Revisiting Aboriginal Title Part II: An Alternative View of Sufficient Occupancy

This commentary is the second in a series detailing the ongoing development of Aboriginal title in Canada. It follows a discussion of the British Columbia Court of Appeal’s decision, and is drawn from a larger essay, available in full, on SSRN.

Part I of this series rehearsed and critiqued the BCCA’s decision in William. The goal of Part I was to demonstrate that Aborginal title, is not, by its nature, site-specific. That is, contrary to the BCCA’s findings, it is not the case that successful title claims are all and only those claims which aim at securing title to strictly defined, intensely used tracts of land, such as particular salt licks or promontories used for fishing. A less intense, regular use or “territorial” kind of occupation is also consistent with the jurisprudence. The BCCA erred in adopting a “site-specific” test for sufficient occupancy.

Part I concluded by suggesting that parsing sufficient occupancy into pre-determined acceptable and non-acceptable categories of site-specificity or territoriality was unhelpful to both parties, and indeed asked the wrong question. This second part takes up that point, and offers an alternative test for determining if a certain claim satisfies the Delgamuukw occupancy requirement.

An Alternative Question

As suggested in Part I, analyzing the question of sufficient occupancy in terms of territoriality or site specificity is orthogonal to the motivations of recognizing title. We must remember our purpose. Section 35 rights generally, and title particularly, take as their telos the protection of Aboriginal culture and identity. As noted by the BCCA, “The law must recognize and protect aboriginal title where exclusive occupation of the land is critical to the traditional culture and identity of an Aboriginal group.” Here, the law’s duty is triggered in instances where exclusive occupation of the land is critical to the traditional culture. Title tracks a particular attachment: the strength of a people’s connection with their land, such that the connection itself forms a significant part of their collective identity.

It is that attachment, once recognized, which justifies the acknowledgement of the right to the land and the imposition of its correlative duties on others. As noted by Professor Slattery in the The Metamorphosis of Aboriginal Title:

It is the strong spiritual and material bonds that Indigenous peoples hold with their lands that animate aboriginal title and supply its underlying rationale.

If it is these bonds which animate and justify title, then perhaps it is those bonds we should look to in answering the question of sufficient occupation. That is, we ought to put aside the question of whether some category of use or another will be sufficient. Rather, we ought to ask: do the facts of this particular occupation establish the critical connection between the land and a group’s cultural identity? We must ask if their exclusive occupation of the land, understood from their own perspective, is essential to who they are as a people. Here, we are adopting what Lamer CJC called the “central significance requirement” in Delgamuukw, essentially asking if the group’s connection with the land is of central significance to their culture. Provided this can be shown, then the occupancy itself is consistent with the goals of title in particular and Aboriginal rights in general.

Importantly, the kind of evidence that could satisfy this requirement departs markedly from the kind of evidence which would satisfy a site-specific or territorial model. Rather than empirical claims about specificity of boundaries or intensity of use, a claim of occupancy indexed to central significance would require normative arguments. The claimant group would have to show that exclusive use was critical to the group’s identity by arguing from its own values. For instance, one could offer evidence of the historical, moral, or spiritual value of the relationship between the group and the land, such as the evidence given at trial in the case at bar. Provided that such significance could be demonstrated, in addition to some empirical evidence of actual presence on the claimed land, sufficient occupancy could be made out.

Support for the Alternative Question 

Again, the suggestion is that our question should be: have the claimants provided evidence that demonstrates that their exclusive occupation of the land is central or critical to their collective identity? In addition to being more consistent with the overall goal of title overall, this line of inquiry is preferable to the territorial/site-specific discourse for two further reasons:

First, this method of analysis is consistent with the jurisprudence. A court’s answer to the suggested question of central significance will be, of necessity, fact and case-specific. In Delgamuukw, Lamer CJC affirmed a list of occupancy factors offered by Professor Slattery, all of which point to a fact specific analysis, not a determination of a claim’s degree of fit with a predetermined category of specificity (Delgamuukw, para 149). Additionally, as noted by McLachlin CJC in Marshall; Bernard, finding title in cases of nomadic and semi-nomadic peoples, which by definition, are likely to be “territorial” in nature, depends on the evidence (Marshall; Bernard, para 66).

Second, the proposed test provides one substantive way in which the court can take the aboriginal perspective into its determination of a title claim. In Delgamuukw, Lamer CJC affirmed that both the common law perspective and the aboriginal perspective must be taken into account when establishing the proof of occupancy (Delgamuukw, para 147). Furthermore, Lamer CJC also holds that true reconciliation will require that an analysis of occupation and exclusivity will place equal weight on both perspectives (para 156). The central-significance understanding of occupancy ensures that the Aboriginal perspective will be taken into account: when applying this test, a court would have to consider the claimant group’s view of their own interest in land by appreciating its practices, traditions, and written and oral histories that speak to such a connection.

In Closing

In its resolution of the William appeal, the SCC will confront the sufficient occupancy debate set out in Part I. Part II critiqued the BCCA’s final position in that discussion, and suggested that that debate was orthogonal to the real issue at hand. That is, questions of boundaries and intensity distracted us from the real question underlying title: whether or not some instance of exclusive occupancy was critical to the identity of the claimant group. Regardless of the outcome, the doctrinal face of Aboriginal title, and what claimants must demonstrate to have their claims recognized and respected, will likely change with the William decision.