This post is a bit of a divergence on the topic of terra nullius in the context of the William v. British Columbia case. While the issue of exclusivity came up in the William decision, it didn’t appear to be hotly contested, nor was the Court of Appeals treatment of exclusivity particularly harsh. But it could’ve been. And as much as I’m itching to get into Aquaculture, Sun Peaks and Attawapiskat (each are very interesting situations), I want to finish on William first.
The requirement of exclusivity in an aboriginal title case has no basis in aboriginal law. It is rather drawn from British concepts of property law. This is important because the Court, as part of the process of reconciliation, merges British concepts of law (particularly when property is involved) and Aboriginal customary laws (to be precise, courts use the much less specific phrase “aboriginal perspective”). The requirement was outlined in the Delgamuukw case at paragraph 155:
Finally, at sovereignty, occupation must have been exclusive. The requirement for exclusivity flows from the definition of aboriginal title itself, because I have defined aboriginal title in terms of the right to exclusive use and occupation of land. Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title. The proof of title must, in this respect, mirror the content of the right. Were it possible to prove title without demonstrating exclusive occupation, the result would be absurd, because it would be possible for more than one aboriginal nation to have aboriginal title over the same piece of land, and then for all of them to attempt to assert the right to exclusive use and occupation over it.
Here, the Supreme Court of Canada has defined aboriginal title in terms of the exclusive use and occupation of land. The reason for this is, in my mind, quite unclear (So too, in the mind of the Court, which provided no support for this view, but did note, at para. 117 that courts have been “less than forethcoming” on the point). I gather because this is how all land rights law is meant to work?
Understanding the reasoning of the Delgamuukw court is challenging because, as is often the case in s. 35 jurisprudence, it consists of an exposition of ideas without clear articulations of principle or citations to established law, even comparative law. I don’t mean to be harshly critical of the courts; the reason for this is s.35 jurisprudence is supposed to decolonize Canadian law – relying on precedents wouldn’t accomplish that. However, there were, and are, other sources of law which could support reconciliation in aboriginal law. By the way, these ‘challenges’ in interpreting cases are the reason why there are about as many interpretations of what the Delgamuukw case stands for as there are aboriginal law experts. This is a bit of a problem because Delgamuukw is generally recognized as the foundation of aboriginal title law, a body of law which rests of more than a deck of cards, but maybe not much more.
Why at sovereignty and not at contact?
Have you ever wondered why aboriginal rights are based on “pre-contact” practices, but aboriginal title is based on “pre-sovereignty” occupation? This has not developed by accident. I am happy to criticize both the objectives and the methods for doing so, but I cannot deny that the purpose of aboriginal rights recognition is to preserve and promote ‘authentic’ practices of aboriginal cultures.
Aboriginal title is very closely connected to terra nullius because it allows for a process of reconciliation to occur which solidifies Canada’s land rights, as well as aboriginal claimants’ land rights. In absence of a legal process for affecting such reconciliation, Canada would be accused of acquiring its territory through the legal fiction of terra nullius, a fiction which, given Western Sahara (at least) is out of law.
The reason why aboriginal title is assessed at the time of Canada’s claimed sovereignty over a territory is that this is the precise date when the fiction of terra nullius would be applied to assert Canadian sovereignty via “occupation”. This is the legal reason why the ‘date of sovereignty’ is a very important date in an aboriginal title claim.
What does this have to do with Exclusivity?
As it turns out, quite a bit. I have already asserted the Doctrine of Discovery was a legal doctrine which served to limit the rights of European states, leaving the rights of indigenous peoples unaffected (link to post). So Canada’s claim to sovereignty is really only a claim against other nation-states; how Canada deals with aboriginal peoples is left to domestic law (indeed, the greatest injustice done to indigenous peoples during the colonial period was the blind eye the international community cast upon indigenous issues).
Irregularities in the aboriginal title test which undermine the legitimacy of aboriginal land rights actually serve to undermine Canada’s sovereignty. The exclusivity requirement, read harshly, would be a very good example of such an irregularity. The key here is read harshly because it is entirely possible to interpret the exclusivity requirement to apply in remarkably limited circumstances.
Terra nullius is a legal fiction whereby the Crown could simply assume lands are unoccupied in order to dispossess rightful aboriginal owners. Requiring aboriginal peoples to prove occupation, particularly through a civil process, is bad enough (I would think at a minimum, that a presumption of occupation in favour of the claimant would arise). Again, terra nullius is a fiction. However, the legal principle that a state can claim unoccupied lands is not a fiction.
The extreme irony of the exclusivity requirement, read extremely harshly, is that lands can be claimed by Canada, free of any aboriginal title, when there is too much pre-sovereignty occupation and possession of the land. This makes a mockery of the judiciary’s repeated claims that terra nullius forms no part of Canadian law because the express operation of this rule is to treat lands as empty when they are anything but! Hence the reason I prefer to refer to terra nullius as a fiction, rather than a legal principle.
How the Delgamuukw court dealt with this issue
Learned readers would rightfully point out I may be making mountains out of molehills here. The reason is the Delgamuukw court actually dealt with this problem and decided that some kind of “joint” aboriginal title might be OK. At paragraph 158, the court noted, “I would suggest that the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity.” What’s the difference between joint title, where that title would be recognized, and a ‘no man’s land’, which would receive no recognition?
The distinction is not really articulated by the Court (which is a shame, because I believe the concept of a ‘no man’s land’ – really ‘no person’s land’ or ‘no nation’s land’ – is where the Court wanted to go). I’m led to believe there are some international rules dealing with the concept of ‘no man’s land’ (I really don’t know, but I’ve read it might be of interest to Métis claimants). Returning to Western Sahara, those international law concepts really don’t apply to countries claiming territory on the basis that it is unoccupied, in other words, those applying the fiction of terra nullius.
Finally, I would note again that the Court offered no legal basis for this suggestion of joint title. I again assume it is offered because joint occupancy is well understood under traditional concepts of British land tenure, but the absence of any analysis, combined with the fact this recommendation is offered by the Court in obiter, doesn’t exactly make ‘joint title’ the stuff of robust legal reasoning. In addition, if you think proving aboriginal title is difficult (and it must be, because title has never been awarded in Canada, and believe me, its not for lack of trying), then proving some kind of `joint title` could be near impossible. I guess it depends on what the Court means by `joint title` – something which is hard for me to determine only because I don`t believe much of a legal basis for `joint title` was ever really explained by the Court. We are left to assume – and believe me, lawyers are very good at `assuming` in any number of directions on such an issue.
Incidentally, for those who don’t know obiter dicta statements (sometimes we call them obiter, sometimes we call them dicta – don’t ask me why) are those statements offered by a court which are not necessary for the disposition of a case. Only those statements which are necessary for disposing of a case are considered binding in later cases. But obiter statements can be, and often are, extremely influential in other cases. One irony of Delgamuukw, besides the paucity of citation to support the reasoning, is that most of the judgment is in obiter. Don’t let that fool you, though, it is nonetheless one of the most influential cases in modern aboriginal law.
Other problems with Exclusivity
There are at least two other problems with the exclusivity test; one theoretical and one practical.
Practically, what are claimants supposed to do about squatters? I may well have missed this part of Delgamuukw, but I didn’t read anything in there about squatters. The issue of squatters, incidentally, was possibly the primary focus of 19th Century litigation involving Indian land tenures. So, its not a new problem. I would hope that one might imply from Delgamuukw that non-native individuals illegally occupying territory at the date of sovereignty would not defeat a claim on the ground of exclusivity. In the unlikely event this were ever argued, it is more than possible to suggest, from early Canadian caselaw, that the law offered no effective remedy to claimant’s to eject squatters from their territories.
The ‘problem’ of squatters could be dealt with rather easily by clarifying that the exclusivity referred to in the aboriginal title is a ‘legal’ exclusivity. To put it another way, exclusivity can be demonstrated so long as there is no one occupying the land pursuant to some legal right, at the date of sovereignty. Such a clarification would be consistent with a general policy objective of discouraging squatters claiming the lands of prospective aboriginal title claimants (a general policy objective not unknown to Canadian law).
Theoretically, where the objective of the aboriginal title test is reconciliation of aboriginal forms of land tenure with Canadian forms of land tenure, it seems a bit duplicative (or overkill) to import the exclusivity requirement so expressly into the test for title. Reciprocity suggests that the test itself should be neutral to both European and aboriginal concepts of property and that the reconciliation should occur in the application of the test. Alternatively, one might devise a test itself which incorporates both aboriginal and European concepts of property (glad I’m not a judge).
Considering concepts like ‘exclusivity’ and ‘joint occupancy’, not as broad theoretical concepts, but in the specific meanings these concepts convey under property law creates an asymmetry in the application of the test. This is because a title claim must be tailored to ‘fit’ within the specific meaning of these terms and then be ‘reconciled’ with aboriginal customary law. I’ve never pressed a title claim in Canada, but it appears to me that the structure of the test places primacy on traditional concepts of Canadian property law, then somehow considers ‘aboriginal perspectives’ in the application of that law to a particular dispute.
If I’m right about that, then that is a fairly diminished process of ‘reconciliation’. The facts of any situation are relevant to the application of the law in any given case. It is difficult to then determine what makes ‘aboriginal title’ law particularly ‘aboriginal’ outside of some peculiar technical and interpretative rules regarding particular pieces of evidence (interesting conclusion, given the main finding of Delgamuukw centered on an evidentiary rule). This disturbs me because it divorces the reconciliation process from any meaningful discussion of customary law, something I would imagine would be the focus of a true and meaningful reconciliation process focused on the law (I could be wrong, reconciliation could be a purely political concept, although I then question why courts display the concept so prominently in their decisions).
IF the aboriginal title test does not display reciprocity (I must stress the IF because this area of law is so technical), then there are ways to instil more meaningful reconciliation within the test. One could start by focusing on those aspects of the test which are sufficiently broad that the concepts could actually benefit from argument on customary law in order to determine the most appropriate test for aboriginal title (I am, of course, reserving my general unease that the burden of proof should be on the Crown to disprove a claim of aboriginal title, outlined a bit here: (second post).
A good example of this could be found in the concept of occupation. Occupancy could be a sufficiently broad term to allow claimants argue their own customary laws on occupancy (whether they have to lead them as evidence is another argument for another day, but I say emphatically “NO”). It is a sufficiently specific term that courts can easily define and manipulate established Canadian property law principles surrounding occupancy. Considering the issue related to Canadian law and nomads, such an approach would not only further reconciliation, but could avoid the confusion I discussed here (nomads post).
In the Xakmok Kasek case (http://www.worldcourts.com/iacthr/eng/decisions/2010.08.24_Xakmok_Kasek_v_Paraguay.pdf), the Inter-American Court of Human Rights articulated such a concept, using terminology which should be familiar to the aboriginal rights community in Canada. At paragraph 87, the Court noted:
This concept of ownership and possession of lands does not necessarily correspond to the classic concept of property, but it deserves equal protection under Article 21 of the Convention. The failure to recognize the different versions of the right to use and enjoy goods that come from the culture, uses, customs, and beliefs of different peoples would be equivalent to arguing that there is only one way for things to be used and arranged, which in turn would make the protection granted by Article 21 of the Convention meaningless for millions of individuals.
This statement isn’t inconsistent with what the Supreme Court of Canada has stated on aboriginal law, in fact I’d suggest its basically what Canadian law is attempting to accomplish through the reconciliation process. I quote it here as a gentle reminder that Canadian property law concepts of occupancy, ownership and possession should not dominate the process of reconciliation, particularly when that process plays out in Canadian courts.
I’m not sure the Court is ready or willing to adopt a whole scale change to the aboriginal title test. I seriously doubt it. I do wonder whether the William case would be a good place to start, especially given the British Columbia Court of Appeal’s focus on the concept of occupation.