By Trent Fox
To understand the position taken by hereditary Wet’suwet’en leaders is to have some understanding of European rules of discovery and the western concept of Aboriginal title. It is due to the recognition of Aboriginal title that treaties exist. It is also why the treaty process is ongoing in British Columbia.
Many First Nations in British Columbia (BC) have not signed treaties with Canada. This infers that land in BC can be considered unceded territories due to the existence of Aboriginal title. The Royal Proclamation of 1763 established this title.
According to the Indigenous Foundations website at the University of British Columbia, “Aboriginal title refers to the inherent Aboriginal right to land or a territory. The Canadian legal system recognizes Aboriginal title as a unique collective, right to the use of and jurisdiction over ancestral territory.”
Legal questions arise when hereditary leaders assert their authority. This is due to the absence of treaties in many areas of that province.
Many Canadians remain uninformed about First Nations issues and Aboriginal title. They adopt conquest mentalities failing to understand that treaties were negotiated over conquest. Many do not realize that treaty negotiations are still taking place and that many agreements were not honoured. Hence, the Treaty Land Entitlement claims process.
Treaty Land Entitlement claims are intended to settle the land debt owed to First Nations who did not receive all the land they were entitled to under treaty agreements. Like many First Nations, the Stoney Nakoda have outstanding land claims that remain unsettled.
The story of colonization in Canada is ongoing. What is typically not known is that First Nations people are utilizing Canadian laws to uphold their Aboriginal and treaty rights. For those interested in learning more, the University of British Columbia, Indigenous Foundations website outlines the following:
Important Court Decisions regarding Aboriginal Title:
St. Catherine’s Milling and Lumber Co. v the Queen . St. Catherine’s Milling ruled that title was a usufructuary right that could be extinguished. The St Catherine’s Milling decision claimed that Aboriginal title was granted by the Crown through the Royal Proclamation.
Calder v. British Columbia  was a landmark case recognizing Aboriginal title. Although split on whether this right continued to exist, it was unanimously agreed that Nisga’a title had existed. This significant agreement would pave the way for addressing Aboriginal title in Canada.
R v Guerin  established that Aboriginal title was a sui generis (unique) right and the Crown had a fiduciary duty to protect it for Aboriginal peoples.
Delgamuukw v British Columbia  is the most comprehensive decision about Aboriginal title. Delgamuukw set out how the courts will deal with Aboriginal title, by setting a test to determine if Aboriginal title still existed and, if so, how the Crown might justifiably infringe upon it.
These are important court cases that underscore the reality of the First Nations situation. The battle to assert Aboriginal and treaty rights began over a century ago. Battles that should not be. That is our privilege.
Trent Fox, also known in Stoney asTatâga Thkan Wagichi, is a member of the Wesley First Nation, Stoney Nakoda Nation. A doctoral student in education at the University of Calgary, his focus is on the history of the Stoney Nakoda people and development of the Iyethka language. Author of the book Nakota Community, he is also a regular columnist for the Cochrane Eagle and Rocky Mountain Outlook.