Making the round: aboriginal title in the common law from a Tsilhqot'in legal perspective.

• Author: Hanna, Alan

This paper provides one approach for addressing the identification and understanding of Indigenous legal traditions and the laws they produce. In the process of determining whether Aboriginal title has been proven at common law, a court must take into consideration the Indigenous legal perspective. Unfortunately, the method explaining how to go about this task is largely undefined. Through the work of the Indigenous Laws Research Group at the University of Victoria, and with the assistance of the Indigenous Bar Association and others, scholars and lawyers alike, a new method for identifying Indigenous laws and legal principles in oral stories has emerged over the past few years and is constantly being refined. This paper offers an example of the case-brief method as applied to a few of the Indigenous oral stories of the Tsilhqot'in Nation, the first First Nation to prove Aboriginal title at common law. The author is not proposing a one-size-fits-all approach to learning how Indigenous legal systems work and identifying the laws therein contained. On the contrary, the method is but one way of gaining a glimpse into complex legal orders that existed and continue to exist despite the late arrival and interruption of European legal systems, reducing to a simple deduction that Indigenous laws need not integrate with the common law to attain validity-- they exist independent of Canadian law, valid in their own right.

Dans cet article, on propose une approche favorisant l'identification et la comprehension des traditions juridiques autochtones et des lois qui en sont issues. Lors du processus de reconnaissance d'un titre ancestral en common law, le tribunal doit tenir compte de la perspective juridique autochtone. Il n'existe helas aucune methode clairement definie qui permette d'arriver a cette fin. Cependant, au cours des dernieres annees, une nouvelle methode d'identification des lois et des principes juridiques autochtones enonces dans la tradition orale a ete elaboree et fait l'objet d'un perfectionnement continu, grace a des travaux menes par le groupe de recherche sur les lois autochtones de l'Universite de Victoria, de concert avec l'Association du Barreau autochtone du Canada et d'autres collaborateurs des milieux universitaires et juridiques. Cet article presente un exemple de l'application de la > a quelques recits tires de la tradition orale de la Nation Tsilhqot'in, le premier peuple autochtone dont le titre ancestral a ete reconnu en common law. L'auteur ne propose pas une approche unique a l'apprentissage du fonctionnement des systemes judiciaires autochtones et a l'identification des lois qui les composent. Au contraire, cette methode ne represente que l'une des approches qui laissent entrevoir l'existence d'ordres juridiques complexes bien avant le premier contact avec les systemes judiciaires europeens, et qui continuent d'exister malgre l'implantation tardive de ces derniers. Ainsi, il est simple de deduire que les lois autochtones n'ont pas a etre integrees a la common law pour etre reconnues: elles existent independamment des lois canadiennes et doivent etre reconnues comme telles a part entiere.

Table of Contents I. INTRODUCTION II. METHODOLOGY III. CASE BRIEFS A. "Lendix'tcux" 1. Case Brief 2. Analysis B. "The Young Man and Dt'an (Famine)" 1. Case Brief 2. Analysis C. "Raven and the Salmon" 1. Case Brief 2. Analysis D. "Tatlow" (Ts'il?os) 1. Case Brief 2. Analysis IV. TSILHQOTTN LAW IN PRACTICE: DESCRIPTION OF INDIGENOUS TITLE V. OCCUPATION PER DELGAMUUKW VI. SYNTHESIS VII. CONCLUSION APPENDIX I. INTRODUCTION

Proving Aboriginal title in Canadian common law is an elusive task for First Nations. To date, no definitive Aboriginal title claim has been successful in a Canadian court. (1) Nowhere in the country is the elusive nature of this challenge more prominent than in the province of British Columbia, where the standard colonial practice of entering into treaties with Indigenous nations was historically largely ignored. (2) British Columbia's early colonial government's denial of any Aboriginal right to land has led to a question of unresolved Aboriginal title over most of the province. (3) In its attempt to resolve the Aboriginal title question, the Supreme Court of Canada ("Supreme Court") has provided an inconsistent definition of title, ranging notionally from territoriality to specific sites of physical occupation. (4) In addition to the uncertain definition, the evidentiary burden required by the test set out in Delgamuukw v British Columbia makes a claim near impossible to prove, particularly in proving exclusive occupation on a territorial basis. (5)

In general, the current test for Aboriginal title set out in Delgamuukw requires the claimant First Nation to prove that the land subject to the claim was occupied exclusively by the claimant at the time the Crown asserted sovereignty, with continuity between the present and pre-contact occupation. (6) The courts have taken two different approaches to the application of this test to land. The broad approach to occupation is a general territorial approach, versus a narrow "postage stamp" approach. The trial judge in Tsilhqot'in Nation v British Columbia, Justice Vickers, held that the Tsilhqot'in "moved with the seasons over various tracts of land within their vast territory," and applied the general territorial approach in his decision. (7) In contrast, the British Columbia Court of Appeal decision rendered by Justice Groberman took the narrow approach by basing title on "well-defined, intensively used areas" to the extent that "intensive occupation of a particular area" must be proven. (8) This narrow approach contradicted the finding of fact made by Justice Vickers, where he held that "[t]here is no evidence to support a conclusion that Aboriginal people ever lived this kind of postage stamp existence." (9) The evidentiary burden of proving a territorial claim for exclusive occupation is monumental in comparison to proving it over small tracts, as revealed in the decision of Justice Grobermen, where he held that, "[e]xcept in respect of a few specific sites, the [Tsilhqot'in] evidence did not establish regular presence on or intensive occupation of particular tracts of land within the Claim Area." (10) The burden to prove intensive physical occupation on a territorial basis would appear bleak were it not for the Supreme Court's acknowledgment that Indigenous societies had, and have, systems of law.

Arguably, one of the more salient insights the Supreme Court held is that Aboriginal title should be informed by the intersection of Indigenous law and the common law. (11) This paper uses the Court's reckoning of this intersection as a starting point to address the difficulty in attempting to define Aboriginal title without knowledge of any substantive Indigenous legal perspectives. According to Chief Justice Lamer, inclusion of the Indigenous perspective was "mandated in the context of s. 35(1)" in Van der Feet for "[t]rue reconciliation" to occur between First Nations and the Crown. (12) In particular, I address the mandate by drawing upon an analysis of Tsilhqot'in legal traditions to render one description of Indigenous title according to Tsilhqot'in law, and apply the results to the Delgamuukw requirement of occupation to prove Aboriginal title. The Tsilhqot'in analysis is not applicable to other nations, as there is no pan-indigenous system of law. However, the method and process for performing the analysis does contribute to the current development of the ongoing work to learn Indigenous legal systems and build substantive bodies of law that First Nations can access and apply in the common law perspective.

The proposition to understand Indigenous laws from a common law perspective is only one of many potential applications. For example, Indigenous legal traditions must stand alone within the respective nations to teach, strengthen and restore health to people and communities by providing order and self-governance, and to bolster a nation's assertions of its freedom, autonomy and independence within its own inherent rights. In other words, I do not suggest that Indigenous laws should be subsumed within the common law or civil code. On the contrary, I argue that Indigenous laws necessarily exist independent of, and at par with, state law. Indigenous legal traditions are law. The re-emergence and restoration of those traditions serve their nations first, and through a process of engaging with those traditions, they can fulfil the purposes the Supreme Court has identified: inform the common law concept of Aboriginal title--the rationale for choosing this approach in this paper--and by extension to serve reconciliation.

One of the primary difficulties preventing courts from recognizing Aboriginal title stems from a problem in Western academic thought, which is illustrated by what follows: the disassociation and compartmentalization of various aspects of society into discrete components in isolation of one another simplifies complex relationships and narrows the recognition of land use to isolated pockets. This produces what Justice Vickers held to be an "impoverished view of Aboriginal title." (13) Conceiving of title in the common law perspective therefore necessitates an understanding of First Nations society in context, recognizing the meshwork of systems, including law, comprising the whole of a functioning society. (14)

An example of a compartmentalized concept that inaccurately simplifies many First Nations is the concept of "nomadism" adopted by Canadian courts. Nomadic ways of life derive from the annals of anthropological discourse to describe when an "entire group)--women, men, and children--moves with the animals throughout the year." (15) The problem with this description is that it produces an image of people being passive subjects who only respond to their environment. This strips the more accurate description...