There are a variety of interesting points to be made about terra nullius in the context of the William case. I’ll save my thoughts on exclusivity for another day, perhaps my next post (it should be brief).
One central issue which the Court of Appeal grappled with is whether the claim can be construed as ‘territorial’. I gather the argument is whether the Tsilhqot’in should be capable of making a claim over the entirety of the territory which they historically used, or only those tracts of land which they inhabited on a regular basis. This characterization of the claim grows out of the importance of the term ‘occupation’ in the aboriginal title test.
Before proceeding further, it might be helpful to revisit the Western Sahara Advisory Opinion, which I discussed in my first post on terra nullius (http://wp.me/p1AYud-1l). As a threshold issue on the concept of occupation, it is helpful to be reminded that the International Court of Justice also highlighted the importance of the term ‘occupation’ in aboriginal title claims. However, the ICJ specifically used the term to prevent countries from claiming lands by virtue of their occupation. Occupation was not held to be the basis of the indigenous (or original) land right.
As I noted in my last post on the aboriginal title test and terra nullius, Canadian law cleverly turns the ICJ’s opinion around on aboriginal claimants, by requiring aboriginal claimants to demonstrate occupation. To be fair, even the Inter-American Court of human right uses occupation as a basis for an indigenous title claim…although its concept of occupation is markedly different than Canada’s. See Awas Tingni from paras. 142-155 (http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html). It is difficult to reconcile this reasoning with the ICJ’s statement that Canada’s land rights acquired through treaties, are ‘derivative roots of title’, derived from the original title of indigenous nations, and that Canada could not obtain an original title simply through ‘occupation’.
On the issue of ‘territorial’ claims, it is important to note that the ICJ specifically grappled with this issue in Western Sahara, in the context of claims by states against ‘nomadic peoples’. For example, at paragraph 87, the ICJ notes the ‘nomadic’ character of the indigenous occupancy, and then points out in the next paragraph, “But what is important for present purposes is the fact that the sparsity of the resources and the spasmodic character of the rainfall compelled all those nomadic tribes to traverse very wide areas of the desert. In consequence, the nomadic routes of none of them were confined to Western Sahara”. This type of occupancy is enough for indigenous peoples to resist a claim that a state has acquired its ‘title’ (or sovereignty) over a territory merely by occupying it.
Which makes sense because if the law only protects those forms of occupancy, while ignoring forms of occupancy typically practiced by groups engaged in a ‘nomadic’ culture, the law discriminates against the property rights of the latter and in the favour of the property rights of the former.
There is a very strong argument to be made that what the British Columbia Court of Appeal refers to as a ‘territorial claim’ rests on the same definition of occupancy that the ICJ relied on in Western Sahara. I certainly hope so, because one would hope that the application of Canadian constitutional law does not generate inconsistencies with long recognized international norms. The Court’s characterization of the plaintiff’s claim reinforces this argument (at paragraphs 217-218):
 As I see it, the claim can only be described as being a “territorial” one rather than a site-specific claim to title. The fact that the territory being claimed, large as it is, is a fraction of the total area alleged to be the traditional territory of the Tsilhqot’in does not prevent the claim from being characterized in this way.
 Indeed, the plaintiff’s often repeated statement that the Tsilhqot’in did not lead a “postage stamp” existence underlines the territorial nature of the claim – with a few exceptions, there are no definite tracts of land that were habitually occupied by the Tsilhqot’in at and around 1846.
This makes sense to me. I see no reason why the Tsilhqot’in, or any other claimant (remember claimants may be First Nations, Métis or possibly Inuit, though I believe the latter have settled outstanding title claims) would voluntarily claim ‘postage stamps’ or ‘checkerboards’, particularly where there is no juridical reason for Canada to lay claim over the extent of their traditional territory. So the Tsilhqot’in have asserted a ‘territorial’ claim to title, rather than a ‘site specific’ claim.
To understand what the Court did next, it might be helpful to recall that the Supreme Court of Canada has wrestled with the issue of ‘nomadic’ peoples and aboriginal title on several occasions. I have little doubt that one reason is several claimants or interveners have raised Western Sahara with the Court.
In Adams (http://canlii.ca/t/1fr7b), the Court held that aboriginal rights are not inexorably linked to aboriginal title because to do so would deprive ‘nomadic’ claimants of any rights (at paragraph 27). The Court assumed that nomadic peoples could not successfully assert a claim for title, without offering any analysis, legal or otherwise. A similar uncritical and unfounded analysis on the nature of ‘nomadic’ rights was outlined in Cote (http://canlii.ca/t/1fr7d). However, Adams is very important because the uncritical assertion in paragraph 27 has since been applied as a basis for much of the Court’s thinking on ‘nomadic’ peoples and aboriginal title. Which is why I sometimes say to people that citing international law may be imperfect, but it’s better than citing to no law at all.
For example, in Delgamuukw, decided one year later, the assertion from the Adams case was cited by the Court to support the proposition that “some aboriginal groups may be unable to make out a claim to title” (at para 139). Again, this statement was offered without any analysis, without reference to the Western Sahara opinion and relying only on paragraph 27 of the Adams case.
The emptiness of this reasoning is staggering. It continues in the Marshall and Bernard case (http://canlii.ca/t/1l5zg) at para 66, though, thankfully the Court appeared to distance itself a bit from the existing ‘reasoning’ on ‘nomadic’ peoples. In Marshall and Bernard, the Court refers to the line of ‘reasoning’ outlined above from Adams/Delgamuukw, but relies on paragraph 149 of Delgamuukw, rather than the passage above. Paragraph 149 makes no specific reference to ‘nomadic’ peoples, but only states that 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 exploiting its resources: see McNeil, Common Law Aboriginal Title, at pp. 201-2. 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 abilities, and the character of the lands claimed”: Brian Slattery, “Understanding Aboriginal Rights”, at p. 758.”
Believe me, I appreciate the efforts of the Supreme Court to found its reasoning on ‘nomadic peoples’ and aboriginal title upon some kind of legal analysis, even if the analysis is offered in isolated quotes from a couple of secondary sources (incidentally, I’m a big fan of both of these sources). However, Western Sahara, and arguably some of the Inter-American title cases (such as Awas Tingni)likely provide more relevant, or at least complementary, reasoning. Indeed, in the Awas Tingni case itself, the Inter-American Court received testimony that one reason that the rights of the Mayagna community were not recognized under domestic law was due to the ‘semi-nomadic’ character of the community (para. 83(e)). This was also a claim advanced, and rejected in the more recent and Xakmok Kasek case, at paras. 90-99. (http://www.worldcourts.com/iacthr/eng/decisions/2010.08.24_Xakmok_Kasek_v_Paraguay.pdf)
Marshall and Bernard states that (at para 70), “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-nomadic aboriginal groups; the right in each case depends on what the evidence establishes.”
This should appear to be a relatively innocuous statement. A cursory review of para. 156 of Delgamuukw results in noting, again, that citing the Awas Tingni judgment (this time with respect to the importance of the customary law of the indigenous claimant, see para 138 and note this is not necessarily inconsistent with what Canadian courts say, the Inter-American Court is just more specific) would complement citation to the work of Professor McNeil.
However, the application of these concepts in Marshall and Bernard was harsh. One might argue the Court did anything but "generously" interpret the concept of occupation; in my view, the conclusion was even consistent with Western Sahara (where the meaning of the term "occupation" was central to the decision).
The Court discounted the emphasis that the Court of Appeal placed on the importance of the claimants "perspective"(dare I say, culture or customary laws) and, in the view of the minority, overemphasized British concepts of occupancy and ownership. In fact, the majority went so far to suggest the Court of Appeal would effectively presume aboriginal title (I don’t believe this is what the Court of Appeal was doing in Marshall and Bernard, but would more closely reflect my view, particularly based on my reading of Western Sahara and Awas Tingni). In fact, while the law behind it could support ‘territorial’ claims, the application of the Marshall and Bernard test clearly favors the “postage stamp” approach to aboriginal title. This is a fascinating result from a policy perspective because it presupposes a confusing checkerboard of rights and jurisdictions in areas subject to aboriginal title (more on that some other time).
Returning to William, the Court of Appeal considered Delgamuukw (and indirectly, Adams) as well as Marshall and Bernard to conclude that territorial claims are not within the scope of section 35. The rather long discussion above explains how the Court of Appeal got there, as well as some thoughts on why this reasoning may not be as robust as it appears.
For my part, this harsh application of the Marshall and Bernard approach can only mean that terra nullius is effectively the law of Canada, and more specifically, the law of aboriginal title. I believe this is similar to the situation in the Awas Tingni case (the nomadic character of the community led Nicaragua to simply claim its territory by occupation), and was ultimately rejected by the Court. (which, of course, made its ruling on the basis of international human rights law, and important consideration because one might assert Canadian law could be drifting into non-compliance with its international human rights obligations).
What is stunning is that the Court’s entire line of reasoning is built on a house of cards. The Adams line of reasoning is built on no analysis, whereas the ‘counterpoint’ is based on only two isolated quotes from secondary sources (I’m not sure I would read Common Law Aboriginal Title as supporting this analysis), rather than from carefully considered and contested decisions, like Western Sahara or Awas Tingni.
There will always be some part of the traditional territory (in many cases a vast part, depending on how the test is applied), which will be declared "empty", leaving Canada to claim as its own by "occupation" (no treaty and no conquest). This is precisely the circumstance the ICJ disallowed in Western Sahara almost 40 years ago! So long as Canadian law allows Canada to take ownership of lands through occupation, the fiction of terra nullius will be operative in Canada (and will be more of a practical source of oppression to aboriginal claimants than the Doctrine of Discovery).
This view is summed up by the minority in Marshall and Bernard (at para. 134):
Nomadic peoples and their modes of occupancy of land cannot be ignored when defining the concept of aboriginal title to land in Canada. “The natural and inevitable consequence of rejecting enlarged terra nullius was not just recognition of indigenous occupants, but also acceptance of the validity of their prior possession and title” (Hepburn, at p. 79). To ignore their particular relationship to the land is to adopt the view that prior to the assertion of Crown sovereignty Canada was not occupied. Such an approach is clearly unacceptable and incongruent with the Crown’s recognition that aboriginal peoples were in possession of the land when the Crown asserted sovereignty. Aboriginal title reflects this fact of prior use and occupation of the land together with the relationship of aboriginal peoples to the land and the customary laws of ownership. This aboriginal interest in the land is a burden on the Crown’s underlying title.
Again, my only problem with this quote from Marshall and Bernard is that it relies only on a secondary source, rather than jurisprudence…even (or especially) international jurisprudence. Well, depending on what is meant by that last sentence, I could see challenging that as well.
This entire discussion of ‘nomadic’ versus ‘semi-nomadic’ occupation is almost irrelevant from the perspective of whether terra nullius operates in Canada. In fact, I read Marshall and Bernard to recognize it is false dichotomy and that the title test should be equally applied to all, giving due consideration to the ‘aboriginal perspective’ (a loathsome concept for its vagueness). However, the discussion is important because it was used by the BC Court of Appeal in William to undermine the concept of aboriginal occupancy and breathe life into terra nullius across a swath of Tsilhqot’in territory.
It is only one problem with the BCCAs decision, and only one issue which may need to be confronted, should this decision be appealed. I would suspect claimants are going to have a much bigger problem with the harsh ‘application’ of the Marshall and Bernard test. More on Marshall and Bernard in some future post – it is another example of a `backdoor` application of terra nullius, but expanding on it hear would result in a remarkably lengthy post.
This is only a superficial examination of how the law of aboriginal title effectively implements the fiction of terra nullius, or, in my mind, how the fiction of terra nullius continues to operate as an underlying principle of aboriginal title law in Canada. There are also a variety of other issues raised in William, for example the fascinating endorsement of a postage stamp approach, which also bear consideration and analysis.