This is an early draft of the following articles (Aboriginal Rights and Title in Canada After Delgamuukw: Part One, Oral Traditions and Anthropological Evidence in the Courtroom. Native Studies Review. 14(1):1-26 and Part Two: Anthropological Perspectives on Rights, Tests, Infringement & Justification. Native Studies Review. 14(2):1-42.)
The 1997 Delgamuukw decision of the Supreme Court of Canada has been an important moment in determining the nature and extent of Aboriginal rights and title in Canada. This paper critically reviews this decision, drawing on anthropological and legal scholarship to put into context how Aboriginal rights and title have been conceptualized and argued. This paper also reviews the continuing importance of social science research in general and anthropology in particular for contributing to Aboriginal rights and title debates.
keywords: aboriginal rights; land claims; oral traditions; anthropological evidence
On December 11, 1997, the Supreme Court of Canada issued it's landmark decision on the claim to Aboriginal title and self government made by the Hereditary Chiefs of the Gitksan and Wet'suwet'en Nations. The Supreme Court's Reasons for judgement in the Delgamuukw case have major implications for the lives of Aboriginal people living in British Columbia, where Aboriginal title to the land has never been extinguished (McNeil 1997:134), and has set the political stage for re-defining the fundamental relationship between the Canadian state and Aboriginal peoples. The judgement pronounces upon the value of social sciences, and defines much of the territory within which future social science research will be conducted.
Contrary to popular criticism after judgement day (i.e.: editorials in the Vancouver Sun 20 Dec 1997 & Vancouver Courier 15 Feb 1998) these decisions of the Supreme Court of Canada have not been made in isolation. The courts have responded to the long standing political and legal limbo in which Aboriginal people in Canada have been held by self-serving, paternalistic Federal and Provincial governments (Boldt and Long 1985). The judges have also rendered their decision in the context of western legal narratives, oral and historical traditions of Aboriginal people, and a discourse of social science which is engaged in constructing, testifying to, and critiquing these narratives. To appreciate the implications of this judgement the discourse surrounding Aboriginal rights and title issues in Canada must be explored.
This essay will review the literature around Aboriginal rights and title in Canada, looking at the interface of the social sciences and law. I wish to chart the course that these diverse discourses have taken in breaking the waters for the Supreme Courts' Delgamuukw decision. Being an anthropologist, I take as a focus the particular wake anthropology has made. This essay is divided into five major sections. The first is a brief summary of the Delgamuukw decision, focussing on the majority judgement of Chief Justice Lamer. The next section investigates the nature of the kinds of evidence which Lamer has come to accept as valid and that which was rejected, specifically oral histories and anthropological testimony. I provide a critique of the court's conception of these kinds of knowledge, and consider the theoretical and political difficulties inherent in using oral histories and anthropological evidence in a adversarial legal setting.
The third section examines the definitions of the nature and scope of Aboriginal rights and title which have been established by the court. These definitions have been challenged by the legal and social science communities as being static and ethnocentric. Suggestions are made for how they should be reconsidered within the legal framework of the Canadian Constitution. Specific legal tests have been developed out of these conceptualizations of Aboriginal rights, which have also been challenged and responded to by legal and social science scholars. In examining the responses to these tests, the need for the development of more refined methods and theory in anthropology becomes apparent. The fourth section looks at the political power the Supreme Court has given the Crown in infringing on Aboriginal rights, and to the responses that Aboriginal people have mounted to these challenges. Again, anthropologists have been at the forefront in providing evidence used to protect Aboriginal rights from these infringements.
Finally, I briefly review how Aboriginal rights and title issues have been argued outside the court, in the implementation of resource management, economic development and treaty negotiations. Anthropology has had a key role to play in facilitating communications over the cultural divide that Aboriginal people are faced with bridging in their efforts towards greater self-determination. I hope that on the way to the end of this essay, I will have provided something of a guide for anthropologists pursuing Aboriginal rights and title research. I hope that by critically outlining both the theoretical and methodological playing fields, that future anthropological discourse will be tuned to the current legal situation of Aboriginal rights and title in Canada.
Delgamuukw: Judgement Day
The Supreme Court of Canada's majority decision in Delgamuukw was written by Chief Justice Lamer. He had the complete concurrence of four of the other seven judges, the other two taking him to task on some of the finer points of law. Chief Justice Lamer has been central in defining the nature and scope of Aboriginal rights at the end of this century. He has authored decisions in other important Aboriginal rights cases including R. v. Van der Peet ( 4 C.N.L.R. 177), R. v. Gladstone ( 4 C.N.L.R. 65), R. v. N.T.C. Smokehouse ( 4 C.N.L.R. 672), R. v. Adams ( 4 C.N.L.R. 1), R. v. Pamajewon ( 4 C.N.L.R. 164), and R. v. Côté ( 4 C.N.L.R. 26). In a sense, Chief Justice Lamer should be considered an author, participating in a discourse around how the relationship between Aboriginal peoples and the state should unfold. The difference, as I will point out, is that as Chief Justice, Lamer is a uniquely powerful voice in the discourse. His writing, unlike the academics who publish in scholarly journals, or the Aboriginal people who make speeches in their communities and to the government, clarifies the law of the land in Canada. When Lamer writes, government officials, elected politicians, Aboriginal leaders, practising lawyers, newspaper columnists, business leaders, and academic scholars all perk up and listen, adjusting their lives accordingly. So I begin this review by perking my ears up to Lamer's Reason's for Judgement and posing some questions to consider in the review of the larger, though somewhat less powerful discourse which follows.
After reviewing the facts of the case, and the decisions made in the courts below him, Chief Justice Lamer had five major points of analysis: (1) can the appeal from the BC Appeal Court be considered by the Supreme Court of Canada? (2) how may the facts of Aboriginal rights and title cases be interpreted? (3) what is the content and requirements for proof of Aboriginal title? (4) what can be made of the arguments for self-government? (5) can the Province extinguish Aboriginal title? The first point and last two can be dispensed with very briefly here. On the first point, the appeal could not be considered because the appellants had changed their suit from one of 'ownership' and 'jurisdiction' to one of 'Aboriginal rights' and 'self government' (Lamer CJ., Delgamuukw  1 C.N.L.R. 44). Thus, the case was sent back to trial and the Gitksan and Wet'suwet'en were left to either negotiate a settlement with the Provincial and Federal governments or bring another costly case to trial (the first trial was supposed to have costed somewhere in the order of $25 million (Asch and Bell 1994:533)). In his fourth point, Lamer reasoned that the claims made for self-government were too general, and thus could not be considered by the courts (Lamer CJ., Delgamuukw  1 C.N.L.R. 80). On the last point, the Province clearly, with reference to previous case law, common law, and the Canadian Constitution has no jurisdiction to extinguish Aboriginal title (ibid., 81-86). The questions of the interpretation of the facts presented and the content and proof of Aboriginal title, however, engage more directly the broader discourse of Aboriginal rights and title and must be looked at more closely.
Interpreting the Facts: Oral Histories, Life Stories, and Anthropology
In his consideration of the issues of the interpretation of facts of Aboriginal rights and title cases, Lamer consistently holds that the courts must consider equally the perspectives of the common law and of Aboriginal people themselves in assessing the evidence given (ibid., 50). So, in offering a broad admission of evidence to the courts, Lamer is willing to listen to and "come to terms with the oral histories of Aboriginal societies, which for many Aboriginal Nations, are the only record of their past" (ibid., 48). Lamer recognizes that oral histories both embody historical knowledge and express cultural values, and sees some difficulty in treating such evidence under the strict rules of a torts law court (ibid., 49). Thus, when the Gitksan presented their adaawk, and the Wet'suwet'en presented their kungax, these must be thought of as Aboriginal common law, and constitute acceptable evidence for a claim to Aboriginal title (ibid., 52-3). The testimony of personal reminiscences of land use is acceptable to the courts as evidence of physical occupancy of the land (ibid., 53-4).
Other types of evidence did not fair so well in Lamer's judgement. Though Lamer completely reversed BC Supreme Court Chief Justice Alan McEachern's controversial views on oral histories, he did not challenge McEachern's 'hotly contested' interpretation of the anthropological testimony: "I need only reiterate what I have stated above, that findings of credibility, including credibility of expert witnesses, are for the trial judge to make, and should warrant considerable deference from appellate courts" (ibid., 51). Lamer also suggests that oral histories may be the only credible account of pre-sovereignty title or pre-contact rights (Ibid., 48). Given that Lamer did not challenge McEachern, and that he suspects that oral histories are the only credible records of the past, the roll of anthropologists, archaeologists, linguists, and historians are put into serious question for future litigation.
Content of Aboriginal Title
On the question of the content of Aboriginal title, Lamer provides the first clear, definitive legal definition. Aboriginal title is a sui generis right in land, something between fee simple title and a personal and usufructuary right (ibid., 57). Aboriginal title in inalienable, except to the Crown (ibid., 58). Aboriginal title has its legal source in prior occupation of the land (ibid., 58). Aboriginal title is held communally, not by any one member of an Aboriginal Nation (ibid., 59). Although Aboriginal title is a right in land, and not tied to any particular 'Aboriginal use', there is an inherent limit on the possible uses that can be made of the land: "... if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship" (ibid., 63). Finally, Aboriginal title may be infringed on by either provincial or federal governments if the infringement satisfies a compelling legislative objective, including for example the "development of agriculture, forestry, mining, hydroelectric power, ... general economic development, ...the protection of the environment or endangered species, the building of infrastructure, and so on (ibid., 78). If there is to be an infringement on Aboriginal title the government must recognize its fiduciary relationship with Aboriginal people, and ensure that there is as little infringement as possible, that fair compensation is made available and that the Aboriginal group has been consulted (ibid., 78-9).
Proof of Aboriginal Title
To establish proof of Aboriginal title, Lamer outlined a three point legal test, which he adds to his previous test for Aboriginal rights (Lamer CJ., Van der Peet  4 C.N.L.R. 177). (1) The claimant must first prove occupancy at time of sovereignty. This is a major distinction from the Van der Peet test, which requires the claimant to prove that the practice or custom being claimed as an Aboriginal right was integral to their distinctive culture at the time of contact. With the Delgamuukw test, it is assumed that if the land is occupied, then it is integral to the distinctive culture (Lamer CJ., Delgamuukw  1 C.N.L.R. 69). (2) The second aspect of the test requires the claimants to show that there is continuity with present and pre-sovereignty occupation. This evidence does not have to prove conclusively that there is an unbroken chain of continuity, but rather that the present occupancy is rooted in the past. This occupancy may be shown through both physical evidence on the ground, such as houses, enclosed fields or regular exploitation of resources and Aboriginal laws which govern the area claimed under Aboriginal title (ibid., 72). (3) Finally, the test requires that the claimant show that occupancy is exclusive to the group claiming the land. This exclusivity of occupation is conceived by Lamer as one in which others might trespass on the land, or one where an Aboriginal Nation give permission for their territory to be shared. The fact that the exclusivity could be enforced on the land is the important point for Lamer (ibid., 73).
This decision has obvious importance to the scholars who support their struggles for Aboriginal rights and title. Following the order of analysis that Lamer provided in his judgement, I will now review the discourse which surrounds his analyses of the kinds of evidence which can be considered in Aboriginal rights and title claims, the nature and content of Aboriginal title, and the tests which must be met to make rights and title claims. Lamer's ruling has conceptual difficulties which have gone unheeded, and has swept aside important issues of interpretation. Even thus flawed, the consequences of this decision has clear implications for the continued relationship between Aboriginal people and the Canadian state.
Evidence and Techniques: The Practice of Oral Tradition and Anthropology in the Courtroom
Lamer's explicit overturning of BC Supreme Court Chief Justice Alan McEachern's ruling on the use of oral traditions for claims to Aboriginal rights and title is a highly significant mark in judicial history, even making the cover page of The New York Times ('Canadian Indians Celebrate Vindication of Their History', 9 Feb 1998). The chiefs of the Gitksan and Wet'suwet'en Nations described in their opening statements to the court how the evidence of their oral histories was going to be presented to show the interconnectedness of the people to their land, and their laws (Wa & Uukw 1992). Speaking as chief of his house, Delgamuukw stated in his opening testimony:
My power is carried in my House's histories, songs, dances and crests. It is recreated at the Feast when the histories are told, the songs and dances are performed, and the crests are displayed. With the wealth that comes from respectful use of the territory, the House feeds the name of the Chief in the Feast Hall. In this way, the law, the Chief, the territory, and the Feast become one (Wa & Uukw 1992:7).
This had been rejected by McEachern as not having significant legal weight as 'fact', as determined by his reading of evidentiary law (McEachern CJ., Delgamuukw  185 B.C.S.C.).
The introduction of a significant body of oral tradition into the court record was a challenge to the judiciary. It presented the problem of dealing with Aboriginal societies on their own terms (Fortune 1993). Kew (1989:98) observes that this evidence was unique, as for a change "...it is given in the words and under direction of the people themselves. It is not a construction by outsiders". Though not seeing their presentation of history as a construction by outsiders, McEachern saw the oral histories of the Gitksan and Wet'suwet'en chiefs as their own construction, merely suited to support their land claim. After McEachern's 1991 decision, the reaction of scholars, lawyers and First Nations was swift and damning (Asch and Bell 1994; Cassidy 1992; Cruikshank 1992; Culhane 1998, 1992; Fisher 1992; Fortune 1993; Foster 1991; Henderson 1997; McLeod 1992; Miller 1992; Mills 1994a, 1994b; Monet and Skanu'u 1992; Ridington 1992; Slattery 1992). Monet and Skanu'u (1992), with cartoon illustrations as powerful in critique as the dismissive words of they judge they satire, document how poorly and disrespectfully these oral histories and the Aboriginal people presenting them were received by McEachern.
Though the acceptance of oral histories as a critical kind of evidence in Aboriginal rights and title claims has been solidified by the Supreme Court, Lamer has given little guidance in how these oral histories are to be interpreted. Understanding the how - in the Gitksan and Wet'suwet'en case - histories, songs, dances, crests and feasts form the customary laws which are the source of Aboriginal rights, is the task faced by the courts when such evidence is now presented. Fortune sees this as a profound challenge for the judiciary, for in presenting their oral histories to the courts, the chiefs have asked the law to examine and challenge how it sees and understands both history and law, so that claims to Aboriginal title can be considered on fair grounds (Fortune 1993). Looking at how courts have received oral histories in the past, it would seem that the judiciary is ill equipped to interpret and make fair judgements on a case based on history that is not their own (Fortune 1993:88). This is not a simple matter of learning history that one has never heard, but acknowledging the way history is embedded in different systems of knowledge and understanding it from the perspectives which First Nations people have come to know it.
At the most basic level, oral histories must be seen as "...cultural forms that organize perceptions about the world...", not merely containers of brute fact which may be laid on the table for judges to interpret in a 'common-sense' way (Cruikshank 1992:40). Cruikshank, an anthropologist widely respected for her work on native oral traditions, argues that neither oral traditions nor written documents 'speak for themselves', but must be understood in the context of their performance in native societies (Cruikshank 1992:31). They are deeply embedded in social processes where "the listener is part of the storytelling event... [being] expected to bring different life experiences to the story each time he or she hears it and to learn different things from it at each hearing. Rather than trying to spell out everything one needs to know, it compels the listener to think about ordinary experience in new ways... [and] requires a receptive audience." (Cruikshank 1992:34).
In the Delgamuukw trail judgement, McEachern was unable "to recognize the linkages among narrative, song, dance, and place". Chief Justice McEachern's attempt to understand oral histories based on 'common-sense' is, anthropologist Bruce Miller argues, "... part of what Bordieu calls the 'dominant discourse' which, relying on the 'common sense' of the layman, is by definition ethnocentric, over-simplified, and logically flawed." (Miller 1992:65).
Far from taking a naively common sense approach, Cruikshank points out that scholars commonly "pay more attention to the ways people use orally narrated accounts to talk about their past. More important than the search for a body or orally narrated texts deemed inaccurate within a restricted western discourse, they say, is the question of how historical consciousness is constructed in societies where essential knowledge has always been passed on by word of mouth." (Cruikshank 1992:38).
Even now that they have been accepted and valued by the judiciary, oral histories risk facing the 'hierarchy of truth' which judges have exhibited in the past, with scientific knowledge on top and Aboriginal knowledge far down the scale (Fortune 1993:116; Foster and Grove 1993:221). If judges adopt the approach of mainstream historians who see oral histories as brute containers of fact which can be mined for nuggets of truth, oral histories will be poorly understood and will not hold the power and value that they have for Aboriginal communities (Henderson 1997:48). Given these problems in interpreting oral histories, judges will likely continue to write the poor histories that they often have in the past when explaining their reasons for judgement in Aboriginal rights and title cases (Lane 1988:10).
Responding to the difficulty of understanding oral traditions in the legal system, Ridington asks us to see oral history as discourse, a discourse set in a very different social frame than court rooms and lawyers offices (Ridington 1990). This difference in discourse continues to produce a conflict of culture between Aboriginal people and the nation state. Ridington sees the meaning of oral histories as embedded in the experience of Aboriginal people. "The discourse of Native people is meaningful because they share a common and complementary point of view, a common time and place in the world, a common or complementary set of ideas about how to interpret experience, and a common responsibility to the land and its government" (Ridington 1990:276). Interpreting meaning into oral histories is not simply an open book for anyone to read. "Discourse", he states, "within such oral cultures is highly contextual and placed on complex, mutually understood (but often unstated) knowledge" (ibid.). This knowledge is widely distributed in small-scale societies, coded in "storied speech" evoked creatively and meaningfully on a mutually understood totality of common history, common knowledge, and common myth (Ridington 1990:278). Ridington's example of the Apsassin v. the Queen case where elder's testimony was dismissed by the judge as "wish being father to the thought", is a vivid example of this. When the listener hears oral histories from a very different perspective than what the tellers, then these oral histories will not and can not be meaningfully understood.
Though on the surface, it appears that Lamer has taken a radical departure in accepting oral histories as evidence in Aboriginal rights cases, the position is not entirely new (McLeod 1992), nor is it without some very important problems of interpretation. Standing at one side of the bench and opening their "sacred box" of histories, legends and systems of laws, Aboriginal people may find themselves continually faced with people on the other side who are ill-equipped to hear and understand what is being spoken. Unless the courts are really willing to engage Aboriginal societies, where truth is conceived of by somewhat different standards, (for example, "[f]or the Wet'suwet'en, it is entirely possible for a human to leave his or her body and to manifest him or herself as a bird or animal; for most westerners it is not". (Mills 1994b:73)), and customary laws are manifest in the practice of culture and tradition in communities, oral traditions alone may not provide sufficient evidence for Aboriginal common law to be understood in the courtrooms (or boardrooms) of the state. These concerns ring alarm bells with more conservative thinkers who see the acceptance of oral histories in the courts as a way for Aboriginal people to lie and deceive the judiciary in order to win their claims (i.e.: editorial, Vancouver Sun 19 Dec 1997). Those traditions that are accepted and reified as law risk alienating the counter-discourses that exist in Native communities. As codified laws, they may be inadequate to handle the kinds of complex social problem facing contemporary native communities (McDonnell 1992). Leaving aside for the moment notions of total native sovereignty, the common law practised in the oral traditions and institutions of Aboriginal people may be more readily understood by judges if they are placed in a wider discursive frame through the testimony of anthropologists and ethnohistorians.
It has long been the strategy since when Wilson Duff was asked in 1963 to present evidence in the R. v. White and Bob case, for Aboriginal people to utilize anthropologists to present a perspective on their culture and history in support of their rights. The strategy for entering anthropological testimony into the Delgamuukw trial record was to provide the context the judge needed to understand the oral histories being presented to him (Jackson 1994:xviii). The anthropologists themselves spent their time discussing the particulars of their argument, leaving their role as culture brokers implicit. McEachern dismissed anthropology as participant observation which was not credible, amounting to mere advocacy (Culhane 1998:30). Heedless of the outcry from the scholarly community, Lamer left McEachern's decisions of the credibility of the anthropologists up to the trial judge. Neither judge saw the anthropological testimony as reconciling two different world views when they were asked to comprehend another culture's concepts of history (Fortune 1993:89).
The most serious criticism of anthropology is that the practitioners are biassed advocates. I reviewed 14 Aboriginal rights and title cases which involved anthropological testimony (R. v. White and Bob; Calder v. R.; Baker Lake v. Indian Affairs; MacMillan Bloedel v. Mullin; R. v. Bear Island; R. v. Sparrow; R. v. Van der Peet; R. v. N.T.C. Smokehouse Ltd.; R. v. Gladstone; R. v. Côté; R. v. Adams; Delgamuukw v. R; R. v. Seward; and Apsassin v. R.). In the reasons for decision given by judges at various levels of trial and appeal where anthropology was cited, anthropological testimony was rejected as biassed advocacy four times(Baker Lake; Bear Island; Delgamuukw; Apsassin). This critique of anthropologists being advocates has been rejected by legal scholars and anthropologists alike. The essence of this response is summed by Storrow and Bryant who have pointed out that the "contradiction inherent in these statements [made of anthropology in Bear Island and Baker Lake]... lies in the inability to obtain compellable evidence otherwise... To disregard evidence because a witness has become submerged in a native culture presumes that the cultural experience perverts the evidence itself" (Storrow and Bryant 1992:186).
As a solution to the problem of accepting or rejecting anthropological evidence, Culhane has argued that it "behoves the judiciary to at least respect the criteria for credibility adopted by the academic institutions of their own culture" (Culhane 1998:289). However, this would only be an admissible process in law if the academy intervened in the case or the appeal, claiming that there had been a substantial misinterpretation of the facts. There were no such interventions from the academy in the Delgamuukw appeals so the courts did not seriously consider a review. Courts can claim to not engage in academic debates, as legal procedure dictates that arguments must be made in the courtroom, with only 'facts of law' being able to be taken into account from beyond these chambers. (Of course, judges do have the powerful privilege of judicial notice, which allows them to take into account things deemed to be of common public knowledge.) Clearly then, the usefulness and importance of participant observation methodology to successful social science research must at the least be made clear during testifying (Kew 1994:xiv). Academics may have done a great service to the communities they study had they actively engaged as interveners in the appeal on the grounds that the trail judge had misinterpreted the facts.
Another critique of anthropology has been simply that the kind of testimony presented simply does not speak to the judge, who is thinking about the case from an entirely different perspective. One can see from Hugh Brody's experience as an expert witness in Apsassin v. R., the anthropologist is not in an ideal position to make his or her arguments:
"When I got on the stand, I was led by Art [council for the Dunne-za], very skilfully, through what it was I had to say about leadership and decision making, and as always, when talking about these things, I got excited about it. Enthusiastic. ... So I tried to take him, as it were, through a hunting trip. I tried to take him out hunting by telling him a typical hunting trip story, and as I remember it, I told it very fully, and at considerable length, and with a great deal of excitement... So, far from managing to take the judge on a hunting trip, far from succeeding in bringing him into some sort of connection with Dunne-za culture and thinking, I managed to alienate him, I think very deeply. And when I read his judgement, that suspicion was somewhat confirmed. I mean, he dismissed my evidence, sort of out of hand." (in Ridington 1990:285)
Mills and Daly also alienated McEachern with their evidence presented in Delgamuukw. They attempted to present Gitksan and Wet'suwet'en knowledge systems, through presenting how feasting is integrated with Aboriginal law. However, in Daly's characterization of the Gitksan connection to the land as being "part of the living organism which is the earth...subject to the changes that the earth brings to all its creations and substances" (Daly 1988:5), he steps away from the kind of knowledge-sharing that could be appreciated by a fact seeking, truth valuing judge, using language that is more mystical than scientific. Mills tries to bring an understand of the connection between the land and the Wet'suwet'en people in symbolic terms: "Passing it [beaver meat] out to everyone reaffirms that the land that it came from belongs to that clan and to its high chiefs" (Mills 1994a:61). Though an interesting and useful analysis in an anthropological discourse, symbolic statements like this can alienate, rather than bridge understandings of other systems of knowledge in a judge who may not value these connections.
Brody critiques the court 'set-up' as being "terribly at odds with Dunne-za/Cree and other hunter-gatherer and probably all other Indian cultures", in "the extent to which the court procedure is a game... [L]awyers for the Crown, when cross-examining, or all lawyers when cross-examining, neither trust nor mistrust. It hasn't anything to do with believing or not believing. It's simply a game that's being played with facts - with arguments. The job of a cross-examining lawyer is to discomfort, to unsettle, to confuse." (in Ridington 1990:286). From Brody's experience it is clear that if anthropologists are going to continue to participate in the endeavour of providing expert testimony in the courts, they must make efforts to understand their audience, and present their evidence in a discourse which is both professionally rigorous, yet satisfying to the judge who may not share the theoretical background held by the discipline. Foster and Grove have suggested that one way to get around this 'set-up' is to have experts collaborate and submit joint reports, or to have court-appointed researchers submit expert witness testimony (Foster & Grove 1993:224).
In the cases where anthropology has been rejected as valid evidence, the judiciary has been left to come up with their own understanding of the cultural and historical context given to argue the case. The rejected and theoretically antiquated anthropology in Delgamuukw was replaced by one of McEachern's own making, where he characterized the lives of people in historic Gitksan and Wet'suwet'en societies as 'nasty, brutish and short' (Cruikshank 1992:25). In Bear Island, trial judge Steele wrote his own history of the Anishnabay/Tamagami using his powers of judicial notice (McNeil 1992). This history ignored many problems in the data and suited the bias the judge had against the claim being made. When the Supreme Court rejected Steele's version of history, it was the first time that the judiciary acknowledged "...openly that a legal outcome may rest on a question of historical interpretation" (Fortune 1993:1988). Lane outlines another case where the judge felt he was competent in assessing the facts presented by the Aboriginal claimants and did not admit any expert testimony at all. He then ruled on the case making judgements about facts which were in error and which had inconsistences "which would have been pointed out by an expert witness" (Lane 1988:18).
Most judges have not had expert training in the social or historical sciences, nor have many of them spent a great deal of time in the Aboriginal communities they are trying. Anthropology claims as one of its hallmarks that it can provide a perspective on 'other' cultures that make them reconcilable or at least understandable with our own - 'our own' being shared with the judiciary. This is not a simple 'common-sense' endeavour, however. Anthropologists go through their ritual of doing years of course work, going into the field for a period of time, and writing up a dissertation. That is the beginning of a career. A respected anthropologist makes a life work of this project. So how can judges becomes experts in social science, history and Native culture in the course of a single trial? Anthropologist Barbara Lane, who has testified in many Aboriginal rights court cases herself, emphasizes the importance of anthropologists and historians to interpret oral testimonies and documents where "[t]he judge may not possess sufficient or sufficiently accurate information regarding the particular Indian culture of the relations between Indians and non-Indians at the relevant time and place." (Lane 1988:11). At the outset, it seems that anthropologists have been a miserable failure at getting across in the space of a trail, some of the disciples basic concepts. It is clear that both as a practice, both the concepts and the styles of making them clear must be reassessed.
Anthropology presented in the courts draws on the concepts of culture and ethnocentrism to place the information on the history and practices of Aboriginal people in contrast with that of dominant western society (Cruikshank 1992). These concepts have been mistaken by the courts as bias. However, failure to take these concepts into perspective has left the judiciary with their own faulty notions. As pointed out by Ridington, (1992:16) McEachern was "critically unaware of his own bias" as to 'primitive' cultures and 'civilized' cultures, one being less evolved (and thus with less rights) than the other. Anthropology, Ridington suggests, "begins with an assumption that Aboriginal people have evolved complex and meaningful adaptations to their environment...[and]... assumes that culture is a dynamic and living entity that continues to change and adapt to changing circumstances." McEachern (and in turn Lamer) mistook this acceptance as bias on the part of the anthropologists testifying on behalf of the plaintiffs. Other underlying assumptions Ridington uncovered in McEachern's judgement include that primitive societies naturally (and necessarily) evolve to superior, civilized ones, and the latter have the right to dominate the former (1992:17) and have greater right to 'unused' resources (1992:12), and that primitive societies are unorganized and don't use the extent of the land (1992:18-19).
Testifying for the Crown or an Aboriginal group involves making a political decision. There are moral and intellectual burdens in doing work that will end up in litigation, or in the area of social impact assessments which are inevitably adversarial (Kew 1993/4:94-5). Ultimately, researchers have to choose which side of the fence they will be on. To deal with this, Dyck has given anthropologists clear direction that 'telling it like it is' about Native communities is a more powerful, substantial position than self-censorship in anthropological writing and testimony (Dyck 1993). Foster and Grove consider in considerable detail the ethical choices researchers must make in working on Aboriginal rights and title cases. Their recommendations also emphasize the importance of being credible, regardless of what ethical stance one thinks they may be taking (Foster & Grove 1993:232). Asch questions if anthropology is ready to credibly engage this political realm (Asch 1983). Anthropology presented in the courts on the basis of very brief field work is particularly weak. He suggests that to engage in political spheres, we must build the discipline both theoretically and methodologically (Asch 1983:209).
To get over the hurdle of ethics, rigour is more the key than 'objectivity' or 'ethical accountability' (Asch and Bell 1994:547). In my review of 14 cases, judges accepted anthropological expert testimony, figured it as critical evidence in their decision, and found on the basis of that evidence weighed in favour of the Aboriginal claimants 20 times (out of a total of 30 judges who cited anthropological evidence in the following cases: White & Bob; Calder; MacMillan Bloedel; Sparrow; Van der Peet; N.T.C. Smokehouse; Gladstone; Côté; Adams; Seward). It should be noted that in many of these cases, the final ruling was made on legal and not factual grounds. This is an overwhelming support of anthropological expert testimony.
Experts such as Suttles, Duff and Trigger who have successfully testified in these cases have had long histories of professional relationships with the communities, and have established academic credentials. The evidence they relied on was mostly a materialist, economic anthropology, with much less weight being given to symbolic anthropology or cultural evolutionary theory. In every case, ethnohistoric evidence was critical. In both White & Bob and Calder, Berger (the council for the Aboriginal groups) characterizes Duff's contribution as critical, based on "his profound knowledge of Indian ideas of tribal title, and the fact that those ideas were not moribund, but still informed Indian notions of their own past and present" (Berger 1981:49). In Sparrow, Gladstone and Seward, Wayne Suttles was recognized as an "eminent scholar... [with] extensive academic fieldwork in the Northwest Coast...[with] a large number of publications to his credit" (Pryce 1992:36). In MacMillan Bloedel v. Mullin, Arcas Archaeological consultants were hired by the logging company to investigate Aboriginal use of the forest on Meares Island. The judge was impressed by the impartiality of their evidence for extensive use of the forest by the Nuu-chah-nulth: "It is an independent study and an impressive study. I see nothing to indicate that the authors were influenced by the source of their instructions" (Seaton J., MacMillan Bloedel  1 C.N.L.R. p. 66). These examples, among others, are arguably the rigorous perspectives needed for successful litigation, at least as long as they continue to be in keeping with the dominant culture's own materialist, economic 'common-sense' models for understanding society.
Though much anthropological testimony has been successfully argued in the courts (not being dismissed as mere advocacy), a troubling trend can be seen. Again, reviewing the 14 cases cited earlier, there were 6 instances (out of 30 judges citing anthropological evidence) where judges accepted anthropological testimony, yet found the facts ruled against the Aboriginal claimants (this occurred in the following cases: Calder; Baker Lake; Van der Peet; N.T.C. Smokehouse; Côté). In the last two cases listed, the judges found inadequate ethnohistorical evidence to conclude definitively in favour of the existence of an Aboriginal right (though sufficient evidence was found by four judges at higher levels in N.T.C. Smokehouse and in by one judge above and one below in Côté). Of the remaining cases, judges use cultural evolutionary models as evidence to find against Aboriginal people.
In Calder, though the trial court found the evidence presented by Duff credible (Berger 1981:62), the BC Supreme Court judge found that on the evidence the Nisga'a were too primitive to have had a system of property ownership analogous to English common law property ownership (Gould J., Calder  8 D.L.R. (3d), 59). This was later overturned by Hall's dissenting opinion at the Supreme Court who stated that "...the Nishgas in fact are, and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law, having, in the words of Dr. Duff, 'developed their culture to higher peaks in many respects than in any other part of the continent north of Mexico'" (Hall J., Calder  D.L.R. (3d), 145).
In Baker Lake, the Federal Court of Canada (rejecting the social science evidence of Usher as advocacy and Freeman as inconsistent with the facts established by archaeologists Harp and Wright), accepted the cultural evolutionary models presented to them by the archaeologists arguing for both the Crown and the Inuit, on the point where they both agreed - that the Inuit were very low on the cultural evolutionary scale (Mahoney J., Baker Lake  1 F.C.T.D. 518). Combined with the evidence of biologists who presented scientific evidence which questioned the effect of the contested mining on caribou herds, the judge "preferred to rely on his own 'common sense' interpretation of Native testimony, supported by carefully chosen 'factual' confirmation by 'ordinary white people,' and professionals selectively labelled 'scientists'" (Culhane 1998:95).
Again, a simple model of cultural evolution was debated in Van der Peet where Crown witnesses Stryd (an archaeologist) and Dewhirst (an anthropologist) argued the Stó:lô were band-level societies which could not have had regularized trade other than ceremonial or opportunistic exchanges. Daly, an anthropologist called as expert witness for the Stó:lô argued the Stó:lô were a tribal-level society, with all the trappings of a market economy which are associated with such. All of the experts had very limited experiences in the Stó:lô community, and relied on theoretical assumptions which dominated (though seriously critiqued) the archaeological literature of the day. Hudson notes that "what was being argued about were interpretations of Marshall Sahlins' book, Stone Age Economics, and that the courtroom was an awkward place for such a debate" (Hudson 1990:33). These evolutionary models were clearly inadequate to describe the social organization of the Stó:lô, a complex Northwest Coast society. However, the evidence was upheld by the majority of judges at the Supreme Court, lead by Lamer who is reluctant to re-evaluate findings of fact by trial judges. Justices L'Heureux-Dubé and McLachlin both provided dissenting opinions which saw the evidence as being clearly in favour of there being an Aboriginal right to sell fish, criticising the trial judge for making "no findings of fact, or insufficient findings of fact, as regards to the Stó:lô's distinctive Aboriginal culture relating to the sale, trade and barter of fish".
Kew cautions that we must not assume that "courts, any more than the public, will reject anthropological or other theories and conclusions because they have been discredited within the discipline" (Kew 1993/4:93-4). These cultural evolutionary models were used uncritically on the witness stand, long after being rejected in the larger anthropological discourse. In fact, judges who refuse to consider anthropological testimony have invoked cultural evolutionary models to dismiss Aboriginal rights and title claims. Steele J. did just this in Bear Island where he found that "the defendants have failed to prove that their ancestors were an organized band level of society" (Steele J., Bear Island  15 D.L.R. (4th) 373). Like the primarily symbolic interpretations which failed to reach out to judges as valid 'objective' evidence, evolutionary models fail to provide adequate context for the kinds of particularistic, historic understandings of Aboriginal societies the courts need to make fair judgements.
Regardless of the theoretical or methodological rigour with which the expert witnesses testify, there are broader politics which become a factor in the decisions made by the judiciary. Culhane has suggested that the court ruled against the Stó:lô in Van der Peet because of the many competing interests for sockeye, while awarding a judgement in favour of the Heltsiuk in Gladstone because there was no competing interests for commercial hearing roe (Culhane 1998:342). This political element is born out in part by the Supreme Court decision in Sparrow. In considering whether an Aboriginal right to fish is a right to commercially fish, the Chief Justice recognized Aboriginal bartering by the Musqueam (who share the same watershed, language and culture as the Stó:lô) as possibly being a commercial right. However, the "presence of numerous interveners representing commercial fishing interests, and the suggestion on the facts that the net length restriction is at least in part related to the probably commercial use of fish caught under the Musqueam food fishing licence, indicate the possibility of conflict between Aboriginal fishing and the competitive commercial fishery with respect to economically valuable fish such as salmon" (Dickson, CJ., Sparrow  1 S.C.R. 1100-1101). The Supreme Court left the matter undecided given that it was not the question put before them in the case. While there may have been some difference in the quality of expert testimony given in these cases, it is clear that one of the major factors may continue to be the political implications of ruling in favour of controversial Aboriginal rights.
Anthropologists have a moral obligation to watch how their discourse is being interpreted by the courts, and protest within the system in cases where it has been grossly mis-used or mis-understood. After McEachern's dismissal of anthropological testimony in Delgamuukw, the Canadian Anthropological Association considered becoming an intervener in the appeal to the Supreme Court (Mills 1994a:191, note 4). If they had, filed as an intervener, contesting how McEachern interpreted the expert testimony presented, Lamer would have had to consider the original material more carefully. As it stands, no professional organization of anthropologists have become interveners in a case where the anthropological testimony is obviously mis-understood by the trial or lower appeal court judges, and like in the recent suite of cases handed down by the Supreme Court (i.e., Van der Peet, N.T.C. Smokehouse, Delgamuukw), the dismissive opinion of the trial judge has held.
Future Use of Evidence
Delgamuukw has opened the door for Aboriginal rights to be defended on new evidentiary territory. By accepting oral histories as key in defining Aboriginal common law, Canadian society now has the option of embracing the social and political processes which surround and embed oral histories, and give them their meaning and significance: "[f]or Native societies, the oral format is itself the embodiment of their history, in addition, the telling of history is usually accompanied by what might be termed a 'public ceremony' with the attendant gravity that such a forum suggests" (Fortune 1993:92). This opens the way for dramatically different interface of the customary laws of Aboriginal people and those of the dominant Canadian society (Fortune 1993:96). The law must indeed expand its terms, or it will simply continue to suppress and subjugate dissenting voices in Native communities. But how exactly this opening of the law to "respond to culturally different priorities, interpretations and realities" will work is an open question (ibid.). It brings forward the political nature of the customary laws of Aboriginal people, and how oral traditions continue to be used to give meaning to a multiple perspectives in any native communities.
Anthropologist Jo-Anne Fiske asks "who in the First Nation will be empowered to verify traditional rights? Will the careful avoidance of coding traditional law be undermined as the dominant courts unilaterally assume the right to do the opposite?" (Fiske 1997/8:288). She has seen the process of reasserting customary laws in Aboriginal communities and comments that in doing this "internal battles among Aboriginal people over the exercise of traditional authority" (ibid.) come into being. This new class of lawmakers would construe law which "...is likely to reflect conflict and institutional change within the shifting formations of Aboriginal nations" and it is they who will be "in a position to exclude the possibility of alternative meanings and other discourses that might arise within their communities" (Fiske 1997/8:287-8).
Fiske accounts how the customary laws of Aboriginal people continue to be subjugated through the powerful and privileged discourse of western law (Fiske 1997/8). Historical narratives of missionaries and colonial functionaries show that early in the colonization of British Columbia, "Indian Law" as practised in the feast houses of Aboriginal communities were assaulted by Christian laws then laws of the colonial magistrates. The Aboriginal laws, which were de-legalized, became the inflexible, exotic tales recorded by salvage ethnographers as oral traditions, social custom and moral obligation (Fiske 1997/8:285-6). She reiterates the concern that today, when oral histories are being used by Aboriginal people to assert their rights from their own perspectives, they risk becoming a "reified 'truth discourse' devoid of the flexibility and process inherent to the legal order [discourse] from which it emerged" (Fiske 1997/8:288).
An example of this can be seen in the issue of Aboriginal forestry right in New Brunswick. Aboriginal leaders are negotiating for commercial logging rights with the New Brunswick government. Loggers in the Aboriginal communities are at odds with their own governments and demand to negotiate directly with the government for their rights (CBC Radio News, 26 June 98). The outcome of how this division in the community will play out is yet to be seen, but it seems likely given the New Brunswick government's reluctance to negotiate with the loggers, the views of the Aboriginal government will become the dominant discourse. Where consensus in leadership may previously have been the norm, the subjugation of native laws to western standards perpetuates and entrenches community factions.
Another problem emerges when societies who have undergone years of assimilation and language loss come to present their case for Aboriginal title in the courts. Not every Aboriginal community has remembered their adaawk. Culhane observes that "the rights of different First Nations, with diverse histories of relationships with academics - particularly archaeologists and historic ethnographers - could be determined by the presence or absence, reliability or weakness, of the academic record" (Culhane 1998:341). In fact, the potency of this observation is highlighted by Lamer's decision, which keeps expert witnesses in a limbo and promotes oral histories as highly credible, if not the only, admissible evidence for pre-sovereignty occupation. If there has been massive language loss, depopulation or urbanization - all results of colonial processes which Aboriginal people are struggling to reconcile with the state - oral histories may not exist in the communities to substantiate their legitimate claims to Aboriginal title or rights.
Given that it does not seem likely in the immediate future for the law to be put entirely back into native communities, claims for Aboriginal rights and title will continue to be played out in the courts. The acceptance of oral histories into these courts have opened the difficulties of communicating across the rift of entirely different cultural discourses - those of the many and diverse Native communities and those of the Canadian judiciary. Can the judges, who do not come from these communities, or have many experiences in them, be expected to readily grasp the complex and deeply embedded meanings given in oral traditions? Anthropology is the discipline which has developed around bridging understandings between communities and cultures, and thus is in a good position to facilitate unpacking these meanings in judicial settings.
Defining Aboriginal Rights
Since the failure of four constitutional conferences and the Charlottetown accord, the judiciary has become the main source for definitions of Aboriginal rights and title in Canada (Borrows 1998:38). However, First Nations have clearly articulated that they have been excluded from defining concepts of Aboriginal rights and title, particularly in the courts (see also Boldt and Long 1985; Cassidy 1992). Wet'suwet'en leader Don Ryan has stated it clearly:
Canada has held the racist view that Aboriginal people are primitive and are incapable of political, legal, historic, or economic thought... Canada has put a lot of energy towards making sure Aboriginal people never get involved in the development of legal principles of Aboriginal rights and title, especially in the courts and in parliament (Ryan 1994:xi)
Council Thomas Berger has reiterated these sentiments when he laments "Our profession has too often demonstrated an incapacity to understand the fact that the native people had well-developed and sophisticated concepts of legal regulations and legal rights." (Berger 1981:56). Moving between decisions based on racist legal precedent and building new precedent from contemporary socio-political values, these judges have constructed a set of meanings for how Aboriginal rights and title should be construed (Sanders 1990). In spite of the courts being immersed in a tradition of colonialist legal positivism, their expression of Aboriginal rights as sui generis rights have "embraced the native discourse of rights... not necessarily subject to orthodox reasoning via tests and doctrines developed in other areas of law" (Jhappan 1991:61).
In defining the source and nature of these sui generis Aboriginal rights and title, the courts have drawn up tests which must be met by Aboriginal people claiming those rights. The source and nature of the rights, and the burden of proof that must be met in the tests, all interface with concepts of culture. This articulation between how culture is conceived and the interpretation of law happens either implicitly through the judiciary's assumptions or explicitly through the facts presented to challenge the tests. Reviewing the literature around the definition of Aboriginal rights in Canada, there emerges a clear critique of these judicial assumptions and of the test required to substantiate claims to the rights. Other visions for defining Aboriginal rights emerge from this critique, but have not had the practical power of those which emanate from this country's courts.
Source and Nature of Aboriginal Rights & Title
The rights of Aboriginal peoples were recognized and affirmed in section 35(1) of the Canadian Constitution Act, 1982. However, the nature and extent of these rights is not further clarified in the Constitution, and has been a long standing question argued in the courts. Lamer clarified his powerful vision of the nature and extent of these rights in the Supreme Court's Van der Peet and Delgamuukw decisions. Essentially, rights and title emerge from the fact of prior occupation of the land: "when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional status" (Lamer CJ., in Van der Peet 4  C.N.L.R. 193). Flowing from Aboriginal peoples' prior occupation are the traditional laws and customs which make up the Aboriginal common law that is now protected by section 35(1) of the Canadian Constitution Act, 1982, and which must be reconciled with the British and French laws that came with claims to European sovereignty over Aboriginal territory (ibid. 199-200).
This source of Aboriginal rights and title has been historically debated, being variously argued as emerging contingently from some act of parliament (like, for instance, the like the 1889 Privy Council ruling in St. Catherine's Milling and Lumber Company v. The Queen that Aboriginal title was granted by the Royal Proclamation, 1763), or to be inherently connected to their having existed as autonomous societies prior to contact (Asch 1992:475-6) . The first argument has been roundly dismissed by both academics (Asch and Macklem 1991; Hall 1991; McNeil 1989; Slattery 1992), and the Supreme Courts' Sparrow, Van der Peet and Delgamuukw decisions, and will not be treated further here. The implications of the second argument continue to be debated.
Though Aboriginal rights have been given explicit recognition in the Constitution, the problem of the source of these rights remains unsettled. Theories of Aboriginal rights have been proposed from the perspective of international law (Jhappan 1992), as being part of natural rights handed to Aboriginal people by the Creator (Gormely 1984; Jhappan 1991). These perspectives are interesting, but have had little impact compared with the development of the recognition of Aboriginal rights on the domestic front. Both Jhappan and Barsh have documented Canadian Aboriginal strategies of appealing to the international community in support of their Aboriginal rights. Jhappan demonstrates that in the short term, lobbying international community has been successful in intervening with specific issues, but has had little impact in the long-term on domestic policies (Jhappan 1992). Barsh has suggested that Aboriginal communities in Northern Quebec who have stated they may declare unilateral self-determination upon the cession of Quebec from Canada, would likely not find support in the international community (Barsh 1997:22). Arguments for Aboriginal rights as natural rights have been integrated to a certain degree in the characterization of Aboriginal rights and title as sui generis or unique in law (Jhappan 1991). The question the domestic courts have left then is in their contradictory formulation of Aboriginal rights as alternately coming from prior occupation of the land or, as being an extension of Aboriginal common law.
Asch has argued that Aboriginal rights would best be envisioned as integral, allowing the Canadian government to build a society based on consociation, or the recognition of "the existence of various ethnonational collectives in its constitutional charter" (Asch 1990:95), thus explicitly acknowledging the right of Aboriginal peoples (and also Quebec) to self-determination (ibid. 99, see also Asch 1992, 1993a, 1993b). By taking this position of consociation, the state could not longer justify taking legal and political positions which deny Aboriginal rights by claiming they were abolished when sovereignty was asserted by European powers (Asch 1992:479-480). As the continued challenges to claims for Aboriginal rights in the courts demonstrates, the Crown has not yet explicitly acknowledged a consociation system. However, Slattery observes that in enshrining Aboriginal rights in the Constitution of 1982, the Crown has offered "...its protection to such peoples, accepted that they would retain their lands, as well as their political and cultural institutions and customary laws, unless the terms of treaties ruled this out or legislation was enacted to the contrary." (Slattery 1992:736). This, along side the continued debate over distinct society status for Quebec, suggests that there is an implicit consociation status embedded in the Canadian Constitution (Asch 1990). Asch and Smith see this explicit acknowledgement of multiple ethnonationals in Canada becoming explicit in the formation of Aboriginal self-government in Nunavut and Denendeh (Asch and Smith 1992).
Though Slattery sees Aboriginal rights as emerging from Aboriginal common law (Slattery 1992), McNeil observes that there has been an inconsistency in the statements of the Supreme Court on this matter (McNeil 1997). For instance, Judson, CJ. in Calder emphasises that Aboriginal title (a kind of Aboriginal right) lies in prior occupancy of the land, while Dickson, CJ. in Guerin argued that Aboriginal title emerges from Aboriginal systems of law (McNeil 1997:136). Stated another way, there is a big difference in how the courts have defined Aboriginal rights and title, one where they are construed very narrowly as emerging in the specific sites and practices of past societies, the other which views them broadly as a set of Aboriginal laws which have survived European assertions of sovereignty.
This situation has not been resolved by the recent Supreme Court decisions in Delgamuukw or Van der Peet, where Lamer acknowledges that Aboriginal title is derived both from "the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law... [arising] from possession before the assertion of British sovereignty" (Lamer CJ., Delgamuukw  1 C.N.L.R. p. 58), but while the dissenting judge McLaughlin argued that "Aboriginal rights find their source not in a magic moment of European contact, but in the traditional laws and customs of the Aboriginal people in question" (McLaughlin J., Van der Peet  4 C.N.L.R. p. 264). In accepting Lamer's majority position, the courts have frozen "the development of certain Aboriginal practices in the distance past" (Borrows 1998:57).
The implications of Lamer's view of rights as frozen in time have been criticized by McNeil (1997), Borrows (1998) and Cheng (1997). These authors have insisted that though the rights emerge from a unique historic situation they have the ability to change over time, as rights do in any society. McNeil argues that if taken seriously this frozen rights approach "... would condemn Aboriginal societies to extinction, as cultures which can not adapt to changing conditions are bound to disappear" (1997:151). Borrows (1998) examines a case where the Supreme Court takes this position very seriously. In Pamajewon ( 4 C.N.L.R. 164), an Ojibway people claimed a casino as an Aboriginal right which falls within the broad scope of their ability to be a self-determining nation. The claim was rejected because Ojibway traditional gambling was "not done on a twentieth century scale", a finding which Borrows finds unsurprising given that "not many activities in any society, prior to this century, took place on a twentieth-century scale" (Borrows 1998:54). Cheng comments that by limiting the recognition of Aboriginal rights to "merely continuing rights to discrete practices and customs, the court is in danger of reducing Aboriginality to a package of anthropological curiosities rather than manifestations of an Aboriginal rights to occupation, sovereignty and self-government" (Cheng 1997:432). Put another way, "the more state-like the Aboriginal claim... the less likely the Aboriginal claimants are to convince courts of their claim. The less familiar and more 'primitive' the claim, such as nonexclusive hunting and fishing rights, the more likely its success" (Korsmo 1996:73).
The notion that Lamer's conceptualization of Aboriginal rights freezes them in time, is also born out in the 'inherent limit' Lamer put on Aboriginal title in the Delgamuukw. Aboriginal title, for Lamer, is claimed because of a group's "special bond with the land because of its ceremonial or cultural significance"(Lamer, CJ., Delgamuukw  1 C.N.L.R. p. 63-4). This 'special bond' is broken if it is used in ways which "destroy that relationship", citing the example of turning an important place into a parking lot (ibid.). The Musqueam First Nation, as a measure to protect the last remnants of the oldest and largest village in their traditional territory, have turned the Marpole site into a parking lot beside the Fraser Arms Hotel. Have the Musqueam infringed on their Aboriginal title by making a sacred place into a parking lot? Does the Provincial Heritage legislation, which has guidelines that include 'capping' such sites to protect them, conflict with Musqueam's Aboriginal title to that important place? Without looking too literally at the example, I would suggest that the inherent limit to Aboriginal title, and the broader principles of frozen rights on which it is based, forces the two system of law to interact on unequal basis, with First Nations being left with limited means to demonstrate and exercise their rights as they choose.
Lamer's majority ruling in the Supreme Court's decisions of Van der Peet and Delgamuukw have clarified how an Aboriginal right or title may be extinguished. Essentially, extinguishment of an Aboriginal right occurs through agreement through treaty, or if the Crown can show that there has been legislation passed, prior to the enactment of the Canadian Constitution Act, 1982, that has the clear and plain intent of extinguishing these rights (Van der Peet p. 226). This later ability to extinguish Aboriginal rights is based on the thesis that the Crown acquired such a right when it became sovereign over the land when it was 'discovered'. This position has been critiqued as being ethnocentric by simply legalizing European constructions of history. (Doyle-Bedwell 1992). Under Lamer's ruling a strong right like one to sovereignty is "extinguished merely by the act of establishing a European regime, regardless of the original inhabitants and their thoughts, beliefs, and laws" (ibid.:202). Some legal scholars have suggested that type of power of extinguishment is an inappropriate view of the nature of Crown sovereignty, which is rather merely the vested or exclusive right to acquire native title. The Crown can not, under the later interpretation, unilaterally extinguish rights or title without the consent of and compensation to the Aboriginal community in question (Macklem 1991:406). Thus, Lamer is contradictory, by on one hand insisting on consultation and consultation in negotiating treaties, while on the other recognizing a sovereign right of the Crown to extinguish rights and title with clear and plain intent.
Federal and Provincial governments have pursued a policy which asks Aboriginal people to extinguish their general or undefined rights, for specific rights outlined in a treaty or settlement (Asch and Zlotkin 1997:213). When challenged in court, the Crown has also argued, as in Delgamuukw, that Aboriginal rights have been extinguished by prior laws (Foster 1991:345-7). Though the later position has been rejected by the Supreme Court for Aboriginal people in British Columbia through Delgamuukw on the basis of the strict historical test that extinguishment legislation must have 'clear and plain intent', the former position continues to be a central to the Crown's desire in negotiating treaties. For the Crown, this would create certainty and finality over the scope of particular Aboriginal rights and title. For instance, the relevant clause of the final agreement of the 1998 Nisga'a treaty, reads:
This agreement constitutes the full and final settlement in respect of the Aboriginal rights, including Aboriginal title, in Canada, of the Nisga'a Nation... The Nisga'a Nation releases Canada, British Columbia and all other persons from all claims, demands, actions and proceedings, of whatever kind, and whether known or unknown, that the Nisga'a Nation ever had, now has or may have in the future, relating to or arising from any act, or omission, before the effective date that may have affected or infringed any Aboriginal rights, including Aboriginal title... (quoted in Vancouver Sun, 22 July 1998, p. A2).
Asch and Zlotkin see the Crown's extinguishment policy as being antithetical to Aboriginal relationships to the land, which from Aboriginal perspectives "flows from the Creator... is inherent... is not something granted to Aboriginal people by an alien legal system [and is]... inextricably linked with their identity as Aboriginal people" (Asch and Zlotkin 1997:215). As such, many Aboriginal leaders would not accept the kind of extinguishment clauses sought by the Crown, favouring negotiations over "the manner in which Indian and non-Indian jurisdictions will accommodate each other" (ibid., 217). Asch and Zlotkin propose that seeking affirmation of rights and title, rather than extinguishment, would provide the certainty governments seek by establishing long-term, formal relations between Aboriginal and non-Aboriginal governments, thus challenging ethnocentric and unjust perspectives (ibid., 220). This important debate will certainly continue.
Tests for Proof of Aboriginal Rights and Title
In order to prove that an Aboriginal right or title exists, Lamer has set out a series of tests in the Delgamuukw and Van der Peet cases which require the Aboriginal claimant to satisfy the burden of proof. These court tests have drawn on precedence set in previous court decisions, but are modified to suit the now clarified nature and scope of Aboriginal rights and title. The current Van der Peet / Delgamuukw tests, as well as the tests previously set out by the courts to establish the existence of an Aboriginal right, are set out in the table below. These tests have determined to a large extent the kinds of evidence that experts witnesses are expected to bring forward when working on Aboriginal rights and title cases (Culhane 1998:99). As many of the current tests have their roots in precedence from old tests, many of the critiques of the tests themselves and the kinds of evidence presented remain are useful to review. Specific attention has been brought to problematic assumptions in these tests, and the data used to support them.
One of the fundamental problems which emerge from the first three components of the Van der Peet / Delgamuukw tests is the difficulty in reconciling the ideal of taking into account Aboriginal perspectives with the requirement for Aboriginal rights to be defined as specific, 'precise' practices, cultures and traditions integral to the distinctive Aboriginal cultures making the claims (Zalweski 1997:446). Zalweski argues, along with dissenting judges in Van der Peet McLachlin and L'Heureux-Dubé, that for Aboriginal perspectives to be taken into account "the courts would also have to examine the social structure and beliefs of that Aboriginal group" as "it is the laws and ideologies of Aboriginal groups, not mere practices to which those laws and ideologies give rise" that should be considered to fairly and respectfully protect Aboriginal rights (Zalweski 1997:451-2). Borrows concurs with Zalweski, taking issue with how each facet of the Van der Peet / Delgamuukw tests brings Aboriginal rights "more fully under the cultural assumptions of the common law... [establishing] non-Aboriginal characterizations of Aboriginality, evidence and law" (Borrows 1998:52).
|Van der Peet / Delgamuukw tests||Baker Lake / Bear Island / Sparrow tests|
|1||take into account the perspective of Aboriginal peoples themselves (VdP)||
be sensitive to the Aboriginal perspective itself on the meaning of the rights at stake (Sp)
|2||take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal people (VdP)|
|3||identify precisely the nature of the claim being made (VdP)||establish the nature of Aboriginal rights enjoyed at the relevant dates (1763 or coming of settlement) (BI)|
|4||ensure that the practice, custom or tradition is of central significance (VdP)||
establish that the claimed right constituted an integral part of their distinctive culture (Sp)
|5||ensure that the right is of independent significance to the Aboriginal culture in which it exists (VdP)|
|6||ensure that the cultural claim is distinctive to the Aboriginal culture, though it need not be distinct (VdP)|
|7||ensure that the cultural claims are those of which have continuity with those that existed prior to contact (VdP); claimants must show continuity with present and pre-sovereignty occupation (Del)||that the occupation was an established fact at the time sovereignty was asserted by England (BL); establish the continuity of the exclusive occupation to the date of the commencement of the action (BI)|
|8||adjudicate claims on a specific basis (VdP)||that the organized society occupied the specific territory over which they assert Aboriginal title (BL)|
|9||claimants must show exclusive occupancy, though shared exclusive occupancy may be considered (Del)||that the occupation was to the exclusion of other organized societies (BL) establish the fact that [the organized society] exercised exclusive occupation of the land claim area (BI)|
|10||ensure that the influence of European culture will only be relevant to the inquiry if it is demonstrated that the claim is only integral because of that influence (VdP)||[no equivalent]|
|11||approach rules of evidence in light of evidentiary difficulties inherent in adjudicating Aboriginal claims (VdP)||[no equivalent]|
|12||[no equivalent]||ensure that [the claimants] and their ancestors were members of an organized society (BL) / demonstrate the existence of an organized society or social organization (BI)|
Failure to take Aboriginal perspectives has been cited by Asch and Macklem as resulting in the courts not challenging Canadian sovereignty, making Aboriginal right 'contingent' on western laws (Asch and Macklem 1991:501). They argue that to respect an Aboriginal perspective, the courts must try to entertain Aboriginal sovereignty and self-government as 'inherent' Aboriginal rights protected under the Canadian Constitution Act, 1992 (1991:503). Asch and Macklem's inherent rights argument has been challenged with the critique that Aboriginal sovereignty has been extinguished by centuries of practice, and that "any recognition of Aboriginal sovereignty must take place within the existing legal and constitutional framework" (Isaac 1993:709), and that recognition must take the form of some kind of limited self-government.
Regardless of these difficulties, providing evidence which identifies the specific nature of the Aboriginal right, as well as taking into account Aboriginal perspectives will still be required in future rights and title cases. Careful, ethnohistoric and ethnographic documentation of Aboriginal practices, such as those presented by Suttles in Sparrow will prove useful to this task. John Cove suggested long before Delgamuukw, Sparrow or Van der Peet went to trial that studies which documented the cultural geography of Aboriginal people would be advantageously integrated with studies of cosmology, in an effort to build more holistic systems of land tenure that take Aboriginal perspectives into account when arguing in Aboriginal rights and title cases (Cove 1982).
The fourth, fifth and sixth Van der Peet / Delgamuukw tests revolve around the notion that the narrowly defined practice must be of central significance. These tests have been critiqued, like the tests set out in Sparrow before them, in that by accepting the notion that some cultural trait can be seen as being so critical (or integral) to the society that without it, the culture would be "fundamentally altered or other than what it is" (Zalweski 1997:444). Speculating what a culture would be like without one of its traits seems an almost impossible and fruitless task. Borrows sees this continuing use of the idea of practices which are 'integral' to a distinctive culture as having the "potential to reinforce stereotypes about Indians" as determining what is integral to Aboriginal societies "is steeped in questionable North American cultural images" (Borrows 1998:43, note 40).
After the Sparrow ruling, there had been optimism that taking into account practices that were integral to the Aboriginal cultures would be more respectful of Aboriginal perspectives on their own rights (Bowker 1995:2; Isaac 1993; Zalweski 1997:438). However, Sparrow did not clarify what was 'integral', what a 'distinctive culture' was, the time period in question, and the relevance of European influence, and thus failed "to give significance to the Aboriginal perspective that it purports to espouse" (Zalweski 1997:440). Bowker demonstrates this weakness in citing several decisions of the BC Court of Appeal that rejected otherwise strong cases for the protection of Aboriginal commercial fishing rights, on the basis of these vague Sparrow definitions (Bowker 1995). Such a rejection failed to take Aboriginal perspectives into question, as from the Aboriginal perspective, their rights included the right to engage in a commercial fishery.
Elias frames these questions as being a practical response to injunction cases, which "require a measure of extent and locus of injury resulting when competing interests interfere with Aboriginal people's use of resources and occupation of lands" (Elias 1993:244). He suggests that when arguing that an Aboriginal right is integral to the distinct society, harvest studies and household budgets could be used to show the integral nature of the resources acquired through the right to the economy and larger society (ibid). However, these studies have been conducted outside of the context of the courts (ie: Elberg, Hyman and Salisbury 1972; Usher 1971) in a much less systematic way than demanded by Elias (Asch 1983:207), and may not prove useful in establishing the integral nature of a cultural practice. Likely the most effective tool for this task is descriptive ethnography, which places cultural practices within the larger context society, with a keen attention to the historical contingencies which may have affected the nature and extent of the practice today.
The seventh test sets out the requirement that continuity must be shown between the group claiming the right or title and their ancestors at the time of contact or sovereignty. Borrows has critiqued this test for relying too much on "pre-contact practices [and] restricts contemporary Aboriginal development" (Borrows 1998:49). Finding incontestable evidence to satisfy this test can prove challenging, as the historic and ethnographic records are often scant in areas debated in the courts, such as Aboriginal law (Asch and Bell 1994). Elias proposes that well-documented kinship charts of the claimants, drawn as far back as the ethnohistoric data and oral histories permit, will provide sufficient evidence for this task (Elias 1993:256). However, this technique can be full of ambiguities (as are all genealogies) and may not at all reflect the changes an continuities in Aboriginal communities when drawn back even a few generations. Elias has also suggested that a description of the socio-cultural system of the claimants (possibly compiled from map biography work) would provide useful data to determine "whether the identified resources play a role in ... society consistent with their role in the past" (Elias 1993:261). In our work documenting traditional use of the land and resources for the Stó:lô Nation, Washbrook and I have argued that in looking for pre-contact or pre-sovereignty continuity between contemporary data, and historic records, ethnographies and the archaeological record, there are many gaps in the data which must be accounted for by historic processes (Washbrook and Thom 1997). The relaxed evidentiary standards noted in test eleven and discussed above make the integration of oral histories acceptable, but no less difficult to interpret.
Lamer's seventh test partially originates out of the Australian Mabo ruling. From this test, he envisions claimants showing "substantial maintenance of the connection between the people and the land" to establish title (Lamer, CJ., Delgamuukw  1 C.N.L.R. p.72). However, Lamer does not clarify a critical question about the content of this connection. Would the occasional berry picking of a few Elders be sufficient? Would telling the stories which embody the Aboriginal common law be acceptable? This vagueness leaves room for new approaches to be developed for this test. Here, I suggest, is where a theory of 'place' needs to be developed in relationship to how Aboriginal title is currently conceived. Drummond has done a nice job of describing how 'Nunavut' is a radical new conception of place, that has come to be accepted by Canadian institutions and governments (Drummond 1997). Her work builds on a much earlier thesis by Lester (1979) and Wonders (1987), who suggest that Inuit place-naming was a useful way to understand the rights claimed by the Inuit in their own terms, place names being a record of land use and occupancy and a common law means of possession of land.
The eighth test requires that claims be specific to the First Nation making the claim, not to Aboriginal people generally. This test reifies the notion that Aboriginal rights are site and resource specific (Borrows 1998:50), and are consistent with earlier tests which have required claimants to show use and occupancy of specific areas of land. Several methods of demonstrating occupancy have been completed, ranging from expert summary of traditional use and occupancy of the land to defining the symbolic relationship between the land, people and resources, to extensive map biographies, none of which may be completely satisfying (Weinstein 1993).
Strategies for showing use and occupancy have been employed in the courts since Calder, where Duff was asked to define the extent of Nisga'a land use. He responded by framing Nisga'a use in terms of territories recognized by other tribes, common uses of lands, territories owned by family groups, extensive use of lower and upper valleys and waterways for resources and trade. He concluded that "ownership of an entire drainage would be recognized as resting within one or other groups of Nishga Indians and these boundaries, this ownership would be respected by others" (Duff in Berger 1981:59-60). As such, Duff did not rely on extensive map biographies detailing site-specific claims to individual parcels of land, but presented use as the ownership of a watershed, recognized by neighbouring groups and reinforced by continued and varied use. This was accepted by Hall as proof that the Nisga'a had laws and concepts of ownership (Berger 1981:63). It is important to note how problematic the Nisga'a construction of their territories has been for their Gitksan neighbours. The Nisga'a, in presenting their claim as a single large territory, have far exceeded the bounds of actual ownership by individual Houses, as demonstrated by the oral traditions, and documentary records assembled by the Gitksan (Sterritt et al. 1998). Nonetheless, this statement of claim has been excepted (and expanded) right through to a final negotiated land-claims agreement with the Federal and Provincial governments. The Gitksan and Wet'suwet'en in their Delgamuukw arguments, filed to have each individual chief's jurisdiction recognized, presenting far more evidence consistent with their own common laws and traditions to support their claims (ibid.). Ironically, the judges and negotiators have accepted the simplistic, generalized model of the Nisga'a in favour over the complex and nuanced one of the Gitksan and Wet'suwet'en. This raises the question of how much information the courts or negotiators are willing to take, particularly if it doesn't fit their own preconceptions of 'primitive' Native societies.
Mills presented a very different argument for rights to the land in Delgamuukw. She characterized land use as symbolic: "in the Gitksan view, an individual's subconscious contains the memories of past lives, ultimately reaching back to the time of the origin myths which situate the ancestors on the land... In childhood the ancient memories are re-awakened by the stimulus of returning to the same places and seeing the same people. The land passed on through the matrilines contain all these memories" (Mills 1994a:161). Though her evidence was not accepted because of her supposed biasses, this argument is indeed a useful way of framing Aboriginal title, if we take Justice McLaughlin's view. It could be argued that seeking to satisfy the legal test for occupation of lands since time immemorial does not require the spiritual beliefs or symbolic understandings of the claimants to be elaborated. However, Fortune points out that again, this misses the point of taking the Aboriginal perspective into account, thus limiting how this spiritual connection plays a part of the larger understanding of title (Fortune 1993:95).
Elias has suggests that to demonstrate the specific resources used and areas occupied, that extensive, community-wide map biographies be conducted (Elias 1993:242). Several studies which use map biographies have been completed in the context of asserting Aboriginal rights and title. The Inuit of the Northwest Territories (Freeman 1976) Labrador (Brice-Bennett 1977), Dene of the Northwest Territories (Asch, Andrews and Smith 1986), have all completed land use and occupancy studies which map the extent of a claimed area by documenting the land use by living community members and extent of knowledge about traditional lands through place names, spiritual locations and burial grounds (see Brooks 1993 for a more complete list accounting of these studies). The outer area of the mapped uses and occupancy was taken to be the extent of claim to the land. These studies did not distinguish change of land use over time, nor were they encyclopaedic in their coverage of occupancy. They marked out only a starting point for understanding Aboriginal cultural geography, and by extension Aboriginal claim to the land (Weinstein 1993:11).
The ninth test, set out to eliminate complex overlapping jurisdictions, again faces the problem that it may not satisfy the varying perspectives of the Aboriginal claimants. Elias does not offer any solutions to the researcher trying to document exclusive occupancy, saying only that historic and oral evidence must be consulted (Elias 1993:264). The chiefs of the Gitksan and Wet'suwet'en worked out as a political process differences in their perceived territorial boundaries at the outset of their litigation. However, there has been an ongoing dispute between Gitksan and their Nisga'a neighbours who, after the Calder decision, decided to pursue a comprehensive land claims agreement. The overlapping territories at stake became the topic of a very public when one of the Gitksan, the Gitanyow, launched a challenge to the Nisga'a claim as they reached the final stage of their negotiations (i.e.: Vancouver Sun 17 July 98, A1). The media characterized this dispute as being one of modern political agendas which in the past would have been would have been easily reconciled shared jurisdictions. BC Supreme Court Judge Williamson declined the application to have the Nisga'a Agreement-in-Principle struck on several grounds, including that future infringement of Aboriginal rights could not be pondered, though he admitted that the Crown may be in breach of their fiduciary duty to the Gitanyow in concluding an agreement with the Nisga'a that does not take their claims into account (Williamson, J.Gitanyow First Nation [19980 4 C.N.L.R. 48).
However, the research team working for the Gitksan have assembled and recently published a large volume of evidence countering the large Nisga'a claim (Sterritt et al. 1998). The scholars set out to make explicit the Aboriginal common law about land tenure, drawing on the oral traditions of both the Gitksan and the Nisga'a. They worked through an impressively complex body of traditional narratives, historical sources, anthropological literature and place names data to establish concretely the location and extent of the territories of each House and village. By assembling evidence from so many different perspectives, they have illustrated clearly and with specificity to the context of their culture the historic and contemporary extents of traditional territories. A similar, though less exhaustive approach was taken by Suttles (1996) and Galloway (personal communication 1996) in entering place names evidence from Musqueam and Squamish in order to determine the historic extent of their respective territories. Place names evidence alone is insufficient, as there are many ambiguities about language borrowing which can not be work out through historical linguistic analysis.
The tenth test places "those activities that developed solely as a result of European culture outside of the protection of the Canadian Constitution", and has thus "...relegated Aboriginal peoples to the backwaters of social development, deprived them of protection for practices that grew through intercultural exchange, and minimized the impact of Aboriginal rights on non-Aboriginal people" (Borrows 1998:45). Though this test developed out of Lamer's vision of Aboriginal rights as stemming from the practices, customs and traditions of the people who were here before European sovereignty, this particular test flies in the face of the previous Sparrow ruling which recognized that Aboriginal rights have to be interpreted flexibly so as to permit their evolution over time, and again, alienates the Aboriginal perspective from being able to be heard. As with other historic tests, archaeological data and oral histories will be required to satisfy the burden of proof demanded.
The eleventh test was discussed at length earlier in my discussion of oral history and anthropological evidence, and will not be reiterated here.
The twelfth and final test listed has been side-stepped by the new Van der Peet and Delgamuukw rulings. Most of the visions of Aboriginal rights and title outlined by the courts until Van der Peet insisted that Aboriginal claimants prove that they were an 'organized society', a test based on precedence back to the 1889 Re: Southern Rhodesia decision and reiterated in Calder and Baker Lake. Such a test has been widely characterized as ethnocentric and absurd (Asch and Bell 1994:524; Kew 1993-4:99; Cruikshank 1992:28). These former tests rely on an evolutionary "...analytical framework which was developed by the social sciences in the nineteenth century" (Bell and Asch 1997:64). This evolutionary theory has been challenged and rejected in the social sciences since the 1920's, Re: Southern Rhodesia being discredited by Malinowski:
Hence the Judicial committee plainly regard the question of native land tenure as both beyond the scope of practicable inquiry and below the dignity of legal recognition. On the contrary, I maintain that there is no people so low on the scale of social organization, but have a perfectly well-defined system of land tenure. It is absurd to say that such a system 'can not be reconciled with the institutions or legal ideas of civilized society'. To reconcile the two is precisely the task of colonial statesmanship." (Malinowski, cited in Bell and Asch 1997:64).
Slattery suggested taking the question of 'organized society' in a different light, calling for it to be interpreted not as a call to prove the evolutionary status of Aboriginal peoples, but as a clause to exclude claims by individuals, thus recognizing the communal nature of the rights (Slattery 1992:756). Following this reasoning, Elias suggests that kinship studies should be done, proposing that "a population forms a distinct society if the individuals of that population are mutually involved in kin relations and if there are significant ways in which kinship materializes relationships between the claimant population and the lands and resources in which they claim" (Elias 1993:253). However, detailed kinship studies may not always correspond with a First Nations' sense of contemporary political identity, particularly if two competing First Nations are closely related, but have overlapping or conflicting claims, such as the Musqueam and Squamish First Nations' current claim for valuable alienated land in Vancouver (Vancouver Sun, 2 Feb 1998, p. A1).
Problem of addressing these tests
The critique of these court tests moves beyond their problematic assumptions to how the evidence given is interpreted and ruled on. A consistent critique in the literature is that the judiciary are not equipped to make fair decisions on academic issues. Culhane ironically portrays judges as self-appointed experts in social science and native culture. (Culhane 1998:264). Bell and Asch echo this concern "given the amount of training that judges receive in the analysis of non-western cultures as compared to their training in law, and given matters they are reviewing critically are often facts that ought to have been admitted in evidence as self-evident [such as a society being organized], the efforts expended in judgements on cultural analysis rather than legal analysis is often profoundly wasteful of judicial time and expertise" (Bell and Asch 1997:73). Culhane has argued that there is a giant rift between the discourses of law and anthropology, where the narratives given to satisfy court tests are reduced to true/false, guilty/innocent by legal discourse while "anthropology demands that stories are told with complexity and context." (Culhane 1998:264). These different demands of the different discourses can make it difficult for one to interact with the other.
Aboriginal rights council Louise Mandel also questions the advisability of fighting these battles in the courtroom, recognizing frequent judicial bias against Aboriginal people, and argues that these are ultimately political issues that should be settled in other ways (Mandel 1987:365). Asch and Bell (1994) have argued that the courts have taken an ethnocentric and ultimately unjust view of culture. An example of this is the test requiring Aboriginal groups to prove they are an 'organized society' by presuming that societies can be ranked as being on different levels of 'organization' (Asch and Bell 1994:521). They espouse that judges take cultural relativism into account when trying to consider Aboriginal rights from the perspective of Aboriginal societies. However, Kew notes that the judiciary can not be expected to reject dated or wrong-headed theories and conclusions simply on the basis that anthropologists have discredited them. He cites the evolutionary models used by McEachern as a test of truth for the evidence presented in Delgamuukw as having been "rejected as oversimplified and mis-representative of differences between societies" by anthropologists (Kew 1993-4:97). Kew calls for anthropologists to be critical of the concepts they are asked to present in courts, just as they would in academia. The question remains if the courts are willing to follow anthropologists down a long road of theoretical critique of concepts in a venue primarily interested in 'facts'.
Finally, the volume of evidence needed to satisfy the burden of proof in these tests may be requiring unreasonable demands on the judiciary. As Elias recounts "[i]n 'the old days', when Aboriginal rights were argued primarily as questions of law, making these proofs was relatively simple" (Elias 1993:235). For example, the length of time early major Aboriginal rights and title cases were argued were: Calder: 4 days, Kruger & Manuel: 1 day; Baker Lake: 12 days. These trials are in stark contrast to Bear Island and Delgamuukw which took 300 and 374 days (respectively) to argue. These long depositions of evidence in Aboriginal rights and title cases have been mandated by the increasingly specific burdens of proof placed on Aboriginal claimants and defendants. They have also made it increasingly difficult for judges to fairly weigh the evidence presented.
Infringement and Justification - Relations Underlying Aboriginal Rights
Providing that oral histories and rigorous anthropology have been accepted as evidence, the framing of the nature and scope of Aboriginal rights have been settled on and that all the tests for the existence of an Aboriginal right or title have been met in favour of an Aboriginal claimant, Lamer's majority decision in Delgamuukw has provided the Crown with a powerful legal tool with which 'compelling legislative objectives' such as resource exploitation, urban expansion and environmental protection can be achieved (Lamer CJ., Delgamuukw  1 C.N.L.R. 75). This infringement option of the courts is an attempt to balance Aboriginal rights with those of competing political and economic interests. The test for infringement is subject to the Crown's fiduciary obligation, where it may infringe on the rights, provided the infringement is not unreasonable, does not cause undue hardship and does not deny Aboriginal people their preferred means of exercising their right (Dickson, CJ., Sparrow  1 S.C.R. 1112). Provided this infringement test is satisfied, the Crown must further recognize its fiduciary duty to Aboriginal people by either setting Aboriginal rights (particularly those which are integral to their distinctive cultures) as a priority over non-Aboriginal interests (such as conservation over Aboriginal resource use) or, in the interests of reconciling competing interests by ensuring there is as little infringement as possible, making fair compensation available and ensuring the Aboriginal group has been consulted (Lamer, CJ., Delgamuukw  1 C.N.L.R. p. 76). This ability to justify an infringement on Aboriginal rights and title has been characterized as a 'downgrading' of rights to compensate for looser evidentiary rules and broader definitions of rights and title than had been conceived of in the past (Borrows 1998:58).
The infringement test
To challenge an infringement, Aboriginal people must demonstrate that it is either unreasonable, causes undue hardship or denies their preferred means of exercise. Social impact studies and traditional descriptive ethnography have been conducted to provide a baseline of evidence which could be presented to satisfy these tests in defence of Aboriginal rights.
Social impact studies focus on effects of catastrophic events (like industrial expansion) to Aboriginal communities (Usher 1993:100). They generally establish a baseline of social information at an early date, from which hypothesis are developed as to the social effects that would result from the development (ibid., 101). The Berger Inquiry into the Mackenzie Valley Pipeline (Berger 1978) is a well-published example of how rights can be defended through providing evidence which shows that development causes undue hardship in Aboriginal communities. Proponents of the pipeline argued that the economy of the area was undergoing an inevitable transition from 'backward' (traditional) to 'modern' (industrial), and that the pipeline would spur that on (Usher 1993:103-106). Social scientists debunked this argument through challenging the notions that Aboriginal institutions were dying, arguing that this view of history was not consistent with the evidence which shows continuity between past and present traditional land-based activities of the Dene, the destructiveness of the development to the native economy, and the adverse effects on native social and cultural well-being (Asch 1986:274; Usher 1993:106-107; Watkins 1977). Commissioner Berger recommended that the pipeline would be too sudden a change, calling instead for expansion of the modern economy through resource development, native industries and tourism, raising money to achieve this through grants and taxation on their lands (Asch 1982a:4-5). Asch challenged these recommendation as still failing to recognize that Aboriginal communities' needs are best served by self-determination, not integration into the modern economy (Asch 1992b).
Other examples of ways in which infringements on Aboriginal rights have been argued against on these terms are documented in the Dene opposition to the Alaska Highway natural gas pipeline (Brody 1988) , the Cree struggle over hydroelectric development in James Bay (Salisbury 1986) and the Lubicon Cree fight to keep oil development out of their lands (Ferreira 1992:18-19; Ryan and Ominayak 1987; Goddard 1991). The authors of these social impact and land use studies have recognized the inadequacy and political bias of old theoretical models like acculturation, and have proposed more subtle lines of examination such as showing the persistence of traditional ways of life and recognizing the unequal power structures underlying social change (Usher 1993:116). However, even when the social impact of these projects can be demonstrated and the power relations underlying them revealed, the Crown may still see economic development as being paramount, and push ahead with their plans.
A likely more common application of this test is when current regulations or legislation prohibit Aboriginal people from exercising their rights by their preferred means. For instance, when three Coast Salish men from the Penelakut Band were arrested for hunting by torch at night, they claimed that the Provincial regulations denied them their preferred means of hunting in the Seward case. Anthropologist Wayne Suttles testified that Coast Salish hunters have long used torches at night to aid them in hunting game, supporting his testimony with historical descriptions of hunting and his own ethnographic work. This evidence was convincing to Judge Higinbotham, who upheld practice of hunting with torches as their preferred means of exercising their Aboriginal right to hunt (Higinbotham J., Seward  1 C.N.L.R. 139). This was, on appeal, characterized as "academic speculation" by Justice Thackray, and charges were allowed to stand (Thackray, J. Seaward  3 C.N.L.R. 254).
The justification test
If an Aboriginal right or title will be infringed on, the Crown's honour must be preserved by recognizing its fiduciary duty. As mentioned above, the Lamer's majority decisions in Van der Peet and Delgamuukw have determined that the Crown may infringe on an Aboriginal right if it can satisfy the three-part justification test by (1) ensuring there is as little infringement as possible; (2) making fair compensation available; (3) ensuring the Aboriginal group has been consulted.
Madame Justice McLachlin has criticized Lamer's justification test as violating the government's fiduciary duty and being unconstitutional. She argues that by justifying an infringement on the basis of political and economic interests, as opposed to interests such as conservation or safety, the right itself is extinguished, not just the exercise of the right (McLachlin, J., Van der Peet, 4 C.N.L.R. p. 279). Such an act violates the governments fiduciary duty by giving priority to business interests over Aboriginal rights, and is unconstitutional, in that it extinguishes rights without treaty or constitutional amendment (ibid).
Though this justification test may be unconstitutional, the terms of it have been responded to by governments, businesses and First Nations. Much of this response has been around the principles of minimal infringement and consultation, where there has developed a large body of 'grey literature', consisting of consultant's reports ministry documents and First Nations' position papers. Some British Columbia examples will serve to demonstrate this process.
Since the Crown must make every effort to limit its infringement on Aboriginal rights and title, the British Columbia government has developed a program to inventory traditional Aboriginal land use (BC Ministry of Forests 1996). This program has set out guidelines for creating these inventories, which require Aboriginal cultural geography to be mapped on a very large scale (1:20,000). With the results of these studies in their database, the Province will have highly site-specific information on where they can proceed with development unhindered in areas not marked as significant and thus would not infringe on Aboriginal rights (Gelean 1997). These studies diverge from the broad areal land use and occupancy studies done in other areas of the country in that they view Aboriginal rights as site specific, and in that they are used by the Crown, not Aboriginal people, in defining which Aboriginal rights are not a concern (Weinstein 1997). Aboriginal organizations have responded by developing highly restrictive information sharing agreements which recognize the Crown's attempt to limit the scope of Aboriginal rights to site-specific areas and to force line Ministries to continue to consult over a broad range of Aboriginal rights concerns (Washbrook and Thom 1997).
Archaeological overview assessments and archaeological impact assessments have also been employed by the Crown to document how development which infringes on Aboriginal rights can proceed with minimal impact on archaeological resources (BC Ministry of Forests 1997). As demonstrated by the flurry of recent legal action, Aboriginal people clearly view control over their heritage as an Aboriginal right, and have responded vigorously to developers which threaten their heritage sites (Fladmark 1993, McLellan 1995). Archaeological consultants are hired by both sides to document the presence of or potential for archaeological sites and culturally modified trees (Wickwire 1991-2; Stryd and Eldridge 1993). Though the Aboriginal rights significance of these places is widely recognized (Stryd 1997; Eldridge 1997), these studies are done under the guidelines for Provincial heritage or environmental legislation, which were never intended to address fundamental concerns over Aboriginal rights and are inadequate to the task. First Nations often get involved in long involved negotiations over these site-specific heritage projects, while their overall interest in the land and resources - their broad Aboriginal rights and title - are impacted with the Crown claiming it has satisfied their requirements for limited infringement through mitigation of impact to heritage sites. Though imbalanced power relations underlie these studies, in some instances they have been successful in limiting infringements on Aboriginal rights and title (Scientific Panel for Sustainable Forest Practices in Clayoquot Sound 1995).
Assessing environmental impacts of developments may often also demonstrate infringements on Aboriginal rights and title. For instance, Haida leaders have clearly critiqued the environmental impact assessment process for inadequately addressing their Aboriginal rights and title concerns (Sharpcot 1989, Keller 1990). Post-treaty Yukon First Nations and pre-treaty First Nations on the Fraser river have also had a lack of success in engaging in environmental and land-use planning (Duerden, et al 1996; Thompson 1991). Again, no clear guidelines have been established which satisfy Aboriginal desires to be involved with the process and the Crown's emphasis on proceeding with development. Particularly difficult are issues of jurisdiction, where Aboriginal people have been systematically excluded from most non-federal (i.e.: provincial and municipal) environmental and land-use planning processes (Borrows 1997:444).
Guidelines for what constitutes adequate consultation have also not been adequately addressed. The Kitkatla First Nation recently had their injunction to halt logging on land claimed by them and the neighbouring Laxkw'alaams First Nation overturned, on the basis that the courts felt they had been adequately consulted, though the Kitkatla felt they had not (Vancouver Sun 7 July 1998, A1). In my own experience working on resource management issues for the Stó:lô nation, consultation has often been in the mode of faxing a notice and asking for a copy to be returned with a signature that it has been received. Phone logs are kept by government officials to 'prove' that they consulted with First Nations. This is consistent with the experiences of First Nations communities throughout Canada, who as Peter Usher has pointed out, have had consultation "... about major projects [which] consisted of government and industry arriving together at meetings to announce their plans, and to suggest how people could accommodate themselves to these" (Usher 1993:102). Inadequate consultation or deferring views of what is minimal impact have led to court action, injunctions, blockades and political demonstrations (Pinkerton 1983; Blomley 1996; Foster 1996).
Resolution of Aboriginal Rights and Title Issues
Negotiated resolutions to Aboriginal rights and title have been called by the courts, scholars, and governments as the preferred solution to recognizing Aboriginal rights and working out agreements whereby Aboriginal people can live in equality with other Canadians (Cassidy 1990; Royal Commission on Aboriginal People 1996). However, the implementation of these agreements has produced varied results. For instance, Haysom suggests that the settlement of Labrador Inuit land claims will not result in giving their communities the independence, equality and security they are seeking, suggesting instead that "distinct society" be sought (Haysom 1992). Légaré is more optimistic about the implementation of land claims settlements for achieving equality and successful co-management of resources. (Légaré 1996). Regardless of these predictions, self-determination of Aboriginal people has been partially recognized in their increasing involvement in resource management, economic development, land-use planning and through comprehensive modern treaties.
Resource management agreements have been suggested as being useful but problematic, in that power relations are never really equal. As a part of a major re-thinking of the use of the Fraser River ecosystem, Kew and Griggs suggest that by implementing Aboriginal models of fishery management, specifically a river-based fishery rather than a primarily ocean based one, exploitation of fish stocks can be better controlled (Kew and Griggs 1991). Self-government as a third order of government has been suggested as providing a viable way to develop sustainable resources use, as Aboriginal people have their own laws and regulations which are highly adapted to the local environments where they live (M'Gonigle 1988; 1989/90; Payne & Graham 1984). Feit has made concrete suggestions for using Cree models of hunting management for the James Bay area, laying out the ethnographic viability and the current political inequalities (Feit 1980, 1989, 1992a, 1992b). A lack of adequate information for interacting with Crown resource managers has proved to be a difficulty in some jurisdictions where traditional land use and occupancy studies were used as a common information base. In the north where studies were done on a very small scale (Freeman 1976; Brice-Bennett 1979) the data has not been specific enough for resource management (Riewe 1991). In British Columbia where very detailed, large-scale studies have been attempted, there has been a problem of sheer quantity of information being too great to provide a complete analysis given moderate financial resources (Washbrook and Thom 1997).
Increased Aboriginal participation in economic development has also been plagued with problems of power (Charest 1992). Wood-lots and gravel pits have been suggested as viable enterprises, but do not recognize broad exercise of Aboriginal rights. For instance, Nathan (1993) has an optimistic, naive view of Native participation in forestry, where giving Aboriginal communities wood lot licences would satisfy their needs for forest land. This is clearly inadequate for the variety of needs Aboriginal people have for forests. However, where self-determination has become more of a reality in the north, First Nations have become major players in economic developments and the growth of local and regional economies (Weick 1988). Rather than completely assimilating into modern state economies, the Cree have, since the implementation of the James Bay Cree settlement, asserted their Aboriginal rights by attempting to reinstate hunting, fishing and trapping as their major means of prospering as a community (Niezen 1998; Scott 1984), an achievement made possible by the broad recognition of rights to self-determination, rather than piecemeal self-management or site/resource specific rights (Scott 1992).
In the areas of Canada where no treaties have been signed, Aboriginal title issues are still outstanding. This includes British Columbia, and parts of Quebec and the Territories (Coates 1992). In these areas, the extent of land that Aboriginal people have claimed title to has not been questioned by government negotiators. Unlike the strict tests for occupancy set out by the courts, the BC Treaty commission, for instance, has simply outlined the requirement to submit a statement of claim with overlaps with neighbouring groups constraining the extent of land being claimed (McKee 1996). Specific land transfers and classes of title are worked out in the negotiations. A major stumbling block of the process has been to work out overlapping claims, where First Nations claim title to the same territory and the government has required all parties to agree on the degree of shared jurisdiction and overlap (BC Treaty Commission 1998). Some of these problems in overlapping claims is wrapped up in long histories of land use and occupancy, which have continued to develop and change through the period of non-native sovereignty. Slattery (1992:758) suggests that a claims of 20 to 50 years may be "sufficient to defeat the claims of previous native possessors and to resist newcomers", but qualifying that "time is less important for its own sake then for what it says about the nature of the group's relationship with the land and the overall merits of their claim". Wonders has explored some of these issues of overlap in the Northwest Territories, calling for more subtle modelling of cultural geography of overlapping claims which recognizes complex environments and their use (1988).
Academics in universities from anthropologists to geographers have called for an increased effort to consult with Aboriginal leaders in order to develop useful research that will aid these negotiations, and strategies to communicate them effectively (Dyck 1990:48; Duerden 1996; McNab 1986; Mensah 1995, 1996). There is an air of fear and mistrust among the general public towards negotiated settlements, which might hopefully be filled by promoting cross-cultural understanding (Menzies 1994). These issues have been very successfully expressed by contemporary First Nations artists (Townsend-Gault 1994). However, most of the difficult work on this front is in the hands of Aboriginal politicians and their enlightened counterparts in the mainstream governments.
The recent decisions of the Supreme Court of Canada have made a significant but narrow opening from which Aboriginal rights and title can be integrated within Canadian society at large. To keep the opening wide, Aboriginal leaders are wise to keep their lawyers, and their anthropologists, close at hand. Anthropology has provided a significant contributions to arguing Aboriginal rights and has made a useful critique of the ethnocentric biases of Canadian law and government policy.
Specifically, I have reviewed how anthropology has provided insight into how oral histories may be understood by people who are not immersed in the traditions and perspectives of the culture from which they are told. Their expert witness testimony has been sought by Aboriginal leaders. Testimony based on long-term research in a community, which did not invoke problematic models of cultural evolution or difficult to communicate symbolic analysis have been successful in the courts.
Theories of Aboriginal rights and title have been formulated by the courts on the basis of legal precedence, firmly placing these rights within the context of Canadian sovereignty, thus denying Aboriginal aspirations for autonomy. More problematic, however, has been the characterization of these rights and title as frozen in time to the era of contact and settlement. These characterizations are formidable barriers to Aboriginal peoples claims to self-determination within the Canadian constitutional framework. Anthropological research around formulating Aboriginal common law concepts and practices will provide valuable insight into how these rights and title may be exercised and enjoyed by Aboriginal people today within Canadian society. Future pursuits of Aboriginal rights and title claims in the courts will require Aboriginal people to satisfy tests which require anthropological evidence on the nature of these common laws and practices of Aboriginal people. Methods and theory must be developed to challenge the ethnocentric biases and assumptions latent in these court tests.
Defending Aboriginal rights will continue to be a political as well as a legal contest, as the Supreme Court has granted the government broad power to infringe on these rights. Anthropological studies which demonstrate the negative social impact of developments, or how a preferred means of exercise of a right may help limit these infringements. However, the Crown may justify their infringements for a wide range of political and economic purposes. As Aboriginal institutions work with governments and businesses to limit the impact of development and engage in meaningful consultations, anthropology must develop ways of integrating Aboriginal perspectives on the land and resources which may help balance the unequal power relations which now exist.
Finally, outside the courts there has developed a myriad of processes and approaches to recognizing existing Aboriginal rights. Increasingly Aboriginal people are achieving their aspirations for self-determination through integration into resource management, economic development and treaty negotiations. Anthropologists will continue to be close to these processes, as their work in native communities is increasingly done in collaboration with Aboriginal governments and institutions. Observing the benefits and pitfalls of the changes in Aboriginal societies can serve to provide direction to other communities following these paths. Bridging the cultural gap between Aboriginal and non-Aboriginal perspectives provides openings for mutual understanding and respect in a world where power relations are shifting to recognize Aboriginal rights and title.
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Table of Cases
St Catherine's Milling and Lunber Co. v. R. (1995), 10 or 196 (Ont. Ch.); (1886) 13 OAR 148 (Ont. CAO); (1887) SCR 577 (SCC); (1888) 14 AC 46 (PC).
Re: Southern Rhodesia , 2 A.C. 211 at 233-4.
R. v. White & Bob (50) D.L.R. (2d) , 620.
Calder et al v. Attourney-General of B.C. , 8 D.L.R. (3d), 59-83, [S.C.B.C.]; , S.C.R. 313.
Gitanyow First Nation v. Canada [19980 4 C.N.L.R. 47
Kruger and Manual v. The Queen , 4 WWR 300,  1 SCR 104, 75 DLR (3d) 434, 14 NR 495, 34 CCC (2d) 377.
Hamlet of Baker Lake et al v. Minister of Indian Affairs and Northern Development et al , 5 WWR 193, 50 CCC (2d) 377 (FCTD).
A.G. Ontario v. Bear Island Foundation , 49 O.R. (2d) 353, 15 D.L.R. (4th) 321 (Ont. H.C.); , 68 O.R. (2d) 394, 38 D.L.R. (4th) 117 (Ont. C.A.); , 83 D.L.R. (4th) 381.
R. v. Sparrow , 1 S.C.R. 335.
Mabo v. Queensland (1992), 107 A.L.R. 1.
R. v. Adams  4 C.N.L.R. 1 (S.C.C.), rev'g  3 C.N.L.R. 98 (Que. C.A.), which aff'd  4 C.N.L.R. 39 (Que. Sup. Ct.), which aff'd  4 C.N.L.R. 123 (Que. Ct. Sess. P.).
R. v. Côté  4 C.N.L.R. 26 (S.C.C.), rev'g in part  3 C.N.L.R. 98 (Que. C.A.), which aff'd  1 C.N.L.R. 107 (Que. Sup. Ct.), which aff'd  3 C.N.L.R. 141 (Que. Prov. Ct.).
R. v. Gladstone  4 C.N.L.R. 65 (S.C.C.), rev'g  4 C.N.L.R. 75 (B.C.C.A.).
R. v. N.T.C. Smokehouse  4 C.N.L.R. 130 (S.C.C.), aff'g  4 C.N.L.R. 158 (B.C.C.A.).
R. v. Pamajewon  4 C.N.L.R. 164 (S.C.C.), aff'g  2 C.N.L.R. 118 (Ont. C.A.), which aff'd  3 C.N.L.R. 209 (Ont. Prov. Ct.).
R. v. Van der Peet  4 C.N.L.R. 177 (S.C.C.), aff'g  4 C.N.L.R. 221 (B.C.C.A.), which rev'd  3 C.N.L.R. 161 (B.C.S.C.), which rev'd  3 C.N.L.R. 155 (B.C. Prov. Ct.).
R. v. Seward et al  3 C.N.L.R. 237, rev'g  1 C.N.L.R. 139 (B.C. Prov. Ct.).
R. v. Delgamuukw  1 C.N.L.R. 14 (S.C.C.), rev'g  5 C.N.L.R. 1 (B.C.C.A.), which rev'g  5 C.N.L.R. 1 (B.C.S.C.).