v. The Queen,24 then Chief Justice Dickson of the Supreme Court of Canada argued that traditional legal approaches may not be adequate to the task at hand since “claims to aboriginal title are woven with history, legend, politics and moral obligations.”25 The idea that judges must be conscious of historical context when interpreting legal precedents, was offered again in 1985 in the Simon v. R.26 case, when the Supreme Court of Canada overruled a decision by Justice Patterson in R. v. Syliboy made in 1929. In that case, Patterson had found that a particular agreement between the Crown and the Micmac in 1752 was not a treaty representing the “unconstrained Act of independent powers,” but rather an agreement “between a civilized power and savages.” The 1985 Supreme Court of Canada decision stated that “It should be noted that the language used by Patterson J…27 reflects the biases and prejudices of another era in our history. Such language is no longer acceptable in Canadian law, and, indeed, is inconsistent with a growing sensitivity to native rights in Canada.”28
However, in 1985, the very same year that Chief Justice Dickson of the Supreme Court of Canada issued this caution, in the Supreme Court of Ontario, Justice Steele handed down his decision in the Bear Island case using language and reasoning that resembled Patterson’s 1929 ruling in both theory and substance. On appeal, in 1991, the Supreme Court of Canada rejected Steele’s finding that the Teme-agama Anishnabay had “failed to prove that their ancestors were an organized band level society in 1763.” However, they simultaneously ruled that they were unable to find any “palpable and overriding error” in Steele’s findings of facts, although they did not necessarily agree “with all the legal findings based on those facts.”29
Legal scholar Joel Fortune asked the obvious question: “How is it possible to distinguish Steele J.’s ‘correct’ determination of the facts from his ‘incorrect’ finding that the Teme-amaga Anishnabay did not constitute an organized society in 1763?”30 Fortune answered his own question by concluding that the Supreme Court of Canada’s Bear Island decision is an illustration of “the judicial reluctance to acknowledge openly that a legal outcome may rest on a question of historical interpretation.”
The Bear Island judgment refashioned the Baker Lake test into a more complex three-part test, adding requirements for proof of the nature of Aboriginal rights enjoyed prior to the relevant date, as well as evidence of a system of land-holding and a system of social rules and customs. And, the Bear Island test added, this continuity of exclusive occupation must be evident up to the date of commencement of the court action. Therefore, the Bear Island claimants had to prove exclusive occupation from the eighteenth century until the time they started their claims action in the late twentieth century. This set a precedent whereby all Aboriginal claimants could be asked to show that they had excluded not only other Indigenous peoples from their territories from the time of European contact until the filing of their writ in a contemporary court, but that they had also kept well-armed European explorers, miners, traders, settlers and police off their lands.
In a practice that speaks to the uniquely autocratic prerogative of law, the legal tests for Aboriginal rights have been constructed and/or elaborated upon during the course of trials, and articulated by judges post hoc31 in reasons for judgment, often in response to evidence and testimony presented for the first time in the particular trial being judged. Thus, claimants enter into a trial prepared to meet a test enunciated in a previous case, and find their arguments and evidence evaluated on the basis of criteria that emerge in situ. These criteria, in turn, influence the arguments lawyers advance and the kinds of evidence and expert witnesses they bring forward to support their arguments in a subsequent case. The tests have, therefore, shaped the research and testimony sought from anthropologists, archaeologists and other expert witnesses employed in the litigation process.
The evidentiary requirements for legal proof of Aboriginal title have correspondingly expanded exponentially, and, with them, the role and importance of anthropologists and other expert witnesses. The “land use and occupancy” studies that were previously required to establish long term, prior occupancy, now had to be supplemented by research into cosmology, language, spirituality, governance, law, family life, and world views. The increase in volume and complexity of evidence was generated by the court’s responses to these cases, and the political context shaping both. Anthropologist Peter Elias concluded that “the tests set out by Mr. Justice Steele in Bear Island Foundation…may have crossed the line of social science comprehension…if the tests are elaborated much further, it won’t be possible to meet them.”32
The Master’s House: The Repatriation of the Canadian Constitution
When the Constitutional process came along, in 1981 and 1982, the Gitksan and Wet’suwet’en asked themselves and talked to the elders and wondered: ‘Can we create the political will on the part of the politicians in British Columbia and in the federal government to negotiate?’…
We have been consistent. You could see it based on the things that the elders were saying to the McKenna-McBride Commission between 1912 and 1913 and the points they were making when Indian reserves were being set up in the 1890s. We read and knew what they were saying, and there were elders in the 1970s and 1980s who were repeating those same comments and questions. They all wanted to resolve ‘the land question’. They wanted recognition of who and what they were, and they wanted to have some dignity in their own land. The constitutional process provided an opportunity….So we entered that process. It didn’t take long, however, to find out we were wasting our time in the constitutional process. It was clear nothing was likely to happen, because there was no political will or understanding at the time for anything substantial to happen.
The negotiation process wasn’t available to us—it just wasn’t working.
—Medig’m Gyamk (Neil Sterritt), 1992, It Doesn’t Matter What the Judge Said.33
Another arena in which Aboriginal political struggles took place during the 1980s was created by the repatriation of the Canadian Constitution from Britain to Canada. As part of this process, Aboriginal peoples sought to have recognition of their inherent Aboriginal title and rights entrenched and given constitutional protection. Some British Columbia Indians, fearing that repatriation would jeopardize what they considered their direct relationship with the British Crown, recognized by the Royal Proclamation of 1763, mounted an international campaign to postpone repatriation of the Constitution until Aboriginal issues were dealt with. They were not successful in halting the repatriation process, but did succeed in wresting a commitment from the federal and provincial governments to include Aboriginal representatives in formal discussions concerning the formulation of the new Constitution Act. Negotiations took place during a series of five First Ministers’ Conferences held between 1983 and 1987, and resulted in the Meech Lake Accord34 that, critics charged, failed to adequately protect the rights of Aboriginal peoples, Québecois and women.
The limited victory won by Aboriginal peoples in the Constitution debates was represented by Section 35(1) of the Constitution Act, 1982 which states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” This clause is described as an “empty box” which litigation and further negotiations must fill. In other words, it was left to the courts and to negotiations between federal, provincial and Aboriginal representatives to define what these “already existing” Aboriginal rights were: what is the content of these rights? What do they actually mean, to whom, in everyday life? Are these rights “inherent,” arising from Aboriginal peoples’ having been the prior occupants and rulers of the land now known as Canada; or are they “delegated,” their legal and political source relying on recognition by the Crown? What would constitute legitimate extinguishment of Aboriginal title and rights: did such extinguishment have to be explicit, or could it be implicitly inferred? Was evidence of Aboriginal consent required to make extinguishment legal?
The
