Bartlett, Richard --- "The Content and Proof of Native Title: Delgamuukw v Queen in right of British Columbia" [1998] IndigLawB 19; (1998) 4(9) Indigenous Law Bulletin 17

The Content and Proof of Native Title: Delgamuukw v Queen in right of British Columbia

Supreme Court of Canada

Lamer CJ and La Forest, L'Heureux-Dube, Cory, McLachlin and Major JJ

December 11, 1997'

File No. 23799

Casenote by Richard Bartlett

Australia refused to recognise native title until the last years of the twentieth century. The Province of British Columbia in Canada, despite constant Imperial and Federal urgings, likewise refused to seek the settlement of native title (known as aboriginal title in Canada). The aboriginal people of the province resorted to litigation. In the landmark case of Calder v British Columbia (1973) 34 DLR (3d) 145 the Supreme Court of Canada affirmed the existence of native title. It led in 1996 to a settlement between the Nishga plaintiffs in Calder and the Federal and Provincial governments.

Meanwhile the Gitksan, numbering 5000, and the Wet'suwetan, 1500, launched another action seeking declarations of ownership and jurisdiction with respect to 58,000 square kilometres in north-central British Columbia. At trial the British Columbia Supreme Court ((1991) 79 DLR (4th) 185) held 'contrary to the established authorities' (see ALB Vol. 2, No. 53 p 8 (Dec, 1991)) that any aboriginal interest had been extinguished by general colonial land legislation, and that in any event no claim to ownership had been proven, refusing to give any independent weight to aboriginal oral history. Moreover the Court suggested that the content of any native title that might otherwise exist was confined to traditional sustenance practices. On appeal the British Columbia Court of Appeal (1993) 104 DLR (4th) 479 overturned the finding of extinguishment, but refused to disturb the lower court's conclusions as to the existence of ownership rights, or the content of native title (496-497). The Court remitted the questions of 'scope, content and consequences' of native title back to the trial court.

On appeal to the Supreme Court of Canada the critical questions were the content of native title, its relationship to ownership, and the evidentiary weight that should be accorded aboriginal oral history. The aboriginal plaintiffs secured significant victories on each element. The court declared that native title extended to 'exclusive use and occupation' including that of minerals, and dictated that much greater weight was due aboriginal oral history. The reasoning is likely to be of considerable significance in Australia, just as was that of the lower courts in the same case. The dominant judgment is that of Chief Justice Lamer, with whom three other members of the six member court concurred. La Forest J (L'Heureux-Dube concurring) reached the same result with some differences in reasoning. The decision displays a strength of support unusual in this area. The judgment of Chief Justice Lamer will be referred to, along with any significant differences in the reasoning of La Forest J.

Exclusive use and occupation

Determining the content of native title requires regard to the fundamental principles underlying the concept. The High Court in Mabo (No .2) declared the guiding principle to be that of equality and 'full respect',[1] but also suggested a limitation of content to 'traditional laws and customs'.[2] A principle of equality and giving of 'full respect' to the rights of a people over their traditional homeland would suggest that the society possessed complete rights over the land-'full beneficial ownership'.[3] Such content might be argued to be at odds with a limitation to 'traditional laws and customs'.

The Supreme Court of Canada approached the issue from a different perspective. Uniqueness or the sui generis nature of native title underpinned its analysis rather than principles of equality (para 112). But such regard tends towards the same conclusion suggested by the High Court's regard for equality. The Supreme Court stressed the unique source of native title in the occupation and possession of lands 'before the assertion of British sovereignty' (para 114) which was accordingly partly derived 'from pre-existing systems of aboriginal law' (para 126). But the Court then sought to apply universal principles of property law which recognize and give effect to the prior occupation of land and held, accordingly, that native title extended to 'exclusive use and occupation'. Chief Justice Lamer declared that:

'Aboriginal title encompasses the right to use the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, cultures and traditions which are integral to distinctive aboriginal cultures' (para 117).

The Chief Justice stressed that native title was not limited to traditional practices (para 117, 124) for example, hunting and fishing, and accordingly rejected lower court decisions in Bear Island[4] and Delgamuukw[5] which had suggested such a restriction. The Chief justice relied on Guerin v The Queen[6] where the Court had previously described native title as entailing 'a legal right to occupy and possess certain lands' 'framed in broad terms' (para 119). The Court also found support in the equation between the aboriginal interest in reserve lands and lands held by native title. The legislation governing Indian reserve land in Canada presumes a full beneficial interest, including mineral rights. Chief Justice Lamer concluded that native title 'also encompasses mineral rights' (para 122). The equation of native title to reserve lands may not be applicable in Australia, but the fundamental principle giving 'full respect' to prior occupation surely should be.

Chief Justice Lamer rejected any notion of native title being 'frozen' at the time of the assertion of British sovereignty, but he did recognize an 'overarching limit' (para 132) upon the range of uses to which native title land might be put. Native title was declared to be subject to an 'inherent limit':

'Lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group's claim to aboriginal title' (para 125).

Lamer CJ explained that 'implicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time ... that relationship should not be prevented from continuing into the future'. Accordingly 'uses of the land that would threaten that future relationship are, by their very nature, excluded from the content of native title' (para 126-127). The Chief justice gave as examples of irreconcilable uses, strip mining of a hunting ground and making a parking lot of a site of ceremonial or cultural significance (para 128). The Chief justice founded native title in the societal relationship to the land and did not accept that the traditional lands could be used in a way which was irreconcilable with that relationship (para 128). The judgment did not make clear the degree to which the society and relationship might evolve and accordingly change the nature of the 'overarching limit'. The Chief Justice was at pains to emphasize that the limit is not ... a limitation that restricts the use of land to those activities that have traditionally been carried out' (para 132) but it is related to the traditional nature of the society and its relationship to the land. It is also related to the future of the society. The Chief justice declared that a 'useful analogy' could be 'drawn between the limit on aboriginal title and the concept of equitable waste', which seeks to protect the future interests from depredations by present interest holders (para 130).

Native title lands are not necessarily forever barred from uses prescribed by the inherent limit, but the lands must be surrendered and converted into 'non-title lands' (para 131).

Chief Justice Lamer did not consider native title to be equivalent to a fee simple interest because of the inherent limit (para 124, 125). But La Forest J appeared to take a more restrictive view of the content of native title. He expressed his disagreement with the methodology of the Chief justice, in particular the reliance placed upon reserve legislation (paras 187,192). He was reluctant to express any view of the content (para 190), but suggested that uses of land might be limited to those associated with the 'aboriginal society's traditional way of life' (para 194).

Oral histories

The result of the appeal to the Supreme Court was the direction of a new trial primarily because of the 'failure of [the] trial court to appreciate the evidentiary difficulties inherent in adjudicating aboriginal claims when, first, applying the rules of evidence and, second, interpreting the evidence before it' (para 80). Chief Justice Lamer declared that courts needed to come to terms with 'oral histories, which for many aboriginal nations, are the only record of their past' and accordingly 'the laws of evidence must be adapted in order that this type of evidence can be accommodated' (para 84, 87). The Court found that the trial judge failed to give sufficient independent weight or refused to admit significant aspects of the oral history tendered by the aboriginal claimants. The Court determined that such evidence must be admitted despite its lack of precision and detail, its combination of mythology and historical truth, and its confinement to the communities from which it originated (paras 96-107). In particular a trial court would need to give due weight (para 107) to (i) the Adaawk and Kungax or sacred litanies and histories of the communities, (ii) personal and family histories relating to land use and (iii) the affidavits of the chiefs or community leaders based on declarations of deceased persons as to the traditional land of each community.

The decision of the Supreme Court places a primary emphasis in the proof of aboriginal claims on the claimants themselves and not on non-aboriginal experts' interpretation and filtering of aboriginal evidence. Australian practice to date under Territory and State Land rights legislation has placed an undue emphasis on anthropological evidence over aboriginal evidence and native title proceedings were heading in the same direction.[7] Delgamuukw provides a timely reminder of the proper emphasis to be accorded, and precisely where anthropologists obtain their 'expert' evidence.

Other elements

The Supreme Court judgments contained other significant elements, including:

• some uncertainty whether the connection to the land by the claimant group or predecessor in title needs to be established at the time of acquisition of British sovereignty. Chief Justice Lamer held to such a view (paras 143-145) but La Forest J declares that he 'would not deny the existence of 'aboriginal title' in [a relocated area] merely because the relocation [perhaps due to 'clashes with European settlers'] occurred post sovereignty' (para 198).
• proof of continuity of connection or 'substantial maintenance' is only necessary 'if present occupation is relied on as proof of occupation pre-sovereignty' (paras 151-154 also 143, 198). Proof of abandonment of native title is on the Crown.
• affirmation that native title may be jointly held by several aboriginal groups (para 158).
• the lack of 'scientific precision' as to the boundaries of a claim 'should not preclude the recognition' of native title (para 195).
• the suggestion by La Forest J that 'fair compensation' for the expropriation of native title 'is not equated with the price of a fee simple. Rather, compensation must be viewed in terms of the right and in keeping with the honour.' (para 203)

Canadian aspects

The Supreme Court also considered elements whose significance is confined to Canadian law including:

• the nature of constitutional protection accorded to native title by section 35(1) of the Constitution Act 1982 (para 160-169, 203).
• the lack of the power of the provinces to extinguish native title (paras 173-183,206).

The need for negotiated settlements

The result in Delgamuukw was the direction of a new trial, but all members of the Court emphasized the need for negotiated not litigated settlements (paras 186, 207). Chief Justice Lamer concluded his judgment by stating:

'Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve ...reconciliation ...Let us face it, we are all here to stay' (para 186).

The decision once again affirms the desirability of negotiated settlements from the government as well as the aboriginal perspective. No court system will in the long term sustain an unjust imposed settlement of native title, yet governments constantly make the mistake of seeking such a solution.

Richard Bartlett is Professor of Law at the University of Western Australia.

[1] Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1, 56-57 per Brennan J, 82-83 per Deane and Gaudron JJ.7.

[2] Ibid, 58 per Brennan J, 110 per Deane and Gaudron JJ.

[3] See generally R Bartlett 'Source, Content and Proof of Native Title' in R Bartlett, Ed, Resource Development and Aboriginal Land Rights, Centre for Commercial and Resources Law, UWA, 1993.

[4] (1985) 49 OR (2d) 353,391 (Ont H Ct).

[5] (1991) 3 W W R 97,391 (BCS Ct).

[6] [1984] 2 SCR, 335, 382.

[7] The WA Supreme Court in Sutton v Derschaw, (Full Ct. Aug 16, 1996), in which leave to appeal to the High Court was refused, seemed to suggest that a native title claim to fishing rights could not be sustained in the absence of anthropological evidence despite the failure of any Crown evidence to counter evidence of such a right.