Kitigan Zibi Anishinabeg First Nation has filed a new land claim seeking Aboriginal title for large portions of its unceded ancestral territory in western Quebec. 

The First Nation near Maniwaki filed a first claim with the Ontario Superior Court in 2016, in which it sought Aboriginal title for several pieces of land in downtown Ottawa, including Parliament Hill and the LeBreton Flats. 

As that land claim makes its way towards a trial date, this latest claim, filed with the Superior Court of Québec at the end of October, asks the court to declare that the First Nation holds Aboriginal title for eight specific pieces of land on the Quebec side of the Ottawa River. 

Among the lands in question are the Gatineau Park, the Baskatong reservoir, ZEC Pontiac, as well as Allumette Island and several of the smaller islands at its eastern end.  

Aboriginal title is defined by the Canadian legal system as the unique collective right of ownership held by an Indigenous nation entitling it to the use of and jurisdiction over its ancestral territories. It is protected by Section 35 of the Canadian Constitution Act. 

Most of the lands included in this claim are managed by the federal government, the Province of Quebec, the National Capital Commission, or Hydro-Québec. All four parties are defendants in the claim. 

Where the lands in question include private property, Kitigan Zibi chief Jean-Guy Whiteduck assures the First Nation is not looking to remove anybody from the land they own.  

“Us, we’re not trying to displace no one. We’re saying it’s a government issue and they need to resolve it, without those people losing their fee-simple ownership,” he said.  

“We should have a say in the management, we should have economic benefit that flows from the resources, and for anything that we have to give our accord, it should be free and informed consent. We’re not against development, providing it doesn’t create pollution or damage the water.”

Along with having its Aboriginal title over the lands in question upheld by the court, the First Nation is also seeking $5 billion in damages for violations of its constitutionally protected Section 35 rights it says have been perpetrated by both the Crown, Québec, and Hydro-Québec. 

Historical proofof title

In its claim, the First Nation leans on two historical agreements – the 1760 Treaty of Swegatchy and the 1763 Royal Proclamation – as evidence of its Aboriginal title, its legal ownership of and right to management of these lands that it never ceded. 

“We rely on both of those because they are the foundational historical promises that the British Crown of the day made to not only Kitigan Zibi but to others as well,” explained Eamon Murphy, one of the lawyers representing the First Nation. 

“The Treaty of Swegatchy was very much aimed at the Algonquins in that they were looking at the Algonquins to build an alliance. And so there were promises made under that treaty to not dispossess the Algonquins of their lands if they allied with the British. The Proclamation had a broader scope. So it reinforced some of what was in the Treaty of Swegatchy but it applied to a larger area of Canada.”

Murphy said despite these promises, Kitigan Zibi’s land was still taken and sold for various purposes, including resource extraction and hydro-electricity. 

The First Nation now needs to prove two things, as outlined by the Supreme Court, to be able to claim title. The first is that it regularly used the lands in question by way of fishing and hunting areas, villages and trails, at the time of sovereignty, which in this case is 1763. 

“As you can imagine, going back to 1763 is actually quite a difficult test to meet. It takes a lot of evidence and research to be able to show that,” Murphy said. 

The second proof needed is that the First Nation had exclusive occupation and control over the land. 

Chief Whiteduck said this claim focuses on pieces of land the First Nation can prove were occupied by its families. 

“We have historical proof that the Algonquins have occupied those areas for a long time. So the islands were even being rented out. Up until the mid-1800s there was a rental being paid to the Algonquins for the islands. We have proof of that,” he said. 

In an email, Hydro-Québec said it is not in a position to comment on this matter as it is currently before the courts.

While THE EQUITY had not received comment from any of the three other defendants by publication deadline, Murphy said they have all filed their initial appearances saying they will dispute the case. 

“Then we have to wait for their defenses, so that’s really the next step. [ . . . ] We’re looking forward to seeing what all the defendants have to say, because Kitigan Zibi has a very good case,” Murphy said.

Precedent setting for Quebec 

Murphy said there are no precedents from Quebec courts that offer any clues as to how Kitigan Zibi’s claim might be received. 

“The precedents that we have so far on Aboriginal title are from British Columbia, a large part of which was never settled through treaties.”

The First Nation is pointing to an August ruling from the Supreme Court of British Columbia in which a judge recognized the Quw’utsun (Cowichan) Nation’s Aboriginal title to a piece of land along the Fraser River that was the grounds of an ancestral village site, including over 300 hectares of land in the City of Richmond, much of which is now privately owned. 

The province and federal government, along with several other First Nations claiming title to the land plan to appeal this decision, but it has still raised significant questions about rights of fee-simple property owners in British Columbia, and across the country. 

Murphy emphasized that Kitigan Zibi is not looking to dispossess private property owners. 

“What Kitigan Zibi is looking to do is address the fact that these lands were taken, and without anything provided to them. And so really it’s about the court ordering the Crown to right the historic wrong.”

He said the B.C. case is not binding on the Quebec courts, because it’s not from the Supreme Court of Canada, but will be persuasive. 

“We will rely on some of the findings that the court made because it does relate to how Indigenous people use and occupy land.”

Murphy said the legal context in Quebec is different from B.C., in that parts of the province were supposedly addressed by treaty, but “title lands were just kind of taken away from the First Nations.” 

“So it’s going to be a precedent-setter,” he said. “We’ll have to be blazing a bit of a trail on this one.”