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116-404: The Northern Gateway project was a proposal by Enbridge Inc. to build a twin pipeline between Bruderheim , Alberta, and Kitimat, British Columbia . The pipeline would have carried natural gas condensate to Bruderheim and crude oil to Kitimat, where it would have been transported to Asia by oil tankers. The Yinka Dene Alliance, and many other First Nations groups, opposed the project because of

232-595: A fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law , it has been codified nationally by legislation, treaties, and constitutions. Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia , New Zealand, and

348-830: A " conservative family reunion" hosted by Preston Manning in Ottawa, BC Premier Christy Clark stated that "we support pipelines in British Columbia" (referring to liquid natural gas) but that she was not yet convinced of the benefits of the Northern Gateway scheme. Following the Kalamazoo River oil spill on Enbridge Pipeline 6B in Michigan, the BC government stated five requirements to be addressed prior to supporting any heavy oil pipeline proposal: BC premier Christy Clark in 2012 boycotted

464-639: A capacity of 525,000 barrels per day (83,500 m /d). The condensate pipeline would have had a diameter of 20 inches (510 mm) with a capacity of 193,000 barrels per day (30,700 m /d). In 2008 Enbridge expected these pipelines to be completed by 2015. The project, including a marine terminal in Kitimat, was expected to cost CA$ 7.9 billion . The Kitimat terminal would have comprised two tanker berth platforms , one serving very large crude carriers and another serving Suezmax -type condensate tankers. The terminal would have included oil and condensate tanks and

580-549: A clear economic and cultural threat as well, since their ways of life depended on the waters, most notably through their fishing of the salmon population. The Yinka Dene Alliance also opposed the project as a matter of land rights. The project would have traversed around 50 First Nations' territories, much of which had never formally been ceded. Land title is still being negotiated through the BC Treaty Process . The Yinka Dene Alliance, whose traditional territories made up 25% of

696-626: A credible, but yet unproven, claim to Aboriginal title. In 2014 the Supreme Court ruled unanimously for the plaintiff in Tsilhqot'in Nation v. British Columbia . Rejecting the government's claim that Aboriginal title applied only to villages and fishing sites, it instead agreed with the First Nation that Aboriginal title extends to the entire traditional territory of an indigenous group, even if that group

812-596: A decline in real GDP, a decline in government revenues, an increase in inflation, an increase in interest rates and further appreciation of the Canadian dollar." There has been an informal moratorium on large tanker traffic in Dixon Entrance , Hecate Strait , and the Queen Charlotte Sound since 1972. Since then, the federal and provincial governments have commissioned periodic studies to reassess whether to lift

928-446: A long time ago, generally before the assertion of sovereignty , and continuity to the present day. Aboriginal title does not constitute allodial title or radical title in any jurisdiction. Instead, its content is generally described as a usufruct , i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximates fee simple . It

1044-454: A national energy strategy among the Canadian premiers stating "until we see some progress in the discussions between British Columbia, Alberta and the federal government with respect to the Gateway pipeline through British Columbia, we will not be participating in the discussion of a national energy strategy." This was likely over concerns that BC would receive a $ 6.1 billion share of a project that

1160-729: A planned-but-never-built project for a twin pipeline from Bruderheim , Alberta, to Kitimat , British Columbia. The project was active from the mid-2000s to 2016. The eastbound pipeline would have imported natural gas condensate , and the westbound pipeline would have exported diluted bitumen from the Athabasca oil sands to a marine terminal in Kitimat for transportation to Asian markets via oil tankers . The project would have also included terminal facilities with "integrated marine infrastructure at tidewater to accommodate loading and unloading of oil and condensate tankers, and marine transportation of oil and condensate." The CA$ 7.9 billion project

1276-547: A pump station. As an inter-provincial pipeline, the project required a public regulatory review process conducted by JRP. The JRP provided a joint environmental assessment and regulatory process that contributed to decision making. The first session of JRP was held on 10 January 2012, in Kitamaat Village , British Columbia. Other types of studies, such as socioeconomic assessments, were also necessary prior to project approval. Kinder Morgan Energy Partners operates

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1392-676: A rally in Jasper, Alberta , and continued with events in Edmonton, Saskatoon , Winnipeg and Toronto . The final event was a protest outside Enbridge's annual general meeting (AGM). Wet'suwet'en Chief Na'Moks, Nadleh Whut'en Chief Martin Louie and Saik'uz Chief Jackie Thomas attended the AGM itself. In May 2012 it emerged that the Royal Canadian Mounted Police (RCMP) had been closely monitoring

1508-753: A request with the National Energy Board to extend the sunset clause for the Northern Gateway Project. The sunset clause (NEB Condition No. 2) stipulated that construction had to begin before 31 December 2016. The planned project consisted of two parallel pipelines between an inland terminal at Bruderheim, Alberta, and a marine terminal in Kitimat, British Columbia , each with a length of 1,177 kilometres (731 mi). Crude oil produced from oil sands would have been transported from Bruderheim to Kitimat, while natural gas condensate would have moved in

1624-736: A single question on a shared-cost omnibus telephone survey, the same survey used in their political polling. Justason Market Intelligence released a poll in March 2012 that focused on the role of tankers in this pipeline proposal. The poll found 66% of B.C. residents opposed to Enbridge's proposal to transport oil through British Columbia's inside coastal waters, including 50% who registered strong disapproval. An April 2012 survey by Forum Research showed an increase in opposition among B.C. residents to 52% from 46% reported by Forum Research in January. In January, Forum polled 1,211 residents from across Canada; B.C.

1740-883: A statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 , had a similar effect in South Australia . The High Court of Australia , after paving the way in Mabo No 1 by striking down a State statute under the Racial Discrimination Act 1975 , overruled Milirrpum in Mabo v Queensland (No 2) (1992). Mabo No 2 , rejecting terra nullius , held that native title exists (6–1) and

1856-524: Is inalienable , and that it may be held either individually or collectively . Aboriginal title is also referred to as indigenous title , native title ( in Australia ), original Indian title ( in the United States ), and customary title (in New Zealand). Aboriginal title jurisprudence is related to indigenous rights , influencing and influenced by non-land issues, such as whether the government owes

1972-497: Is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title

2088-551: Is a division between those who live in the path of potential environmental harm, and those who live away from the area. The NDP had been seen as the heavy favourites, until shortly after they clarified their pipeline policy. Aboriginal groups' main concern was that the pipeline might spill and pollute the Fraser River. Many Aboriginal groups opposed the Northern Gateway pipeline proposal, though some others signed agreements supporting it. Enbridge and some Aboriginal groups disagreed on

2204-462: Is common ground among the relevant jurisdictions that aboriginal title is inalienable, in the sense that it cannot be transferred except to the general government (known, in many of the relevant jurisdictions, as " the Crown ")—although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law . Especially in Australia, the content of aboriginal title varies with

2320-896: Is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA), codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth upheld the NTA and struck down a conflicting Western Australia statute. In 1996, the High Court held that pastoral leases , which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland . In response, Parliament passed

2436-559: Is not ready to handle a major oil spill from a tanker, in part because its emergency response plan is out of date". In December 2010, the federal House of Commons passed a non-binding motion to ban bulk oil tanker traffic in the Dixon Entrance, Hecate Strait and Queen Charlotte Sound. In November 2015, Prime Minister Trudeau's mandate letter to the Minister of Transport directed that the moratorium be formalized. The proposed pipeline

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2552-401: Is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive." Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish Aboriginal title, and to require prior consultation where the government has knowledge of

2668-548: Is why Northern Gateway was seen not simply as a threat to the local fishery but as the possible undoing of all this intergenerational healing work. And therefore as another wave of colonial violence." The Dogwood Initiative , ForestEthics , the International League of Conservation Photographers, and Greenpeace Canada were some organizations that actively campaigned against the Enbridge pipeline proposal. The proposal

2784-838: The Committee on the Elimination of Racial Discrimination . The 2004 Act was repealed with the passage of the Marine and Coastal Area (Takutai Moana) Act 2011 . The High Court of Australia , which had appellate jurisdiction before 1975, recognized aboriginal title in Papua New Guinea —decades before it did so in Australia—in Geita Sebea v Territory of Papua (1941), Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"), and other cases. The Supreme Court of Papua New Guinea followed suit. Schedule 2 of

2900-610: The Constitution of Papua New Guinea recognizes customary land tenure , and 97% of the land in the country remains unalienated. In Alexkor v Richtersveld Community (2003), a suit under the Restitution of Land Rights Act 1994 , lawyers gathered case law from settler jurisdictions around the world, and judges of the Constitutional Court of South Africa talked frankly about Aboriginal title. The Land Claims Court had dismissed

3016-635: The Doctrine of Continuity , and the Recognition Doctrine . The Act of State doctrine held that the Crown could confiscate or extinguish real or personal property rights in the process of conquering, without scrutiny from any British court, but could not perpetrate an Act of State against its own subjects. The Doctrine of Continuity presumed that the Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law. Its mirror

3132-638: The Native Land Act 1909 declared aboriginal title unenforceable against the Crown. Eventually, the Privy Council acquiesced to the view that the Treaty was non-justiciable. Land was also lost under other legislation. The Counties Act 1886 s.245 said that tracks, "over any Crown lands or Native lands, and generally used without obstruction as roads, shall, for the purposes of this section, be deemed to be public roads, not exceeding sixty-six feet in width, and under

3248-493: The Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit. Western Australia v Ward (2002) held that native title is a bundle of rights , which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since

3364-594: The Numbered Treaties were void. A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential. Delgamuukw v. British Columbia (1997) laid down the essentials of the current test to prove Aboriginal title: "in order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation

3480-731: The Toledo District filed a complaint with the Inter-American Commission on Human Rights (IACHR), which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration . In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing

3596-618: The United Nations Committee on the Elimination of Racial Discrimination . In February 2012 they submitted a request, calling on the Committee to intervene against the Northern Gateway project on the basis that it infringed Aboriginal title . The complaint also argued that the Canadian government was practising a type of racial discrimination by prioritizing Enbridge's interests over the First Nations', by propagating negative images in

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3712-637: The terms of reference for the environmental and regulatory review of the Northern Gateway Pipelines. Enbridge Northern Gateway submitted its project application to the National Energy Board on 27 May 2010. The eight-volume regulatory application was assessed by a Joint Review Panel (JRP) established by the Canadian Environmental Assessment Agency (CEAA) and the National Energy Board (NEB). On 19 January 2011,

3828-717: The 1,150-kilometre-long (710 mi) Trans Mountain Pipeline System from Edmonton , Alberta, to terminals and refineries in central British Columbia, the Vancouver area and the Puget Sound region in Washington . In 2012 the company wanted to increase the pipeline's capacity by twelve times, up to 600,000 barrels per day (95,000 m /d). According to Kinder Morgan , expanding the existing pipeline would have been cheaper than Northern Gateway and avoided opposition as experienced by

3944-784: The Australian citizenry as a result of the 1967 referendum . In 1971, Blackburn J of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum . Paul Coe , in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976 , established

4060-695: The CKGR. Aboriginal title has been recognized in Common Law in Canada since the Privy Council , in St. Catharines Milling v. The Queen (1888), characterized it as a personal usufruct at the pleasure of the Queen. This case did not involve indigenous parties, but rather was a lumber dispute between the provincial government of Ontario and the federal government of Canada. St. Catharines

4176-401: The Canadian economy. Allan stated in the report that the project's success depended on continual yearly oil price increases, by about $ 3/barrel. She also stated that an increase in oil prices would have led to "a decrease in family purchasing power, higher prices for industries who use oil as an input into their production process, higher rates of unemployment in non-oil industry related sectors,

4292-472: The Constitution Act, 1982 explicitly recognized and preserved aboriginal rights. R. v. Guerin (1982), the first Supreme Court of Canada decision handed down after the Constitution Act 1982, declared that Aboriginal title was sui generis and that the federal government has a fiduciary duty to preserve it. R. v. Simon (1985) overruled R. v. Syliboy (1929) which had held that Aboriginal peoples had no capacity to enter into treaties, and thus that

4408-653: The Court did not have jurisdiction to make a declaration in favour of the Nisga'a in the absence of a fiat of the Lieutenant-Governor of B.C. permitting suit against the provincial government. Section 91(24) of the Constitution Act, 1867 ("British North America Act 1867") gives the federal government exclusive jurisdiction over First Nations, and thus the exclusive ability to extinguish Aboriginal title. Section Thirty-five of

4524-475: The Enbridge proposal. In their B.C.-wide telephone survey sponsored by Kennedy Stewart (New Democrat MP), opposition had grown to 42%, from 32% in an Ipsos-Reid online survey sponsored by Enbridge in December 2011. However, because their methodologies and context differed, the reported growth in opposition was difficult to substantiate. Ipsos-Reid conducted an online custom survey for Enbridge. Mustel Group included

4640-565: The Enbridge's project. As an alternative, some indigenous groups proposed Eagle Spirit Pipeline from northern Alberta to the Prince Rupert area on the BC coasts. Many indigenous people wanted the economic activity from construction and operation of pipelines to improve conditions of their members. Another project to export crude oil from western Canada was the XL expansion of TransCanada 's Keystone pipeline . which supplies heavy oil to refineries on

4756-549: The Federal Constitution and the Aboriginal Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States. That case was the first time where Orang Asli directly and expressly challenged a state taking of their land. The opinion held that: "the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived." The case

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4872-422: The Gitxsan hereditary chiefs, in exchange for $ 7 million. However, this deal was quickly overturned following the closure of the Gitxsan Treaty Society Office by opponents of the deal. The Enbridge deal was subsequently rejected in writing by 45 Gitxsan chiefs, who claimed that the office had misrepresented the Gitxsan people. Only one chief in BC publicly supported the proposed pipeline, Chief Elmer Derrick. Derrick

4988-481: The Heiltsuk Nation in April 2012 for hearings into the Enbridge Northern Gateway Pipeline proposal. "By some counts, a third of Bella Bella's 1,095 residents were on the street that day, one of the largest demonstrations in the community's history." Facing non-violent protest as part of the greeting at the airport, the JRP members suspended the hearings for a day and a half. While the hearings did resume, substantial time had been lost, meaning fewer people could present to

5104-468: The IACHR judgement and key precedents from other common law jurisdictions. The government entered into negotiations with the Maya communities, but ultimately refused to enforce the judgement. In 2008, The TMCC and TAA, and many individual alcaldes , filed a representative action on behalf of all the Maya communities of the Toledo District, and on 28 June 2010, CJ Conteh ruled in favor of the claimants, declaring that Maya customary land tenure exists in all

5220-441: The JRP requested that Enbridge provide additional information on the design and risk assessment of the pipelines due to the difficult access and unique geographic location of the proposed project. On 17 June 2014 the Canadian government accepted the project's proposal. It set out 209 conditions, identified in 2013 by a Joint Review Panel, to be resolved during the next phase of the regulatory process. On 6 May 2016, Enbridge filed

5336-420: The JRP than had planned. "As the young people of the community explained when they finally got the chance, their health and identity were inextricably bound up in their ability to follow in the footsteps of their forebears - fishing and paddling in the same waters, collecting kelp in the same tidal zones in the outer coastal islands, hunting in the same forests, and collecting medicines in the same meadows. Which

5452-417: The Maya villages of the Toledo District, and gives rise to collective and individual property rights under sections 3(d) and 17 of the Belize Constitution . A Botswana High Court recognized aboriginal title in Sesana and Others v Attorney General (2006), a case brought by named plaintiff Roy Sesana , which held that the San have the right to reside in the Central Kalahari Game Reserve (CKGR), which

5568-491: The Native Lands Act 1862, the Native Rights Act 1865 and the Native Lands Act 1865 which established the Native Land Court (today the Māori Land Court ) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to Pākehā (New Zealanders of European descent). That court created the "1840 rule", which converted Māori interests into fee simple if they were sufficiently in existence in 1840, or else disregarded them. Symonds remained

5684-417: The Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed. In A-G for British Honduras v Bristowe (1880), the Privy Council held that the property rights of British subjects who had been living in Belize under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple during

5800-402: The Treaty, and facilitate settlements . Te Weehi v Regional Fisheries Office (1986) was the first modern case to recognize an aboriginal title claim in a New Zealand court since Wi Parata , granting non-exclusive customary fishing rights. The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation

5916-449: The US Gulf Coast. And the Energy East pipeline would have transported oil to refineries in Montreal and the Atlantic provinces, which now import oil from the Bakken formation in Montana and North Dakota by railway, as well as from overseas by ship. However, project proponent TC Energy cancelled the pipeline in the face of political objections and concerns over economic viability. BC NDP leader Adrian Dix promised to pull B.C. out of

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6032-441: The Union of BC Municipalities, environmentalists and oil sands opponents, among others, denounced the project because of the environmental, economic, social and cultural risks posed by the pipeline. Proponents argued that the pipeline would have provided Indigenous communities with equity ownership, employment, community trust and stewardship programs. The Federal Court of Appeal ultimately ruled that consultation with First Nations

6148-407: The United States. Aboriginal title is an important area of comparative law , with many cases being cited as persuasive authority across jurisdictions. Legislated Indigenous land rights often follow from the recognition of native title . Aboriginal title arose at the intersection of three common law doctrines articulated by the Judicial Committee of the Privy Council : the Act of State doctrine,

6264-403: The West Coast of British Columbia should be maintained for the time being" In 2009, the Canadian government's position was that there is no moratorium on tanker traffic in the coast waters of British Columbia. However, on 7 December 2010, Canada's environmental watchdog (Scott Vaughan, commissioner of the environment and sustainable development) in a damning report stated "Canada's government

6380-437: The Yinka Dene Alliance for signs of "acts of protest and civil disobedience". The RCMP unit gathered evidence from public and social media sources, and seemed to have also monitored private meetings. Chief Jackie Thomas, from the Saik'uz First Nation, said, "We've always been peaceful, but this is how they try to paint us as the enemy". Enbridge Northern Gateway Pipelines The Enbridge Northern Gateway Pipelines were

6496-472: The Yinka Dene Alliance released an open letter to Chinese President Hu Jintao . Canadian Prime Minister Stephen Harper was about to meet Hu to discuss Chinese investment and trade in Canadian energy, which the Northern Gateway project would have facilitated greatly. In the letter the Yinka Dene Alliance asked Hu to raise human rights concerns with Harper. They outlined a number of human rights issues concerning First Nations, including land rights, injustices in

6612-412: The beaches, and customary fishing rights on the foreshore. The Limitation Act 1950 established a 12-year statute of limitations for aboriginal title claims (6 years for damages), and the Maori Affairs Act 1953 prevented the enforcement of customary tenure against the Crown. The Treaty of Waitangi Act 1975 created the Waitangi Tribunal to issue non-binding decisions, concerning alleged breaches of

6728-441: The company to investigate the unique risks and liabilities associated with the project. Multiple public opinion surveys, sponsored by Enbridge, Ethical Oil and other oil interests, were conducted on the Northern Gateway pipeline. An Abacus Data survey released in January 2012 for Sun Media found that 38% of Canadians were in support of building the pipeline, while 29% were opposed. Another 33% said they neither support nor oppose

6844-457: The complaint of the Richtersveld peoples, whose land was seized by a government owned diamond mining operation . The Supreme Court of Appeal disagreed, citing Mabo and Yorta Yorta , but held that the aboriginal title had been extinguished. Whether the precedent will be the start of further land rights claims by indigenous peoples is an open question, given the cut-off date of 1913 in the Restitution Act. The case ultimately did not lead to

6960-405: The control of the Council". Opposition to such confiscation was met by force, as at Opuatia in 1894. A series of Acts, beginning a year after the Treaty of Waitangi with the Land Claims Ordinance 1841, allowed the government to take and sell 'Waste Lands'. Favorable court decisions turned aboriginal title litigation towards the lake beds, but the Māori were unsuccessful in claiming the rivers

7076-530: The cost benefit analysis indicates that, taking into account all benefits and costs, including cost expectations from oil spills, there is a large and robust net social benefit associated with the project from a national Canadian perspective." A report put forth by economist and former Insurance Corporation of BC CEO, Robyn Allan , in early 2012, took assumptions of Wright Mansell Research Ltd's analysis into question – stating that this proposed pipeline could have actually hurt non-oil based sectors of

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7192-451: The declaration was made public. The group took out a full-page advertisement in The Globe and Mail announcing their opposition to the project, and staged a march in Vancouver to deliver the Declaration to the Enbridge headquarters. Many new signatories were added in ceremonies in Vancouver on December 1, 2011, and Edmonton on January 27, 2012. Over 130 First Nations have now signed the Save The Fraser Declaration. On February 6, 2012,

7308-400: The degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent. Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country. Some require

7424-432: The exclusion of black African communities, an approach deemed detrimental to the spirit of national unity. The legacy of the Natives Land Act also means that few communities retain relationships with the land of which they held before 1913. Taiwanese indigenous peoples are Austronesian peoples , making up a little over 2% of Taiwan 's population; the rest of the population is composed of ethnic Chinese who colonised

7540-400: The existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies. Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia . The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) occupation (or possession) from

7656-465: The extent of this support and opposition. Several coalitions and alliances produced formal declarations unequivocally rejecting the intrusion of an oil pipeline on aboriginal lands. These included Yinka Dene Alliance , Heiltsuk Nation , Coastal First Nations, and Save the Fraser. The Wet'suwet'en First Nation opposed the pipeline, as well as many Dakelh First Nations including the Saik'uz First Nation . The Joint Review Panel travelled to

7772-678: The federal review process if he was elected in the spring of 2013 (which he was not), while also hiring prominent constitutional lawyer Murray Rankin to consider a legal challenge on who had jurisdiction over pipelines. Rankin argued that British Columbia should withdraw from the federal government's pipelines review process and set up a made-in-B.C. environmental assessment. In an August 2012 NDP press conference Rankin argued that "a made-in-B.C. review would ensure that B.C.'s economic, social and environmental interests are fully addressed, that B.C.'s powers and responsibilities are properly exercised and that First Nations' interests are recognized within

7888-408: The first time in Superintendent of Lands v. Madeli bin Salleh . The Federal Court endorsed Mabo and Calder , stating that "the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth." The High Court of Kuching held in 2010, for the first time, that NCL may be transferred for consideration between members of

8004-521: The force of law. Malaysian court decisions from the 1950s on have held that customary lands were inalienable . In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution. Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land. In 1997, Mokhtar Sidin JCA of the Jahore High Court became the first Malaysian judge to acknowledge common law aboriginal title in Adong bin Kuwau v. Kerajaan Negeri Johor . The High Court cited

8120-449: The foreshore in Land Court. The Court also indicated that customary aboriginal title interests (non-territorial) might also remain around the coastline. The Foreshore and Seabed Act 2004 extinguished those rights before any lower court could hear a claim to either territorial customary title (the Maori Land Court) or non-territorial customary rights (the High Court's inherent common law jurisdiction). That legislation has been condemned by

8236-418: The gap between Spanish and British sovereignty. This decision did not involve indigenous peoples, but was an important example of the key doctrines that underlie aboriginal title. In 1996, the Toledo Maya Cultural Council (TMCC) and the Toledo Alcaldes Association (TAA) filed a claim against the government of Belize in the Belize Supreme Court , but the Court failed to act on the claim. The Maya peoples of

8352-616: The government owed a duty analogous to a fiduciary duty toward the Māori. This cleared the way for a variety of Treaty-based non-land Māori customary rights. By this time the Waitangi Tribunal in its Muriwhenua Fishing Report (1988) was describing Treaty-based and common law aboriginal title derived rights as complementary and having an 'aura' of their own. Circa the Te Ture Whenua Māori Act 1993 , less than 5% of New Zealand

8468-582: The guiding principle, until Wi Parata v the Bishop of Wellington (1877). Wi Parata undid Symonds , advocating the doctrine of terra nullius and declaring the Treaty of Waitangi unenforceable. The Privy Council disagreed in Nireaha Tamaki v Baker , and other rulings, but courts in New Zealand continued to hand down decisions materially similar to Wi Parata . The Coal Mines Amendment Act 1903 and

8584-601: The inclusion of the Aboriginal title in South African doctrine. Legal scholars allege that this is because the application of terms like 'indigenous' and 'Aboriginal' in a South African context would lead to a number of contradictions. The identity of the indigenous groups in South Africa is not self-evident. The adoption of a strict definition, including only communities descended from San and Khoekhoe people, would entail

8700-646: The independent existence of common law aboriginal title. Native Customary Rights (NCR) and Native Customary Land (NCL) are provided for under section 4(2) of the National Land Code 1965, the Sarawak Land Code 1957, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963, and the Customary Tenure Enactment (FMS). Rajah's Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land

8816-400: The institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. Two years later, Amodu Tijani laid the basis for several elements of the modern aboriginal title doctrine, upholding a customary land claim and urging the need to "study of the history of the particular community and its usages in each case." Subsequently, the Privy Council issued many opinions confirming

8932-632: The island from the 17th century onward. From 1895 Taiwan was under Japanese rule and indigenous rights to land were extinguished. In 1945, the Republic of China (ROC) took control of Taiwan from the Japanese Empire ; a rump Republic of China was established on Taiwan in 1949 after the Communists won the Chinese Civil War . From then, indigenous people's access to traditional lands was limited, as

9048-400: The judgement of a non-judicial tribunal. Other important Privy Council decisions include In re Southern Rhodesia (1919) and Amodu Tijani v. Southern Nigeria (Secretary) (1921). The former rejected a claim for aboriginal title, noting that: Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with

9164-558: The judicial system, and the imposition of resource development projects like the Northern Gateway. On the same day, the Yinka Dene Alliance also released an open letter to the Chinese people, declaring their opposition to the Northern Gateway. In it they stated that an oil spill "could destroy the extremely rare spirit bear – a bear with white fur that is as beautiful as the Chinese panda bear ". The Yinka Dene Alliance also appealed to

9280-442: The land directly affected by the Northern Gateway project, argued that Enbridge had no legal right to proceed without First Nations' approval. However, based on the 1997 Delgamuukw case, the Supreme Court of Canada disagreed. According to Canadian law, the First Nations must be consulted, which happened through the project's Joint Review Panel and through private negotiations between Enbridge and First Nations, but they do not have

9396-436: The legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement. Jurisdictions differ on whether

9512-427: The media of the First Nations's opposition, and by classifying Aboriginal groups as "adversaries" in a confidential internal document. Anne Sam, from Nak'azdli First Nation, went to Geneva to speak to the committee as a representative of the Yinka Dene Alliance. From April 30 to May 9, 2012, the Yinka Dene Alliance sent 30 representatives travelling across Canada on the so-called Freedom Train. The protest began with

9628-507: The new process". In response Dix said "Within a week of taking office, we will serve the federal government with 30 days' notice to terminate the 2010 deal in which the Liberals signed away B.C.'s interests." This policy was blamed for the poor election result for the NDP in 2013. The NDP won nearly every coastal riding in the 2013 British Columbia general election - so it could be argued that there

9744-523: The opposite direction. Condensate would have been used as a diluent in oil refining to decrease the viscosity of heavy crude oil from oil sands, and to make it easier to transport by pipelines. About 520 kilometres (320 mi) of pipeline would have run in Alberta and 657 kilometres (408 mi) in British Columbia . The crude oil pipeline would have had a diameter of 36 inches (910 mm) and

9860-466: The pipeline. Another survey conducted by Forum Research in mid-January 2012 found that the share of Canadians who opposed the pipeline had fallen to 43%, from 51% in a December survey. Support for the project remained stable (at 37%, up within margin of error from 35%). 20% were undecided (up from 15% in December). In British Columbia, a March 2012 survey by Mustel Group reported increased opposition to

9976-565: The power to veto. The Yinka Dene Alliance did not participate in the Joint Review Panel public hearings, calling them "bogus" on the grounds that the Canadian government had already made up its mind to support the project. The Save the Fraser Declaration is a document of indigenous law, banning the Northern Gateway pipeline, and any similar projects, from crossing the signatories' territories. The signatories declare: "We will not allow

10092-518: The prevailing law until Calder v. British Columbia (Attorney General) (1973). All seven of the judges in Calder agreed that the claimed Aboriginal title existed, and did not solely depend upon the Royal Proclamation of 1763 . Six of the judges split 3–3 on the question of whether Aboriginal title had been extinguished. The Nisga'a did not prevail because the seventh justice, Pigeon J, found that

10208-475: The project, concluded that the project "would be a catalyst for the generation of substantial and widely distributed economic stimulus for Canada and a significant contributor to sustaining Canadian growth and prosperity for many years into the future. While the benefits of greater flexibility, adaptability and opportunity for the Canadian petroleum sector, through market expansion and diversification, have not been quantified, they are also real and important. Further,

10324-485: The project. Upon taking office in 2015, Prime Minister of Canada Justin Trudeau banned oil tanker traffic on the north coast of British Columbia, effectively killing the project. On 29 November 2016 Trudeau officially rejected plans for the pipelines. The project was proposed in the mid-2000s and was postponed several times. It was announced in 2006. Enbridge signed a cooperation agreement with PetroChina in 2005 to ensure

10440-645: The proposed Enbridge Northern Gateway Pipelines, or similar Tar Sands projects, to cross our lands, territories and watersheds, or the ocean migration routes of Fraser River Salmon." The declaration was negotiated in November 2010 by the Yinka Dene Alliance and the St'át'imc Nation. It was then signed by representatives from over 60 First Nations, who called themselves the Save the Fraser Gathering of Nations. On December 2, 2010,

10556-429: The proposed project's construction labour force to be aboriginal. In 2012, without naming individual bands, Enbridge said that 70% of the affected First Nations had signed onto the deal. However, no band whose land was being directly traversed by the pipeline had signed on. Enbridge offerings were expected to create more division amongst first nations, as was the case with Enbridge's announcement in 2011 of support by

10672-525: The provinces, and provincial law still applies. In 2008, Japan gave partial recognition to the Ainu people . However, land rights were not given for another eleven years. In 2019, Japan fully recognised the Ainu people as the indigenous people of Japan and gave them some land rights if requested. Malaysia recognised various statutory rights related to native customary laws ( adat ) before its courts acknowledged

10788-503: The same community, as long as such transfers are not contrary to customary law . New Zealand was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the New Zealand land confiscations ) has left the Māori with little to claim except for river beds , lake beds , and the foreshore and seabed . In 1847, in a decision that

10904-450: The state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property , as protected by constitutional or common law, and the breach of a fiduciary duty . Australia did not experience native title litigation until the 1970s, when Indigenous Australians (both Aboriginal and Torres Strait Islander people) became more politically active, after being included in

11020-648: The tanker moratorium. Each study has concluded that the risk of tanker spills is too high. In 2003–2004, the federal government initiated a three-part review process, including a scientific review by the Royal Society of Canada (the RSC report ), a First Nations engagement process (the Brooks Report ), and a public review process (the Priddle Panel ). The RSC report concluded that "the present restriction on tanker traffic along

11136-443: The threat it posed to the environment, their ways of life, and their land rights. The pipelines would have crossed nearly 800 streams and rivers, and oil tankers would have had to navigate rough waters and jagged coasts. A pipe leak or oil tanker spill – which the Yinka Dene Alliance deemed "inevitable" – could devastate the water supply, imperiling the ecosystem and local communities' health. This posed

11252-476: The utilization of pipeline capacity. PetroChina agreed to buy about 200,000 barrels per day (32,000 m /d) transported through the pipeline. In 2007, however, PetroChina withdrew from the projects because of delays in starting the project. On 4 December 2009, Canada's National Energy Board (NEB) and the Canadian Environmental Assessment Agency (CEAA) issued the Joint Review Panel Agreement and

11368-466: Was a smaller subsample of that national poll. In April, Forum polled 1,069 British Columbians. The B.C. sample size for the January poll was not provided. The issue of the pipeline was a subject of controversy between the governments of Alberta and British Columbia, starting in 2011 when the Alberta government under Premier Alison Redford began pressuring BC to support the pipeline. In an 8 March speech to

11484-403: Was abandoned. Rajah's Order VIII of 1920 ("Land Order 1920") divided "State Lands" into four categories, one of them being "native holdings", and provided for the registration of customary holdings. The Aboriginal People's Act 1954 creates aboriginal areas and reserves, also providing for state acquisition of land without compensation. Article 160 of the Federal Constitution declares that custom has

11600-466: Was also opposed by numerous non-governmental organizations, which cite previous spills, concerns over oil sands expansion, and associated risks in transportation. In June 2014 the Northern Gateway pipeline project was approved by the federal government, subject to 209 conditions. In 2015 the CBC questioned the silence concerning the Northern Gateway project and suggested that Enbridge might have quietly shelved

11716-480: Was criticized by several entities, including government and non-governmental organizations (NGOs), the BC NDP and independent sources, citing Enbridge's spotty history with pipeline installation, non-conformance to government regulations and numerous spills. The Pembina Institute published a report in 2010 saying that the pipeline would have adverse impacts on land, air, and water. Some of Enbridge's shareholders asked

11832-504: Was decided in the wake of the Indian Act (1876), which laid out an assimilationist policy towards the Aboriginal peoples in Canada ( First Nations , Inuit , and Métis ). It allowed provinces to abrogate treaties (until 1951), and, from 1927, made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims. St. Catharines was more or less

11948-462: Was expected to earn $ 81 billion in government revenues over 30 years, while footing a majority of the risk. In July 2012 Clark said no to the proposed pipeline, unless Alberta entered negotiations with BC on revenue sharing. "If Alberta is not willing to even sit down and talk, then it stops here," she said. This is in response to the disproportionate risk that BC would have to take on with this pipeline. Aboriginal title Aboriginal title

12064-418: Was first proposed in the mid-2000s but was postponed several times. The project plan was developed by Enbridge Inc., a Canadian crude oil and liquids pipeline and storage company. When completed, the pipeline and terminal would have provided 104 permanent operating positions created within the company and 113 positions with the associated marine services. First Nations groups, many municipalities, including

12180-528: Was held as Māori customary land. In 2002, the Privy Council confirmed that the Maori Land Court, which does not have judicial review jurisdiction, was the exclusive forum for territorial aboriginal title claims (i.e. those equivalent to a customary title claim) In 2003, Ngati Apa v Attorney-General overruled In Re the Ninety-Mile Beach and Wi Parata , declaring that Māori could bring claims to

12296-526: Was inadequate and overturned the approval. The proposal was heavily criticized by Indigenous peoples. Groups like the Yinka Dene Alliance organized to campaign against the project. In December 2010, 66 First Nations bands in British Columbia, including many along the proposed pipeline route, signed the Save the Fraser Declaration in opposition to the project, and 40 more signed since that time. The proposal

12412-556: Was not appealed to the Privy Council, the Supreme Court of the colony of New Zealand recognized aboriginal title in R v Symonds . The decision was based on common law and the Treaty of Waitangi (1840). Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers". The New Zealand Parliament responded with

12528-514: Was opposed by Indigenous groups. Groups like the Yinka Dene Alliance were organized to campaign against the project. First Nations bands in British Columbia, including many along the proposed pipeline route, signed the Save-the-Fraser Declaration in opposition to the project. The Save-the-Fraser Declaration was signed by numerous indigenous tribes, declaring opposition to oil pipelines through First Nation traditional territories. It

12644-518: Was rejected by Lord Mansfield in 1774. The two doctrines were reconciled, with the Doctrine of Continuity prevailing in nearly all situations (except, for example, public property of the predecessor state) in Oyekan v Adele (1957). The first Indigenous land rights case under the common law, Mohegan Indians v. Connecticut , was litigated from 1705 to 1773, with the Privy Council affirming without opinion

12760-403: Was semi-nomadic and did not create settlements on that territory. It also stated that governments must have consent from First Nations which hold Aboriginal title in order to approve developments on that land, and governments can override the First Nation's wishes only in exceptional circumstances. The court reaffirmed, however, that areas under Aboriginal title are not outside the jurisdiction of

12876-453: Was signed by more than 130 First Nations. In 2013 Enbridge offered a 10% equity stake in the $ 5.5 billion proposed project, over the following 30 years, to participating aboriginal groups. As well, Enbridge said it would put one per cent of Northern Gateway's pre-tax earnings into a trust, which was expected to generate $ 100 million over 30 years for non-Aboriginal as well as Aboriginal groups. The company said it expected roughly 15 per cent of

12992-513: Was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition. In 1608, the same year in which the Doctrine of Continuity emerged, Edward Coke delivered a famous dictum in Calvin's Case (1608) that the laws of all non-Christians would be abrogated upon their conquest. Coke's view was not put into practice, but

13108-745: Was the chief negotiator for the Gitxsan Treaty Society before its closure in 2011. Derrick was later dismissed as chief negotiator for the GTS. Several First Nations (including the Haisla, Gitga'at, Haida, Gitxaala, Wet'suwet'en, Nadleh Whut'en, Nak'azdli, and Takla Lake) publicly stated (via the Joint Review Panel or in the media) that neither the Crown nor the established assessment process for Enbridge's project had adequately met their duty to consult and accommodate, or respect their Aboriginal rights and title. Wright Mansell Research Ltd, in their analysis of

13224-459: Was the common law principle of continuity. The Crown did not appeal Te Weehi which was regarded as the motivation for Crown settlement of the sea fisheries claims (1992). Subsequent cases began meanwhile—and apart from the common law doctrine—to rehabilitate the Treaty of Waitangi, declaring it the "fabric of New Zealand society" and thus relevant even to legislation of general applicability. New Zealand Maori Council v Attorney-General held that

13340-637: Was upheld on appeal, but the Federal Court did not write an opinion. Later High Court and Court of Appeal decisions built upon the foundation of Adong bin Kuwau . However, the ability for indigenous peoples to bring such suits was seriously limited by a 2005 ruling that claims must be brought under O. 53 RHC , rather than the representative action provision. In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for

13456-455: Was violated by their 2001 eviction. The decision quoted Mabo and other international case law, and based the right on the San's occupation of their traditional lands from time immemorial . The court described the right as a "right to use and occupy the lands" rather than a right of ownership. The government has interpreted the ruling very narrowly and has allowed only a small number of San to re-enter

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