Evidence in Aboriginal Title and Other Aboriginal Rights Cases: After Delgamuukw and Van der Peet

• Author: Nancy Kleer and John Olthuis
• Profession: Olthuis, Kleer, Townshend
• Pages: 171-203

Evidence

in

Aboriginal

Title

and

Other

Aboriginal Rights Cases:

After

Delgamuukw

and

Van

der

P

e

et

Nancy

Kleer

and

John

Olthuis*

A.

INTRODUCTION

In

Hamlet

of

Baker

Lake,*

an

injunction

case

from

over twenty years

ago

regarding Aboriginal

title,

the

Federal Court

Trial

Division

found

there

was

enough evidence

on the

existence

of

Aboriginal

title

to

support that

there

was a

serious question

to be

tried.

That

was

twenty years ago.

The

hearing

in

Baker Lake

was

short.

The

trial

proceedings

in

Delgamuukw

took

318

days

for the

submission

of

evidence

alone.2

During both

trials,

the

issue

as to

what Aboriginal title

means,

in

Canadian law,

was far

from

certain.

The

different

theories

on

the

meaning

of

Aboriginal title

in

existence

at the

time

of the

trial pro-

ceedings

in

Delgamuukw

was the

subject

of

much legal commentary.

Some

of

that legal commentary

was

considered

by the

Supreme Court

of

Canada

in

Delgamuukw,

in

constructing

its

view

of the

content

of

Aboriginal

title.

This

paper

takes

as its

starting point what

the

Canadian legal mean-

ing

of

Aboriginal title

is

today, following

the

Supreme Court

of

Canada's

*

Olthuis,

Kleer,

Townshend.

1

(1978),

87

D.L.R. (3d) 342.

2

Delgamuukw

v.

British

Columbia

(1991),

79

D.L.R. (4th)

185

(B.C.S.C.)

at 199

[hereinafter

Delgamuukw].

171

172

Nancy

Kleer

and

John

Olthuis

decision

in

December 1997

in

Delgamuukw

v.

British

Columbia.3

In it, we

give consideration

to

what

the

Court

said

about

the

evidentiary require-

ments

and

principles

for

establishing

Aboriginal

title.

Aboriginal

title

is a

species

of

Aboriginal

rights

recognized

and

affirmed

by

section

35 of the

Constitution

Act,

1982*

Other

Aboriginal

rights

also receive

protection

under

this

section.

The

Supreme

Court

saw fit to

establish

a

substantially

different

test

for

establishing

these

other Aboriginal

rights.5

That test

is set out in the

1996 decision

in R. v.

Van

der

Peet,6

discussed

below,

and has

already

spawned

some impor-

tant case

law

regarding

the

evidence required

to

meet that test.

3

[1998]

1

C.N.L.R.

14

(S.C.C.).

References

to

this case will

be to

paragraph numbers.

4

This

classification

came about

first

as a

result

of the

decision

in R. v.

Van

der

Peet

[hereinafter

Van

der

Peet],

where Lamer C.J.C. stated that "Aboriginal title

is the

aspect

of

Aboriginal rights related specifically

to

Aboriginal claims

to

land;

it is the way in

which

the

common

law

recognizes Aboriginal rights."

Further

substance

was

added

to

this distinction

in two

slightly later Supreme

Court

of

Canada decisions

in

1996, namely

R. v.

Adams,

[1996]

4

C.N.L.R.

1,

which reasoning

was

relied

on in R. v.

Cote,

[1996]

4

C.N.L.R.

26. The

Court

in

Adams

found

that

fishing

and

other Aboriginal rights

can

exist independently

of

a

claim

to

Aboriginal title, commenting that

the

Van

der

Peet

test "protects

activities

which were integral

to the

distinctive culture

of the

Aboriginal group

claiming

the

right;

it

does

not

require that

the

group satisfy

the

further hurdle

of

demonstrating that their connection with

the

piece

of

land

on

which

the

activity

was

taking place

was of a

central significance

to

their distinctive cul-

ture

sufficient

to

make

out a

claim

to

Aboriginal title

to the

land" [para.

26].

5

Interesting commentary, prior

to the

Supreme Court

of

Canada's decision

in

Delgamuukw,

on the

problems with applying

the

Van

der

Peet

test

to

Aboriginal

title,

is

found

in K.

McNeil, "Aboriginal Title

and

Aboriginal Rights: What's

the

Connection?"

(1997)

36

Alta.

L.

Rev. 117.

The

Supreme Court, however,

despite

its

decision only

two

years earlier

in

Adams,

did not

find

that

Aboriginal

title

had to be

based

on a

specific finding that

the use and

occupa-

tion

of the

land

was

"integral

to

their

distinctive

culture,"

as

would have

seemed

the

likely test, following

Van

der

Peet,

Adams

and

Cote.

Instead,

the

Court

in

Delgamuukw

found

that this requirement

was

"subsumed

by the

requirement

of

occupancy" [para.

142].

This adaptation

of the

Van

der

Peet

test

has,

in our

view, created

not

only

a

more appropriate,

but

also

a

clearer

fact

to

be

established

in

Aboriginal title cases

as

compared

to the

distinctive culture

and

"integralness"

facts

to be

shown

in

other Aboriginal rights cases.

6

[1996]

4

C.N.L.R.

177

(S.C.C.).

Evidence

in

Aboriginal Title

and

Other Aboriginal Rights

Cases

173

B.

THUMBNAIL SKETCH

OF

DELGAMUUKW

The

Court summarized

the

content

of

Aboriginal title

by two

propositions:

First,

that Aboriginal title encompasses

the

right

to

exclusive

use and

occupation

of the

land held pursuant

to

that title

for a

variety

of

pur-

poses,

which

need

not be

aspects

of

those

Aboriginal

practices,

cus-

toms

and

traditions which

are

integral

to

distinctive Aboriginal

cultures,

and

second, that those protected uses must

not be

irreconcil-

able with

the

nature

of the

group's

attachment

to

that land [para.

117].

On the

proof

of

Aboriginal

title,

the

Court

said:

In

order

to

make

out a

claim

for

Aboriginal title, that Aboriginal group

asserting title must

satisfy

the

following criteria:

(i)

the

land

must have

been

occupied prior

to

sovereignty,

(ii)

if

present

occupation

is

relied

on as

proof

of

occupation pre-

sovereignty,

there must

be a

continuity between present

and

pre-

sovereignty

occupation,

and

(iii)

at

sovereignty, that occupation must have been exclusive [para.

143].

The

first

criterion

of

pre-sovereignty

occupation

considers "objective"

physical occupation established

in a

number

of

ways,

"ranging

from

the

construction

of

dwellings through cultivation

and

enclosure

of

fields

to

regular

use of

definite tracts

of

land

for

hunting,

fishing,

or

otherwise

exploiting

its

resources" [para.

149].

In

considering whether occupation

sufficient

to

ground title

is

established,

"one must take into account

the

group's

size, manner

of

life,

material

resources,

and

technological abili-

ties,

and

character

of the

lands claimed" [para.

149].

Relevant Aboriginal

laws might

include,

but are not

limited

to, a

land tenure system

or

laws

governing land

use

[para.

148].

With

respect

to

continuity,

the

Court stated that there

is no

need

to

establish

"an

unbroken chain

of

continuity" between present

and

prior

occupation.

The

occupation

and use of

lands

may

have been disrupted

for

a

time, perhaps

as a

result

of the

unwillingness

of

European coloniz-

ers to

recognize Aboriginal title.

Specifically,

the

Court said

"to

impose

the

requirement

of

continuity

too

strictly would risk undermining

the

very

purposes

of

section 35(1)

by

perpetuating historical

injustice

suf-

fered

by

Aboriginal peoples

at the

hands

of

colonisers

who

failed

to

respect" Aboriginal rights

to

land [para.

153].

In

establishing continuity,