Aboriginal Title

Question 1

What can higher courts do regarding factual findings made by trial judge?

Answer 1

Delgamuuk - normally unless there is an overriding error, appellate courts should not substitute their own findings of fact. Protects autonomy and integrity of trial process.

There is an exception in aboriginal rights cases where trial did not appreciate evidentiary difficulties inherent in aboriginal claims.

Question 2

Treatment of Aboriginal Evidence

Answer 2

Delgamuuk - Aboriginal rights demand a unique approach to treatment of evidence.
Continuity requirement for title is difficult without written records.

Question 3

Content of Aboriginal title

Answer 3

Delgamuuk - more than the right to engage in specific activities. It confers the right to use land for activities, not all of which need to be distinct to aboriginal societies. Range of uses is subject to limitation that they must not be irreconcilable with the nature of the attachment to land.

SO Right to exclusive use and occupation, cant be irreconcilable with nature of the groups attachment to land.

Question 4

What is one way that ab title is distinct from fee simple?

Answer 4

must not be irreconcilable with the nature of the attachment to land, it is sui generis.

Question 5

Dimensions of aboriginal title

Answer 5

Underlying the dimensions is the idea that title is sui generis. Dimensions include inalienability, source (arises from prior occupation and cl principles that occupation is proof of possession), it is held communally and cant be held by individuals.

Question 6

What is aboriginal title?

Answer 6

More than a bundle of right, less than a fee simple. (delgamuuk)

Question 7

Inherent limits of ab title? (delgamuuk)

Answer 7

Cant use in a way that would be irreconcilable with nature of attachment to the land which forms the basis of the claim to title. Continuity applies in the future, use of lands threatening the future are excluded from the content of ab title.
If abs wish to use the land in a non permitted way they must surrender it to the crown.

Question 8

Critical element in determining title?

Answer 8

Occupancy. Determined by activities taking place on the land and the use of the land by the group. The use creates a relationship to the land that cannot be destroyed (that is why it cannot be alienated other than to the crown) - delgamuuk

Question 9

Ab title in the constitution?

Answer 9

s35(1) protects ab title as a recognition, not a creation of rights. Land title is distinct from other ab rights because it arises when land is of central significance to distinctive cultures. - delgamuuk

Question 10

What if they cannot demonstrate title to the land?

Answer 10

delgamuuk - they can have a site specific right to engage in an activity there (like hunting, fishing). Differs in degree of connection to the land.

Question 11

Spectrum of s35(1) rights according to delgamuuk?

Answer 11

1. Free standing right (practices, customs, traditions integral to culture but not enough to support a title claim)
2. Site specific right (activities that take place on land but not sufficient to support a title, eg, nomadic people who have seasonal grounds but not exclusive occupation.
3. Title. Right to the land itself. Requires land to be of central significance to their distinct culture and activity sufficient to constitute exclusive occupation.

Question 12

Test for proof of aboriginal rights (delgamuuk)

Answer 12

• land must have been occupied prior to sovereignty
• if present occupation is relied on as proof of pre sovereignty occupation, need to have continuity
• at sovereignty, that occupation must have been exclusive. (exclusive control, requiring permission, etc.)

If fall short, can always prove site specific.

Question 13

Aboriginal rights may be infringed by government if they satisfy the test of justification which is….

Answer 13

• Compelling and substantial legislative objective
• Consistent with fiduciary obligation to put ab interests first
• fiduciary duty requires at least consultation if not full consent/involvement. Depends on right. Normally compensation is required.
• Must infringe as little as possible
• Allowable infringements may include agriculture, forestry, mining, general econ development, protection of environment and endangered species.

It is unclear if this only applies to title or all rights.

Question 14

Ab land title flows from….

Answer 14

occupation. Regular and exclusive use of the land (tsilqotin)

Question 15

What does gov have to do when a group asserts title?

Answer 15

tsilqotin - s35 requires gov to consult with a group asserting title on unproven lands and accommodate interests

Question 16

If title is established, gov can only incur with consent of ab group, or if they have a purpose that is…

Answer 16

(1) substantial (2) compelling (3) not inconsistent with fiduciary duty (they cannot prevent future generations from benefitting from the land) - tsilqotin

Question 17

When determining title, consider…

Answer 17

Sufficiency, Continuity, Exclusivity. (tsilqotin)

Question 18

Sufficiency (tsilqotin)

Answer 18

Must show they acted in a way that would communicate to others that they held the land for their own purposes. Context specific, consider control and posession of lands as well as ab perspective including size of the group, manner of life, material resources, character of the land. Intention to occupy must be inferred.

Question 19

Continuity (tsilqotin)

Answer 19

occupation must be rooted in pre-sovereign times. Need not be an unbroken chain.

Question 20

Exclusivity (tsilqotin)

Answer 20

Intention and capacity to retain exclusive control of the land. Can be established with proof of excluding others from land or requiring permission. Can consider trespass rules, treaties.

Question 21

What rights are conferred by ab title?

Answer 21

tsilqotin - exclusive occupation and use for purposes as long as reconcilable with communal and ongoing nature of title, beneficial interest so gets use, enjoyment and profit from its econ development.
Similar rights to a fee simple - decide how land is used, enjoyment, occupancy, possess, econ benefit, actively use and manage.

Question 22

How can government justify infringement according to tsilqotin

Answer 22

1. discharged duty to consult and accommodate
2. Actions backed by a compelling and substantial objective (broader public goal must further goal of reconciliation having regard to both ab interests and broader public objectives)
3. Gov action is consistent with crowns fiduciary obligations to the group (1. cant destroy for future generations, 2. Proportionality)

3 parts to proportionality.

• must be rationally connected to meet goal of gov.
• minimal impairment (no further than needed)
• Proportionality of impact (benefits arent outweighed by cost on ab interests).

Question 23

Which case held that evidence is OK even though it may be imprecise?

Answer 23

tsilqotin - that is the nature of this type of evidence. THey get the title because met all 3 criteria.