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How aboriginal title is established

The Supreme Court of Canada in Delgamuukw then went on to set out the rules explaining how a native band establishes aboriginal title over a given area. In order to successfully claim aboriginal title, the group asserting aboriginal title must prove three things:

• occupancy prior to the date of British sovereignty, i.e., 1846
• continuity of occupation, and
• exclusivity of occupation

At first blush, that sounds good. These are all common law concepts, the meaning of which common law lawyers clearly understand. But instead of the determination of these matters being made on the basis of common law principles, the Court has ordered that equal credence must be given to the "aboriginal perspective" as to what these terms mean. This means that in aboriginal cases, we are no longer to be governed by common law principles alone, but on the vagaries of the "aboriginal perspective" as conceived in the mind of the latest aboriginal spokesman to give oral evidence, in other words, "occupation," "continuity," and "exclusivity" according to aboriginal notions.

Chief Justice Lamer goes on to elaborate on the aboriginal notions he has in mind. He says, "an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation," and, "there is no need to establish an unbroken chain of continuity between present and prior occupation." Well why not? What does continuity mean anyway?

And as far as exclusivity goes, in the future the Courts are not only to look at the common law meaning of the word exclusivity, but they are to look at what the aboriginal community meant by exclusivity at the time of sovereignty in 1846. The Chief Justice comments, "Where aboriginal laws at the time of sovereignty allowed other Indian bands to occupy an area, there would still be exclusivity."

The aboriginal people of this province had no written history prior to 1846, so I don’t know where these "aboriginal laws" which the Chief Justice speaks about are going to be found, except in the mouths of native people who give oral evidence in 1998 as to what their laws were in their particular area in 1846—a tenuous situation. The Chief Justice also talks about "shared exclusivity." It seems to me that "shared exclusivity" is an oxymoron.

So I am particularly worried about the flimsy tests that the Court has put in place. I suggest it will be relatively easy for aboriginal groups to establish aboriginal title to much of the province—including lands covered by fee simple ownership and lesser tenures.

The Chief Justice says that these notions have wide support in the "critical literature," meaning the product of those academics of a certain ideological bent who develop these propositions endlessly, largely for the benefit of their own kind. Until now, no one seriously thought that the highest court of the land would accept such notions. Elsewhere, the Chief Justice refers with approval to the writings of the Royal Commission on Aboriginal people. With respect, he might better have spent his time reading again the judgment of one of his predecessors, Justice Taschereau, who said in an earlier leading case on aboriginal title that the practice of the Crown over the years in dealing with Indian claims did not imply that the Indians had legal title to the land. Taschereau said that to find otherwise would mean:

that all progress of civilization and development in this country is and always has been at the mercy of the Indian race. Some of the writers cited by the appellants, influenced by sentimental and philanthropic considerations, do not hesitate to go as far. But legal and constitutional principles are in direct antagonism with their theories.⁸

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Last Modified: August 23, 2000.