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 case of R. v. Sparrow, launched in British Columbia in 1984, and finally ruled on by the Supreme Court of Canada in 1990, was the first to begin filling Section 35(1) of the Constitution Act, 1987’s “empty box.”
Testing, Testing: From “Use and Occupancy” to “Culture” in the Sparrow Decision
In the Court’s view, the reason for concluding that the Musqueam Nation enjoys a right to fish lies not in the presence of state action conferring such a right, but instead arises from the fact that fishing is integral to Musqueam self-identity and self-preservation…. The nature and content of an aboriginal right is determined by asking what the organized aboriginal society regarded as “an integral part of their distinctive culture”….To be so regarded those practices must have been integral to the distinctive culture of the above society from which they are said to have arisen.
…The content of aboriginal rights thus is to be determined not by reference to whether executive or legislative action conferred such a right on the people in question, but rather by reference to that which is essential to or inherent in the unique relations that native people have with nature, each other, and other communities.
—Chief Justice Dickson, Supreme Court of Canada, 1990, Reasons for Judgment, in R. v. Sparrow.35
The next, and final, important case that preceded Delgamuukw v. R., was R. v. Sparrow. It began in the same year, 1984, that the Gitksan and Wet’suwet’en filed their Statement of Claim. On May 25, 1984, Reginald Sparrow, a member of the Musqueam band, was charged with fishing for salmon using a drift net that was longer than allowed by the Department of Fisheries-issued permit for Indian food fishing. Sparrow defended himself by saying he was practising an “existing Aboriginal right” protected under Section 35(1) of the Constitution Act, 1982. Sparrow was first found guilty in the Provincial Court of British Columbia. When the case was appealed to the British Columbia Court of Appeal, the appellate court agreed that Sparrow’s Aboriginal right to fish had not been extinguished prior to 1982, but ruled that the mesh size regulations of the Department of Fisheries were still applicable. At issue when the appeal of the case went forward to the Supreme Court of Canada was whether the Musqueam First Nation could assert an Aboriginal right to fish that would override federal regulations which required a fishing permit and restricted the use of a drift net to a maximum length of 25 fathoms. The Musqueam asserted that their right to fish was an “existing aboriginal right…recognized