Get documents about "Delgamuukwdetailedhandout_000
Document Sample
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 1 of 8
ISSUES IN DELGAMUUKW
A. Do the pleadings preclude the Court from entertaining claims for Aboriginal title
and self-government?
B. What is the ability of this Court to interfere with the factual findings made by the
trial judge?
C. What is the content of Aboriginal title, how is it protected by s.35(1) of the
Constitution Act, 1982, and what is required for its proof?
i. What is the content of Aboriginal title, a question the Court has not yet
definitively addressed either at common law or under s.35(1)?
ii. What is the test for the proof of Aboriginal title, which, whatever its
content, is a right in land, and what is the relationship of Aboriginal title to
the definition of the Aboriginal rights recognized and affirmed by s. 35(1)
in Van der Peet in terms of activities? (This raises the sub-issue of the
treatment of the oral histories.)
iii. Whether Aboriginal title, as a right in land, mandates a modified approach
to the test of justification first laid down in Sparrow and elaborated upon
in Gladstone?
D. Has a claim to self-government been made out by the appellants?
E. Did BC, between 1871 and 1982, have jurisdiction to extinguish the rights of
Aboriginal peoples, including Aboriginal title, in that province? If not, do
provincial laws of general application nevertheless extinguish Aboriginal rights
through the operation of s.88 of the Indian Act?
FACTS
First Nations: Gitksan (4000 to 5000) and Wet’suwet’en (1500-2000)
Claim for roughly 58000 square kilometers in northwestern BC.
Non-Aboriginal people in the territory was over 30,000
A lot of evidence led through oral histories and legends – 400-page trial decision
Evidence of human habitation in disputed area from 3500 to 6000 years ago.
“contact” held at trial to be approximately 1820
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 2 of 8
Issue A: Do the pleadings preclude the Court from entertaining claims for AT
and self-government?
Original claim was made by 51 G and W Houses for “ownership” and “jurisdiction”
over 133 distinct territories making up 58000 square kilometers of northwestern BC.
On appeal, that original claim was altered in 2 different ways:
i. the claims for ownership and jurisdiction changed to title and self-
government respectively.
ii. 51 individual claims for distinct territories were amalgamated into 2 collective
claims, one by each nation.
No formal amendments to the pleadings to this effect and the respondents argue that the
claims central to this appeal are not properly before the Court.
SCC:
i. Doesn’t matter. Trial judge did allow an amendment to the pleadings to permit
“a claim for Aboriginal rights other than ownership and jurisdiction.” Plus, the
claim was framed when no clear jurisprudence about the nature and content of
AR. Case was pleaded before the Sparrow decision, which is the first
statement from SCC on the types of rights that come within the scope of s.35
(1). Okay to change pleadings that were drafted when the law was in its
infancy.
ii. Does matter. No amendment with respect to amalgamation. Although the
appellants are right that the territory claimed by each nation is merely the sum
of the individual claims of each house, and the external boundaries of the
collective claims therefore represent the outer boundaries of the outer
territories, to frame the case in a different manner on appeal would
retroactively deny the respondents the opportunity to know the appellants’
case. Respondents would suffer prejudice.
Held: cannot hear case because of a defect in the pleadings. New trial ordered.
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 3 of 8
Issue B: What is the ability of this Court to interfere with the factual findings
made by the trial judge?
Appellate review of findings of fact at issue here.
Unless there is a “palpable and overriding error” appellate courts should not substitute
their own findings of fact for those of the trial judge. But courts may intervene “where
the courts below have misapprehended or overlooked material evidence.”
In cases involving the determination of Aboriginal rights, appellate intervention is also
warranted by trial failure to appreciate the evidentiary difficulties inherent in adjudicating
Aboriginal claims when, first, applying the rules of evidence and, second, interpreting the
evidence before it.
The justification for this special approach lies in the sui generis nature of Aboriginal
rights that are aimed at the reconciliation of the prior occupation of North America by
distinctive Aboriginal societies with the assertion of Crown sovereignty over Canadian
territory.
So courts must relate to oral histories of Aboriginal societies otherwise they will impose
an impossible burden of proof and render nugatory any rights they have.
Basically, the trial judge arrived at his conclusion without the benefit of the Van der Peet
trilogy and his treatment of the various oral histories did not satisfy the principles laid
down in Van der Peet with respect to altering the traditional rules of evidence (i.e. no
hearsay). He then concluded that the appellants had not demonstrated the requisite degree
of occupation for “ownership” and had he assessed them correctly, his conclusions on
these issues of fact might have been very different.
Held: The factual findings cannot stand. However, it would be futile, given the
complexity of this case, for the SCC to sift through the record and make new findings of
fact. A new trial is warranted which can apply the Van der Peet evidentiary principles.
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 4 of 8
Issue C: What is the content of Aboriginal title, and how is it protected by
s.35(1), and what is required for its proof?
1. CONTENT
Appellants: AT is inalienable fee simple which permits any use of land and is
constitutionalized under s.35(1).
Respondents: 1) AT is no more than a bundle of rights to engage in activities which are
themselves rights recognized and affirmed by s.35(1) and that the constitution merely
constitutionalizes those individual rights, not the bundle itself, because the latter has no
independent content; and 2) AT, at most, encompasses the right to exclusive use and
occupation of land in order to engage in those activities which are Aboriginal rights
themselves, and that s. 35(1) constitutionalizes this notion of exclusivity.
Held: content of AT lies somewhere in between.
i. AT is a right in land and, as such, is more than the right to engage in specific
activities which may be themselves Aboriginal rights. It is a right to exclusive
use and occupation.
ii. Not all use of land need be aspects of P,C,T which are integral to the
distinctive cultures of Aboriginal societies. AT entails the right to choose from
a variety of uses of the land.
iii. AT is not fee simple, but sui generis. What makes Aboriginal title sui generis
is that it arises from possession before the assertion of British sovereignty
whereas traditional common law estates, like fee simple, arise afterward.
iv. It is a communal, rather than personal interest.
v. It is inalienable except to the govt. Alienation would bring to an end the
entitlement of the Aboriginal people to occupy the land and would terminate
their relationship with it. The inalienability suggests that those lands are more
than just a fungible commodity; land has an important non-economic
component, an inherent and unique value in itself, which is enjoyed by the
community with Aboriginal title to it. The community cannot put the land to
uses which would destroy that value.
vi. There is one limit on use: they must not be irreconcilable with the nature of
the attachment to the land that forms the basis of the particular group’s AT.
vii. AT is not absolute. Crown has underlying title.
viii. AT lands possess an inescapable economic component.
ix. AT can be infringed if the justification test is met.
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 5 of 8
2. PROOF OF AT
i. Introduction
s.35(1) AR arise from the prior occupation land and from the prior social organization
and distinctive cultures of Aboriginal peoples on that land. Jurisprudence under s. 35(1)
has given more emphasis to the second aspect because of type of cases which have come
before the court such as prosecutions for regulatory offences which focus on particular
activities.
AR definition from Van der Peet: in order to be an Aboriginal right an activity must be
an element of a practice, custom or tradition integral to the distinctive culture of the
Aboriginal group claiming the right.
AT: a right to land itself. That land may be used for a variety of activities, none of which
need be individually protected as Aboriginal rights under s. 35(1). Test is different. The
requirement that the land be integral to the distinctive culture of the claimants is
subsumed by the requirement of occupancy, and whereas the time for the identification of
Aboriginal rights is the time of first contact; the time for the identification of Aboriginal
title is the time at which the Crown asserted sovereignty over the land.
(ii) the test for the proof of Aboriginal title
PROOF TEST:
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.
i. “the land must have been occupied prior to sovereignty”
a. Why is sovereignty the appropriate period? First, AT is a burden on the
Crown’s underlying title. However, the Crown did not gain this title until
it asserted sovereignty over the land in question. It does not make sense of
speaking of a burden on title until that title existed. Second, AT depends
on occupation and not a time when no Europeans were there. Third, for
certainty purposes as the date of sovereignty is more certain than the date
of first contact.
b. How to prove historical occupation? Through both common law
arguments and through Aboriginal law. Recall Kent McNeil’s arguments
that occupation is proof of possession which is proof of title. Physical
occupation may be established in a number of ways, ranging from the
construction of dwellings through cultivation and enclosure of fields to
regular use of definite tracts of land. In considering whether occupation
sufficient to ground title is established “one must take into account the
group’s size, manner of life, material resources, and technological
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 6 of 8
abilities, and the character of the lands claimed. But proof will also exist
if, at the time of sovereignty, an Aboriginal society had laws in relation to
land (such as a land tenure system of laws governing land use).
ii. “if present occupation is relied on as proof of occupation pre-sovereignty,
there must be a continuity between present and pre-sovereignty occupation.”
Conclusive evidence of pre-sovereignty occupation may be difficult to come by. So
you may show continuity or a “substantial maintenance of the connection” between
present and pre-sovereignty occupation. If nature of occupation has changed, this
would not ordinarily preclude a claim for Aboriginal title as long as a substantial
connection between the people and land is maintained. Only limit is an internal one:
present use cannot be inconsistent with continued use by future generations of
Aboriginals.
iii. “At sovereignty, occupation must have been exclusive.”
a. Definition of AT is the right to exclusive use and occupation of land. As
with proof of occupation, proof of exclusivity must rely on both the
perspective of the common law and the Aboriginal perspective, placing
equal weight one each. But note: exclusivity is a common law principle
derived from the notion of fee simple ownership and should be imported
into the concept of AT with caution. One must take account of the
Aboriginal society at the time of sovereignty. So exclusive occupation can
be demonstrated even if other groups were present or frequented the
claimed lands. In this situation it would be demonstrated by “the intention
and capacity to retain exclusive control.” Did they take action against
trespassers, give permission to others to use, have trespass laws?
b. If there was shared occupation, as long as still exclusive, joint title can
result.
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 7 of 8
3. INFRINGEMENT OF AT: THE TEST OF JUSTIFICATION
AR are not absolute and may be infringed if justified.
Elaborating on nascent principles enunciated in Sparrow and embellished by Gladstone.
JUSTIFICATION TEST:
i. infringement must further a legislative objective that is compelling and
substantial. From Gladstone, we know that C&S objectives are those which
are directed at either one of the two purposes underlying the recognition and
affirmation of Aboriginal rights by s.35(1) – the recognition of the prior
occupation of North America by Aboriginal peoples…or the reconciliation of
Aboriginal prior occupation with the assertion of the sovereignty of the
Crown.
Range of appropriate legislative objectives is broad.
Development of agriculture
Forestry
Mining
Hydroelectric power
General economic development of BC interior
Protection of environment/endangered species
Building of infrastructure and the settlement of foreign populations
ii. is the infringement consistent with the special fiduciary relationship between
the Crown and Aboriginal peoples? Gladstone tells us that the requirements of
the fiduciary duty are a function of the “legal and factual context.” The degree
of scrutiny required by the fiduciary duty of the infringing measure as well as
the form the fiduciary duty takes is a function of the nature of the Aboriginal
right at issue.
Property 108b Delgamuukw – main points/paraphrased and quoted excerpts
Page 8 of 8
SPECTRUM OF ABORIGINAL RIGHTS
Aboriginal title is not just the sum of individual Aboriginal rights. Rather, Aboriginal
rights (including Aboriginal title) fall along a spectrum with respect to their degree of
connection with the land.
At one end are P,C,T which have no necessary relation to the land, but are nonetheless
integral to the distinctive Aboriginal culture of the group; the occupation and use of the
land where the activity is taking place is not sufficient to support a claim of title to the
land.
In the middle, are those activities that take place on land and might be intimately related
to a particular piece of land; although the activity might not establish title it may
nevertheless amount to a site-specific right. E.g. hunting on a specific tract of land.
At other end is AT which confers more than the right to engage in site-specific activities;
what AT confers is the right to land itself.
