After Tsilhqot'in Nation: the aboriginal title question in Canada's maritime provinces.

• Author: Hamilton, Robert
• Position: I. Introduction through III. Proof of Title in the Maritime Provinces, p. 58-82

1. Introduction II. Site-Specific/Intensive Use vs. Territorial/Exclusive Occupation A. Sufficiency and Exclusivity B. Continuity III. Proof of Title in the Maritime Provinces A. The Marshall and Bernard Decisions B. Historical Occupation C. Title by Treaty IV. Extinguishment of Aboriginal Title A. Voluntary Surrender B. Unilateral Legislation 1. Executive and Legislative Authority 2. Imperial and Colonial Jurisdiction 3. Post-Confederation 4. Conclusions on Extinguishment V. Extinguishment in the Maritime Provinces A. Voluntary Surrender B. Unilateral Legislation 1. Colonial Authority 2. Clear and Plain Intent C. Instances of Possible Extinguishment 1. Colonial Legislation 2. Imperial Legislation 3. Federal Legislation VI. Conclusion I. INTRODUCTION (1)

   The Supreme Court of Canada made a declaration of Aboriginal title for the first time in 2014 in its landmark Tsilhqot'in Nation (2) decision, a decision with "ground shifting implications." (3) Governments and First Nations across the country are only beginning to adjust to the consequences of the decision, which may be particularly impactful in areas where it is acknowledged that Aboriginal title has never been ceded, such as the Maritime Provinces. (4) The only Aboriginal title case from the region that has reached the Supreme Court left several important doctrinal questions unanswered and, as will be explained, should not be read as precluding a future finding of title in the region. As such, Aboriginal title in the Maritime Provinces must be assessed in light of the principles articulated in Tsilhqot'in. This is particularly important at this time, as unresolved title issues have contributed to disputes over resource development in the region and more conflict is likely while title issues remain outstanding.

   This paper analyzes Aboriginal title in the Maritime Provinces in light of the Tsilhqot'in decision with the aim of providing insight into how future title litigation emerging from the region may be assessed in the courts. I begin by reviewing the Supreme Court's ruling in Tsilhqot'in--specifically, the Court's adoption of the territorial approach to Aboriginal title claims. On the basis of this approach, and referring to case law and relevant historical materials, I argue that Aboriginal title existed in the region at the time of the assertion of British sovereignty. While concluding that title undoubtedly existed in the region, I stop short of attempting to determine where it may have existed, for such a determination would require a depth of research not possible here. Having concluded that title existed, I review the legal framework governing the extinguishment of Aboriginal title to assess whether Aboriginal title has been extinguished in the Maritime Provinces. I conclude that Aboriginal title has likely not been extinguished on a large scale, a conclusion which strongly suggests that Aboriginal title continues to exist in the region today. Finally, I point to some further issues raised by this conclusion.

2. SITE-SPECIFIC/INTENSIVE USE VS. TERRITORIAL/EXCLUSIVE OCCUPATION

   In Tsilhqot'in, the Supreme Court clarified the 'site-specific' and 'territorial' approaches to Aboriginal title. (5) The site-specific approach conceives of title as applying to small tracts or plots of land surrounded by larger areas over which other Aboriginal or treaty rights may exist.b The territorial approach, by contrast, conceives of title as applying to broad, contiguous tracts of land. In Tsilhqot'in, the unanimous Court held the territorial approach to be correct. The distinction between the approaches, and the differing results that emerge from each, can be seen clearly in how the two standards have been applied by the courts.

   The trial judge in Tsilhqot'in applied a territorial standard and "held that 'occupation' was established for the purpose of proving title by showing regular and exclusive use of sites or territory." (7) According to the trial judge, title might be found not only to intensively used sites (e.g., villages, fishing holes, and agricultural sites), but also to broad tracts of exclusively used or controlled territory. (8) The British Columbia Court of Appeal, on the other hand, applied a site-specific standard, requiring proof that "a definite tract of land with reasonably defined boundaries" was used regularly and intensively (9) At the Supreme Court, McLachlin CJC articulated the distinction between the two approaches:

   For semi-nomadic Aboriginal groups like the Tsilhqot'in, the Court of Appeal's approach results in small islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping. By contrast, on the trial judge's approach, the group would enjoy title to all the territory that their ancestors regularly and exclusively used at the time of assertion of European sovereignty. (10) Correlative to the territorial approach to title is a shift in emphasis regarding the degree of occupancy required to demonstrate title. The reason for this is clear: Requiring proof of intensive use of land would necessarily limit the scope of territory over which such use could be proven, while an emphasis on control and exclusive occupation of territory necessarily leads title to be recognized to broader areas.

   Despite the existence of two clearly different standards, the test for establishing title has, on the surface, remained unchanged since Delgamuukw, (11) Title is established by demonstrating occupation at the date of the assertion of British sovereignty. (12) Aboriginal occupation must possess three characteristics at the date of sovereignty in order to ground a finding of Aboriginal title: "ft must be sufficient', it must be continuous (where present occupation is relied on); and it must be exclusive." (13) The contrast between the territorial and site-specific conceptions of title, then, involves matters of interpretation rather than a wholesale rewriting of the test. In particular, courts applying the territorial conception have emphasized control and exclusive occupation of territory, while those applying the site-specific standard have required intensive use of sites and have placed a greater emphasis on the degree of occupation sufficient to establish title. (14)

   1. Sufficiency and Exclusivity

      The Supreme Court in Tsilhqot'in held that, in assessing sufficiency of occupation, courts must look to "both the common law perspective and the Aboriginal perspective." (15) The common law supplies "the idea of possession and control of the lands." (16) The common law is concerned not with the intensive use of a given site, but with the effective control of territory: "At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised." (17) This approach emphasizes control as opposed to use as the most important factor in establishing the sufficiency of occupation required to prove the existence of Aboriginal title. (18)

      Determining "[sufficiency of occupation is a context-specific inquiry." (19) Courts must draw on the unique factual circumstances of the Aboriginal group in question to expand the acceptable indicia of occupation beyond merely "the construction of dwellings through cultivation and enclosure of fields" to include the "regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources." (20) This inquiry must take into consideration, for example, the carrying capacity of the land in assessing the degree of occupancy required to prove title; if the land could only support 1,000 people, the fact that it was not more densely populated cannot be used as evidence of an absence of use or occupation. (21) As McLachlin CJC stated in Tsilhqot'in, "[t]he intensity and frequency of the use [required to establish sufficient occupation] may vary with the characteristics of the Aboriginal group asserting title and the character of the land over which title is asserted." (22)

      To fulfill the sufficiency requirement, an Aboriginal group must demonstrate "that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes." Though evidence for this cannot be purely subjective or internal to the Aboriginal peoples making the claim, "[t]his standard does not demand notorious or visible use akin to proving a claim for adverse possession." (24) Courts will require objective evidence of

      ... a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. Sufficiency of occupation is determined not with reference to the use of the land, but with respect to "acts of occupation" which demonstrate that the territory "belonged to" or was "controlled by" the Indigenous peoples making the claim. (26) The 'acts of occupation' that may suffice to demonstrate such possession and control will vary from group to group. As the Supreme Court held in Tsilhqot'in, "[cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation." (27) Instead, the Court adopted an analogy to the common law concept of general occupancy, holding that occupation can be demonstrated where a group asserts possession of territory "over which no one else has a present interest or with respect to which title is uncertain." (28)

      While the common law requirement of possession remains, that requirement must be informed in a "culturally sensitive" manner by the "Aboriginal perspective" of the group in question, a perspective which may be ascertained with reference to "its laws, practices, size, technological ability and...