Claims of Sovereignty-Burdens of Occupation: William and theFuture of Reconciliation

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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anything less cannot hope to preserve the Honour of the Crown

because anything less would be accepting the gunman as if he were

a judge.

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