Marshall and Bernard: ignoring the relevance of customary property laws.

• Author: Bankes, Nigel
• Position: Canada - Special Forum: Perspectives on R. v. Marshall; R. v. Bernard

This brief comment on the recent decision of the Supreme Court of Canada in R. v. Marshall; R. v. Bernard (1) focuses on that part of the judgment dealing with aboriginal title. I argue that the majority opinion is seriously flawed insofar as it undermines the significance of aboriginal laws as a way of proving the existence of an aboriginal title. By doing so the judgment fails to give adequate weight to the aboriginal perspective on the source and nature of aboriginal title, thereby compromising the reconciliation project that lies at the heart of the Supreme Court of Canada's jurisprudence on s. 35 of the Constitution Act, 1982. I begin with some observations on teaching aboriginal title and then turn to examine how the majority opinion comprehensively undermines the significance of aboriginal customary laws. 1 examine the way in which the court describes and applies the "aboriginal perspective" on title while ignoring or at least downplaying the view that aboriginal title is sui generis.

Teaching the doctrine of aboriginal title

When John Borrows and Leonard Rotman produced their first edition of Aboriginal Legal Issues, Cases, Materials and Commentary (2) a few years ago I adopted it as the text for a course I teach on aboriginal law. (3) But unlike the authors, who begin their book with the topic of Aboriginal Title, I start the course with the subject matter of Chapter 6, "Governance" (re-framed in my course in terms of self-determination and self-government). I also supplement Borrows and Rotman's treatment of governance with the Opening Statement of Counsel in the Delgamuukw case (4) as well as with some international legal materials dealing with the right of self-determination, I start the course this way because I want to emphasise for the students that an aboriginal title cannot exist in the abstract but needs to be seen as part and parcel of an overall indigenous legal system, a system of legal relationships between people, and between people, land, resources and territory. Aboriginal title is then, a subset, a necessary implication, of the self-governing status of indigenous peoples prior to the acquisition of sovereignty by the Crown. Justice Judson recognized this in Calder in referring to the Indians as being there, "organized in societies and occupying the lands as their forefathers had done." (5)

Framing the issue in this way helps locate the body of aboriginal law and the doctrine of aboriginal title firmly within the framework of human rights law and the law of self determination of all peoples. (6) The statement of counsel in Delgamuukw serves similar purposes, drawing attention to the problem of forum and the hegemonic nature of legal discourse. Why must the Gitksan and Wet'suwet'en sue in Her Majesty's courts? Why is the onus on the Gitksan and Wet'suwet'en to prove their title and not on the Crown to prove its title? What fora, if any, exist for resolving inter-societal disputes? But framing the issue this way also helps to make the point that how we conceptualize aboriginal title affects how plaintiffs seek to prove the existence of an aboriginal title. Counsel may lead evidence of actual physical possession or control; additionally counsel may assert, as they did in memorable terms in Delgamuukw, that they assume the unenviable task of leading evidence in Her Majesty's Courts to prove the existence of a civilization. As part of that challenge, counsel will lead evidence of the existence of a legal system including a system of property laws.

In its judgment in Delgamuukw, (7) the Supreme Court recognized these two ways of proving title and accepted that they might operate conjunctively and cumulatively rather than as mutually exclusive alternatives. I refer here to those well known passages of Chief Justice Lamer's opinion dealing with "the test for the proof of aboriginal title." (8) In these passages the Chief Justice concluded that one of the implications of having to take account of the aboriginal perspective is that the Court cannot look only to the common law's emphasis on physical occupation as proof of possession which in turn may ground title, (9) but the Court must also have regard to aboriginal laws in relation to land:

the source of aboriginal title appears to be grounded both in the common law and in the aboriginal perspective on land; the latter includes, but is not limited to, their systems of law. It follows that both should be taken into account in establishing the proof of occupancy. Indeed, there is precedent for doing so. In Baker Lake ... Mahoney J. held that to prove aboriginal title, the claimants needed both to demonstrate their "physical presence on the land they occupied" (at p. 561) and the existence "among [that group of] ... a recognition of the claimed rights ... by the regime that prevailed before" (at p. 559). This approach to the proof of occupancy at common law is also mandated in the context of s. 35(1) by Van der Peet. In that decision ... I held ... that the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty required that account be taken of the "aboriginal perspective while at the same time taking into account the perspective of the common law" and that "[t]rue reconciliation will, equally, place weight on each". I also held that the aboriginal perspective on the occupation of their lands can be gleaned, in part, but not exclusively, from their traditional laws, because those laws were elements of the practices, customs and traditions of aboriginal peoples ... As a result, if at the time of sovereignty, an aboriginal society had laws in relation to land, those laws would be relevant to establishing the occupation of lands which are the subject of a claim for aboriginal title. Relevant laws might include, but are not limited to, a land tenure system or laws governing land use. (emphasis added) (10) In my course, I also supplement the second edition of Borrows and Rotman with extracts from the High Court of Australia's decision in Mabo v. Queensland (No. 2). (11) I want Canadian students to read Mabo, and especially extracts from Justice Brennan's opinion, for several reasons. First, I want students to reflect on the relationship between domestic law and international law and the role that international human rights law plays in having us re-frame questions of domestic aboriginal law. (12) Second, I want students to read Justice Brennan's judicial trashing (with the aid of the Advisory Opinion of the International Court of Justice in the Western Sahara case (13)) of the racist doctrine of res nullius and the related concept of acquiring title non-derivatively by peaceful settlement. And third, I want students to read those passages of Brennan's judgment in which he suggests that the source and content of aboriginal title is founded in the laws and customs of the aboriginal people concerned.

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. (14) ... once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was "desert uninhabited" in fact, it is necessary to ascertain by evidence the nature and incidents of native title. Though these are matters of fact, some general propositions about native title can be stated without reference to evidence. (15) Native title, though recognized by the common law, is not an institution of the common law ... (16) Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the elan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown. (17) Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. (18) Now I realize that it is possible to criticise this "aboriginal laws approach" (and here I think of Kent McNeil's excellent work (19)) if it forms the sole measure of the source and content of title on the grounds that such an approach may diminish the content of an aboriginal title once established. It might, for example, make it very difficult for an aboriginal plaintiff to establish title to petroleum unless it could establish the existence of customary laws in relation to that substance. Indeed it seems fairly clear that the Supreme Court in Delgamuukw recognized this problem and suggested that it was possible to rely, as we have seen in the quotations above, on both aboriginal laws and the physical fact of prior possession for the source, proof and content of aboriginal title. (20) Indeed, the court developed a fairly thick concept of aboriginal...