common law:
(1) That they and their ancestors were members of an organized society.
(2) That the organized society occupied the specific territory over which they assert the Aboriginal title.
(3) That the occupation was to the exclusion of other organized societies.
(4) That the occupation was an established fact at the time sovereignty was asserted by England.16
The first criteria was drawn directly from the test in Re: Southern Rhodesia. Mahoney enforced this by referring as well to Haldane’s decision in Amodu Tijani v. Nigeria about acknowledging differences between Indigenous property systems. Accordingly, Mahoney argued that different property regimes represented different stages of social evolutionary development. The Baker Lake Inuit passed Mahoney’s test, but only just. Unlike the Nishga, who the Supreme Court of Canada found had “developed their cultures to higher peaks” than any other Indigenous peoples north of Mexico, Mahoney classified the Baker Lake Inuit as less advanced on the evolutionary scale. Mahoney wrote: “The fact is that the aboriginal Inuit had an organized society. It was not a society with very elaborate institutions but it was a society organized to exploit the resources available on the barrens and essential to sustain human life there. That was about all they could do: hunt and fish and survive.”17
On the question of extinguishment, Mahoney ruled that neither the Royal Charter of the Hudson’s Bay Company, nor admission of Rupert’s Land into Canadian confederation had extinguished the common law Aboriginal title the Inuit held. Neither, he found, had legislation subsequent to 1870 had the effect of extinguishment. However, the unextinguished rights that Mahoney “found” were extremely limited. He argued that Aboriginal title could not have been proprietary because then the Crown would have formally extinguished it. His conclusion, in summary, was that the plaintiffs were entitled to a declaration that they have an Aboriginal right only to hunt and fish on the lands in question. “The aboriginal right asserted here encompasses only the right to hunt and fish as their ancestors did,” Judge Mahoney wrote.
When the Calder case went to court in 1969 the trial took four days. No fully articulated “legal test” existed at the time and judges saw the question of Aboriginal title as a factual matter to be determined on the basis of empirical evidence of actual historic occupation and use of ancestral lands.18 Such a test requires minimal evidentiary support, is relatively uncomplicated, and accessible to common sense reasoning and understanding. The straightforward arguments and the evidence required to prove historical use and occupation, in its simplicity, was also difficult for the Crown to dispute. However, only Aboriginal peoples, and not non-Aboriginals, are required to prove long term use and occupation, rather than pre-existing ownership and historical title, to establish legal ownership of land. And, the use and occupancy test suffered from being based on the demand that Aboriginal people demonstrate how their property systems were similar enough to be considered equal to British ones.
This is another double bind: if Aboriginal people emphasize the similarities between their land tenure systems and British ones, the courts may look more favourably on their claims because they appear familiar, but then the Aboriginal litigants sacrifice the opportunity to demonstrate the cultural uniqueness and ongoing validity of their own relationships to land, and surrender to the colonizer’s language and legal concepts. If, on the other hand, Aboriginal peoples emphasize the differences between their relationships to land and those of British-derived cultures, they risk them being classified as too different to be understood as equal. Heads, the Crown wins. Tails, Indians lose.
Justice Mahoney’s 1980 decision in The Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development, and his articulation of a precise, but complex, legal test for Aboriginal plaintiffs to meet, therefore marks an important turning point in this story: the recognition, and construction, of complexity around the legal Aboriginal title issue. The intricacies of diverse Indigenous relationships to land are complex and interesting. However, the historical/legal questions at stake remained the same: were Aboriginal peoples here when Europeans arrived? Did they live in organized societies with property laws? Were their rights lawfully extinguished according to British, Aboriginal or International law?
The Baker Lake test set the terms of legal and anthropological research questions for a decade to come.19 The important knowledge required to understand and participate in the legal struggle for recognition of Aboriginal title and rights increasingly became the task of specialists like lawyers, consultants, Aboriginal Elders and a small coterie of First Nations leaders. Increasingly, ordinary people, Aboriginal and not, were ushered out of decision-making roles and into fund-raising and public education in support of litigation.
The Evolution of the Dedicated White People Band at Bear Island
To conclude, in 1763, George III, with the advice of his United Kingdom Ministers, did not grant ownership of vast tracts of land to Indian bands…when a war had just been fought to acquire those lands….
At that time, Europeans did not consider Indians to be equal to themselves and it is inconceivable that the King would have made such vast grants to undefined bands, thus restricting his European subjects from occupying these lands in the future except at great expense.
—Justice Steele, Supreme Court of Ontario, 1989, Reasons for Judgment, in Attorney-General of Ontario v. Bear Island Foundation et al.
In the 1989 case of The Attorney-General for the Province of Ontario (the plaintiffs) vs. the Bear Island Foundation and Gary Potts, William Twain and Maurice McKenzie Jr. on behalf of themselves and on behalf of all other members of the Teme-agama Anishnabay, and the Temagami Band of Indians (the defendants), 20 referred to as “the Bear Island case,” the Crown claimed unencumbered title to 4000 square miles of land in Northern Ontario. The defendants, Bear Island et al, argued that Crown title was burdened by Aboriginal title recognized by the Royal Proclamation of 1763, and by unfulfilled obligations under the Robinson-Huron Treaty signed in 1860. The Crown wanted the court to relieve them of this burden so that development could proceed unencumbered. The Bear Island trial remains the longest recorded civil hearing in Ontario history, lasting for 120 days.21
Like Judge Mahoney, Justice Steele was not impressed by the expert witnesses supplied by the Bear Island defendants, calling them “a small, dedicated and well meaning group of white people…[who]…in order to meet the aspirations of the current Indian defendants has pieced together a history from written documents, archaeology and analogy to other bands, and then added to that history a study of physical features and other times, together with limited pieces of oral tradition.”22
Justice Steele ruled that the evidence presented did not, to his satisfaction, prove that the Teme-agama Anishnabay were members of an organized society in 1763.23 He went on to conclude that, since neither the French nor the English considered Indians as equal to Europeans in the eighteenth century, the Crown’s representatives who drafted and signed the written agreement could not have intended for the Royal Proclamation of 1763 to recognize Aboriginal title as the basis of any legitimate legal or political rights.
The Bear Island case illustrates an example of a conservative, archaic approach to the interpretation of history in the context of Aboriginal rights litigation. During the 1970s and 1980s, Canadian courts wrestled with the problem of how to interpret history in the context of Aboriginal rights litigation. The results varied, and were often contradictory. In 1973 when the decision in the Calder case was arrived at, Justice Hall had commented that historical documents “must be approached in the light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought
