A reconciliation project

No legal advice, just some random commentary on the core principle of aboriginal rights jurisprudence in Canada

Month: August, 2012

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General)

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General) – Part I

The British Columbia Court of Appeal recently delivered its judgement in Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General). This case is essentially a challenge to the profligacy of aquaculture farms, as well as the alleged failure to properly regulate them, in someplace called the Broughton Archipelago (I really don’t get out much, though this is clearly far from my traditional territory. I have; however, visited Toronto several times over the last year).

Melikes the claim!

I really like this claim (in fact, I’d love to see the entire statement of claim, but I’m not planning any trips out to BC to check the registry anytime in the near future). The reason it is an excellent example of applying an aboriginal rights claim in order to force more effective environmental management of culturally significant resources.

It’s a class action, so you know there has to be some actual damages. And there are. Claiming general damages for infringement of an aboriginal right is interesting enough. It’s far from ideal, but given the difficulties aboriginal claimants have on implementation of decisions, the pecuniary incentives that follow from infringements (even temporary ones) may encourage better implementation in the future.

My favourite damages heading is this one, “the loss of the cultural, ecological, and spiritual integrity of the Wild Salmon habitat and fishing sites, including their ability to maintain cultural practices related to the Wild Salmon harvesting, including traditional management of the Wild Salmon.” Wow. So the First Nation is claiming that the “traditional management of the Wild Salmon” is part of its aboriginal right – or at least that losing the ability to manage has deleterious impacts on culture.

My Problem with Aboriginal Rights Law and Environment

One of my major complaints about aboriginal law is that Courts, in particular, have created very, very strong incentives for plaintiffs to claim harvesting or ‘extractive’ practices in order to secure rights to natural resources. I also complain that claimants and counsel seem content to blithely develop claims on the basis of extractive practices, completely ignoring the fact that indigenous methods of resource management is more central to culture than mere exploitation.

I always thought that the origin of indigenous resource rights came from the responsibilities that indigenous peoples owe the environment. Certainly, these responsibilities must be balanced with the needs of the people themselves, as well as respect for future (sustainability) and past (heritage) generations. This isn’t the origin of indigenous rights under Canadian law, but rather the origin of indigenous inherent rights.

Canadian aboriginal rights law has, as one of its core objectives, the preservation of aboriginal cultures. If balance and sustainability (or for that matter heritage) are at the core of most aboriginal cultures, then it appears perverse for aboriginal rights law to require only proof of extraction of natural resources – be it wildlife, fauna or fish.

Yet, most aboriginal rights cases are framed in terms of a ‘pre-existing’ practice to harvest fish or wildlife. In fact, the cutting edge these days is to extend the practice beyond harvesting into trade and commerce (which actually seems logical to me, its simply irrational to assume indigenous peoples somehow lacked traditional economies). Aboriginal rights claimants are squarely focused on establishing only those aspects of their cultures which relate to extraction.

Rare to see ‘environmental management’ claims

I have very rarely seen claims which attempt to establish indigenous practices related to environmental management. Similarly, it is rare, but not as rare, to see aboriginal rights claims which relate to the conservation of resources, rather than exploitation of resources. I find such rarities to be major gaps in aboriginal rights law.

I have already posted in the past why I think that application of traditional knowledge is relevant to contemporary environmental management problems (https://reconciliationproject.wordpress.com/2011/08/27/climate-change-makes-traditional-knowledge-more-important). And I’ve also written about why I believe Canada is committed to consulting with some First Nations on Canada’s positions on global environmental issues (https://reconciliationproject.wordpress.com/2011/12/13/can-canada-withdraw-from-the-kyoto-protocol).

To be fair to claimants and counsel, I’m not sure I’d lightly prosecute a direct claim for environmental management of natural resources, particularly in the wake of cases like Pamajewon (http://canlii.ca/t/1fr8z), Gladstone (http://canlii.ca/t/1fr8w) and especially Sparrow (http://canlii.ca/t/1fsvj). Even in Mitchell (http://canlii.ca/t/521d), which was decided on other grounds, the Supreme Court rejected the idea that an aboriginal group could ‘self limit’ the exercise of its established aboriginal rights.

The only cases I really like on environment are SaanichtonMarina (http://canlii.ca/t/216p9) and Sundown (http://canlii.ca/t/1fqp6), both of which were framed in terms of resource rights (sort of) and both of which are treaty cases, not aboriginal rights cases.

I’ve sometimes wondered about going back to Sparrow. One of the points the Court made in Sparrow is that aboriginal groups could seek damages for infringements of aboriginal rights claims, as is being done here. But I’ve been more interested in attacking the rather unfounded assumption that environmental management should be the sole responsibility of the federal government. I see no basis for that assumption. Nor do I see any compelling policy reason why the Crown is particularly expert in determining when conservation is needed, nor in managing the environment, particularly vis-à-vis indigenous peoples.

All this to say that it would seem that some form of legally mandated co-management of environmental resources would seem to be in order.

Conclusion

Back to this case, though, the beauty of Kwicksutaineuk is that even though it is framed in terms of resource rights, the fishing rights of the First Nation, the claimants are seeking recognition of traditional management ‘practices’ or rights. If accepted by the courts, this would be a major advance in how Canadian courts think about aboriginal rights, as well as, potentially, how resource managers apply traditional knowledge. In a way, the progression of the case is a bit of a shame, but that’s because the Courts are now bogged down in ‘The oldest debate in Canadian Aboriginal Law’ – the subject of my next post.

William v. BC and policy

I have written at some length about what I perceive to be some of the legal problems I have with the William v. British Columbia reasoning by the British Columbia Court of Appeal (starting here:http://wp.me/p1AYud-1m). Most of my objections can be traced to the Western Sahara Advisory Opinion of the International Court of Justice and the assertion that the reasoning of the BC Court of Appeal applies the concept of terra nullius in Canadian aboriginal law.

I have also suggested that some of the precedents relied on by the BC Court of Appeal may have been less than robust (for example, here: http://wp.me/p1AYud-1q). In this post, I’d like to examine some of the policy implications of the BC Court of Appeal’s reasoning, with particular emphasis on this ‘territoral’ versus ‘postage stamp’ dispute (claimants suggested a territorial basis for aboriginal title, whereas the Court adopted a ‘postage stamp’ view).

I. Cultural survival

For example, at paragraph 231, the Court asserted that the postage stamp view is consistent with the underlying purpose of section 35 because “for an Aboriginal group to preserve its culture and allow members of the group to pursue a traditional lifestyle, it is necessary for the group to have exclusive possession of those places that it traditionally occupied on a regular and intensive basis.” Leaving aside my reservations about exclusivity , is that a culturally biased statement?

It suggests that cultural survival of aboriginal peoples depends on exclusivity, despite the fact that many aboriginal cultures rely heavily on sharing, even where lands are involved. Sharing of territories, rather than cessions are often argued to be the basis of the treaties, at least from the perspective of the First Nation signatories. Not so for Canada. One could argue the Court is attempting to force its own concepts of requirements for cultural survival upon the Tsilhqot’in Nation. In fact, if the Court is wrong about this (and that sharing and broad territorial rights are necessary to Tsilhqot’in cultural survival), then it is essentially sentencing Tsilhqot’in culture to a protracted extinction.

Such restrictive tests for the proof of aboriginal title and aboriginal rights means the consequences of a wrong decision risks such cultural extinctions. Different tests would not carry such grave consequences, but that’s another issue for another day.

The point is, this conclusion about serving the purpose of section 35 was not backed up by any actual evidence, by any meaningful legal reasoning, nor by any particular anthropological expertise (another consequence of this cultural survival argument is that it turns courts into anthropologists, and I would suggest probably not very good ones – though I am no anthropologist myself).

II. Postage stamps are good how?
But getting back to other postage stamp policy implications. I would imagine courts would recognize the undesirable nature of a checkerboarded jurisdiction – which is essentially what the BC Court of Appeal appears to favor. By a checkerboard, I refer to the common situation of US tribes in which many of their lands are held in a splendid variety of diverse tenures. Often, adjoining tracts of land carry with them entirely distinct jurisdictions for civil and/or criminal matters. This makes administration of justice extremely challenging in such territories. It undermines economic development because the complexity and number of jurisdictions with authority over adjoining tracts dramatically increases transaction costs for businesses.

It is far more preferable to have one jurisdiction with authority, or alternatively a negotiated framework between jurisdictions and one jurisdiction exercising that authority on behalf of all. Is that likely to happen if aboriginal title is reduced to remarkably specific tracts of land? Well, take a look at reserves – do federal or provincial governments negotiate jurisdictional arrangements with First Nations which extend beyond their reserves and over their traditional territories? I bet someone could dig up at least one or two examples, but I doubt its a frequent occurrence.

Add to this the complication that aboriginal title is likely outside provincial authority, due to the doctrine of interjurisdictional immunity, and beyond the Indian Act, which applies only to reserve lands. A territorial finding of title virtually compels all sides to negotiate. For obvious reasons, the federal and provincial governments would have an interest in ensuring that regulation of natural resources, for example, is harmonius and consistent with those of the province (and possible the federal government). The administrative realities of managing a large territory similarly provide a very strong incentive for First Nations to work with federal and provincial counterparts.

And there would be only one negotiation and one territory to worry about when dealing with a territorial claim.

But with a postage stamp claim, I’m not sure the incentives are there to negotiate at all. Even worse, we are now talking about a territory which is postage stamped with zones likely subject to interjurisdictional immunity.

I wasn’t sure what the Court of Appeal was thinking there, until I read further. I assume that what follows is the result of clumsy drafting (I mean, we are already way over 200 paragraphs), but irrespective, cannot leave this unaddressed.

III. Reconciliation – Huh?
At paragraph 239, the Court wrote, “There is a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians. As I see it, an overly-broad recognition of Aboriginal title is not conducive to these goals. Lamer C.J.C.’s caution in Delgamuukw that “we are all here to stay” was not a mere glib observation to encourage negotiations. Rather, it was a recognition that, in the end, the reconciliation of Aboriginal rights with Crown sovereignty should minimize the damage to either of those principles.”

Again, I don’t see how the Court’s ‘solution’ would lead to practical compromise. And, I figure I have a leg up on the Court because I’ve at least taken the time and effort to articulate a basis for my position. It’s not a strong basis, I mean I haven’t cited any sources for my assertions (though that appears to be optional in this line of discourse). The Court however, didn’t even articulate a reasonable basis for why practical compromise is more likely with a postage stamp view.

I’m sure some purist will say that a matter for policymakers and not courts, but I humbly suggest that whenever a Court uses policy as a justification for its decision, that Court should articulate such things. Else, policy considerations simply become cover for the Court to express its own opinions, camouflaged as reasoning. A legal critic would jump all over this, particularly because the Court used the phrase “As I see it” to signal it is merely an opinion, and possibly a personal one, rather than a conclusion.

I think that’s a bit nitpicky, especially when there is something much more sinister in this paragraph.

The Court outlines two principles: Crown sovereignty and the “well-being of all Canadians” and suggests that the point of reconciliation is balancing these principles with “Aboriginal traditions”. The “Aboriginal traditions” problem really requires its own post – suffice to say I find it hard to believe that’s what reconciliation is really about (I do think one could argue that what aboriginal rights law is about because I think that’s one of the weaknesses of the aboriginal rights test).

The problem is that the Court accepts that reconciliation is necessary – and that “Aboriginal traditions” are being reconciled with Crown sovereignty. So it is odd that the Court would suggest that harm cannot be done to Crown sovereignty or to the well-being of all Canadians (itself a bizarre thing to add). This recursive invocation of Crown sovereignty suggests that really, Crown sovereignty is absolute and either Crown sovereignty or the public interest (well-being) must not be compromised by aboriginal title.

That’s fundamentally inconsistent with reconciliation because it implies that aboriginal title is entirely subordinate to both Crown sovereignty (even though it is being reconciled with it) and the public interest (this is really the problem, and a big can of worms).

The problem with the public interest, of course, is that this could be read broadly to include any number of vague proposals (ranging from resource development to exercises of jurisdiction by federal or provincial governments) which don’t actually benefit the Tsilhqot’in, or most Canadians – but can be justified under the ‘public interest’.

I said earlier I think this is clumsy drafting, because the Court also could have meant that neither “Aboriginal traditions” (I prefer, at least to stay consistent and call it ‘the fact that aboriginal peoples were already living in organized societies upon the arrival of Europeans’ or something, but give the Court credit for trying to come up with something less cumbersome) nor Canadian ‘sovereignty’ should be compromised. This would be a nice interpretation because the ‘well-being’ reference then would be a reference to the well being of native and non-native Canadians (if you’re so inclined), rather than a reference to a vague ‘public interest’.

Conclusion

Canadian courts often express a preference for aboriginal claims to be resolved through a process of negotiation with the Crown. The legal basis for this might be found in the Constitution Act itself (though I’ve never seen it articulated as such), but I’m sure the Courts are thinking its better to resolve claims through a bilateral process (negotiation), rather than a unilateral one (litigation in a Canadian court). From a policy perspective, then, I wonder what is to be gained by the BC Court of Appeal’s characterization of title claims as postage stamps? 30 years of experience suggests that the Crown is…umm…careful (ie slow) in negotiating claims (there may be good reasons for this, though why one should be skeptical is another story).

I see no reason to induce the Crown to settle title claims under a postage-stamp theory, in fact this approach is really a recipe for more litigation (over the properties of aboriginal title, jurisdictional disputes over specific tracts, etc). Under a territorial theory, there would be tremendous incentive to negotiate, and quickly, in order to ‘unlock’ natural resources in the territory (to the extent that is possible). I’m assuming that claimants already have very strong incentives to regularize their aboriginal title because in absence of recognition of aboriginal ownership, history demonstrates claimants have profound obstacles to regulating their territory or even maintaining their culture!

That last point deserves a few words of caution. Canadian courts have a particular tendency to suggest that aboriginal rights (including title) exist in order to preserve aboriginal cultures. This is a very dangerous assertion. In this case, the Court of Appeal is assuming that providing postage stamp land rights will be able to do that. One might argue this assumption rests on solid legal ground – though I clearly disagree. I’m not sure how one would argue that a postage stamp theory allows for preservation of culture – in fact, I’m happy to assert that a postage stamp theory of land tenure actually undermines cultural preservation. Old fashioned land tenure disputes continue to be the most serious threat to indigenous peoples internationally.

In a related vein, one only needs to look at the devastating effects of privatization of reservation property in the United States to witness the threat that breaking up land bases has to culture. And for that matter, for policy. Privatization of property in the United States resulted in a range of unforeseen consequences, which policy makers have had to deal with for over a hundred years since the allotment period. Courts should be wary of wading into such policy issues, both because they rarely have taken evidence on those policy issues (which are broad and sweeping, compared to the specific and focused facts required to dispose of a dispute) and because they rarely have the time or expertise to consider unintended (and hence unforeseen) consequences.

For these reasons, I believe it is proper to be skeptical of the BC Court of Appeals assertions that its findings are consistent with the purpose of section 35.

Exclusivity in aboriginal title

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.