52. We call upon the Government of Canada, provincial and territorial governments, and the courts to adopt the following legal principles:
i. Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.
ii.Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.
Many court cases have outlined how Aboriginal title is proven. Proving Aboriginal title is extremely important, as in many areas of Canada, the Government never signed treaties with local Indigenous peoples. Many Indigenous peoples thus still claim legal title over their ancestral land that was never ceded within a treaty. In most cases, Aboriginal title awards the same rights as private ownership. There is therefore great incentive for Indigenous groups of people to prove their title over their ancestral land. But there are also many reasons for other parties to want to disprove Aboriginal title. Many parties have argued in the courts for tougher standards for Indigenous peoples to prove their title to land, such as by claiming Indigenous peoples needed to prove extensive use of the land. However, in 1997, the Supreme Court ruled that only 3 things were required for Indigenous peoples to prove their title (Delgamuukw v British Columbia, para. 143), which were summarized in 2014 as:
- Sufficiency—There must be evidence that Indigenous peoples occupied the land before European contact
- Continuity—Occupation of this land must be continuous between the present and contact
- Exclusivity—at the time of contact, the Indigenous group must be the sole group claiming control of the territory. (Tsilhqot’in Nation v British Columbia, para. 32)
Essentially, what this recommendation is saying is that once these three things have been proven, Indigenous peoples have full legal rights over their territory, and they cannot be infringed upon unless it can be proven to be justifiable
Further Reading:
Aboriginal Title, Defenders of the Land.
Aboriginal Title Common Law, Wikipedia.
Compiled by Jonathan Wearing