Lecture 3 and 4: Aboriginal Cases

Question 1

Aboriginal Title: Delmaguukw v British Columbia

Why is is this case important generally?

Answer 1

the case concerned the definition, context and extent of aboriginal title

Question 2

What is sufficiency of occupation?

To meet this standard, do you need an extensive presence?

To meet this standard, how should you approach it from 8========D (2 perspectives)

How do you see if you meet the standard?

Answer 2

It is use of the land pre-sovereingty.

Distinction it does not have to be extensive. Just needs a strong Prescence–

Occupation cannot just be subjective. It must be approached by the common law and Aboriginal perspective

Look to the nature of the land and the nature of the title claimed. In comparison of those two, determine if there sufficient acts to demonstrate control or occupation of the land

Question 3

Delmaguukw v BC

Facts: Action claimed 58k of land.

Appellants argue Aboriginal title is tantamount to an inalienable fee simple.

Respondents suggest Aboriginal title is a bundle of rights to engage in activities recognized under section 35 OR that Aboriginal title is just possession and use to engage in activities that are Aboriginal rights.

Issue: Do they get the land under section 35?

1) What do they call Aboriginal land?
2) What is a major part of aboriginal title?
3) Why is prior occupation important? (2 reasons)
4) What is the three part test for aboriginal title?

Answer 3

Holding:

1) Sui Generis
2) Inalienability. They cannot sell give land to anyone except crown.

3) The prior occupation is relevant in two ways

a) the physical fact of occupation, which is proof of possession in law, and

b) the fact that it is held communally, it is a collective right to land held by all members of the Aboriginal nation. This shows the sui generis nature of Aboriginal land.

4) Test for aboriginal title:

a) SUFFICIENCY: The land must be occupied prior to sovereignty

b) CONTINUITY: If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation and

c) EXCLUSIVITY: At sovereignty, that occupation must have been exclusive.

Question 4

What type of way did aboriginal elders give evidence of title to their land?

Answer 4

Orally

Question 5

Does the government have a duty to consult with indigenous peoples?

Does title need to be established first for there to be a duty to consult?

Answer 5

Yes they do have a duty to consult before starting any projects that may infringe on indigenous rights

Title does not need to be established.

Question 6

Should the court give equal weight to oral histories as evidence compared to other things?

Answer 6

Yes.

Question 7

What did the court say was the defintiion of aboriginal title generally s35(1)

Answer 7

It said that indigenous peoples have exclusive right to the land and it affirmed that aboriginal title is an aboriginal right in section 35(1)

Question 8

What is the big limitation for aboriginal title?

Answer 8

that you can’t use the land in a way that would harm/jeprodize the future right of the land to the ancestors of the people.

Question 9

Can aboriginal land be surrendered to anyone?

Answer 9

no just the crown

Question 10

What are the three things that indigenous people need to prove for title?

Answer 10

Sufficient: Natives must occupy the land prior to sovereignty. they must have demonstrated to Europeans and other nations they clearly used and occupied the land. if present occupation is used, then there must be continuity.

Continuous; there must be evidence of continuous ownership of land. demonstration that the group acted like they owned the land. court said they do not need to prove perfect continuity, but just demonstrate substantial connection between people and use, oral evidence can be used.

Exclusive Evidence of Territorial Occupation; At the time of sovereignty, this occupation must have been exclusive. this means the land had to have been the exclusive territory of an indigenous nation. however, the nation could have shared it with another nation.

Question 11

What do courts often say about aboriginal cases?

Answer 11

They are Sui generis

Question 12

What does it mean when they say a aboriginal land is inalienable?

Answer 12

It means it cannot be sold transferred or surrendered to anyone EXCEPT the crown

Question 13

What originally recognized aboriginal title prior to the charter?

Answer 13

The Royal Proclamation of CND

Question 14

What are the two ways that aboriginal people show their right to land is Sui generis?

Answer 14

1. Physical fact of occupation that is now rooted in the common law principle that occupation is proof of possession.
2. The fact that it is held communally. It is not held by individual Aboriginal peoples but rather it is a collective right that is held by all members of the Aboriginal nation. Decisions on the land is made by the collective community.

Question 15

What is the final test Delgamuk created for aboriginal title?

Answer 15

1. The land must have been occupied prior to sovereignty
2. If present occupation is relayed as proof of occupation pre sovereignty, there must be a continuity between present and pre sovereignty occupation
3. The occupation must have been exclusive.

Question 16

According to our discussion note, what did Kent McNeil say was the most important part of Aboriginal cases regarding title?

The guy also says there is a concern between making hisotiral connection for aboriginal people. it makes aboriginal peoples xxxx of the past

Answer 16

Dealing with the content of aboriginal title

Prisoners

Question 17

Tsilhqotin Nation v British Columbia

Facts: They lived in a valley for centuries. Province granted a licence to cut trees in their property and claimed the land.

Issue: Do they get aboriginal title?

1) What test did they use?

2) Should sufficiency of occupation focus on common law or aboriginal perspective?

3) Is sufficiency a context specific inquiry?

4) Does continuity of occupation require an unbroken chain?

5) For exclusivity do they need to be the only ones in it?

6) Who bears the burden of proof of proving aborginal title?

7) What are the four ways you can justify overriding aboriginal title?

8) Does the fircdaury duty have a portion of proportionality?

Answer 17

Holding

1) Same as Delgaumuk
1) Sufficiency of occupation
2) Continuity of occupation
3) Exclusivity of occupation

2) Both perspectives.

3) Yes. To sufficiently occupy the land, the Aboriginal group must show that it historically acted in a way that would communicate to third parties that it held the land for it its own purposes. There must be evidence of a strong presence on or over the land claimed.

The kinds of acts necessary to indicate presence and intention are dependent on the manner of life. Cultivated fields and homes may be sufficient, but are not essential to show occupation

4) It does not. It means there must evidence to establish Ian inference of pre-soverneighty occupation.

5) No. If people seemed their permission and they granted, this is enough for exclusivity.

6) The claimant group

7) -To justify overriding Aboriginal title, the government must show

1) Good reason

2) that it discharged its procedural duty to consult and accommodate,

3) that its actions were backed by a compelling and substantial objective and

4) the governmental action is consistent with the crowns fiduciary obligation to the group

8) This fiduciary duty also encompasses the idea of proportionality

Question 18

Do the government owe
a) Fiduciary duty to Aboriginal
B) Duty to consult
c) Duty to not steal
D) A and B

Answer 18

A and B

Question 19

Can the government infringe on aborginal title according to tsilawuk?

What is 4 part test?

Answer 19

1. The reason for overriding must be on the basis for overall good.
2. The government must show its met its procedural duty to consult and accommodate
3. That the actions were backed by a compelling and substantial objective
4. The governmental action is consistent with the fiduciary obligation it owes to the group.

Question 20

What test did Tsilawuk use for determine aboriginal title?

Answer 20

1. sufficiency of occupation; their ancestors must have occupied the land (pre-sovereignty)
2. continuity of occupation; If they are relying on current occupation there is continuity of the land since sovereignty is asserted.
3. exclusivity of occupation; exclusive use of the land/effective control of the claimed lands.

Question 21

For aboriginal title does the standard need to be notorious or visible?

Can it be subjective?

Answer 21

This standard does not require notorious or visible.

Occupation, however, cannot just be subjective.

There must be evidence of a strong presence of the land/over the land that is demonstrated by acts of occupation that one could reasonably view of a demonstration that the land in question belonged to/controlled by the people claiming title.

Question 22

According to Tsilawuk, what rights does aboriginal title confer?

Answer 22

Chief justice says the title gives exclusive use and occupation of the land for a variety of purposes that are not jut confined to historical uses

Question 23

Again, what is the limit an aboriginal person can have on land they are given?

Answer 23

It talks about the fact that it cannot be used in such a way that would prevent future generations from using and enjoying the land it was intended to be used and enjoyed.

Question 24

1. Which of these are required to demonstrate an Aboriginal title used the land they claimed

a. intensive use of the land claimed
b. regular use of the land claimed
c. some use of the land claimed

Answer 24

Answer B: It needs to more than just occasional use but cannot be very intensive.

Question 25

2. Which of these would NOT be sufficient evidence of exclusivity of use?
   a. agreement with group b to let them use the land
   b. oral history of prior war with another group of aboriginal peoples where they defended themselves and the claimed land
   c. demonstrated communal use of a source of water with one other group of aboriginal peoples

Answer 25

Answer C

A shows exclusive use by permission.

B also shows they had exclusive use.

Question 26

3. At what point does the group have to demonstrate Aboriginal title since?
   a. Constitution act of 1983
   b. RP of 1763
   c. At time of the first contact with Europeans
   d. 50 years prior to first contract

This came from the TA, not sure if I agree however

Answer 26

Answer: B. Aboriginal title is different than Aboriginal rights. Pre-sovereignty only means the royal proclamation for property, NOT first contract with Europeans

The time for the identification of aboriginal title is the time at which the crown asserted sovereignty over the land. If we were talking Aboriginal rights, it would be at first contact with the Europeans.

In regard to Aboriginal title, the Europeans did not exercise sovereignty UNTILL the RP

Question 27

What does it mean when there is an obligation if the government needs to infrgine on an aboriginal duty, it must be proportionate?

Answer 27

It also contains an obligation of proportionality. Implicit in this duty, that the infringement is necessary to achieve the government’s goal.

The government cannot go any further then what is necessary to achieve whatever the goal is. Must be minimal impairment.

Question 28

If I build a Casino on my aboriginal land is this okay?

Answer 28

It can be as long as it does not deprive future generations the use and enjoyment of the land.

Question 29

Is aboriginal title to land a fee simple?

If not, what is it?

Answer 29

No. you cannot damage the land in a way future generations cant use it and It is inalienable.

It is sui Generis.

Question 30

Deglamuk or Tsiliwak, which one was the first to be successful?

Answer 30

Twsiliwak

Question 31

Can occupation of land be subjective?

Does it need to be notorious and visible?

Answer 31

No it cannot be subjective.

It does not require it to be notorious or visible.

Question 32

What duties were owed by the crown at the time of government action for aboriginal cases?

Answer 32

provide had a duty to consult and accommodate the interests in the land.

The duty to consult was extremely required.