Author:Isabelle Schulte-Tenckhoff (Graduate Institute of International and Development Studies)
Paper short abstract:
Using the landmark Delgamuukw decision as a background, this paper revisits the role of indigenous law and especially that of oral testimony in the litigation of indigenous land claims in Canada.
Paper long abstract:
After Confederation (1863) and until the watershed judgement in Calder (1973), it was generally held that Aboriginal title existed only at the pleasure of the Crown and could be taken away any time. Since the 1970s and especially with a view to giving substance to section 35(1) of the Constitution Act, 1982, there has been a gradual shift in the determination of Aboriginal title by the Supreme Court of Canada, with the landmark Delgamuukw decision establishing basic principles, as well as associated 'tests' further refined in subsequent judgements. These include the distinction between Aboriginal title (linked to exclusive occupation at the time of contact with Europeans) and site-specific rights (e.g. hunting or fishing rights), as well as the so-called distinctive culture test that limits recognition of site-specific rights to those rights that are determined to be 'integral to the distinctive culture' of a given Aboriginal group. Controversy over these matters has shaped the evolving doctrine of Aboriginal rights and title in Canada, and nourished considerable legal-anthropological debate. One crucial element of this debate hinges on the role of indigenous law as a potential source of 'Aboriginal title', and the standing of oral testimony in advancing land claims. This is the more relevant since the onus of proof rests entirely with the Aboriginal plaintiffs who have to frame their claims in the terms of the dominant legal system.
Evidence in question: anthropological authority and legal judgment [Anthropology of Law and Rights]