From land acknowledgements to Twitter profiles, the term “unceded territory” is everywhere these days. A lot of people, however, are still not clear on what it means. There’s a lot of confusion over what “unceded” actually means, and yet, the concept is actually really easy to understand. There are two moving parts. One is widely known and understood, but the second is a little less well know. Once that second part is introduced everything makes sense, whether you like the bigger concept of ceded/unceded or not.

For as long as humans have claimed ownership of land there have been ownership disputes. From these disputes arose mechanisms to prove ownership. Proof of ownership is critical not only to be able to demonstrate that someone owns the land, but perhaps more importantly, to transfer ownership of the land from one person or group of persons to another.

Anyone who’s ever bought a house understands this. The seller gives title to their house to the buyer and gets money in return. In some jurisdictions the buyer gets a deed to the property, proving that the buyer is the new owner. In BC that proof is an entry in the Land Title Office Registry. Anyone can investigate any piece of property and confirm who owns it as well as all sorts of other information like purchase price, length of time it’s been owned by the current owner, what the exact location and description of the property is and a host of other things.

We all understand that this information is very important for all sorts of reasons, but the most important reason is very obvious: the buyer does not want to pay a seller good money for land that the seller does not actually own. Everyone wants to be assured that the seller not only owns the property but that they acquired it properly and that previous owners agree that the land was indeed transferred to the person or group now selling it.

In other words, everyone involved in a good faith real estate transaction wants to be able to prove that all prior owners of a piece of land *ceded*, or transferred their ownership to the next owner. When we introduce that concept to traditional territories and someone says “We acknowledge that we are on the unceded traditional territory” of a particular First Nation, what they’re saying is “We acknowledge that ownership of this land was never formally transferred away from the First Nation claiming it as traditional territory”.

That’s a very easy concept to understand, but it’s also very scary. Many people who hear this for the fist time immediately think “Wait. What? Are you saying I bought stolen property? That can’t be. I bought and paid for it legally and I have title granted by the Crown through the Province of British Columbia. Are you saying the Crown didn’t own the property that it sold me?”

The short answer to that question is: we don’t know the answer yet, but we do know that the Crown did not properly alienate land title for the majority of BC. Many people don’t like that statement, but it is factually correct, has been tested multiple times in the Supreme Court of Canada and all levels of government accept it. It is the reason why the subject of unceded land matters and why we’re talking about the subject.

If we all understand and agree that land ownership must be transferred properly, and if we all assume that land titles that come from the Crown are valid, how did we get into a situation where Crown title is something less than perfect? How can it be that the Crown could possibly be granting individuals ownership of land that the Crown does not actually have title to?

The explanation for that is also fairly simple. When European powers first began colonization of North America they often used the concept of “terra nullius” – the legal Latin term for “nobody’s land”. The idea was that whoever claimed the land was the owner, and the fact that there were already Indigenous people living on the land was immaterial – the legal principle of “terra nullius” meant that the monarch or the Pope had spoken, that the matter was settled, and that the concerns of anyone with pre-existing claims were extinguished. The land had been ceded and the monarch owned it. It’s important to understand that “terra nullius” was a European legal concept, and it acquired it’s legal force from a European monarch or the Pope.

French conquests of North America operated on the terra nullius principle, but the Seven Years War between the French and the British brought that to a close. The British victory added France’s Canadian possession to the pre-existing British colonies in North America – that is, it added Quebec to the 13 American colonies. The British Crown understood that the 13 Colonies were a problem, and that unchecked settlement as British colonists moved westward over the Alleghenies and Appalachians would create would result in an increasingly hard to govern and independent population of British subject in the New World.

To solve this problem and to cement British ownership of the new possessions the Crown issued the Royal Proclamation of 1763 which, among other things, recognized that terra nullius did not apply in Canada, that the Indigenous peoples did indeed own the land, and that the ownership of that land could only be transferred from the Indigenous people to the Crown. More bluntly, the King decreed that if Indigenous people did not formally transfer ownership of the land to him the land was unceded. This was established in 1763 and the concept has been confirmed by the Supreme Court of Canada. What that means is that for many parts of Canada, and for most of BC, the Crown cannot prove that it has actual ownership of the land because it never alienated the land from the original title holders, the First Nations.

Many people observe that ownership of land has, throughout history, changed as a result of war, invasion and migration. This is absolutely true, but it does not apply to Canadian law because of the Crown’s recognition of Indigenous title in 1763 and the stipulation that title could only be transferred from First Nation to the Crown.

Some people then ask: why are we being governed today by a proclamation made about Quebec 258 years ago? The reason for that is a second legal concept called “the honour of the Crown”. The honour of the Crown dictates that if the Crown made a ruling that ruling stands forever, subject to legal interpretation of the declaration. We see that in modern court proceedings lie the recent Ahousat case where claims of Indigenous rights and title title are required to meet certain standards.

What about treaties that were entered into between the Crown and First Nations in the past? Even without the principle of terra nullius, and with the Royal Proclamation and the honour of the Crown, wouldn’t a treaty qualify as the Crown alienating title to the land from Indigenous people and would that not prove that the land in question was ceded? In theory the answer is yes, and in BC there were in fact several treaties entered into, particularly in the northeast part of the province (Treaty 8) and on Vancouver Island (the Douglas Treaties). In practice these treaties are referred to as “historical” treaties and they are considered somewhat unenforceable because full and informed consent of the Indigenous people concerned was never obtained. Additionally, although Indigenous title to land can be cede through a treaty, not all treaties actually extinguish Indigenous rights or title. Some treaties simply modify those two things.

The future of Indigenous title and how it will be finally understood in Canadian law is clearly still evolving. It is unclear how far recognition of Indigenous title will go and how it will impact things like grazing, forestry or tourism tenures, and even how it will affect fee simple title. One thing, however, is clear: when someone in British Columbia acknowledges that they are on unceded traditional territory they may well be making a social or political statement, but more important than that, they are simply recognizing the legal status of that land’s ownership according to Canadian law down through the ages.