“Indigenous Title” vs. “Aboriginal Title” – Louison v. Ochapowace Indian Band #71

Peter Scott Vicaire

In Louison v. Ochapowace Indian Band #71 , William Louison tried to sue the Ochapowace Indian Band #71, its corporation (312050 Saskatchewan Ltd.) and the province of Saskatchewan – not only in his personal capacity but also “in a representative capacity on behalf of all Indigenous Peoples of Saskatchewan.”

Mr. Louison was living on a certain tract of land which the Ochapowace Band held the only legally recognizable right to and which it was attempting to remove him from.  Louison claimed that he was a “North American Indigenous Person” and that the subject lands were settled by his ancestors. He also claimed that the land in question was traditional “Indigenous Peoples lands” and that he had the right to use the land by way of Indigenous Title.   Therefore, he refused to give up possession of the land.

The court addressed what it saw as the only “novel” portion of the his claim – which was that he “seems to be claiming that ‘Indigenous Title’ is somehow different from ‘Aboriginal Title’ with the difference being that Indigenous Title is both an individual right as well as a communal one.”

Among other relief, the plaintiff seeks a declaration that the Indian Act is ultra vires and “an act of genocide which can be compensated for in damages”.  He also seeks a declaration that the disputed lands are subject to Indigenous Title along with a declaration that the Federal Government of Canada and the Provincial Government of Saskatchewan have no jurisdiction on lands that are subject to Indigenous Title. The plaintiff also seeks damages for trespass and damages “for the unilateral action taken” by Ochapowace against the Plaintiff in attempting to evict him from the lands “including exemplary and punitive damages”.

It is not disputed that Ochapowace currently has the only legally recognized right to possess the subject lands. The plaintiff’s land conflict with Ochapowace has therefore escalated into a dispute over the legal foundation of Ochapowace’s present right of possession and on the power of its elected chiefs and band councillors to make decisions regarding the lands. The plaintiff claims that “Indigenous Peoples have suffered damages as a result of the imposition of the Indian Act”; that “the system of elected chief and band council is a creation of the Indian Act”; and that “the elected chiefs and band councils are not accountable to Indigenous Peoples and are agents of the Crown under the Indian Act”.

That’ a pretty bold (and even admirable) argument.   But I’m no fortune teller and even I can see where this is headed.  

The plaintiff’s action is clearly misguided and cannot succeed. I echo the court’s conclusion in Wahsatnow v. Canada (Minister of Indian Affairs and Northern Development), [2002] F.C.J. No. 1665 at para [23] where it is stated:

[23] The claim which Mr. Wahsatnow makes is not a personal claim, but rather a communal claim. It is not his claim to make. …It is a claim which plainly, obviously and beyond doubt discloses no reasonable cause of action and which cannot succeed. Nor is it a claim which, in these proceedings, can be amended so that it might succeed.