Who Owns the Land We Walk On?Feb 9, 2016
By Sebastian Ennis, J.D. Candidate 2017, Peter A. Allard School of Law, University of British Columbia
When we walk the streets, visit our neighbours, or travel to different cities or provinces in Canada, we share the land with those around us. We rarely ask, “Who owns the land we walk on?”
In 2014, the Supreme Court of Canada ruled that the Tsilhqot’in Nation have Aboriginal title to land in an area between the Fraser River and the Coast Mountains in west-central British Columbia.
The Tsilhqot’in Nation – a grouping of six First Nation bands – are an Aboriginal people with a population of over 3,000. They lived in their ancestral territory for centuries. They continue to live there.
If you travelled to their territory, you would be walking on the land of the Tsilhqot’in. But what exactly does that mean?
“Aboriginal title” recognizes the history of the land and the people who held it. It’s not about individual rights. Aboriginal title is a group interest among the Tsilhqot’in, both present and future generations. It’s not stuck in history. Aboriginal title is about the land today and the future of its people.
Aboriginal title says the Tsilhqot’in have a right to their land, to use it and benefit from it as they see fit. That’s often what it means to “own” land. The Tsilhqot’in are also the caretakers of their land, they have a responsibility to the place where they belong.
Did the Tsilhqot’in not own the land before they received Aboriginal title?
Simply put, the Supreme Court of Canada recognized a right that the Tsilhqot’in always had. Their land has always been theirs. There is an old idea called terra nullius, that means that “no one owned the land before Europeans asserted their sovereignty”. That idea has never applied in Canada. When Europeans arrived, the land was not a blank slate. People were already here: Europeans walked on their land.
And yet, in Canada Aboriginal peoples must prove that their land is their own. This is a costly and time consuming process. For the Tsilhqot’in, this process ended in the recognition of a version of their rights, a “middle ground” between the common law and Aboriginal laws.
Recognition is a way of answering simple questions like, “Whose land am I walking on?” The answer to that question includes the Aboriginal perspective. By including that perspective, recognition of Aboriginal title is a type of reconciliation; it is a way of bringing together different ways of viewing the world.
As Chief Justice Beverley McLachlin put it: “What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society.”
The land we share in Canada is vast. It comes with many different perspectives and histories. Reconciliation means bringing those histories to life, for the land and its people.
Sebastian studies law and volunteers with Reconciliation Canada. In the past, he worked in the social innovation and non-profit sectors. He currently works at a boutique law firm. He lives in Vancouver, surrounded by family.
The views and opinions expressed on this blog are those of the author and may not reflect the views and opinions of Reconciliation Canada.