The Modern Treaty Era
Recall that the Supreme Court’s decision in R. v. Calder (1973) verified that Aboriginal Title exists, launching an era of land claims over lands that had not been officially ceded by Treaty. The Court did not, however, specify how Aboriginal Title would be determined.
In its 1997 Delgamuukw v. BC decision, twenty-four years later after R. v. Calder, the Supreme Court specified that Aboriginal Title is a communal right of any group that occupied the land in question prior to European contact. Where that cannot be proven, the group must have been occupying these lands continuously since then. Aboriginal Title gives exclusive use and occupation rights, but the land can only be used in a way the entire community approves; it also cannot be sold except to the Crown.
Primordiality
Notice that Aboriginal Title is affirmed for Indigenous groups who occupied the land in question before European contact. Bonita Lawrence (2004, p.4) has noted that most land claims in the Americas depend on whether the Indigenous group can prove its primordiality – its existence on the land from time immemorial. The land claims, once settled, also require that primordial traditions, such as collective ownership and traditional (vs. commercial) hunting and gathering, continue to be practiced. Thus, Indigenous economies are locked into their seventeenth century forms.
The Supreme Court ruling R. v. Van der Peet (1996) followed this pattern by defining an Aboriginal Right as a traditional, pre-contact practice. R. v. Marshall (1999) determined that First Nations who signed Peace and Friendship Treaties in Atlantic Canada have the right to earn a “moderate livelihood” from fishing, but do not have the right to large-scale commercial fishing.
This emphasis on primordiality does not recognize the right or the need of Indigenous people to migrate and adapt in response to economic pressures and opportunities, many of which pressures have been forced upon them. It also weakens or eliminates Indigenous claims to urban areas, since Indigenous occupation of these areas has been interrupted.
The High Cost of Land Claims:
Recall that not until 1974, after the R. v. Calder decision, was a federal government office opened to handle specific claims (treaty-related complaints) and land claims (regarding areas of land not covered by treaty). Until 2006 that Office operated with the government being both the Accused and the Judge. Moreover, a Senate report found the specific claims process to be “complicated, time-consuming, expensive, adversarial, and legalistic.”[1] Specific claims, of which there were 800 outstanding, took an average of 13 years to resolve. It is likely that land claims move even more slowly.
The Auditor General (2016) has found that things had actually gotten worse since the reorganization of the land claims process in 2007. New procedural barriers had been erected. Information sharing between the government and First Nations was poor, and funding to