Archaeological Evidence in the Tsilhqot’in Decision

2020 ◽  
Vol 44 (2) ◽  
pp. 155-184
Author(s):  
Erin A. Hogg ◽  
John R. Welch
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Supreme Court Of Canada ◽  
Trial Court ◽  
Archaeological Evidence ◽  
Archaeological Data ◽  
Legal Standards ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
Aboriginal Title

The 2014 Supreme Court of Canada Tsilhqot’in decision provides the first declaration of Aboriginal title to Canadian soil. Aboriginal title requires evidence of continuous, exclusive, and sufficient occupation of a territory. In the earlier trial before the British Columbia Supreme Court the Tsilhqot’in First Nations presented a substantial corpus of archaeological evidence to complement historical evidence, oral histories, and Tsilhqot’in testimony regarding the locations of Tsilhqot’in villages and the type and duration of their occupations. We examined this body of archaeological data in the context of the judicial proceedings to understand which data were considered favourably by the court and why. We found that the trial court accepted archaeological data as evidence of occupation on definite tracts of land at the time of sovereignty, agreeing with the Tsilhqot’in plaintiffs that the evidence met the legal standards for continuous and sufficient occupation. Because the Supreme Court Tsilhqot’in decision is the paramount statement on Aboriginal title, the treatment and consideration of archaeological data in that decision will likely set standards for and guide improvements to the applications of archaeological data in title cases.

Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

2021 ◽  
pp. 026377582110634
Author(s):  
Anthony W Persaud
Keyword(s):  
First Nations ◽  
Private Property ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Land Relations ◽  
Aboriginal Title ◽  
Cultural Ecological ◽  
Economic Future ◽  
The Relationship

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

Eliminating Indigenous Jurisdictions: Federalism, the Supreme Court of Canada, and Territorial Rationalities of Power

2016 ◽  
Vol 49 (3) ◽  
pp. 411-431 ◽  
Author(s):  
Michael McCrossan ◽  
Kiera L. Ladner
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Aboriginal Title ◽  
Judicial Reasoning ◽  
Game Changer

AbstractThis paper examines judicial reasoning in the area of Aboriginal title, paying particular attention to the Supreme Court of Canada's Tsilhqot'in Nation (2014) decision. While the decision has been heralded as a ‘game-changer’ within media circles and legal commentaries for its recognition of a claim to title under section 35(1) of the Constitution Act, 1982, the authors argue that the decision does not depart substantially from prior judicial logics predicated upon the production of Crown sovereignty and the denial of Indigenous legal orders. In fact, the authors argue that the decision displays a clear judicial orientation towards the present jurisdictional divisions of Canadian federalism which not only serves to eliminate Indigenous legal orders and territorial responsibilities, but also provides federal and provincial governments with enhanced powers of ‘incursion’ into Aboriginal title lands.

scholarly journals De facto and de jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada Ryan

2019 ◽  
Vol 27 (1) ◽  
pp. 25-34 ◽  
Author(s):  
Ryan Beaton
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
The Supreme Court ◽  
Shed Light

This paper offers a short story of Crown sovereignty at the Supreme Court Canada in order to shed light on questions the Court has raised about the legitimacy of Crown sovereignty over territory claimed by First Nations. In skeletal form, the story is simple. The Crown — first Imperial British and later Canadian federal and provincial — asserted sovereignty over what is now Canadian territory, and Canadian courts (and the Judicial Committee of the Privy Council) accepted those assertions without question. Yet the Supreme Court of Canada has lately qualified Crown sovereignty in striking ways, perhaps most notably in speaking of “de facto Crown sovereignty” in reasons released in 2004.

Aboriginal Rights and Sustainable Development in Canada

1999 ◽  
Vol 48 (1) ◽  
pp. 176-186
Author(s):  
Jane Matthews Glenn ◽  
Anne C. Drost
Keyword(s):  
British Columbia ◽  
Sustainable Development ◽  
Supreme Court ◽  
Agricultural Area ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Aboriginal Title

This article explores briefly the relation between aboriginal rights and sustainable development in Canada, using as a vehicle for discussion the decision of the Supreme Court of Canada in Delgamuukw v. British Columbia.1 This case involved claims by the Houses of Gitksan and Wet'suwet'en, comprising some 6,000 to 7,000 persons, to aboriginal title over separate portions of approximately 58,000 square kilometres of land in the interior of British Columbia. The territory is a rich agricultural area with vast forests and abundant wildlife.

scholarly journals Conservation Controversy: Sparrow, Marshall, and the Mi’kmaq of Esgenoôpetitj

2011 ◽  
Vol 2 (4) ◽  
Author(s):  
Sarah J King
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
First Nation ◽  
Scientific Management ◽  
Supreme Court Of Canada ◽  
Management Problem ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Fisheries Policy ◽  
The Government

This paper explores the interplay between the Sparrow and Marshall decisions of the Supreme Court of Canada, and the sovereigntist and traditionalist convictions of the Mi’kmaq of the Esgenoôpetitj/Burnt Church First Nation, as expressed in the conservationist language of the Draft for the Esgenoopotitj First Nations (EFN) Fishery Act (Fisheries Policy). With the Supreme Court of Canada’s decision in Sparrow, conservation became an important justification available to the Canadian government to support its regulatory infringement on aboriginal and treaty rights. Ten years later, in Marshall, the Court recognized the treaty rights of the Mi’kmaq to a limited commercial fishery. The EFN Fishery Act, written to govern the controversial post-Marshall fishery in Esgenoôpetitj (also known as the Burnt Church First Nation) demonstrates that for the Mi’kmaq, scientific management, traditional knowledge, sovereignty and spirituality are understood in a holistic philosophy. The focus placed on conservation by the courts, and the management-focused approach taken by the government at Esgenoôpetitj have led to government policy which treats conservation simply as a resource access and management problem. Conservation, which the Court deems “uncontroversial” in Sparrow, is a politically loaded ideal in post-Marshall Burnt Church.

scholarly journals Commentary on “Adhesion to Canadian Indian Treaties and the Lubicon Lake Dispute”

1992 ◽  
Vol 7 (2) ◽  
pp. 207-212
Author(s):  
Kent McNeil
Keyword(s):  
Supreme Court ◽  
Canadian Journal ◽  
Law And Society ◽  
Aboriginal Peoples ◽  
Western Canada ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Unexplored Area ◽  
Aboriginal Title

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.

De facto and de jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada

2018 ◽  
Vol 26 (4) ◽  
pp. 25
Author(s):  
Ryan Beaton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Shed Light

This paper offers a short story of Crown sovereignty at the Supreme Court Canada in order to shed light on questions the Court has raised about the legitimacy of Crown sovereignty over territory claimed by First Nations. In skeletal form, the story is simple. The Crown — first Imperial British and later Canadian federal and provincial — asserted sovereignty over what is now Canadian territory, and Canadian courts (and the Judicial Committee of the Privy Council) accepted those assertions without question. Yet the Supreme Court of Canada has lately qualified Crown sovereignty in striking ways, perhaps most notably in speaking of “de facto Crown sovereignty” in reasons released in 2004.The purpose behind this qualification, in line with the Court’s Aboriginal rights and title cases since Calder v British Columbia (Attorney General), seems to be to encourage the Crown to negotiate modern treaties and settle outstandingAboriginal rights and title claims in order to perfect or legitimate Crown sovereignty. As Crown negotiations with First Nations stalled, however, the Court proceeded to develop its own framework for the procedural legitimation of Crown sovereignty, i.e. a framework of procedural safeguards designed to weed out “bad” exercises of Crown sovereignty from legitimate ones.

scholarly journals Delgamuukw v. British Columbia: When Aboriginal Voices of Law Were Finally Heard

2018 ◽  
Vol 3 (1) ◽  
pp. 32-36
Author(s):  
Reid Gomme
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
First Nations ◽  
Supreme Court Of Canada ◽  
Land Claims ◽  
Bad Faith ◽  
Canadian Government ◽  
Land Claim ◽  
The Supreme Court ◽  
Indigenous Land

This essay analyzes the enduring impact of the case Delgamuukw v. British Columbia (1997), in which the Supreme Court of Canada overturned the original ruling by the Supreme Court of British Columbia in 1997 upon appeal by members of the Gitskan and Wet’suwet’en peoples representing the Delgamuukw side. The case set strengthened precedent in Canada’s legal system for the use of indigenous oral history as acceptable evidence in identifying first nations land claims based on their ancestral accounts. As has been shown in more recent indigenous land claims cases such as Tsilhqot’in v. British Columbia (2014), this precedent is finally allowing some first nations communities a legal tool recognized strongly enough within Canadian legal systems, historically entrenched in European common and civil law approaches of justifying evidence, to gain more just land claims settlements. While actions by some levels of Canadian government, such as the British Columbian Liberal government’s 2001 popular referendum on the merits of indigenous land claims, have shown bad faith for the prospects of nation to nation land claim settlement negotiation, the pressure exerted on all levels of Canadian government by decisions such as Delgamuukw and Tsilhqot’in show promise in forcing a shift to more just land claim settlements in future disputes.

scholarly journals Testing the Waters : Aboriginal Title Claims to Water Spaces and Submerged Lands – An Overview

2005 ◽  
Vol 45 (4) ◽  
pp. 659-692
Author(s):  
Paula Quig
Keyword(s):  
Great Lakes ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Dry Land ◽  
The Supreme Court ◽  
Aboriginal Title ◽  
Aboriginal Groups ◽  
Near Future

This article provides an overview of some of the intriguing issues raised by Aboriginal title claims to water spaces and submerged lands. While the Supreme Court of Canada articulated a test for proof of Aboriginal title in the 1997 Delgamuukw decision, they did not squarely address questions relating to the viability of such claims outside of the “dry land” context. Recently, a number of Aboriginal groups from across Canada have filed claims seeking declarations of Aboriginal title in areas such as the foreshore, the sea, the seabed, and the Great Lakes and their connecting waterways. Similar claims might also surface in Quebec in the near future, in areas such as the St. Lawrence Seaway. The author guides the reader through international developments in this area, highlights some key legal and evidentiary issues which will require serious reflection in the near future, and provides some final thoughts with respect to the fundamental role which the goal of reconciliation and the principle of consultation will undoubtedly play in Aboriginal title cases to water spaces and submerged lands.

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