Implications for Aboriginal Title in Recent Court Decisions

The Supreme Court of Canada decisions in New Brunswick and Nova Scotia this week (R. v. Marshall; R. v. Bernard) continue to generate discussion in print and radio media in British Columbia. Much of the discussion surrounds the implications of the decision (or lack thereof depending on your perspective) for native groups in BC who are trying to settle treaties with the provincial and federal governments.

This morning on Vancouver radio CKNW two politcal commentators noted that the Reasons for Judgment clarify the way in which aboriginal title is determined — and this may well have implications for land claims cases in BC.

The Reasons for Judgment identify two aboriginal practices which must be met for title to land to be held by native groups. In sum, a claim of title requires the demonstration of:

In addition, these principles apply to ‘nomadic’ and ’semi-nomadic’ groups for them to be able to claim title — but the court does not deem it impossible for nomadic or semi-nomadic peoples to claim title. Perspectives from common law and aboriginal law must both be considered.

For those seeking more information, the following is a summary of these points provided by the court:

Aboriginal title to land is established by aboriginal practices that indicate possession similar to that associated with title at common law. The evidence must prove “exclusive” pre sovereignty “occupation” of the land by their forebears. “Occupation” means “physical occupation” and “exclusive occupation” means an intention and capacity to retain exclusive control of the land. However, evidence of acts of exclusion is not required. All that is required is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that the group could have excluded others had it chosen to do so. Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing or the exploitation of resources. These principles apply to nomadic and semi nomadic aboriginal groups; the right in each case depends on what the evidence establishes. Continuity is required, in the sense of showing the group’s descent from the pre sovereignty group whose practices are relied on for the right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability.

Be sure to look at the full explanation of these points in the judgment. The Reasons for Judgment in these cases also cite the 1997 Delgamuukw Decision frequently.

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