The "Aboriginal Title" Of The Nomadic Nations Of The East

Native claims are in the news every day. One of the principal claims pertains to the existence of an "aboriginal title" to Canadian land which, to date, has not been the subject matter of any treaties with the Crown. These lands are immense, covering the Maritime Provinces, Labrador, most of British Colombia and, closer to home, the entire basin of the St. Lawrence River and the Gulf of St. Lawrence.

The Supreme Court recently pointed out ¹ that this aboriginal title gave recipient nations an exclusive right to use and occupy the land in question. Take a moment to consider the consequences that would ensue from the judicial or political recognition of such a title to land that covers, for instance, the basins of the Manicougan, Bersimis and Outardes Rivers and that include, among other things, the entire municipality of Baie Comeau.²

In British Columbia, where the Delgamuukw case originated, First Nations have occupied salmon fishing river sites for several hundred years which entitles them to attach the immemorial and uninterrupted use which is the basis of the aboriginal title to a precise and relatively small territory.

It was then a question of knowing ³ if the First Nations of the eastern portion of the country, nomads for the most part, could claim aboriginal title to and, consequently, an exclusive right to occupy and use, all the land they happened to frequent.

As early as 1996, Chief Justice Lamer expressed doubts in this respect about the Mohawks, semi-sedentary farmers. In his opinion, the fact that the Mohawks did not settle exclusively in one location may preclude the establishment of aboriginal title to the lands on which they settled.⁴

According to him, the Algonquins, itinerant boreal forest hunters gatherers, had not demonstrated that they exercised real and exclusive possession of the land they roamed upon.⁵

But, these last two cases preceded the Delgamuukw case and did not directly pertain to aboriginal title, which left the question wide open. The Provincial Court of Nova Scotia has just given an interesting, albeit temporary, element of a response ⁶ since the case will run its course before the higher courts.

In this case, Stephen Marshall and other members of the Mi’Kmaq Nation were charged with having cut wood without a licence on Crown land both on the mainland of Nova Scotia as well as on Cape Breton Island. In defence, they argued that they benefited from the Nation’s aboriginal title which gave them the right to cut wood without a licence on land covered by the title, that is to say the entire province. They also claimed that they enjoyed rights ensuing from treaties considered by the Supreme Court of Canada in the landmark Marshall case ⁷ .

With regard to this argument, the Court ruled that treaties concluded in the XVIII th century with the British did not give natives a protected right to sell wood which, at the time, was considered to be a limitless resource that Europeans could procure for themselves without native help (unlike fur).

To succeed in the claims regarding the existence of aboriginal title to all Nova Scotian land, the defendants had to show evidence of an exclusive and on-going occupancy of said land since 1713, the date of the Treaty of Utrecht, deeding Acadia to England.

While Judge Curran had opined that the occupancy of Nova Scotia had been exclusive to the Mi’Kmaqs, the use of the land had not been intensive enough to enable them to claim aboriginal title, with the exception of some coastal sites frequented on a regular basis.

While the occasional visit or passage through a site may bring with it certain ancestral rights, hunting and fishing for instance, it does not give the exclusive right to occupy and use as conferred by title.

Judge Curran opined that the defendants had not adduced any evidence of use of the sites of the forbidden wood cutting, less so the regular use thereof. They were therefore found guilty.

The characteristics of the use of their traditional land by the Mi’Kmaqs are not very different from those of the nomadic Indians of the Quebec-Labrador Peninsula. Statements made by some Quebec First Nations who claim holding "aboriginal title" to all the land they might frequent merit a critical analysis. Before any such title can be granted, caution will be the order of the day in analyzing evidence of their occupancy.

1 Delgamuukw c. British Columbia, [1997] 3 S.C.R., 1010, see En Cours, April 1998

2 Claim filed by the Innu Nation of Betsiamites in the case of the Innu Nation of Betsiamites c. Attorney General of Canada, S.C. 500-05-039472-988

3 Delgamuukw supra, Par. 138, R. c. Adams, [1996] 3 S.C.R. 101

4 R. c. Adams, [1996] 3 S.C.R., 101, Par. 28

5 R. c. Côté, [1996] 3 S.C.R., 139, Par 60

6 The Queen c. Marshall, Provincial Court of Nova Scotia, March 8, 2001 decision by Justice Curran

7 R. c. Marshall, [1999] 3. S.C.R., 456