- Explain the difficulties that oral evidence has had and how courts have remedied those difficulties.
- Identify the test used to prove Aboriginal Title.
- Consider the difficulties of applying the test to Métis, nomadic groups, or groups with shared boundaries.
To prove Aboriginal title, an Indigenous group must prove the following:
- The group occupied the land prior to European sovereignty.
- There was continuous occupation of land from pre-sovereignty to modern times.
- The group exclusively occupied that land.
This test was established in 1997 by the leading Supreme Court of Canada case Delgamuukw v. British Columbia [PDF]. If an Indigenous group can meet the conditions of this test, then Aboriginal title is established on their lands. Despite the apparent simplicity of this test, there are numerous challenges.
Evidence standards changed to accommodate this test. In Delgamuukw, the trial judge at the Supreme Court of British Columbia did not accept oral histories. In that case, the Wet’suwet’en and Gitxsan were using oral histories called “Adaawk” and “Kungax” to prove their title to land. Common law evidence standards demanded written historical records to prove title. However, most Indigenous groups did not have written historical records and relied on oral traditions. That evidential standard would have dramatically undermined most Indigenous groups’ pursuits for justice. The Supreme Court of Canada, recognizing this, allowed traditional evidence to be used to prove Aboriginal title.
To show the recency of this development, many of the authors’ students reported memories of their parents and grandparents meeting with lawyers and swearing affidavits (providing testimony under oath for use as evidence in court), accompanied by maps, to record what activities took place traditionally and the geographical extent of those activities.
In addition to evidential difficulties, there are a few other challenges that have arisen in proving Aboriginal title. First, nomadic Indigenous groups have a difficult time proving that they have continuously occupied any tract of land (Curpen, Braul, Mellett, Mathewson, & Monaco, 2014). Second, this test precluded modern Indigenous cultures, including the Métis, from asserting their rights (Hogg, 2010). Third, if there was a shared boundary or shared custody of land between two Indigenous groups, then neither may claim Aboriginal title over that land because the occupation was not “exclusive.” Finally, the authors have had conversations with people who express frustration with Aboriginal title as an idea. Those people wish that legal concepts viewed Indigenous peoples as many unique cultures that are continuously evolving in today’s modern world, rather than having their cultural identity tied to tests for traditional usage of their ancestral land. They believe that Indigenous cultural identity and unique communities should be able to expand their legal rights to allow for development of other cultural activities on traditional land.