjunction with the Government of Canada celebrating the International Decade of the World's Indigenous People for the Canadian Pavilion at Expo '98 in Lisbon, Portugal, and found on 11 April 1999 at <www.chin.gc.ca/haida> [hereinafter "Haida Spirits"]. Personal interview with Lucille Bell, Heritage Resource Officer, Old Massett Village Council, at Old Massett, Haida Gwaii, on 1 February 1999 [hereinafter Bell interview]. -116-Ownership of land is only an issue between humans and is used to denote whose territory is whose.307 The Haida belong to the lands and seas of Haida Gwaii as noted in their Constitution, and in turn have a responsibility to only take what is needed and not to abuse resources. Responsible for the maintenance and upkeep of the land rather than ownership of it was the common message I heard time and time again from those Haida I spoke with. "Our relationship to the land is the highest principle; this is our culture,"308 was another common theme. In the Haida culture when one is responsible for or have control over something, it is akin to ownership and is not a task to be taken lightly.309 These profound statements signify a culture's ideals of responsibility for the environment rather than owning a possession exclusively. Today, there are grave concerns about stewardship among the Haida in regards to the preservation of the eco-systems situate in and around Haida Gwaii not only for themselves, but for the non-Aboriginal people who live on the islands.310 There is much talk of the 307 Personal interview with Chief Kimball Davidson, Chief Councillor, Old Massett Village Council, on 3 February 1999 at Old Massett [ hereinafter referred to as Chief Davidson interview]. 308 Personal interview with Guujaaw at Skidegate on 4 February 1999 and by telephone on 4 October 1999 [hereinafter Guujaaw interview]. Guujaaw became the President of the Council of the Haida Nation in the latter half of 1999. 309 Personal interview with Russ Jones, Technical Officer, Haida Fisheries Program, at Vancouver on 3 March 1999 [hereinafter Russ Jones interview]. Personal interview with Robert DuDoward at Skidegate on 4 February 1999 [hereinafter DuDoward interview]. Mr. DuDoward notes as his final comment that it is his hope that "the Haida can -117-damage to and decline in the eco-systems of Haida Gwaii and the need for new policies, guidelines and direction to ensure sustainability Chief Davidson sums up the concerns in saying "man has certainly shown there is nothing in the world that is inexhaustible".311 With the uniqueness of their location in the Pacific Ocean, and as a people, many Haida suggest their Nation could act as an example to all the world in demonstrating how to live in harmony within an eco-system without dominating same, and thus ensure sustainability.312 The Haida have been practicing this for thousands of years, and realize that if resources are continually gathered and lands continually used without being looked after, all these will be lost forever.313 The Haida world is a holistic world without compartments. It was described for me as "the sea bottom, to what swims through the sea waters, to the intertidal beach, and on to the grasses at the top of the hill and over the other side".314 The Haida have from time before memory lived by the sea. They have never been depicted as forest dwellers. Thus, their relationship with ocean spaces and the sea resources found therein dates from antiquity and is shoulder the responsibility to maintain the sustenance of life that comes from the oceans and terrestrial systems, and tiy to deal with the corporations or whoever is dumping toxins and waste into our oceans and depleting the aquatic eco-systems beyond any hope of repair so we can preserve a way of life for all humanity". 311 Supra Chief Davidson interview at note 307. 312 Ibid 313 Personal interview with Barbara Wilson, Cultural Program Manager, Gwaii Haanas National Park Reserve, at Skidegate on 4 February 1999 [hereinafter Wilson interview]. 314 Ibid -118-an inherent and important foundation of their culture. As I present the information I have gathered, it will be apparent that "Haida Gwaii is one of the wonders of the world".315 The Tsawwassen First Nation also possesses philosophies about responsibility and control of territories which I will now explore. (ii) Voices of the Tsawwassen First Nation on Interests in Lands and Territories This we know: the earth does not belong to man; man belongs to the earth... Man did not weave the web of life; he is merely a strand in it. Whatever he does to the web, he does to himself.316 This quotation attributed to Chief Seattle over one hundred years ago still has great relevancy today. It illustrates the Coast Salish ideology in the "essential oneness of man with nature", and that all living creatures shared in a world of mutual harmony and understanding. Coast Salish culture and values always demonstrated the proper respect for the habits and dwelling places of all species of life.317 Member groups of the Coast Salish Nation, including the Personal interview with Harold Yeltatzie, a councillor representing Old Massett on the Council of the Haida Nation, on 29 January 1999 at Massett [hereinafter Yeltatzie interview]. Mr. Yeltatzie also noted his concerns to me about the lack of stewardship saying: "We [ the Haida] are responsible for what happening today, and are very concerned about what will happen to our children down the road and our culture." 316 Chief Seattle, Chief of Suquamish and allied tribes on the Northwest Coast of the United States, being part of the Coast Salish Nation, 1790 -1866, in a speech to the President of the United States of America in 1854 during the negotiations of the Indian Treaties headed by Governor Isaac Stevens. The Treaties negotiated in the Pacific Northwest became known as the Stevens Treaties. Full texts are set out in Clive Parry, ed. Consolidated Treaty Series (Dobbs Ferry, New York: Oceana Publications Inc., 1969), vol. 114 starting at 37 [hereinafter Parry]. This statement illustrates the belief of First Nations in the concept of stewardship long before it was fashionable to espouse such ideals in the non-Aboriginal community. Reg Ashwell, Coast Salish: Their Art, Culture and Legends (Surrey, B.C.: Hancock House Publishers Ltd., 1978,1994) at 69 [hereinafter Ashwell]. -119-Tsawwassen First Nation, incorporated these same values of harmony and co-existence into their philosophies and cultures. Chief Baird of the Tsawwassen First Nation, explained "territory" for her people includes the elements of water, air, land and resources, while the term "land"only denotes the actual earth. Thus, as with the Haida, the Tsawwassen philosophies espouse a holistic approach to their territories and land. Chief Baird pointed out that in contemporary times holding to traditional philosophies of stewardship and responsibility over their traditional territories does not provide First Nations with the absolute control of these areas. The Canadian legal system which is a foreign system of laws and principles to First Nations, is where ultimately the questions of responsibility, authority, control and ownership are decided. Therefore, First Nations must employ the principles and concepts of this foreign legal system to obtain the management of their territories and resources, and the protection afforded by such system in order to ensure their sustainability for the future. If ownership is the concept and right that affords the Tsawwassen people with the ultimate decision making powers within their territory, then that is what they would be seeking.318 The Tsawwassen's ultimate goal is the sustainability of their traditional territories and resources by combining the cultural value of responsibility with the contemporary issue of Supra Chief Baird interview at note 300. -120-how that can be achieved. This goal incorporates the First Nation ideologies with the foreign system's concept of ownership. Councillor Williams believes that this can be achieved only if there is equality among all the parties involved; for if one is the dictator, it is to the detriment of all parties. An important first step to achieving equality among the parties, is the education of the public about the First Nations and their history and struggles over the last century.319 The Tsawwassen are also concerned about the imbalances noted in their environment especially the decline in salmon stocks, the increase in seals and sea lions, and pollution. The public regulation of Nature has not been successful, and to restore the balance the world needs to return to the First Nations' ways of stewardship and responsibility.320 These words and philosophies of both Nations are high ideals and from my experiences, are not empty words. There are actual activities that demonstrate these philosophies in action, and the following section, will provide a few examples of the Haida's historical philosophy of stewardship in action. (Hi) The Haida Practice of Stewardship The Haida appreciation of the need for stewardship is a foundation principle of its culture as evidenced in testimony given by Henry Geddes, an elder of Old Massett, at the trial in 1988 Personal interview with Russell Williams, Councillor and senior member of the Tsawwassen First Nations at Tsawwassen Reserve on 5 March and 24 September 1999 [hereinafter Williams interview]. 320 Ibid. He is not sure that Department of Fisheries and Oceans, Canada [hereinafter DFO] even takes this information from the TFN into consideration in its management of the salmon stocks, or just shrugs it off as worthless information from a group of fishermen uneducated in science. -121-of R. v. Davis,321 where he talked of the Haida traditions of fishing for salmon in the many rivers off Massett Inlet in Graham Island.322 This knowledge was derived from his own first hand experiences and the information handed down to him by his ancestors, and comprised over one hundred years of fishing information. When asked at page 104 about the possibility that the Haida could fish out the rivers if they were permitted to fish whenever and wherever they wanted rather than be regulated by a fish license, he replied "no", and went on to explain why certain rivers do not produce salmon, citing destruction of the natural habitat like the putting in of roads, and logging operations as the major causes.323 Margaret Edgars, a Haida resident of Old Massett, related to me of learning the ways of resources conservation through observing and being with her elders. When they were on the salmon rivers, they never took any more fish than what they could handle at that time for smoking, drying, and other preservation methods. Once those fish were preserved, then they would go fishing again.324 "* R. v. Davis [1988] 3 C.N.L.R. 116 (B.C. Prov. Ct). Geddes' evidence starts at page 99 of the trial transcript which is found in the trial proceedings recorded on 7 March 1988 under Masset 1748 B.C. Provincial Court; further references herein will be to the trial transcript [hereinafter Davis]. 322 Ibid, at 99 -115. 323 Ibid, at 104 - 105. Personal interview with Margaret Edgars at Old Massett on 27 January 1999 [hereinafter Edgars interview]. -122-Chief Reynold Russ, the Hereditary Chief of Old Massett, notes no fish were ever thrown away. He stated there was selective fishing in that often halibut were released if they were too small, or if too big as they could not be handled easily for food preservation purposes. Black cod were never taken when they were small.325 The Haida believe that respect is to be shown to all living things as there is connection between this world and the other world, and the links must not be violated. These Haida principles of respect include not kicking or throwing around captured fish,326 not teasing any fish except halibut (so that it would bite the hook), and not making fun of or playing with your food.327 Mr. Geddes also told about how his people managed and controlled how much salmon was taken each year. He well remembered the elders sitting around the banks of the rivers, telling the younger people when to start fishing and when they had taken enough.328 Harold Yeltazie noted the Haida Nation of today carries on these same conservation methods by 325 Supra Chief Russ interview at note 66. Chief Russ also reiterated Ms. Edgars' comments about only taking enough fish at any one time that they could handle in a day. 32 Personal interview with Ron Brown, Jr., President of the Council of the Haida Nation, on 26 January 1999 at Old Massett [hereinafter Brown interview]. As of the December 1999 band elections, Mr. Brown has replaced Chief Kimball Davidson as the Chief Councillor of the Old Massett Village Council. 327 Personal interview with Charlie Bellis, a senior of the Old Massett Village, at Old Massett on 3 February 1999 [hereinafter Bellis interview #2]. Halibut was one food source available all year round. Also personal interview with Christian White, a councillor representing Old Massett Village on the Council of the Haida Nation, at Old Massett on 30 January and by telephone on 4, 5 and 8 October 1999 [hereinafter White interview]. Supra Davis at note 321 at 106 - 107. -123-fishing different rivers so as not to fish out the stocks that are there.329 Christian White notes his people during their seasonal gathering activities do not gather or harvest one species for too long a time to ensure there is no decline in numbers due to over gathering. When digging clams on North Beach, they do so for about two to three days a month during the winter season, and thus do not harm the clams beds.330 Mr. Geddes went on to explain that this grave concern for food was borne out of the experience in the "olden days" when many people starved due to a poor run offish and bad weather when they attempted to gather and harvest food. He noted they did not waste food, and either had to use it or give it 331 Haida history notes the settlement of new villages on the islands, and in the southern portion of Alaska due to the population became so large it was burdensome on the food resources of the local area. In order to ensure people had enough food resources and to sustain those sources, the Haida sought out other areas to settle which took them across the Dixon Entrance in the eighteenth century to the southeastern coast of Alaska and the islands of Long, Sukkwan, Dall and Prince of Wales in the Alexander Archipelago.332 329 Supra Yeltatzie at note 315. 330 Supra White interview at note 327. 331 Supra Davis at note 321 at 107. 332 Margaret B. Blackman, "Haida: Traditional Culture" in Wayne Suttles, ed., Northwest Coast, vol. 7 of Handbook of North American Indians (Washington, D.C.: Smithsonian Institution, 1990) at 240 [hereinafter Blackman]. The article provides information on all the Haida including the Kaigani. "Kaigani" comes from the name of a summer camp in Alaska, and the majority of these Haida came from Langara -124-These comments made through the voices of members of the Haida Nation give some indication of the importance of stewardship and conservation as practiced by their culture throughout time. Many of these comments come to us through the oral traditions of the Haida. It appears that without these principles and their practice, the Haida might well have disappeared as a culture. (iv) Conclusions Through the information presented, we have familiarized ourselves with the two ideologies practiced by the common law and the First Nations in regards to land, territories and their ownership and control. The First Nations' principles of responsibility for territories and in turn stewardship of such areas and their resources, sets forth a higher ideal than the common law concept of ownership. The First Nations types of land tenure systems do not fit comfortably within Canadian property law which emphasizes individual entitlements of exclusive use and enjoyment of land Island just off the north western tip of Haida Gwaii. The Kaigani had a larger inventory of useful plants and animal species than the Haida on Haida Gwaii such as berries, deer, mink, wolf, beaver and water fowl, (at 241) There is suggestion that the Kaigani were influenced by the Tlingit. (at 249) Juan Perez in his first encounters with the Haida on Haida Gwaii in 1774, also noted in his diary about encountering Haida in Dall Island, Alaska.(at 255) Blackman provides population information of the villages in Alaska during the mid-1800s at 257. There are still Haida residing in the southern portion of Alaska at Hydaburg, established in 1911 as the main Haida settlement in Alaska. See also generally Mary Lee Stearns, "Haida Since 1960" in Wayne Suttles, ed., Northwest Coast, vol. 7 of Handbook of North American Indians (Washington, D.C.: Smithsonian Institution, 1990) at 261 - 262; and Kenneth D. Tollefson, "Tribal Estates: A Comparative and Case Study" (1996) 35:4 Ethnology 321 [hereinafter Tollefson 1]. This article provides information about the settling of the title issues with the Haida in Alaska, and the passing of the Alaska Native Claims Settlement Act, 43 U.S.C. (1982) [hereinafter ANCSA]. From the monies and lands settled upon the Haida and Tlingit, they formed the Sealaska Corporation which has been most successful in the businesses it runs and village development, including the Haida village of Hydaburg; at 324 - 326. -125-as property. Property law is understood by reference to the rights that flow from the specific title to the land. First Nations on the other hand define their relationship to their territories in terms of the responsibilities that flow from that relationship and is best characterized by the concept of stewardship.333 The Canadian land title system does not include such obligations; however, environmental activism continues to grow with industry and government incorporating many of the ideals of stewardship and sustainability of resources with their policies. These concepts are not as yet espoused within the common law concept of property and thus owners of land in Canada have only minimal legal obligations to conserve lands and resources for future generations while First Nations system carry on such ideals as part of everyday life. Being aware of these two distinct ideologies in regards to land and its stewardship, will now aid in the exploration of the history and culture, and particularly the relationships with ocean spaces and ocean resources, of the two First Nations with whom I visited. One further point to keep in mind through this discussion is that acknowledgment of the dominant society of the connection and link of coastal First Nations of British Columbia with the ocean. The historical record shows that the coastal First Nations were provided with reservations of smaller land acreage than most other First Nations as the government officials setting up such 333 Supra Treaty Making at note 289 at 14 where the RCAP quote Michael Jackson, "A New Covenant Chain: An Alternative Model to Extinguishment for Land Claims Agreements" prepared for the Royal Commission on Aboriginal Peoples (1994). -126-reservations recognized these First Nations were fishermen and not farmers. As the ocean and its resources provided food and a livelihood, there was no need for much acreage per family for cultivation purposes. Most usually a postage stamp-sized land base averaging about 5 hectares was granted per Aboriginal along the west coast. These land areas though became further whittled down over the years by further government policy.334 This is a crucial factor in the examination of Aboriginal title to ocean spaces, and raises the doctrine of the honour of the Crown as denoted in Marshall which has previously been discussed.335 The Crown's consideration of such extrinsic factors in determining acreage for reservations, and the documentation of such, is on par with the negotiation records being included to aid the interpretation of the Treaties in Marshall. The honour and integrity of the Crown would be jeopardized if the coastal First Nations of British Columbia are not recognized as having more than mere fishing interests as determined In comparison, First Nations in the interior of the Canadian west were granted an average size of land between 65 to 260 hectares per Indian family. The Royal Commission on Indian Affairs for the Province of British Columbia, more commonly referred to as the McKeen-McBride Commission, 1913 -1916, notes within its records that fishing privileges were a matter of high importance in respect of the size of reservations; see supra Newell at note 39 at 56. This text provides a general over view of the history of First Nations in the fishing industry of the Pacific coast. The Indian Reserve Commission during the mid-1800s allocated reservation lands in British Columbia based on the premise access to fishing would provide infinite food sources for the Native population. The Natives were assured by the Commission that their fisheries would be undisturbed and based upon that promise, the Natives took the reservations that were allotted. See supra Harris at note 39 at 41. It is interesting to note that in 1878 when the Ministry of Marine and Fisheries prohibited the use of weirs for fishing, the Ministry of Indian Affairs protested this regulation as it would diminish the ability of the Natives to have access to their fisheries. Indian Affairs contended that the Natives had a right to use weirs for fishing, and it was a matter of necessity for them. This developed into some inter-departmental bickering, but in the end the regulation stood. See Harris supra at note 39 at 76 -77. See Part A. of this Chapter. -127-in Sparrow and Marshall. The ability of these coastal First Nations to survive and flourish was limited by the Crown in the 1800s when it set up the reservations. The Crown has, as the First Nations comments herein will attest, systematically continued to limit and displace these First Nations from their connections with the ocean and its resources. For the Crown to now say these First Nations have no further rights to the ocean and its resources then what have been recognized to date would condone the Crown breaching the very fiduciary duty it owes as the entity responsible for the well-being of First Nations under the Constitution. I will touch upon this point again in my concluding remarks at the end of this chapter. Armed with this information regarding oral tradition, the ideologies of title and the basis for creation of the coastal reservations, let us now explore the perspectives of two coastal First Nations of British Columbia. 3. The Haida Nation: An Ocean Culture (a) Introduction This section on my experiences with the Haida Nation contains more depth of information than the following section on the Tsawwassen First Nation, as I spent three weeks visiting Haida Gwaii. The uniqueness of this Nation comes from a number of factors such as its distinctive location in the northern waters of the Pacific, its large population, the rebirth of its culture in the last quarter century, and its visibility as a leader in First Nations' issues. I was most struck by the fact the inter-generations of Haida that I met were well versed in their history, including their cultural stories and recent twentieth century history. Many had -128-traveled extensively in the world, some had been intensely involved in Indigenous Peoples' issues on the world stage while others had chosen to remain on these outer reaches of British Columbia. All Haida that I met were very much aware of who they were and are as a People. Looking at a map, it is evident that the lands of Haida Gwaii are intertwined with the ocean. However, until one travels there and views the sea kissed coasts of these islands on the edge of the Northwest coast, sits down with members of the Haida communities and talks about their culture, aspirations and history, one has no feeling for the magnitude of their connection with the ocean. To have some understanding and empathy for the Haida culture, we must start at the beginning - the geographic location and the early history. (b) The Geographic and Early Historic Perspectives There is a pole that holds the centre of this world - it's a cedar tree in the middle of Haida Gwaii. 336 Haida Gwaii is an archipelago commonly referred to as the Queen Charlotte Islands located on the far reaches of the north west coast of British Columbia about one hundred kilometers from the mainland and seventy kilometers from the southern promontory of Alaska. These islands lie on the very edge of Canada's Pacific continental shelf. The climate of this area coupled with the sea provides Haida Gwaii with a unique environment abundant in natural resources from the sea and the forest. The above quotation demonstrates that the territories of Haida Gwaii are the central core of the Haida culture. The words Haida Gwaii mean 6 Cheryl Coull,^ Traveller's Guide to Aboriginal B.C. (Vancouver: Whitecap Books, 1996) at 199 [hereinafter Coull] quoting Michael Nicoll, Yahgulanaas. -129-"people and country" respectively. Haida Gwaii is often referred to as an archipelago-continent which runs a distance of 280 kilometers north to south,337 and has remained largely out of mind because of its distance from the mainland.338 The archipelago has two main islands being Graham to the north and Moresby to the south, with approximately 150 smaller islands, comprising an area of some 3750 square miles.339 "Xaaydlaa Gwaayaay" was the early name of Haida Gwaii meaning "islands coming out of concealment".340 Creation of these islands is said to have been by seismic activity when the Farallon Plate slid under the North American continent and thus forced up the continental plate producing many geographic areas including these islands, approximately 120 million years ago.341 Geological studies show that about 9000 years ago, sea levels were at least twenty to thirty-three meters lower than today and there existed a tundra-like grassy plain with an easily traversable water area of about five kilometers between the mainland and the islands. This 337 Ibid, at 199. See also Ian Gill. Haida Gwaii: Journeys Through the Queen Charlotte Islands (Vancouver: Raincoast Books, 1997) at 9 [hereinafter Gill]. 338 Ibid. Gill at 3. 339 Information taken from supra "Haida Spirits" at note 305. 340 Ibid. 341 Supra Gill at note 337 at 6. -130-topography would have easily permitted settlement.342 Eventually the melting waters of the Ice Age rose filling this plain with water which is called today Hecate Strait.343 Haida Gwaii is home to many unique species of animals and plants found only on the islands suggesting that during the advance of the last Ice Age, large parts of the islands were ice free.344 These rarities have earned Haida Gwaii the name "Canada's Galapagos".345 342 Knut R. Fladmark, "The Early Prehistory of the Queen Charlotte Islands" (1979) 32:2 Archaeology 31 at 41 - 44 [hereinafter Fladmark 1 ]. There are a number of archaeological sites that have been excavated and continue to be investigated today such as the Lawn Point site on the central eastern coast of Graham Island, excavated in 1970 which contained a rich assemblage of stone tools and small non-shell-midden sites (refuse heap). This items here were estimated to be some 2000 to 7500 years old. Fladmark opinions that the Moresby people of this era were transitory exploiters of the extensive beaches and intertidal zones of the eastern and northern coats of Haida Gwaii as the beaches would have provided a rich habitat for mollusks and other littoral species as well as birds and land mammals who would have been attracted to the foreshore for food. There are also sites at Skoglund Landing along Massett Inlet in the north of Graham Island, Richardson Ranch (near Tlell), and Kasta just south of Sandspit on Moresby Island. Many of these have shell-middens along with other signs of human occupation such as majorat structural remains, and fishhooks and barbed harpoons. In Knut Fladmark, "Possible Early Human Occupation of the Queen Charlotte Islands, British Columbia" (1990) 14 Canadian Journal of Archaeology 183 at 186 -187 [hereinafter Fladmark 2], he also mentions excavations at Bluejackets near Skoglund Landing, and the fact that the submerged beach lines of the islands found in Hecate Strait are well defined about 42 meters below the modern sea-level. This suggests that the actual shores of the islands could have been as close as 100 meters or less to the mainland; see also Moira Johnston, "Canada's Queen Charlotte Islands: Homeland of the Haida" (1987) 172:1 National Geographic 102 at 115 [hereinafter Johnston] where it is noted that Dr. Rolf Mathewes of Simon Fraser University states that the pollens, seeds and plant remains he has collected offers proof that the fir trees were alive before and after the last ice age being some 24,000 years ago, and that is it possible that human life could have been present on Haida Gwaii then as well. 343 Permanent exhibit at Haida Gwaii Museum at Qay'llnagaay, January 1999. There have been recent discoveries of artifacts from the sea bed of Hecate Strait that have been linked to the Haida people dating back some 10,000 years before the waters rose in this area. See H. Josenhans, D. Fedje, R. Pienitz & J. Southon, "Early Humans & Rapid Changing Sea Levels in the Queen Charlotte Islands - Hecate Strait, British Columbia, Canada" (1997) 277:5322 Science 71; Daryl Fedje, Joanne McSporran & Andrew Mason, "Early Holocene Archaeology & Paleoecology at the Arrow Creek Sites in Gwaii Haanus" (1996) 33:1 Arctic Anthropology 116; and H. W. Josenhans, D. W. Fedje, K. W. Conway & J. V. Barrie, "Post Glacial Sea Levels on the Western Canadian Continental Shelf: Evidence for Rapid Change, Extensive Subaerial Exposure, & Early Human Habitation" (1995) 125:1-2 Marine Geology 73. 344 Supra Fladmark 1 at note 342 at 40; and Fladmark 2 at note 342 at 185. Supra Gill at note 337 at 9. -131-Archaeology strongly suggests that the Haida have for at least nine millennia been thriving maritime hunters and fishermen346, as there are more frequent and visible traces of potentially early human occupations found within these islands being of a relatively small land area, than most other areas of the Northwest coast. Artifacts and sites dating from 8000 to 5500 years ago have been easily found.347 Haida Gwaii has more than 5000 kilometers of coastal shoreline,348 with some 400 Haida cultural sites, including the UNESCO World Heritage Cultural Site at Ninstints on Anthony Island in the extreme south.349 The Haida genealogies and histories of the origins of their homeland begin with "Raven and a boundless expanse of sea and sky. Raven set Seaward country [the mainland] over there, the islands, here."350 The original Haida settlements each had their own version of the creation story. One such story is that of Raven and the clamshell dwellers at Rose Spit (known as Naikun in Haida) as recounted at the beginning of this work. Even though there are differences in these stories, the one notable similarity is the connection to the ocean and its resources.351 Supra Fladmark 1 at note 342 at 45. 347 Supra Fladmark 2 at note 342 at 193 -194 where he further notes that there has been extensive archaeological research done on the mainland coast adjacent to the islands. In sum, he suggests that Haida Gwaii would have been inhabited during the last major glacial episode. 348 Supra "Haida Spirits" at note 305. 349 Supra Gill at note 337 at 2. 350 Supra Coull at note 336 at 199 For other stories see supra Coull at note 336 at 199, and supra Gill at note 337 at 57 - 59. -132-The Haida lands and territories are found fully described in the Constitution of the Haida Nation as follows: The Territories of the Haida Nation include the entire Haida Gwaii, the surrounding waters, the air space and the Kaigainaa Archipelago. The waters include the entire Dixon Entrance, half of the Hecate Straits, halfway to Vancouver Island and Westward into the abyssal ocean depths.352 The first contact between the Haida and the Europeans is recounted in the diary of the Spanish explorer, Juan Perez, who on 17 July 1774 after arriving by ship near the Haida village of Kiusta, near Langara Island, was greeted by many large wooden canoes carrying Haida villagers.353 The English fur trader, Captain George Dixon, in 1787, gave the islands their English name derived from his vessel, "Queen Charlotte" who was named in honour of the Queen of England.354 At the time of European contact in the mid-1700s, Haida settlements numbered at least fifty thriving villages.355 By the next century, their communities ranged from the south of Alaska to Ninstints on Anthony Island in the extreme south, with a total population of more than Supra Constitution of the Haida Nation at note 305, Article 1, SI. This is the same description utilized in the Haida Statement supra at note 33. The abyssal depths would commence approximately thirty to sixty miles off the western shores. 353 Supra Blackman at note 332 at 255; and Douglas Cole and Bradley Lockner, Eds. To The Charlottes: George Dawson's 1878 Survey of the Queen Charlotte Islands (Vancouver: UBC Press, 1993) at 4 [hereinafter Dawson's Survey]; and supra Fladmark 1 at note 342 at 39. 354 Ibid. Dawson's Survey ; and supra Gill at note 337 at 3 - 4 where he provides the further explanation that the ship was named for the Queen. 355 Supra "Haida Spirits" at note 305. Supra Dawson's Survey at note 353 at 154 -162 describes the Haida villages on Haida Gwaii that Dawson visited including Kung, Yan, Massett, Tow Hill, Tl-ell, Skidegate, Cumshewa, Skedans, Tanoo, Ninstints which are the main villages still identified today by hereditary chiefs who reside in either Old Massett or Skidegate. -133-10,000.356 Villages were always on the shorelines for purposes of direct access to food from the beach resources to the fish, and safe harbours for their canoes. This expansive Nation was almost decimated with the influx of the colonist traders and settlers, and the spread of disease especially smallpox. During the period 1790 to 1860, the population was reduced by about 95% to a mere few hundred.357 Those who came together at one of the two Indian villages (now reserves) situate on Graham Isl