Over The Past Years, Canadian Courts Have Repeatedly Urged

1644 WordsMar 28, 20177 Pages
Over the past years, Canadian courts have repeatedly urged that aboriginal title conflicts should be resolved through negotiation, rather than litigation. The primary reason being that litigation is costly and time-consuming. For example, the decision for the Delgamuukw case took a duration of thirteen years. Furthermore, litigations that deal with the issue of aboriginal rights and title are “generally narrowly focused” and “ultimately leaves the question [posed about] how aboriginal rights and title apply unwarned.” For instance, the courts of Canada repeatedly failed to come up with a clear definition on the legal scope of Aboriginal rights despite the fact that they have several opportunities to do so. The Delgamuukw case clearly…show more content…
In essence, the Court found that oral history should be examined as a “legitimate form of testimony” given that Aboriginal culture and history is passed down through oral storytelling. Additionally, the Supreme Court reconsidered and outlined the tests that Aboriginal groups had to pass in order to prove that they have an Aboriginal title to the land the occupied. The tests laid out in this case was less severe than the one they previously used. Nevertheless, the burden of proving Aboriginal Title was still on Aboriginal groups. To put it differently, it is the responsibility of Aboriginal groups to demonstrate that they had Aboriginal title and “exclusive use and occupancy and, perhaps, continual use and occupancy.” A more recent case that should be considered is the Haida Nation v. British Columbia (2004) case. The Haida people “have claimed title to all the lands of Haida Gwaii and the waters surrounding it for more than 100.” However, their title was not legally recognized. The issue of whether British Columbia had a legal duty to consult and possibly accommodate the interests of Aboriginal people was brought before the Supreme of Canada in 2004. The Court held that the Crown had a duty to consult with the Haida people. This particular case provided “broad guidelines for the negotiation and definition of aboriginal title in BC.” The Supreme Court of established that “a general

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