B) The nature of governmental legislation or action alleged to infringe the i.e. conflict between the claim and limitation C) The ancestral practices relied upon to establish the right Test (Modifying the test in Van Der Peet) 1. Aboriginal claimant must be prove a modern practice, tradition or custom has a reasonable degree of continuity to a practice which existed prior to contact 2. Custom must have been to the culture” of the aboriginal peoples lay at the core of their “integral” “distinctive identity 3. Must be defining feature that without it, the culture would be fundamentally altered 4. EXCLUDES practices which are MARGINAL or INCIDENTAL Evidence: Flexible application of the rules of evidence must be used in aboriginal cases Includes admitting evidence of post-contact activities to prove continuity with pre-contact practices, and meaningful consideration of oral histories Oral histories may offer evidence of ancestral practices that would otherwise not be available Oral histories may provide the aboriginal perspective on the claimed @Bar: Insufficient evidence to a right R v Marshall; R v Bernard [2005] SCC Title Claim Facts: two different claims, prosecuted for cutting trees without a license prosecuted but asserted not bound by the laws Attempted to assert right to Land AND Title Analysis Must understand there is a different between aboriginal perspective and the common law When considering aboriginal title must consider both (occupation is a key point though, CL idea) Application of Delgamuukw test 1) Land occupied prior to sovereignty 2) If present occupation is proof, must show continuity 3) Exclusive occupation Only need control” “effective Still fails on this point Issue How does Delgamuukw work for nomadic peoples? Tsilquotl’n Nation v BC (2007) BCSC, [2014] SCC ACQUISITIONS OF INTERESTS IN LAND CROWN GRANT 1866: Provincial crown of BC created and acquired ownership of all land in BC 1870: (Land sets up present system of land ownership Land Registry Ordinance Act Title Act) As a result, all in BC are owned by the Provincial Crown, except: Federal Crown lands (public harbours, national defence lands, Indian reserves, some railway lands Privately owned lands (though Crown still fee simple lands) “owns” Aboriginal lands (granted via treaty, or lands contingent on settlements)
B) The nature of governmental legislation or action alleged to infringe the i.e. conflict between the claim and limitation C) The ancestral practices relied upon to establish the right Test (Modifying the test in Van Der Peet) 1. Aboriginal claimant must be prove a modern practice, tradition or custom has a reasonable degree of continuity to a practice which existed prior to contact 2. Custom must have been “integral” to the “distinctive culture” of the aboriginal peoples lay at the core of their identity 3. Must be defining feature that without it, the culture would be fundamentally altered 4. EXCLUDES practices which are MARGINAL or INCIDENTAL Evidence: Flexible application of the rules of evidence must be used in aboriginal cases Includes admitting evidence of post-contact activities to prove continuity with pre-contact practices, and meaningful consideration of oral histories Oral histories may offer evidence of ancestral practices that would otherwise not be available Oral histories may provide the aboriginal perspective on the claimed @Bar: Insufficient evidence to a right R v Marshall; R v Bernard [2005] SCC Title Claim Facts: two different claims, prosecuted for cutting trees without a license prosecuted but asserted not bound by the laws Attempted to assert right to Land AND Title Analysis Must understand there is a different between aboriginal perspective and the common law When considering aboriginal title must consider both (occupation is a key point though, CL idea) Application of Delgamuukw test 1) Land occupied prior to sovereignty 2) If present occupation is proof, must show continuity 3) Exclusive occupation Only need “effective control” Still fails on this point Issue How does Delgamuukw work for nomadic peoples? Tsilquotl’n Nation v BC (2007) BCSC, [2014] SCC ACQUISITIONS OF INTERESTS IN LAND CROWN GRANT 1866: Provincial crown of BC created and acquired ownership of all land in BC 1870: Land Registry Ordinance Act (Land Title Act) sets up present system of land ownership As a result, all in BC are owned by the Provincial Crown, except: Federal Crown lands (public harbours, national defence lands, Indian reserves, some railway lands Privately owned lands (though Crown still “owns” fee simple lands) Aboriginal lands (granted via treaty, or lands contingent on settlements)