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 to be wholly without cohesion, laws or culture, in effect a subhuman species.” Similarly, in 1977 in the case of Kruger and Manuel 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