Indigenous Title

Question 1

proof of indigenous title test (delgamuukw)

Answer 1

○ In order to make out a claim for aboriginal title, must meet the following criteria
1. The land must have been occupied prior to the Crown asserted sovereignty over the land subject to the title
◊ Court recognized that this is challenging to prove, they look at historical documentation of dwellings etc.
◊ Remember they have oral traditions, no paper trail
- Courts will have to accept oral histories, songs, stories, ceremonies etc
2. If present occupation is relied on as a proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation
◊ There can be disruptions between present and prior occupation, and nature of occupation can change
- Doesn’t need to be unbroken, but you just need to prove a substantial connection to the territory that you have maintained overtime
- There can be disruptions
- Nature of the occupation can change
3. At sovereignty, that occupation must have been exclusive - demonstrated by the intention and capacity to retain exclusive control
◊ Looking that they can demonstrate that they had the intention and capacity to use the territory exclusively

Question 2

to justify overriding Indigenous title the crown must show (Tsilqot’in)

Answer 2

1. That it discharged its procedural duty to consult and accommodate;
2. that its actions were backed by a compelling and substantial objective; and
3. that the governmental action is consistent with the Crown’s fiduciary obligation to the group

Question 3

Crown’s Fiduciary Duty (Tsilqot’in)

Answer 3

Government must act in a way that respects the fact Aboriginal title is a group interest that inheres in present and future generations (communal). Incursions can’t be justified if they would substantially deprive future generations of the benefit of the land.

Question 4

Proportionality in the justification process for indigenous title (Tsilqot’in)

Answer 4

1. Incursion is necessary to achieve the government’s goal (rational connection);
2. Government is going no further than necessary to achieve it (minimal impairment);
3. Benefits that may be expected to flow from the goal are not

Question 5

two part test for infringement of aboriginal title

Answer 5

1. Infringement must be in furtherance of a legislative objective that is compelling and substantial
2. Is the infringement consistent with the special fiduciary relationship between the crown and aboriginal peoples