...decision for future resolution. It concludes with a few comments on an issue not fully addressed in the case: terra nullius and its relationship to the test for Aboriginal title.

LEGAL ANALYSIS

Before turning to the court's discussion of the test for establishing Aboriginal title, it is important to understand the conceptual framework underlying that discussion. Two judgments were rendered in the Supreme Court. (2) Although both the majority and minority reached the same conclusion about the disposition of the case, their judgments reflect different approaches.

Aboriginal Title: Its Basis

The entire court confirmed that Aboriginal title is one type of Aboriginal right (3) and reconfirmed the common law theory (set out in previous cases) concerning Aboriginal title:

The common law theory underlying recognition of aboriginal title holds that an aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to the land, continues to enjoy title to it. (4)

I shall return to the court's application of this common law theory when discussing terra nullius below.

An important division in the court is exposed, however, when one turns to a fundamental point in Delgamuukw: Aboriginal title is sui generis and reflects the need to reconcile the "prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty ". (5) How should this reconciliation be achieved in practical terms?

The majority judgment identified two points which should be taken into account: (i) "the requirement that both aboriginal and European common law perspectives must be considered"; and (ii) "the variety of aboriginal rights that may be affirmed", (6) These two points provide a framework for discussing the conceptual basis of Aboriginal title before turning to the elements of the test for proving title.

The Aboriginal and European common law perspectives All seven judges agreed that the courts must take into account both the Aboriginal and European (common law) perspectives. But how is that to be done?

According to the majority, one must first look at Aboriginal practices, including the group's size, manner of life, and the like. (7) Secondly, after considering the Aboriginal practices, one must determine "what modern [common law] right best corresponds to the pre-sovereignty aboriginal practice, examined from the aboriginal perspective". (8) Put differently:

The process begins by examining the nature and extent of the pre-sovereignty aboriginal practice in question. It goes on to seek a corresponding common law right. In this way the process determines the nature and extent of the modern right and reconciles the aboriginal and European perspectives.(9) [emphasis added] More specifically, McLachlin C.J.C., writing for the majority, stated: [W]e are required to consider whether the practices of aboriginal peoples at the time of sovereignty compare wit/) the core notions of common law title to land. (10) [emphasis added]

She went on to observe that Aboriginal title "is established by aboriginal practices that indicate possession similar to that associated with title at common law". (11) This strong emphasis on the need for Aboriginal practices to fit within the mould of common law title is a point which divided the majority and minority judges.

The crux of this difference is highlighted in the following comments by LeBel J. (Fish J. concurring):

The role of the aboriginal perspective cannot be simply to help in the interpretation of aboriginal practices in order to assess whether they conform to common law concepts of title. The aboriginal perspective shapes the very concept of aboriginal title. In my view, aboriginal conceptions of territoriality, land-use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy standard that incorporates both the aboriginal and common law approaches. Otherwise, we might be implicitly accepting the position that aboriginal peoples had no rights in land prior to the assertion of Crown sovereignty because their views of property or land use do not fit within Euro-centric conceptions of property rights ... (12)

I comment further on this aspect of the minority decision later in the article.

LeBel J. also referred to the sui generis nature of Aboriginal title. McLachlin c.J.C, did not. Delgamuukw identified three broad aspects to the sui generis nature of Aboriginal title: evidence (in particular the role of oral history in proving title), (13) the content of Aboriginal title (14) and the source of that title. With respect to the source of Aboriginal title, Delgamuukw indicated that the content of the tests for occupancy and exclusivity needed to reflect both the Aboriginal and common law perspectives in a substantive way, placing equal weight on both. (15) By holding that the occupancy test must fully meet the traditional requirements of the common law, the majority in Marshall appears to have moved away from the court's position in Delgamuukw on this third aspect of the sui generis nature of Aboriginal title.

It will be interesting to see in the future if a differently constituted panel of the court will continue the approach taken by the five majority judges in Marshall and Bernard. (16)

Variety of Aboriginal rights that may exist

The majority stressed the point that there are a number of Aboriginal uses of land that do not give rise to Aboriginal title: "in Adams, the Court held that rights short of title could exist in the absence of occupation and use of the land sufficient to support a claim of title to the land". (17) Site-specific Aboriginal practices or rights can and do exist separately from title. They form the basis for Aboriginal title only if the additional requirements for title are met.

Requirements for Aboriginal Title

The Supreme Court of Canada in Delgamuukw set out a three-part test at para. 143:

In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive. (18) [emphasis added]

(I discuss below whether there is in fact a fourth part to the test in Delgamuukw.)

Interestingly, McLachlin C.J.C. referred to the Delgamuukw test in the following way:

This review of the general principles underlying the issue of aboriginal title to land brings us to the specific requirements for title set out in Delgamuukw. To establish title, documents must prove "exclusive" pre-sovereignty "occupation" of the land by their torebears: per Lamer C.J., at para. 143. (19) [emphasis added]

The reference to "documents" by Chief Justice McLachlin does not occur in the passage (para. 143) that she cites from Delgamuukw. What does her comment mean for the role of oral history in establishing title? Later comments suggest it may have been a slip of the pen--at least insofar as it applies to proving exclusivity. (20)

I shall deal with the three key components of the test for Aboriginal title in the following order: exclusivity, the standard of occupation, and continuity. (In British Columbia, the critical date for Aboriginal occupation is 1846, the date of sovereignty.)

Exclusivity

Any occupation of Aboriginal title land must be exclusive. (21) Although Bernard foundered in part on the issue of exclusivity, McLachlin C.J.C.'s discussion of exclusivity and the evidence that might support a finding of exclusivity was relatively generous to Aboriginal groups. Her starting point was that

[e] xclusive occupation means "the intention and capacity to retain exclusive control", and is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent: (Delgamuukw, at para. 156, citing McNeil, at p. 204). (22)

The Chief Justice subsequently acknowledged that evidence for acts of exclusion may not be available, particularly in sparsely populated areas, but concluded that the absence of such evidence does not preclude satisfying the requirement of exclusivity:

The right to control the land and if necessary to exclude others from using it is basic to the notion of title at common law. In European-based systems, this right is assumed by dint of law. Determining whether it was present in a pre-sovereignty aboriginal society, however, can pose difficulties. Often, no right to exclude arises by convention or law. So one must look to evidence. But evidence may be hard to find. The area may have been sparsely populated, with the result that clashes and the need to exclude strangers seldom if ever occurred. Or the people may have been peaceful and have chosen to exercise their control by sharing rather than exclusion. It is therefore critical to view the question of exclusion from the aboriginal perspective. To insist on evidence of overt acts of exclusion in such circumstances may, depending on the circumstances, he unfair. The problem is compounded by the difficulty in producing evidence of what happened hundreds of years ago where no tradition of written history exists. It follows that evidence of acts of exclusion is not required to establish aboriginal title. All that is required is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so. The fact that history, insofar as it can be ascertained, discloses no adverse claimants may support this inference. This is what is meant by the requirements of aboriginal title that the lands...

NOTE: All illustrations and photos have been removed from this article.



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