#9147 - Title - Aboriginal Law

Title

Content, Scope, Origins (Delgamuukw)

-arises from prior-occupation to Cr sovereignty

- nature of the interest in land:

-Adams/Cote: title is a sub set of rights

- more than an aboriginal right to engage in specific activities on the land- need not be aspects of distinct culture

- a right to exclusive use and occupation of land

-includes an economic component

- affirmed by:

1. jurisprudence: Guerin: title is an interest in the land: legal right to occupation and possession

2. relationship to reserve land: s. 18 IA: nature of interest in reserve land is broad and not dependent on particular uses

3. Indian Oil and Gas Act: presumption that FN interest in reserve land includes mineral rights, which is not a traditional USE of land and therefore the title award is not just uses of the land.

Characteristics: (Delgamuukw)

1. Sui Generis: its characteristics cannot be completely articulated by CL or by FN law, must be understood by equally looking at both systems and perspectives: therefore title is not like other interests in the land at CL:

   1. Inalienable to anyone but the Crown: done to protect Indian land from being sold to settlers. Thought that aboriginal groups did not understand property law at the time and could be taken advantage of and sell land without understanding the implications.

   2. subject to an inherent limit: not a full inalienable fee simple: cannot be used in a manner that is irreconcilable with the nature of the claimant’s attachment to the land. The law of title seeks to determine pre-sovereignty rights but also seeks to secure the rights and afford legal protection to the present and future users of the land. If the use threatens the future relationship then it is excluded from aboriginal title.

   3. Communal/collective

2. Protected by section 35(1): constitutionalized the aboriginal rights at common law. The existence of title right in CL is sufficient by not necessary for proof of title under s. 35(1) because of the purposes of s. 35(1):

   1. reconciliation

   2. upholding the honour of the Crown

   3. to preserve the integral and defining features of distinctive FN societies; to potentially protect against historical injustices (Delga)

Interpretative Approach to s. 35 (Sparrow)

• rights are not frozen: must be interpreted as an evolving, adapting to new contexts

• the court must take a purposive, liberal approach to ensure rights claims are not static: must look at the analysis in light of the underlying reasons behind se. 35(1) rights protections: recognition of prior occupancy and reconciliation bw aboriginal peoples living in distinctive societies, with their own practices, traditions and cultures, and the sovereignty of the crown (VDP)

• hence there is a generous and liberal interpretation in favour of aboriginal peoples

• this stems from the fiduciary relationship between aboriginal people and the crown

• takes into account the aboriginal perspective to determine the meaning of the right at stake

• guiding principles for title:

• goal of reconciliation runs throughout: based in 2 sovereignties, prior occupation

• use of both legal perspectives as evidentiary sources

• CRITIQUES of espoused commitment to incorporating FN perspective:

  • This is limited as the perspective must be framed in terms that are cognizable to the Canadian legal and constitutional structure which such is the decision in Marshall and Bernard, are not serving reconciliation very well

  • There is a question on how it is to be cognizable to the Canadian system of common law, especially if common law can change and be fluid and dynamic, and is supposed to include ‘customary’ law

  • True reconciliation is supposed to align the two systems together, so fitting one into the other is not reconciling

  • Macklem and Ash: cts relying on an contingent as opposed to inherent approach to rights, e.g. in Sparrow

  • if the aboriginal perspective were truly taken into account along with the CL (McNeil):

    • could mean that the onus of proving the right would be flipped to the Crown on the basis of the common law legal doctrine of trespass: crown would be the wrongful taker of the land and have to prove and justify the assertion of ultimate title

    • however bc it stands that BoP is on FN group to prove occupation pre sovereignty> may not really be giving a liberal and generous interpretation

Test: (Delgamuukw)

A. Required Criteria for Proof of Title: (onus on claimant, on BoP)

1.) Land must have been occupied prior to sovereignty:

-selected bc:

- FN title is a mere qualification or burden on Cr title, which did not occur until Cr sovereignty so it would not make sense to speak of a burden on title until that title existed

-more certain than date of 1^st contact

-based on the concept of meeting nation to nation

-rejects terra nullius, bc of reconciliation and s. 35(1), but bc of ultimate Cr title underlying adoption of the principle of discovery and principle of occupation

-evidentiary proof: both FN and CL perspectives should be used

-rationale: upholds honour of the Cr (Del); reflects reconciliation goals (VDP)

-method:

-use a sensitive and generous approach and reconcile the FN w CL perspective: interpret what a certain practice or event would have signified and translate that into a comparable practice or event in the CL (B/M)

- FN perspective: occupation can be made out in reference to FN laws in relation to the land, e.g. tenure systems, laws governing use and access

-CL perspective: physical occupation: evidence of dwellings, hunting, fishing, manner of life, technological ability, group size and character of the lands claimed: proof of homes, cultivated fields, regular use of tracts of land

-Calder: proof of ownership is possession, predates and recognized in RP

2.) if present occupation if presented as proof of prior occupation, there must be continuity of

occupation:

- must prove a substantial maintained connection with the land

-proof of current occupation and post contact evidence can support claim of occupation prior to sovereignty

- cannot be irreconcilable use bw past and present

- no need to establish unbroken chain (due to colonial disruptions, past injustices) but must be evidence of substantial maintenance of connection bw group and the land (VDP)

- nature of occupation may also have changed, but this will not preclude title

- continuity aspect is required because it establishes the land is of central significance, comparable to VDP test (B/M)

3.) At sovereignty, occupation must be exclusive:

- requires an investigation into the nature of the land in question

-proof of unity of intention and capacity to control - does not need to be total exclusion, just proof of the power prevent access by other groups (B/M)

- presence of other nations can help to prove exclusivity, especially if there was special access rights granted or proven efforts to exercise the control

- settlements are sufficient but not necessary

- joint title is a possibility if groups recognized each others title exclusively

-treaties bw groups may strengthen claims

- doesn’t include irregular and occasional use (B/M)

-can be est by past practice of resource exploitation, if activity was regular and exclusive and = to title at CL, but most likely this will lead to est a right (B/M)

-must take into account FN context at time of sovereignty

- = weight given to CL and FN law: (Delga)

-exclusivity is a CL concept

-FN had concepts of exclusive occupation (B/M): find equivalent activity/use to CL title

-depending on evidence, semi nomadic and nomadic cultures may not be able to prove exclusivity as seasonal use of land, discontinuity in land use (B/M)

>comment: overlooks reconciliation, reifies terra nullis

-ways to incorporate both perspectives: (dissent in (B/M)):

- move beyond distinction of nomadism and privileging of CL concept of occupation- only need to show connection to land to prove title

-FN law not as evidence, but as law- adapt CL standards of property in order to develop an occupancy standard that incorporates both perspectives

B. Extinguishment: (onus on Cr)

-prior to 1982: extinguishment can occur with clear and plain intent (Sparrow), can be inferred if consistent, need not be explicit (Gladstone, S/G)

• extinguishment could potentially occur via:

1. surrender: treaty with the crown

2. legislation

-s. 91(24): right to legislate and extinguish title

- regulatory regime is not a high enough standard to meet extinguishment

3. constitutional amendment: never occurred

   • if extinguished prior to 1982, then rights are not revived

-feds cannot extinguish existing rights on or after 1982

-prov cannot extinguish after 1871 or thru s. 88 of IA (Delga)

-lack of formal recognition by...