Post on 13-Mar-2023
Introduction1
I. The Source of Aboriginal Title: From St.Catharine’s Milling to Calder 4
II. The Development of Reconciliation: From Sparrow to Manitoba Metis Federation 7
III. The Two Versions of the Test16
a. Tsilhqot’in Nation: Vast Areas? Exclusivity, Occupation and Continuity
b. William: From Postage Stamps to Networks
IV. The Future of Reconciliation: Lost in Translation? 30
Introduction
The William case presents two very different jurisprudential
trajectories on the question of aboriginal title. On the one hand
there is the test that Justice Vickers sets out in Tsilhqot’in Nation,
1
which defines title as the combination of pre-sovereignty
occupation, exclusivity, and continuity. 1 While on the other
Justice Groberman has defined the test as being concerned with
the degree of occupation required for the recognition of title. 2
This difference could, at first glance, appear to be a rather
inconsequential one. After all, the move from ‘occupation’ to
‘degree of occupation’ could be seen as little more than a
refinement of one of the three elements of the test for
Aboriginal title. But, this move results in a fundamental change
in the test. This change is, as we will see later on, reflected
in the ‘territorial’ approach taken by Justice Vickers and the
‘site-specific’ one taken by Justice Groberman. Simply put, the
introduction of the concept of ‘degree’ (i.e., of measurement) to
the element of ‘occupation’ in the test for title introduces a
pseudo-objective standard that effectively shuts out the
Aboriginal perspective.3 Given that it will be heard by the
1 Tsilhqot’in Nation v. British Columbia (Attorney General), [2008] 1 C.N.L.R. 112 (B.C.S.C.) at paras. 542-553 [Tsilhqot’in Nation].2 William v. British Columbia, [2012] BCCA 285 at paras. 174-204 [William]. 3 Kent McNeil, in “Aboriginal Title in Canada: Site-Specific or Territorial?” (2013) 9: 53 Canadian Law eJournal [McNeil, “Site-Specific or Territorial?”], argues that the ‘site-specific’ test set out by Groberman J. is “simply wrong”because it “pays too much attention to physical occupation and disregards Indigenous law”: ibid, at 10. McNeil also notes that while the concept of ‘intensity’ does appear in R. v. Marshall; R. v. Bernard, [2005] 2 S. C. R. 220 at
2
Supreme Court of Canada this fall we are effectively sitting on
the cusp of a major shift in the law. The stakes could not be
higher. Thus far the question of aboriginal title has resulted in
split decisions (Calder), obiter dicta (Delgamuuku) and, with Marshall;
Bernard, uncertainty.4 The Court has been insistent on the limits
of the judicial venue for such a dispute. It has maintained that
the resolution can only be the product of negotiations, but the
dispute simply keeps coming back to it. Despite all its warnings
and reservations it is left with the task of providing judgment.
Why is this question so difficult for the Court to address?
Quite simply, the question of title carries with it the question
of the nature of the Crown’s right to the underlying title (i.e.,
is it a de facto assertion or is it de jure). As Chief Justice
Dickson states (echoing both St. Catharine’s Milling and Calder) in
para. 70 [Marshall/Bernard] that McLachlin C.J. it is not a requirement; ibid, at 9. See also, Brian Slattery, “The Constitutional Guarantee of Aboriginal Treaty Rights” (1982) 8 Queen’s L.J. 232 at 268 [Slattery, “The ConstitutionalGuarantee”]. For more on the development of Aboriginal title in the common law: see Kent McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989), P. G. McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford: OxfordUniversity Press, 2011) [McHugh, Aboriginal Title], James (Sákéj) Youngblood Henderson, Marjorie Benson, and Isobel Findlay, Aboriginal Tenure in the Constitution of Canada [Scarborough, ON: Carswell Thomson Professional Publishing, 2000) and Brian Slattery, “The Metamorphosis of Aboriginal Title” (2006) 85 Can. Bar Rev. 255 [Slattery, “Metamorphosis”]. 4 For critical commentary on Marshall/Bernard and its potential implications, see“Special Forum: Perspectives on R. v. Marshall; R. v. Bernard” (2006) 55 U.N.B.L.J. 73; Slattery, supra note 3 at 279-81; McHugh, supra note 3 at 135-47.
3
Sparrow, “…there was from the outset never any doubt that
sovereignty and legislative power, and indeed the underlying
title, to such lands vested in the Crown”.5 Why was there never
any doubt? Is it because the basis of the Crown’s claim is
secured or is it because the Court cannot entertain such doubts
due to the very basis of its own jurisdiction? It must take the
sovereign’s word (leaving open the question of how to interpret
this word), but in the case of aboriginal title (and indeed
rights) it encounters a limit. It cannot simply take one word—as
in one source of law—as the basis of its decision. The positive
law does not provide it with sure footing and so it must turn to
the uncodified body of the common law. But even this is not
enough. It cannot supply the omission from the common law alone
because the foundations of aboriginal title extend beyond it. If
the Court simply excludes the Aboriginal perspective as a
“foreign” element—either by refusing to question the status of
the Crown’s underlying claim to title or by translating it out 5 R. v. Sparrow, [1990] 1 S.C.R. 1075. at p. 30. For a critique of the Court’s position on the issue of Crown sovereignty, see Michael Asch and Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow” (1991) 29 Alta. L. R. 498 at 508-12, and Patrick Macklem, "First Nations Self-Government and the Borders of the Canadian Legal Imagination" (1991) 36 McGill L. J. 382 at 445-50.
4
via ‘objective’ tests—then the distinction between de facto and de
jure is lost and we find ourselves back in the confounding legal
fictions of discovery and terra nullius.6 Quite simply, aboriginal
title is the exception that puts the rule of law to the test.
At this point it is useful to try and see if we can glimpse
the possible futures that are open. But attempting to survey
possible futures is of little use if we cannot relate them to
where we are now and how we got to this point. My intended
contribution is not to somehow anticipate what the Court may
decide but rather to provide some elaboration on the stakes
involved in this case by relating these two versions of the test
for aboriginal title to the overarching constitutional principles
of reconciliation.
6 See Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 29 S.C.L.R. (2d) at 437-40 and Felix Hoehn, Reconciling Sovereignties: Aboriginal Nations and Canada (Saskatoon: Native Law Centre, 2012) at 44-51 and 85-91 [Hoehn, Reconciling Sovereignties]; For more on the history of doctrine of terra nulliusin the common law, see Andrew Fitzmaurice, “The genealogy of Terra Nullius” (2007) 38: 129 Australian Historical Studies 1, Patrick Macklem, “What is International Human Rights Law? Three Applications of a Distributive Account” (2007) 52 McGill L. J. 575 at para. 36, Macklem, “Self-Government”, supra note5 at 399-406, and Tracey Lindberg, “The Doctrine of Discovery in Canada” and “Contemporary Canadian Resonance of an Imperial Doctrine,” in Robert J. Miller, Larissa Behrendt and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, (Oxford: Oxford University Press, 2010) 89-125; 126-170.
5
I have divided this paper into four sections. I begin with
an analysis of the jurisprudence on aboriginal title from St.
Catharine’s Milling to the Court’s most recent title decision in
Marshall; Bernard. The guideline in this section of the paper will
be to ask what the Court determines to be the source of
aboriginal title. From this basis I move onto a review of the
development of the principle of reconciliation from Sparrow to
Manitoba Metis Federation. I argue that the development of the
principle of reconciliation—and indeed its growing centrality
within the case law—is directly connected to how the Court has
defined the source of aboriginal title since Calder. We can see
this connection clearly when we examine the change in the law
that occurs from St. Catharine’s Milling to Calder: the source of
aboriginal title shifts from something that is granted by the
Crown to something that precedes the Crown and subsists. This is
a jurisprudential sea change: we move from the unquestioning
recognition of a single sovereign to a multiplicity of
sovereignties.7 This means that the validity of the law can no
7 John Borrows notes this shift in Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 119-22 [Borrows, Recovering Canada].
6
longer be maintained via a single “imperial voice”. 8 There must
be (at least) two perspectives. From this viewpoint the
development of the principle of reconciliation from Sparrow to
Manitoba Metis Federation is simply the necessary expression of this
fundamental multiplicity. As such, the guiding question in this
section of the paper is, “what is the meaning of reconciliation?”
From this basis I then move to a detailed analysis of the test
for title in Tsilhqot’in Nation and William and I close with a
consideration of the possible futures that each version of the
test presents to us.
I. The Source of Aboriginal Title: From St.Catharine’s Milling to Calder
What is the meaning of Aboriginal title?9 At first, it may
seem as if we could respond by simply reciting the relevant case
law. It is, after all, a legal term of art and so its definition
should be found in the legal tests, statutes, cases and
principles that map out this area of the law. Doubtlessly this
alone is no simple task. The issues involved relate several
8 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, (New York: Cambridge University Press, 1995) at 183 [Tully]. 9 For a selection of the scholarship on precisely this question refer to the list of sources given in note 3.
7
branches of law and are by no means settled. But, would this be
all there was to say? Is Aboriginal title more than a legal term?
Is there not a constitutive antinomy in the name itself? Who
could possible assign title to a group referred to under the
collective noun ‘aboriginal’? The absurd generality of this word—
and indeed its legal cognate ‘Indian’—binds this question to the
constitutive problem of imperialism and settler colonialism,
namely, who counts? This question has two related senses: first,
who has the authority to make this determination? And second, how
does a legal system distinguish between one who has legal rights
and one who does not? This line of inquiry quickly brings us to
question the very basis of the relationship between law and
authority: is the rule of law simply the law of the strongest? As
Hart rightly noted, this vertical account of the law “…is either
no more than a convenient short-hand for complex facts which
still await description, or a disastrously confusing piece of
mythology”.10 And so, if we agree with Hart and refuse the
simplicity of the “gunman situation writ large"(which, would
simply tell us that Aboriginal title is what the Crown says it
10 H.L.A. Hart, The Concept of Law, (Oxford: Oxford University Press, 1994) at 113[Hart].
8
is), where do we begin?11 We could begin by questioning the
foundation or source of Aboriginal title within the Canadian
legal system.12 In this case we can begin by detailing the
jurisprudential sea change that takes place from St. Catharine’s
Milling to Calder. Lord Watson characterizes aboriginal title as a
“mere burden” that is “dependent upon the good will of the
sovereign” and so presents the judiciary with a single rule of
recognition: the basis of aboriginal title is the discretion of
the sovereign as it is expressed in the positive law.13 In Calder
the Supreme Court signals a departure from this approach, as
Justice Judson states,
…it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land astheir forefathers had done for centuries. This is what Indian title means…14
This point is echoed in Justice Hall’s dissent,
11 Ibid, at 7.12 After all Hart did divide his objections to the vertical account law as orders backed by threats into three main groups; content of laws, mode of origin and range of application; ibid, at 26. 13 St.Catharine’s Milling & Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.) at p. 54-58 [St.Catharine’s Milling]. 14 Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 at 328 [Calder].
9
The right to possession claimed is not prescriptive in origin because a prescriptive right presupposes a priorright in some other person or authority. Since it is admitted that the Nishgas have been in possession sincetime immemorial, that fact negatives that anyone ever had or claimed prior possession.15
It was still “dependent upon the good will of the sovereign”
(Justice Judson maintains that “there can be no question” about
this and Hall agrees, dissenting only on what extinguishment
would require), but its source was not the sovereign alone.16 In
effect with Calder the source of sovereign authority splits apart:
aboriginal title originates with the fact of the pre-existing
“occupation” of land by aboriginal peoples and the sovereign’s
recognition of this in the positive law. The Court is bound to
recognize the aboriginal perspective and attempt to reconcile
this with the common law.17 The case law bears this out from the
test for rights from Sparrow to Van der Peet and the test for title
from Delgamuuku to Marshall; Bernard. And, so, the meaning of title
is, inextricably and radically bound to the process of
reconciliation.18 What does this mean? Simply put, it means that 15 Ibid, at 353.16 Ibid, at 328.17 Borrows, Recovering Canada, supra note 7 at 119-22.18 As Douglas Lambert states in “Where to From Here: Reconciling Aboriginal Title with Crown Sovereignty”: “The fundamental objective of the law of
10
the way in which the Court interprets Aboriginal title
effectively determines the meaning, and indeed the future, of
reconciliation.
II. The Development of Reconciliation: From Sparrow to Manitoba Metis Federation
What is the meaning of reconciliation? If we refer to the
Oxford English Dictionary for our answer we will find that it can refer
to both an action and a state.19 There is the transitive act of
reconciling and the state of being reconciled. In the former
sense it can refer to the process of restoring unity or peace
between parties that have been estranged or even hostile. In this
sense it can be interpreted as an essential component of settling
disputes by way of mutual understanding and agreement. But, it
Aboriginal title is to reconcile the de facto sovereignty of the Crown with the entitlement of the Indigenous peoples of Canada to the land which they occupied as their traditional homelands before the explorers, traders and colonists arrived”: in Maria Morellato ed., Aboriginal Law Since Delgamuukw (Aurora: Canada Law Book, 2009) at 53 [Lambert, “Reconciling”]. The characterization of reconciliation as flowing from the de facto assertion of Crown sovereignty and the pre-existing occupation of Aboriginal peoples has also been put forward by the Supreme Court in Delgamuuku and Haida Nation; see Delgamuuku v. British Columbia, [1997] 3 S.C.R. 1010 at para. 81 [Delgamuuku] and Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511. at para. 32 [Haida]. See also Brian Slattery, “The Legal Basis of Aboriginal Title” in Frank Cassidy, ed., Aboriginal Title in British Columbia: Delgamuukw v. The Queen (Lantzville, B.C.: Oolichan Books, 1992) 113 at 120-2 and Hoehn, Reconciling Sovereignties, supra note 6 at 44-51 and 59-76. 19 The Oxford Dictionary & Thesaurus, 1997, sub verbo “reconcile”.
11
can also have a more unilateral sense. There is the
reconciliation of bookkeepers and accountants. Here one settles
discrepancies between accounts by making them compatible and
consistent with one another. There is also the reconciliation of
fate. One can reconcile themselves to events that are beyond
their control (whether this is death or the will of God).20 This
form of reconciliation may bring with it a sense of acceptance
and peace or simply resignation but, can one can force another to
accept something as a fact that they must reconcile themselves
to? Coercive force may well appear to be as irresistible as fate,
but cannot offer the same guarantees. Hart has this very problem
in mind when he addresses the problem of authority, law and
coercive force.21 A legal system may indeed be used to maintain a
group in a position of permanent inferiority, but this comes at a
price. One can simply never be sure that this forced
20 For a critical examination of the stakes of this kind of imposed reconciliation for the rule of law see Mark D. Walters, “The Morality of Aboriginal Law” (2006) 31 Queen’s L. J. 470 at 472 [Walters, Morality], “The Jurisprudence of Reconciliation: Aboriginal Rights in Canada,” in Will Kymlicka and Bashir Bashir, The Politics of Reconciliation in Multicultural Societies, (Oxford: Oxford University Press, 2008), Dawnis Minawaanigogizhigok Kennedy, “Reconciliation without Respect? Section 35 and Indigenous Legal Orders,” in Law Commission of Canada, Indigenous Legal Traditions (Vancouver: University of British Columbia Press, 2008), and Hoehn, Reconciling Sovereignties, supra note 6. 21 Hart, supra note 10 at 200-203.
12
reconciliation is real because one can never be sure whether the
other party has accepted their situation as fate or if they are
simply biding their time. Quite simply, there is no way to
distinguish between “voluntary acceptance” and “mere obedience”
and because of this this type of legal system suffers from a kind
of constitutive instability.22 Such a system produces a vicious
circle in which those who benefit from the system ground their
claim to legitimacy in the phrase salus populi suprema lex and those
who are excluded take up the revolutionary response of fiat
justitia.23 Here the distinction between the rule of law and the
rule by law is lost in the adversarial call and response of two
solitudes. Given its ambivalence what can reconciliation mean in
the context of Canadian aboriginal law?
The concept enters the case law in Sparrow when Chief
Justice Dickson and Justice La Forest use it to interpret the
relationship between s. 35(1) of the Constitution Act, 1982 and s.
91(24) of the Constitution Act, 1867.24 The term itself appears only
once in the entire judgment:
22 Ibid, at 201-202.23 Robert Cover, Justice Accused: Antislavery and the Judicial Process, (New Haven: Yale University Press, 1975) at p. 107. 24 Sparrow, supra note 5 at 1101-11.
13
There is no explicit language in the provision that authorizes this Court or any court to assess the legitimacy of any government legislation that restrictsaboriginal rights. Yet, we find that the words "recognition and affirmation" incorporate the fiduciaryrelationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in Nowegijick, supra, and the conceptof holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by Guerin v. The Queen, supra. 25
The sense of reconciliation here is quite different from the one
in Mikisew Cree and Marshall; Bernard. What is being reconciled is, as
the Court puts it, “federal power” and “federal duty” via a
justificatory test. This naturally has connection with the kind
of wider historical reconciliation we will see later on in Mikisew
25 Ibid, at 1109.14
Cree, but it is not entirely the same. The judico-historical gulf
between s. 35(1) and s. 91(24) is difficult to overstate.26 In
effect, aboriginal peoples move from being the object of a
constitutional head of power to having their “existing” rights
“recognized and affirmed”. The interpretive complications do not
end with the vague language of the provision itself. There is
also the question of the meaning of s. 35(1) within the context
of the Constitution Act, 1982 itself.27 It is not within the Charter 26 Brian Slattery refers to this as a “sea change” in common law rules. He argues that it has given rise to two related forms of Aboriginal rights, whichhe terms “historical” and “generative”. Historical rights are, the form of Aboriginal title that existed at common law in the period following the Crown’s de facto assertion of sovereignty. It is expressed in the Royal Proclamation and forms of what he refers to as the “common law of Aboriginal rights.” It is governed by the common law Principles of Recognition (and he argues is the meaning of “recognized” in s. 35(1) of the Constitution Act, 1982). This “historical title” forms, “…the point of departure for any modern inquiry and a benchmark for assessing the actions of colonial governments and the scope ofdispossession.” It is this process of colonial dispossession that has led to the transformation of the historical forms of Aboriginal right into “generative right.” These are governed by the Principle of Reconciliation (and providethe meaning of “affirmed” in s. 35(1)). The purpose of this generative form isthe successful settlement of Aboriginal claims, and as Slattery rightly maintains, this must involve “…the full and unstinting recognition of the historical reality of Aboriginal title, the true scope and effects of Indigenous dispossession, and the continuing links between an Indigenous people and its traditional lands”: “Metamorphosis” supra note 3 at 147-9 and 168-169. 27 Peter Hogg points out that s. 35 was a late addition to the Constitution Act, 1982. It was not included in the October 1980 version and then it appears in the April 1981 version without the word “existing” only to vanish entirely in the November 5th, 1981 version. The omission drew intense criticism and, as a result, it was added later in November with the addition of the word “exiting”. The history of the provision alone demonstrates that it was the product of contention and compromise. This is also evident in the vague drafting and placement. What does “recognized and affirmed” mean? Does “existing” open to door for extinguishment? See Peter Hogg, ‘The Constitutional Basis of Aboriginal Rights’ in Maria Morellato ed., Aboriginal
15
(which extends from s. 1 to s. 34) and thus it is not subject to
either s. 1 or s. 33. In Sparrow the Court was tasked with
finding a way to read a limit into s. 35(1) without depriving it
of meaning entirely. Their solution was to introduce a kind of s.
1 Oakes analysis via s. 91(24) and then, to avoid the colonial
connotations of this provision, characterize it as the expression
of a “fiduciary relationship”. This constitutional form of
reconciliation has been expanded through the subsequent case law.
Through Gladstone, Van Der Peet and Delgamuukw reconciliation
becomes both a constitutional principle and a substantive goal.
As Chief Justice Lamert states in Van Der Peet, “one of the
fundamental purposes of s. 35(1) is the reconciliation of the
pre-existence of distinctive aboriginal societies with the
assertion of Crown sovereignty.”28 The judicial process of
reconciling the constitutional conflict between s. 91(24) and s.
35(1) is still in place, but it is interpreted as being a part of
a larger substantive goal. That goal is the reconciliation of the
pre-existence of Aboriginal peoples with the Crown’s assertion of
Law Since Delgamuukw (Aurora: Canada Law Book, 2009) at 5-7, and Slattery, “The Constitutional Guarantee” supra note 3. 28 R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 49 [Van der Peet].
16
sovereignty over Canadian territory.29 Reconciliation is a
remedial principle that generates a judicial process. This
process must reflect the fact that Aboriginal rights (including
title) are not derived from the Crown. According to Lamert,
C.J.C. this means that the court must take “…into account the
aboriginal perspective while at the same time taking into account
the perspective of the common law. True reconciliation will,
equally, place weight on each.”30 But, how can the court achieve
this balance? How can a common law court take the aboriginal
perspective into account? This question is key as the procedural
frameworks, tests, and principles that the court develops to
account for this determine the meaning of reconciliation (i.e.,
is it mutual or assigned). The regime of tests that the Court
developed under the leadership of Lamert, C.J.C. narrowed the
Court’s approach to the Aboriginal perspective by insisting that
these perspectives must be “framed in terms cognizable to the
Canadian legal and constitutional structure.”31 This practice of
framing involved a kind of curatorial process of setting a time
29 Delgamuukw , supra note 18 at para. 81. 30 Van Der Peet, supra note 28 at para. 50.31 Ibid, at para. 49.
17
period and approach to the evidence. From this basis the Court
would be able to determine what was “integral” to the specific
Aboriginal group and cognizable to the common law. The process
itself seemed that it could be finite in the sense that
eventually it would be possible to catalogue and define the
complete set of rights. This approach generated concern from its
inception as both L’ Heureux-Dubé J. and McLachlin J. point to
the risk of “frozen rights” in their respective dissents.32
According to McLachlin J. the “Integral-Incidental” test is
overbroad, indeterminate, and too categorical. 33 It risks losing
track of the very limits of judicial reason. After all, who can
determine what is “integral” to another culture? What is the
status of such a determination? As McLachlin J. rightly states,
“to use such concepts as the markers of legal rights is to permit
the determination of rights to be coloured by the subjective
views of the decision-maker rather than objective norms.”34 In
terms of reconciliation the “Integral-Incidental” test risks
transforming a mutual process into a one-way street (as we will
32 Ibid at paras. 164-168 and 240. 33 Ibid at paras. 255-260.34 Ibid at para. 257.
18
see later on this is the very risk that McLachlin C.J.C
introduces via her use of translation in Marshall; Bernard).35 As
John Borrows notes, “…there is little mention of ways in which
the common law may have to be reframed to preserve the underlying
context and reason for the existence of a particular legal
principle within an Aboriginal community”.36
This static and curatorial approach to reconciliation
shifts in the Haida Nation and Taku River decisions. In Haida Nation
Chief Justice McLachlin states that,
Reconciliation is not a final legal remedy in the usualsense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in thecontrol of that people.37 (at para. 32)
35 The problems arising from the Van Der Peet trilogy have given rise to a large body of scholarship: see Russel Lawrence Barsh, and James Youngblood Henderson, “The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1996-1997) 42 McGill L J 993, Brian Slattery, “Making Sense ofAboriginal and Treaty Rights” (2000) 79 Cdn. Bar Rev. 196, and John Borrows, “Frozen Rights in Canada: Constitutional Interpretations and the Trickster” (1997-98) 22 Am. Indian L. Rev. 37. For a comparative approach to the questionof Aboriginal rights see Michael Murphy, “Prisons of Culture: Judicial Constructions of Indigenous Rights in Australia, Canada and New Zealand” (2008) 87 Cdn. Bar Rev. 357.36 John Borrows, Recovering Canada, supra note 7 at 62. 37 Haida Nation, supra note 18 at para. 32.
19
Here the Court’s approach to reconciliation shifts distinctly
with the development of the principle of the Honour of the
Crown.38 First, the process of reconciliation ultimately stems
from the Crown’s assertion of sovereignty and the previous
occupation and control of those lands and resources by Aboriginal
peoples. This, in and of itself, is in line with the case law
since Calder, but by characterizing the Crown’s claim to
sovereignty as de facto the Court makes it quite clear that
Aboriginal rights and title are not a “mere burden” on the
underlying title, rather, underlying title is contestable at
law.39 This suggests that the ultimate goal is legally securing
the Crown’s sovereignty over said territory (i.e., moving it from
a de facto assertion to a de jure reality) via a process of
reconciliation. Second, the process itself is a dynamic and
ongoing process that involves both litigation and negotiation
(Mikisew Cree goes on to extend the process to modern treaties). In
38 For a detailed account of these changes refer to Brian Slattery, ‘Aboriginal Rights and the Honour of the Crown’ (2005), 29 S.C.L.R. (2d). 39 John Borrows, Recovering Canada, supra note 7 at 62. Also, for more on the distinction between de facto and de jure refer to the material referenced in note6.
20
Mikisew Cree Justice Binnie, writing for the Supreme Court, states
that:40
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and theirrespective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lackof respect inherent in that indifference has been as destructive of the process of reconciliation as some ofthe larger and more explosive controversies.
This history is again highlighted by Chief Justice McLachlin
and Justice Karakatsanis in the recent Manitoba Metis
Federation decision:
The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty…[it] recognizes the impact of the “superimposition of European laws and customs” on pre-existing Aboriginal societies: R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 248, per McLachlin J.,dissenting. Aboriginal peoples were here first, and they were never conquered (Haida Nation, at para. 25); yet, theybecame subject to a legal system that they did not share.Historical treaties were framed in that unfamiliar legal system, and negotiated and drafted in a foreign language:R. v. Badger, [1996] 1 S.C.R. 771, at para. 52; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at pp. 142-43, per
40 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 at para. 1 [Mikisew Cree].
21
La Forest J. The honour of the Crown characterizes the “special relationship” that arises out of this colonial practice: Little Salmon, at para. 62.41
These excerpts provide us with a sense of its importance and
continuity in the case law. And, one would imagine, that in such
a shadow reconciliation would have to be a mutual process. But,
it tells us little of how this “fundamental objective” is to be
achieved in the case of title. For instance, in Marshall; Bernard
Chief Justice McLachlin describes the process of reconciliation
as being one of translation. By this approach the Court is given
the task of examining the “pre-sovereignty aboriginal practice”
and then translating that practice into a “modern right”.42What
does this process reconciliation-as-translation offer? It would seem
that, at the very least, the parameters of reconciliation are
being determined from one side. The Court can listen to the
Aboriginal perspective, but only to the extent that they can
understand them in their own terms. What we are left with is a
strange stilted sort of conversation where one listens to the
other only to respond by saying, “when you say x what you really
41 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] S.C.C. 14 at para. 66-67 [Manitoba Metis Federation].42 Marshall/Bernard, supra note 3 at paras. 51-52.
22
mean is y.” Is this reconciliation? Perhaps it is. After all, one
can reconcile accounts by simply checking one against another.
But, it is certainly not a form of reconciliation that can lead
to mutual understanding (it seems to simply reproduce the same
problems that the Van Der Peet “Integral-Incidental” test
introduced).43 The risk is that through this approach the very
meaning of the process of reconciliation may well be lost in
translation and what we will be left with is yet another chapter
in our “…long history of grievances and misunderstanding”.44
The cases all seem to maintain that reconciliation, if it
is to have any meaning, must be mutual, but, as we have seen,
they part company on how this mutuality is to be achieved.
Nowhere is the Court’s hesitancy more evident than in the title
cases. The Court has consistently maintained that negotiation has
more to offer than litigation on the question of title.45This is,
at least to some degree, understandable. After all, the question
43 As Slattery argues the process of translation “…artificially constrains anddistorts the true character of Aboriginal title and risks compounding the historical injustices visited on Indigenous peoples. Far from reconciling Indigenous peoples with the Crown, it seems likely to exacerbate existing conflicts and grievances”; “Metamorphosis”, supra note 3 at 168. See also Walters, “Morality”, supra note 20 at 472.44 Mikisew Cree, supra note 40 at para. 1.45 Delgamuukw, supra note 18 at para. 186.
23
of title cuts to the very heart of the dispute between the Crown
and Aboriginal peoples. In this question the court senses the
limits of its municipal jurisdiction and so it has avoided
setting a clear and determinative precedent by tripping itself
over procedural technicalities. In this it has attempted to set
the terms of a negotiation process and yet the question of title
keeps coming back before the Court. Indeed if reconciliation is
to have any substantive meaning the question of title needs to be
answered.46 So, how has the court responded thus far? What is the
test for title and how does it account for the aboriginal
perspective?
III. The Two Versions of the Test for Title.
A) Tsilhqot’in Nation Vast Areas? Exclusivity, Occupation and Continuity
In Tsilhqot’in Nation Vickers J. provides us with a detailed
summary of the case law on Aboriginal title from St. Catherine’s Milling
to Marshall; Bernard. This summary begins by tracing out the legal
source of title, its defining qualities, and its relationship
with Aboriginal rights. The source of title shifts from being a
46 See Lambert, “Reconciling”, supra note 18. 24
“mere burden” on the underlying title that is “dependent upon the
good will of the Sovereign” to being the “prior occupation of
Canada by aboriginal peoples.”47 The defining qualities move
being characterized as “personal and usufructuary” to being “sui
generis,” but the qualities themselves are somewhat constant, in
that, both maintain that title is communal and inalienable (to
anyone but the Crown).48 The relationship between rights and
title shifts from the pre-Constitution Act, 1982 approach where title
is seen as the basis of any and all claims to rights to the post-
Constitution Act, 1982 where title is seen as a species of right.49 The
overall arc of these changes in the law is set within the context
of a historical shift from an Imperial to a decolonizing approach
to Aboriginal title.50 But, as we will see later on, it is the
latter shift that is at the center of the disagreement between
Vickers J. and the Court of Appeal.
47 St.Catharine’s Milling, supra note 13 at p. 54-58; Delgamuukw, supra note 18 at para. 11448 St.Catharine’s Milling, supra note 13 at p. 54; Delgamuukw, supra note 18 at para. 112; Tsilhqot’in Nation, supra note 1 at paras. 505-510 49 Tsilhqot’in Nation, supra note 1 at paras. 521-522.50 Vickers J. cites Brian Slattery’s essay “The Organic Constitution: Aboriginal Peoples and the Evolution of Canada” for this characterization: SeeTsilhqot’in Nation, supra note 1 at para. 479.
25
Vickers J. moves on from his summary of the development of
Aboriginal title to the test itself. The test can be summarized
quite quickly, as Vickers J. states at para. 548,
Where an Aboriginal group provides direct evidence of pre-sovereignty occupation use and occupation of the land to the exclusion of others, such evidence establishes Aboriginal title.51
Upon reading this one could well assume that it is a fairly
straight forward and clear-cut legal test. All that would be
required would be to balance the common law and Aboriginal
perspectives on each of these elements and the issue could be
settled. But, as is usually the case, the difficulties lie in the
details of what each element requires. The test has three basic
elements: pre-sovereignty occupation, exclusivity, and
continuity. The latter two elements can be summarized fairly
quickly. Exclusivity can be demonstrated by the “intention and
capacity to retain exclusive control” of the area in question.52
Continuity is somewhat less clear cut. On the one hand, it “is
not a mandatory element of proof”.53 This is because of the
history of emigration due to forced relocation and disease. As 51 Ibid, at para. 548. 52 Delgamuukw , supra note 18 at paras. 155-156.53 Tsilhqot’in Nation, supra note 1 at para. 547
26
such, the claimant does not need to establish an unbroken chain
of continuity; rather, they may rely on present occupation to
raise an inference of pre-sovereignty occupation.54 What must be
demonstrated is that a substantial connection between the land
and the people has been maintained.55 As Lamer C.J.C. maintains
in Delgamuukw this “substantial connection” does not require a
static or uniform set of land use practices; the only limit on
use is that it cannot be “inconsistent with continued use by
future generations of aboriginals” (a requirement that reflects
the collective nature of Aboriginal title).56 The final element
of the test is by far the most complicated.
Pre-sovereignty occupation may indeed seem to be a
relatively simple fact-driven element of the test for Aboriginal
title. And yet, due to the vast differences between the land use
practices that are recognized by the common law and those of the
Aboriginal peoples of Canada this has become a key point of
contention. The question becomes what standard of occupation is
54 Van Der Peet, supra note 28 at para. 65; Tsilhqot’in Nation, supra note 1 at para. 549.55 Delgamuukw , supra note 18 at para. 154.56 Ibid, at para. 154.
27
required to prove Aboriginal title. On this Vickers J. cites
Lamer C.J.C. in Delgamuukw,
However, the aboriginal perspective must be taken into account alongside the perspective of the common law. Professor McNeil has convincingly argued that at commonlaw, the fact of physical occupation is proof of possession at law, which in turn will ground title to the land…Physical occupation may be established in a variety 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 its resources: see McNeil, CommonLaw Aboriginal Title, at pp. 201-2. In considering occupation sufficient to ground title is established, “one must take into account the group’s size, manner oflife, material resources, and technological abilities, and the character of the lands claimed”: Brian Slattery, “Understanding Aboriginal Rights”, at p. 758.57
This citation highlights the difficulty involved in this element
of the test: what does “regular use of definite tracts of land”
mean? What is required? Does evidence of land use go to show the
capacity and intent for exclusion? Is it more centered on
establishing the “special relationship” between Aboriginal
peoples and land that determines continuity? Lamer C.J.C. clearly
sees this element as a matter of balancing perspectives, but how
is the Court to go about doing this given the vast differences
57 Ibid, at para. 149. 28
between land use practices? Is it to be a case-by-case approach
to evidence in which the balancing of perspectives relies
primarily on judicial discretion to find the middle ground? Or,
is there an ‘objective’ test that could determine the degree of
land use necessary to prove title in all cases? The implications
of the latter would be far reaching indeed as it would, in
effect, remove the requirement for the Court to actually listen
to the Aboriginal perspective and balance it with the common law.
There would simply be the collection and presentation of evidence
that would then be ‘objectively’ converted into either rights or
title depending on the degree of occupancy found. This kind of
uniform standard is tempting as it would make it seem as if the
judge was merely applying an objective standard and not
exercising judicial discretion.58
58 Even Vickers J. is very aware of the unique challenges that this balancing of perspectives requires and he expresses his reservations and concerns about the limitations of litigation for resolving this form of dispute: See Tsilhqot’in Nation, supra note 1 at para. 137. At para. 958 he goes so far as to state thathe is “uncomfortable” with “setting boundaries that are ill defined and not contained within the usual metes and bounds”. Later on in the decision when heis addressing the principle of reconciliation he clearly states that because of the restrictions of our “adversarial system” the court has a “narrow role” in defining Aboriginal rights and title: ibid, at paras. 1362 and 1369). This provides a fairly compelling explanation for the narrow and formalistic natureof the preliminary issue (the lack of the magical words “or portions thereof” in the plaintiff’s pleadings: ibid, at para. 120) that ends up preventing him from making an actual decision. Clearly he was employing the judicial technique of non-decision (the same technique that the Supreme Court used in
29
Vickers J. clearly sees the potential for confusion on this
point—as it is the primary point of contention between the
parties in the case—and so he goes on to consider the impact of
the Supreme Court’s most recent decision on Aboriginal title,
Marshal; Bernard. By his reading the case “stands for the
proposition that Aboriginal title is not co-extensive with any
particular Aboriginal group’s traditional territory”.59This
approach stems from the post-Constitution Act, 1982 approach to the
relationship between rights and title. Through the course of Van
der Peet, Adams, Côté and Delgamuukw the Supreme Court confirms that
title is one “manifestation of a broader-based conception of
aboriginal rights” and so it was possible for Aboriginal groups
to show that they had a claim to site-specific Aboriginal rights
in the absence of title.60 This implies that the distinction
between rights and title is the degree of occupation. This
question of degree carries over into Delgamuukw, which clearly
states that occupation is established by evidence of the “regular
Delgamuukw) in order to encourage to parties to come to a consensual negotiated settlement outside of the court. See McNeil, “Site-Specific or Territorial?” supra note 3 at 4-7 and Slattery, “Metamorphosis” supra note 3. 59 Tsilhqot’in Nation, supra note 1 at para. 554. 60 Ibid, at paras. 522-538; R. v. Adams, [1996] 3 S.C.R. 139, at para. 25.
30
use of definite tracts of land.”61 In the Marshal;Bernard decision
McLachlin C.J.C. states that,
…exclusive possession in the sense of intention and capacity to control is required to establish aboriginaltitle. Typically, this is established by showing regular occupancy or use of definite tracts of land forhunting, fishing or exploiting resources: Delgamuukw, at para. 149. Less intensive uses may give rise to different rights. The requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law: Delgamuukw, at para. 156. These principles apply to nomadic and semi-nomadicaboriginal 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 forthe right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability. Theultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the aboriginal perspective as well as fidelity to the common law concepts involved.62
Vickers J. interprets this as setting a “high standard” for title
claims: the standard itself hangs on the distinction between
“regular use or occupancy of definite tracts of land” and
61 Ibid, at para. 102; Delgamuukw , supra note 18 at para. 149.62 Marshall; Bernard, supra note 3 at para. 70.
31
“occasional entry and use”.63 He also distinguishes Marshall; Bernard
from the case at hand precisely because the issue in the former
concerned an attempt “to prove title at specific sites” whereas
in this case “the plaintiff’s evidence is not limited to site
specific use and occupation”.64 Clearly, he saw the potential
confusion that could result if the difference between the terms
“definite tracts” and “specific sites” was not maintained.
The question of the relationship between the degree of
occupation and the meaning of “definite tracts” gives rise to the
primary contention in Tsilhqot’in Nation: is the degree of occupation
required to make a claim for Aboriginal title driven by a strict
‘objective’ or formalistic approach to the evidence or does s.
35(1) require a more “a generous, large and liberal
interpretation” via a case-by-case approach?65 The Crown argues
for a strict approach that effectively narrow claims for title to
specific-sites. Vickers J. accepts the plaintiff characterization
of this as the “postage stamp” approach to title. 66 In rejecting
this approach he states that,63 Marshall; Bernard, supra note 3 at para. 59; Tsilhqot’in Nation, supra note 1 at para. 583.64 Tsilhqot’in Nation, supra note 1 at para. 582.65 Van Der Peet, supra note 28 at para. 154. 66 Tsilhqot’in Nation, supra note 1 at para. 610.
32
There is no evidence to support a conclusion that Aboriginal people ever lived this kind of postage stampexistence. Tsilhqot’in people were semi-nomadic and moved with the seasons over various tracts of land within their vast territory. It was government policy that caused them to alter their traditional lifestyle and live on reserves.67
This response to the so-called “postage stamp” approach
highlights a problem with the Crown’s reasoning that goes to the
heart of s. 35(1) and the principle of reconciliation: it only
corresponds to one version of land use and that version was
imposed upon the Tsilhqot’in people. There is no balancing of
perspectives in this test, no “generous, large and liberal
interpretation” of the evidence. As a consequence the
reconciliation that it would offer would not be of the mutual and
consensual variety; rather, it would be strictly determined by an
‘objective’ standard (of course precisely who such an ‘objective’
measure could possibly be established is an open question).
Despite all of this Groberman J. writing for the British Columbia
Court of Appeal finds that Vickers J. erred in law on the test
for Aboriginal title and goes onto re-define the test in a way
67 Ibid, at para. 610. 33
that closely parallels the Crown’s approach in Tsilhqot’in Nation. As
Douglas Lambert forcefully states in The Tsilhqot’in Case,
If the decision were correct, it would tilt the economic balance so far against First Nations that consultation would be virtually meaningless, accommodation an empty gesture, justification for infringement a trivial token, and the treaty process anexpensive sham. However, I believe the decision is wrong. 68
I agree, the decision is wrong and the stakes could not be
higher. The question is how does the Court of Appeal ground their
version of the test in the law and what would the consequences of
this test be for the process of reconciliation?
B) William: From Postage Stamps to Networks
In the William decision Groberman J. finds that Vickers J.
erred in law by accepting a “territorial” theory of Aboriginal
title and that this error is reviewable on a standard of
correctness.69 So, what precisely is a “territorial” theory of
Aboriginal title and how is it incorrect? One way to answer this
question is to begin by reviewing what the Court of Appeal sets
68 See Douglas Lambert, ‘The Tsilhqot’in Case’ (2012) 70 The Advocate 819 [Lambert, “Tsilhqot’in”] . Lambert goes on to detail how and why the Court of Appeal erred in its version of the test. Also, see McNeil, “Site-Specific or Territorial?” supra note 3 at 14-6. 69 William, supra note 2 at paras. 227-229.
34
as the correct version of the test. We can find this version
summarized at para. 230,
Aboriginal title must be proven on a site specific basis. A title site may defined by a particular occupancy of the land (e.g., village sites, enclosed orcultivated fields) or on the basis that definite tractsof land were the subject of intensive use (specific hunting, fishing, gathering, or spiritual sites). In all cases, however, Aboriginal title can only be provenover a definite tract of land the boundaries of which are reasonably capable of definition.70
This summary may, at first glance, seem quite simple and direct,
but as soon as we begin to consider it more closely that
appearance fades. As such, we will have to proceed slowly. To
begin with there is the imperative nature of the first sentence:
“Aboriginal title must be proven on a site-specific basis.” What
is the source for this rule? The phrase “site-specific” is a term
of art from the case law on Aboriginal rights going back to Van
der Peet, but it is not used to assess title.71 When the Supreme
Court addresses the question of title the phrase that is used is
70 Ibid, at para. 230. 71 Groberman J. cites Marshall; Bernard and Delgamuukw as support and yet neither decision conflates ‘site-specific’ and ‘definite tracts’. Indeed, as Vickers J. notes at para. 582 of Tsilhqot’in Nation, the issue of specific sites in Marshall;Bernard was a matter of the pleadings. Despite this clear difference at para. 226 of William Groberman J. states that the cases are not “materially different.”
35
“definite tracts”.72 Are these two terms equivalent? Even on a
plain reading this seems implausible. While the terms ‘specific’
and ‘definite’ may well be synonyms, ‘site’ and ‘tract’ are
obviously distinct. Despite this distinction the rest of the
summary relies on the term ‘site’ to restrict and define the
passible scale of ‘tract’. This leads to confusion on two related
axes: the internal logic of the test and its relation to the
existing case law.
When this version of the test is considered on its own it
lacks clarity. If Aboriginal title must be proven on a site-
specific basis how can a site be defined as either “a particular
occupancy of the land” or “definite tracts of land were the
subject of intensive use”? If a ‘site’ can be either a ‘site’ or
a ‘tract’ what does one gain be claiming that the term ‘site’ is
compulsory or mandatory? At best this is a matter that would have
to be left to the trial judge to determine on a case by case
basis by considering the facts. Given this it is difficult to see
how Vickers J. erred in law. He clearly maintained that
Aboriginal title cannot be co-extensive with an Aboriginal
72 Delgamuukw , supra note 18 at para. 149. 36
group’s traditional territory (he bases this in his reading of
Marshall; Bernard at para. 554). How does he fail to meet the
criteria of the Court of Appeal’s test? Are the boundaries that
he establishes title in unreasonable? If so how? By what measure?
Is it simply a matter of him not using the term ‘site-specific’
to determine ‘definite tracts’? Does this add precision? If so
how? If anything this seems to parallel the absurd formalism of
the so-called preliminary issue. And even if the magical words
“site-specific” were used how would it change the outcome? It
seems that ‘site’ is used to restrict the potential scope of the
term ‘tract’, but there is no real concrete limit on the actual
size of a ‘site’. It would still be a matter of evidence and
judicial discretion. Additionally what is the relation between
the ‘must’ and the ‘either/or’? How can we make sense of this? Is
the Court of Appeal saying that Aboriginal title may be proven on
a ‘specific-site’ or a ‘definite tract’ if and only if it is a
‘specific site’? While the intent of this formulation may have
been to narrow the scope of Aboriginal title it only does so by
adding a level of conceptual confusion that would have to be
resolved in future litigation.
37
The relation between this version of the test and case law
is unclear. As we have already noted there is no basis for the
application of “site-specific” to the law of Aboriginal title.73
It is a new development in the law. Groberman J. is clearly aware
that this test is a development of the law. He makes this plain
when he states that this case “presents a suitable vehicle for
development of the law.”74 So, we must ask, what precisely is
being developed in this case? He responds by stating the
following: “For the purposes of the present case, the question is
what degree of occupation suffices to found a claim for
Aboriginal title.”75 The question of the degree or intensity of
use is not a novel concept in this area of the law. It is, after
all, how the Court has related and differentiated rights from
title in the post-Constitution Act, 1982 jurisprudence from Van Der Peet
onwards through Adams, Côté, Delgamuukw and Marshall; Bernard. But
there is, I would argue, a curious shift in this case. Whereas
Delgamuukw and Marshall; Bernard clearly set out a flexible standard
for determining the required level of occupation the Court of 73 Douglas Lambert makes the same point in “The Tsilhqot’in Case”, supra note 68 at 823-824. Also, see McNeil, “Site-Specific or Territorial?” supra note 3 at 10 and 14-6. 74 William, supra note 2 at para. 165. 75 Ibid, at para. 191.
38
Appeal favors a strict standard.76 This is clearly evident when
Groberman J. applies this standard to the facts in the case,
Except in respect of a few specific sites, the evidencedid not establish regular presence on or intensive occupation of particular tracts of land within the Claim Area. There were no permanent village sites, though there was evidence of encampments and wintering sites, including groupings of pit houses. Even among these, the evidence did not strongly point to occupation of particular sites in the period around 1846 except in three or four cases.77
It seems that according to the Court of Appeal the Aboriginal
title requires the presence of permanent village sites and
enclosed fields. This strict mode of analysis sets the open ended
list of possible ways of establishing physical occupation from
Delgamuukw as a closed set of necessary conditions.78 Indeed by
this mode of reasoning Aboriginal title is subjected to an even
higher standard than that of the common law. Possession is
insufficient because this “site-specific” standard concerns
itself directly with the intensity of land use. But, how can one
measure this intensity? This question relates back to the
76 Delgamuukw , supra note 18 at para. 149; Marshall; Bernard, supra note 3 at paras.56-66. 77 William, supra note 2 at para. 215. 78 Ibid, at para. 149. This is also cited in Marshall; Bernard, supra note 3 at para. 56. See McNeil, “Site-Specific or Territorial?” supra note 3 at 9-10.
39
confusion between ‘site’ and ‘tract’. The Supreme Court has set
rights in relation to “site-specific” practices because they
concern a right to those practices in cases where title cannot be
established. The Court has consistently related title to
“definite tracts” and “regular use” because it requires a
flexible and multivariable approach to the question of land use
over larger areas (the flexibility reflecting the differences
between land use practices both between Aboriginal peoples
themselves and the common law). Indeed, Vickers J. cites R. v.
Bernard from the New Brunswick Court of Appeal as Daigle J. A.
comments directly on the meaning of “regular use”:
As to the meaning of “regular use” of land, the following comments by Prof. McNeil, tacitly adopted although not quoted by Lamer C. J. in Delgamuukw, shed light on the nature of the use of land that amounts to physical occupation at common law (p. 202):
Probably even outlaying areas that were visitedoccasionally, and regarded as being under theirexclusive control, would also be occupied in much the same way as the waste of a manor wouldbe occupied by the lord…79
79 R. v. Bernard, [2003] NBCA 55, 262 N.B.R. (2d) 1 at paras. 86-88; Tsilhqot’in Nation, supra note 1 at para. 562.
40
While the ‘tacit’ inclusion of this could well be contested it
does fit more closely with the flexible standard that the Supreme
Court has adhered to thus far. While the Court has considered
evidence from a variety of practices it has maintained a constant
emphasis on the capacity for exclusion.80 There is good reason
for this. If it were to concern itself with the practices of land
use themselves and not as evidence of the capacity for exclusion
then it could well venture into the all too familiar territory of
‘rational use’ (a familiar Lockean concept from the history of
settler colonialism that sets out to ‘objectively’ prescribe land
use practices with a view to negating the capacity of indigenous
groups to actually own land).81 How else could it hope to
determine which practices were sufficient and where were not? The
Court of Appeal seems to maintain that the distinguishing marker
will be occupation and “nomadic passage” but how far can this
distinction go?82 The flexible and multivariable approach to
“regular use” enables the Court to avoid prescribing particular
80 Marshall; Bernard, supra note 3 at para. 6281 See Chapter V of the Second Treatise: John Locke, Two Treatises of Government, (New York: Cambridge University Press, 1988) at 285-302. For an excellent example of the critical scholarship on the concept of property and Aboriginal peoples in Locke refer to Tully, supra note 4 at 70-78. 82 Marshall; Bernard, supra note 3 at para. 66
41
forms of land use as necessary. In contrast to this the strict
approach adopted by the Court of Appeal would need to effectively
grade each and every land use practice in relation to the
“intensity” of occupation evident therein. This form of reasoning
falls to the same criticism that McLachlin J. leveled at the
“Integral-Incidental” test in her dissent in Van der Peet; using
the concept of ‘intensity of use’ as a marker of title “…is to
permit the determination of rights to be coloured by the
subjective views of the decision-maker rather than objective
norms.”83
This approach attempts to turn the subjective determination
of ‘sites’ and the ‘intensity’ of land use into the objective
determinations of a legal test. Why is objectivity desirable?
Well, if such a thing were possible it would offer certainty in
the law. This is, after all, what the Court of Appeal sees as
missing from the law on Aboriginal title.84 And if the law in
this area was certain it would provide a solid foundation for
negotiations, facilitate economic development, clarify the duty
to consult and it would do all of this without having to lean too
83 Van Der Peet, supra note 28 at para. 257.84 William, supra note 2 at para. 163.
42
heavily on judicial discretion. But, it can only offer these
benefits if it is actually an ‘objective’ test. If the test is
merely a subjective determination dressed up in the language of
objectivity and certainty then its consequences are anything but
desirable. By adopting a strict set of standards for which land
use practices count and which do not, the Court would be turning
a deaf ear on the Aboriginal perspective. It would no longer
matter how much evidence is supporting a claim (a complicated,
time consuming and expensive process even under the current
approach to title) because all that a claimant could possible
hope for would be a “network” of “specific sites” connected by
“broad areas in which various identifiable Aboriginal rights can
be exercised.”85 It is unclear how this is distinct from the
“postage stamp” approach and, more importantly, it is difficult
to imagine why any group would go the trouble of actually pursing
litigation if this was the only possible remedy. What could this
‘network’ possibly look like in practical terms? Would it be
analogous to having title to the network of trails within a park
and being allowed to step off of the trails to do a specific set
85 Ibid, at para. 238. 43
of actions? If so, it seems like the absurdity of the “frozen
rights” of Van der Peet have finally captured the entire field of
Aboriginal law in Canada. And, if this was what the Court has had
in mind all along why would Lamer C.J.C. maintain in Delgamuukw
that aboriginal title is distinct from rights by virtue of its
“inescapably economic aspect”?86 How could we even imagine a
group that could reach the highest level of the duty to consult?
Would the proposed Crown action have to directly impact core of
the “network” of “specific-sites” to trigger this?
This strict ‘site-specific’ approach necessarily entails a
sea-change in the way the Court has developed the principle of
reconciliation. With the ‘site-specific’ approach to Aboriginal
title the Court of Appeal has formed a new legal test (even if
Groberman J. maintains that it is simply a refinement), but how
does this test relate to the principle of reconciliation as it
has been established in the case law? It seems that here we have
returned to the reasoning of the Privy Council in St. Catharine’s
Milling with its unquestioned form of Crown sovereignty. How else
can the Court hope to ‘objectively’ ground the arbitrary
86 Delgamuukw , supra note 18 at para. 169.44
determinations of “intensity of use” and “specific-sites”? These
standards are established subjectively and so their authority
must be based in the unquestioned authority of the Crown. But,
when it comes to Aboriginal rights and title Crown sovereignty is
far from unquestioned. Since Calder the Court has consistently
recognized that the source of Aboriginal rights and title is the
previous occupation and control of those lands and resources by
Aboriginal peoples. This is why Haida Nation explicitly states the
Crown sovereignty is de facto.87 In order to be recognized as law
by both parties there must be a process of reconciliation. This
must be both mutual and consensual. It seems that the Court of
Appeal does not share this view of reconciliation. Groberman J.
states at para. 219,
I see broad territorial claims to title as antitheticalto the goal of reconciliation, which demands that, so far as possible, the traditional rights of First Nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians, Aboriginal and non-Aboriginal.88
87 Haida Nation, supra note 18 at para. 32. Also, see Hoehn, Reconciling Sovereignties, supra note 6 at 44 and 59-76. 88 William, supra note 2 at para. 219.
45
How can Aboriginal rights and title amount to ‘unnecessary
limitations on the sovereignty of the Crown’? This reasoning
takes us back to Lord Watson’s “mere burden” from St. Catherine’s
Milling. The Court has recognized that the dispute between the
Crown and the Aboriginal peoples of Canada is more than an
inconvenience. It has to do with the very basis of Crown
sovereignty. This is not reflected in the William decision. It
promises us certainty in the law, but at what cost? It seems that
if we are to maintain that the “site-specific” test has any claim
to ‘objectivity’ we must join the crowds from the Emperor’s New
Clothes and dogmatically insist that despite all indications to
the contrary he is in fact fully clothed.89 The problem is that
in disputes there is more than one party and no matter what we
choose to believe if our perspective is not shared the only
reconciliation available is anything but mutual.
IV. The Future of Reconciliation: Lost in Translation?
In Marshall; Bernard Chief Justice McLachlin provides the court
with a new rule for adjudicating these disputes, “…the court must
89 ‘The Emperor’s New Clothes’ in Hans Christian Anderson, The Complete Fairy Tales and Stories, translated by Erik Christian Haugaard (New York: Anchor, 1983) at 77-82.
46
examine the pre-sovereignty aboriginal practice and translate
that practice into a modern right.”90 But, how can the process of
translation hope to achieve reconciliation? By setting common law
rights as the basis of translation a set of prescriptive
standards are set in place. The Aboriginal perspective becomes
legible if and only if it conforms to the common law. The test in
William (whose Lockean overtones are difficult to miss) clearly
illustrates this risk and it would do the interpretive work of
dealing with the Aboriginal perspective by simply declaring it
untranslatable. 91 Translation is, quite simply, not a neutral
process and if the Court chooses to resolve the question of
Aboriginal title by introducing an ‘objective’ standard (thereby
concealing its discretion behind the process of translation) then
it risks its claim to impartiality and with it the legitimacy of
the Crown’s sovereignty. Reconciliation will be reduced to a 90 Marshall; Bernard, supra note 3 at para. 51-52. 91 As Gordon Christie notes through the fiduciary doctrine in Sparrow the Supreme Court formed a kind of “grand narrative” in which “…the Crown is charged with the mission of protecting Aboriginal ‘rights’”. The problem is that this narrative “…clearly retrenches the jurisprudential colonial mentality”. The only “glimmer of hope” in this approach being that Aboriginal rights were not entirely reduced to common law analogies; see “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation”(2005) Windsor Y.B. Access Just., at 38-39. Also, see Brian Slattery’s analysis of the implications of translation in the Marshall; Bernard decision in his essay “The Metamorphosis of Aboriginal Title”: supra note 3 at 166-168 and Walters, “Morality”, supra note 20 at 472.
47
formal and solitary procedure, the legitimacy of the Crown’s
sovereignty will be that of the gunman and the integrity of the
law that of the mouthpiece.92 Such an approach can only serve to
reproduce the solitudes of colonialism. Hart touches on this very
risk in the Concept of Law when he examines how the coercive power
of law and government can be used to subdue and maintain a
particular group “…in a permanent position of inferiority”.93 As
he articulates it: “For those thus oppressed there may be nothing
in the system to command their loyalty but only things to fear.
They are its victims, not its beneficiaries”.94 How are we to
avoid perpetuating this? How are we to maintain the promise of
the rule of law?
It is clear that Tsilhqot’in Nation and William present two very
different jurisprudential trajectories. But, how do these
approaches fit within the current jurisprudential landscape? And,
more specifically, how could these approaches change the meaning
of reconciliation? We have at least touched on some aspects of
these questions already.
92 See Dworkin’s account of the integrity of the law in Ronald Dworkin, Law’s Empire, (Cambridge: Belknap Press, 1986) at 164-167. 93 Hart, supra note 5 at 201.94 Ibid, at 201.
48
The “site-specific” approach taken by the Court of Appeal
promises us certainty in the law and juridical objectivity. It
suggests that it can, finally, hit the “moving target” of
Aboriginal title by strictly determining what “degree of
occupation suffices to found a claim.”95 With this new objective
standard in hand the Court could provide a sure foundation for
negotiated agreements, but what are the costs? It seems that we
would have to be willing to accept an unclear, and quite possibly
internally inconsistent, test whose only claim to ‘objectivity’
is semantic limits of the term ‘site’ and the phrase ‘intensive
use of land’. We would need to be willing to treat these
subjective determinations ‘as if’ they were objective. Naturally
we would also have to maintain a highly selective reading of the
case law on title. We would have to narrow the focus on
possession and exclusivity in common law by emphasizing the sui
generis nature of Aboriginal title. The practical reality of all
of this would be a kind of reconciliation by translation.
Aboriginal title would become a “network of specific-sites”
connected by “broad areas” in which a legally circumscribed set
95 William, supra note 2 at paras. 129 and 19. 49
of practices could be exercised.96 After all, the Court of Appeal
reminds us that,
… recognition of Aboriginal rights other than title maybe sufficient to fully preserve the ability of members of a First Nation to continue their traditional activities and lifestyles and may fully preserve Aboriginal culture. In such cases, the recognition of those other rights may be more commensurate with the reconciliation of Aboriginal rights with Crown sovereignty than would a broader recognition of Aboriginal title.97
Clearly this version of reconciliation is very preoccupied with
“preservation”. These curatorial aims are consistent with its
claim to ‘objectivity’. How else could it hope to judge the
“quality of occupancy” or “intensity of presence” in such
exacting terms?98 The Court of Appeal explicitly maintains that
this approach is consistent with both the case law and
reconciliation,
It seems to me that this view of Aboriginal title and Aboriginal rights is fully consistent with the case law. It is also consistent with broader goals of reconciliation. There is a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown
96 Ibid, at para. 238. 97 Ibid, at para. 173.98 Ibid, at paras. 220 and 225.
50
sovereignty and with the well-being of all Canadians. As I see it, an overly-broad recognition of Aboriginal title is not conducive to these goals. Lamer C.J.C.’s caution in Delgamuukw that “we are all here to stay” was not a mere glib observation to encourage negotiations. Rather, it was a recognition that, in theend, the reconciliation of Aboriginal rights with Crownsovereignty should minimize the damage to either of those principles.99
I find this claim of consistency deeply puzzling.100 What are the
broader goals of reconciliation? Do these goal recognize its
basis? What constitutes an “unnecessary” interference with Crown
sovereignty? And, furthermore how can we “minimize the damage”?
It seems that the Court of Appeal finds the answer to these
questions in its “site-specific” version of the test. What the
Court must avoid damaging is Aboriginal peoples as they are seen
through the lens of preservation. What about the growth and
development of Aboriginal peoples? What of the future? As Binnie
J. puts it in Beckman v. Little Salmon/Carmacks First Nation, “the future
is more important than the past. A canoeist who hopes to make
99 Ibid, at para. 239. 100 As John Borrows puts it Lamer C.J.C.’s statement “…does not tell us where “here” is”: “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall L.J. 537 at 596.
51
progress faces forwards, not backwards.”101 Reconciliation must be
concerned with the settlement of past grievances, but it must do
so in such a way that it opens the possibility of a shared
future; we are, after all, “all here to stay”.102 So how are we to
face this fact? Is it by dressing up subjective judgments as if
they were value neutral, natural or objective standards? Is it by
translating the Aboriginal perspective into the common law? If
this is the path that the Court will adopt would be the point of
pursuing litigation on questions of title? If the Court is only
willing to consider those practices that its “site-specific”
standard can translate then what would be the point? Litigation
requires extensive financial resources and mountains of evidence.
Who would choose to go through this for a “network” of “specific-
sites”? It seems that the likely practical outcome of this would
be that the litigation wing of title would collapse leaving only
negotiations with a Crown armed with an invaluable trump card. If
this is how the Court is going to face the future it seems that
it will have to do so by avoiding the grievances of the past. It
101 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para. 10102 Delgamuukw , supra note 18 at para. 186.
52
will have to avoid getting itself caught up in the details of
this dispute by emphasizing the “broader goals” of
reconciliation. This broad conception of reconciliation seems to
urge us to rush forward by refusing to look back. Can this be the
way in which we find a mutual and consensual settlement? It seems
that taking this path will require a certain amount of willful
blindness as were we to admit, even for a moment, that the
standard measures for determining the ‘intensity’ or ‘quality’ of
land use practices and the spatial limits of a ‘site’ were
anything but ‘objective’ the house of cards would collapse.
In contrast to this, the approach taken by Vickers J. is
based in a clear and detailed account of the development of the
common law on Aboriginal title. Despite the insistence of the
Court of Appeal it is difficult to characterize it as a
‘territorial’ approach as it explicitly accepts Marshall; Bernard as
authority for the proposition that Aboriginal title is not co-
extensive with an Aboriginal group’s traditional territory.103 It
takes a case-by-case approach to determining the content of
“definite tracts and regular use.”104 As such, it relies heavily
103 Tsilhqot’in Nation, supra note 1 at para. 554. 104 Delgamuukw , supra note 18 at para. 149.
53
upon evidence and judicial discretion and this is not indicative
of a gap in the law. This gap opens up a space for the Aboriginal
perspective to be heard. It is necessary because of the source of
Aboriginal title and rights is found in that fact that “Canada’s
Aboriginal peoples were here when Europeans came, and were never
conquered”.105 It is not a right given by the Crown nor is it a
right that the common law has defined and circumscribed. It
requires more than translation precisely because this risks
saying that the terms of what is possible at law have been
imposed upon one party by the other. It requires a mutual process
of sharing in which the law is shaped in and through a lateral
process of communication.106 This process does not and indeed
cannot provide the law with the degree of certainty and
objectivity that it desires. It cannot set hard limits on the
potential scope of Aboriginal title. But, it does offer the
possibility of a reconciliation that is both mutual and
consensual. It recognizes and acts in accordance with the de facto
nature of Crown sovereignty and the bloodstained history of
settler colonialism. It is grounded in the realization that
105 Haida Nation, supra note 18 at para. 25. 106 Walters, “Morality”, supra note 20 at 472 and 517-20.
54