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Aboriginal title: travelling from (or to?) an antique land?

   I met a traveller from an antique land,
   Who said, "Two vast and trunkless legs of stone
   Stand in the desert. Near them, on the sand,
   Half sunk, a shattered visage lies, whosefrown,
   And wrinkled lip, and sneer of cold command,
   Tell that its sculptor well those passions read
   Which yet survive, stamped on these lifeless things,
   The hand that mocked them, and the heart that fed;
   And on the pedestal these words appear:
   'My name is Ozymandias, King of Kings,
   Look on my works ye Mighty, and despair!'
   Nothing beside remains. Round the decay
   Of that Colossal Wreck, boundless and bare
   The lone and level sands stretch far away."

   [Percy Bysshe Shelley, "Ozymandias"] (1)


1. TESTING TIME

This brief comment is about time and its involvement with the Canadian jurisprudence of Aboriginal title. It starts from a simple proposition so basic it can be overlooked or factored out of thought processes even as that activity is displaying this essential everyday quality: A human community lives in time. All things human are subject to change, including the way in which we conceive objects, rules, relationships, traditions, and past events. Historicity--our communication of our sense of living in time and the acknowledgement of the inherent mutability of our world--is part of the human condition. Human life is infused with temporality. All the things that human beings create, materially or intellectually, even those carved like Ozymandias out of marble in seeming defiance of the passage of time, can only be artifacts of their time.

Time necessarily--unavoidably--attends the jurisprudence of First Nations relations with the Crown (federal and provincial). As it is a human construction, that jurisprudence is in a state of constant development. A living jurisprudence is inevitably on a timeline that goes into its future inherently unfinished and unfinishable. Its common-law basis means that change will occur within the protocols and methods of common-law thought as it has been received and practised on Canadian soil. Of course, the dynamics of legal change in a common-law system are shaped by the haphazard nature of litigation, its inductive fact-specific setting, and the set of possibilities that legal language is able to articulate--and thereby contest--at any moment in time. Legal change is achieved through a way of thought and a form of disputation that, like the rules this way of thinking articulates, is also prone to change. What we think and how we think change. Legal doctrines and legal methods change over time through processes, often irresolute, of contestation and litigation, as well as through more subtle processes of education, acculturation, intellectual rumination, conversation, and absorption of technological change. Law lives within a political community and the community lives in its law. It articulates that community's values, priorities, and its own set of possibilities--not those that the community (as a polity continuous in time and place) will be articulating a century later, when that law will (through later lenses) be seen to have forms of incompleteness and inadequacy that do not strike or afflict that community in the manner perceived 100 years on. Our present network of laws is not our message to the future, but an expression of how we are now. This much is obvious but needs statement.

Those who cannot accept as basic the statement that Crown officials negotiating a treaty in the late 19th century could have no idea what the Supreme Court would say about fiduciary duty in Guerin (2) are in a world of troublesome atemporality where the difference between now and a century ago means nothing. The same applies to those who suggest that lawyers in late-19th century Ontario should have advised clients (First Nations included) on the basis that the minority and dissenting Supreme Court judgments in St. Catharines Milling and Lumber (3) were an accurate description of the law as then understood in 1887. (4) While the Canadian jurisprudence has come to prefer those dissenting judgments, the suggestion that the dissenters were seen as correct in 1887 is plainly unsustainable. The present-day Canadian jurisprudence has applied its argumentative technique to render a revisionist position towards St. Catharines Milling that rehabilitates the dissenting judges. Our view of what should then have been seen as the correct position (a present-day legal observation), however, should not be mistaken for the interpretation given that case and the status of the dissenting judgments in the late 19th century (a historical observation).

In the same vein, 100 years from now courts and commentators will almost certainly have a different handle on Tsilhqot'in Nation (5) than the one expressed here. These future actors will have the advantage of hindsight and a different jurisprudential vantage point, though that legal positioning will still be carrying hallmarks (the likes of which we know not now) of our common-law thought as a continuous but dynamic human activity. Nor for that matter were lawyers a hundred years ago poised in bated breath and expectation of what Canadian courts would be saying a century later, any more than we are now in clutching excitement about the Supreme Courts utterances in 2114. It is one thing to say the law has changed; it is another to say that it has always taken a particular position, and in so doing, deny law's mutability as an inherently human enterprise. Those who say the common law has 'always' taken a particular position are erecting an Ozymandias, a statue of seeming permanence that is a memorial to the product of their thought and enterprise at a particular time.

Some years ago while south of the Medicine Line, Charles Wilkinson wrote an influential book called American Indians, Time and the Law. (6) Wilkinson looked at the 80 cases on federal Indian law since the United States Supreme Court rendered Williams v Lee, (7) a case he saw as marking the jurisprudential outset of the modern era. Wilkinson concluded that the corpus of modern case law showed that Indian tribes were part of American society with a legal status that rested upon the early treaties, agreements, and statutes that the United States had passed and acceded to during the course of its constitutional identity practices. This earlier body of legal instruments showed the tribes as "islands" of self-government with a degree of insulation from time and space, within which tribes were not simply societies caught in amber, but dynamic ones that retained both distinctive elements of traditional Indian life while adjusting to the outside world. Wilkinson's book caught the tension between First Nations as traditional communities and inhabitants of a modern world that has also pervaded the Canadian jurisprudence. He did not, however, write as a historian or even an historical geographer, but as a lawyer attempting to bring doctrinal coherence to a body of case law. A perceptive reviewer of the book analogized its approach with a horse carved from marble (an equine Ozymandias), indicating that Wilkinson had used the 80 cases to isolate enduring (and hence immutable) legal principles that the author was arguing had "always" underpinned federal Indian law. (8) This is a legal exercise in the organization of cases into coherent doctrine, but it is hardly a historical approach looking at the biography and sociology of the jurisprudence as a living dynamic thing, noting its trends, dispositions, wayward moods, and course of growth inside a political community (or a series of them, straddled by a federal legal system). We may laud Wilkinson's marble horse of law as an intellectual text produced in a time and place representative of the politics surrounding the deployment of federal Indian law in the mid-1980s, but it is not history or a sociological biography of the jurisprudence. Wilkinson's objet d'art has historicity in the same way as Shelley's Ozymandias weathering in the desert as a monument and artifact of a civilization at a particular juncture of its being. Wilkinson forges doctrine that purports to speak enduringly but which, a quarter of a century later, seems a timepiece of the era in which he wrote. Announcing itself as a representation of enduring principle, its style defies temporality while everywhere now showing its exposure to the forces of it.

Famously, Tsilhqot'in Nation represents the first occasion on which Canadian courts have positively recognized an instance of common-law Aboriginal title. In so doing and as such an important landmark, the case raises issues of time and its passage in two senses that will be considered in this commentary. These pick up on the themes I have set out above.

The first concerns the case's place in the short history of the modern jurisprudence of First Nations law. Tsilhqot'in Nation is certainly a landmark in the pathway of this court-based jurisprudence, an era that might be taken as having commenced with Calder v British Columbia in 1973. (9) We do not know where that history will lead but we can see Tsilhqot'in Nation in terms of the lie of the jurisprudence preceding it. Of course there may be debate over the mapping of this jurisprudence. We must be clear that an attempt to carve a monument out of the cases that comprise the corpus of this jurisprudence is an exercise in giving present-day coherence and rationality to its totality. This is a legal exercise to explicate doctrine, a version of what Blackstone, for example, attempted in writing his Commentaries, (10) where he tried to coherently organize the mass of common law in terms of Roman law principles for an audience of his time. (11) This "black letter" approach treats the case law as accretive, as the building case by case of an ever-enlarging corpus of precedent into which lawyers plunge to winnow, sift, and divine the relevant law. A historical account, however, looks at the pathway of this jurisprudence as a chronology with twists, passing and semipermanent shapes (and misshapes), and turns (and U-turns) of its own. It looks at the direction the legal dynamics have taken in a historical (rather than a monumentalizing and totalizing) manner. So first, we can look at Tsilhqot'in Nation as the latest installment in an ongoing jurisprudential venture, a recent episode in a narrative of court involvement in Crown-tribe relations that essentially began with Calder.

Secondly, I look at how the doctrine that this jurisprudence has generated questions of time, particularly in the way that it has constructed the test by which the juridical creature that is common-law Aboriginal title is regarded as subsisting at law. These capture the historical tension that has inhabited this law, and shaped (if not disfigured) its development, the tension between First Nations as modern and antique communities. The legal test for Aboriginal title is configured by reference to the state of the title at two particular moments: the present day and the date of Crown sovereignty. In the way that it has been devised, this test raises questions about the juridical function of Aboriginal title. This is a basic question that the Supreme Court seems in Tsilhqot'in Nation--and since Delgamuukw (12)--to have conspicuously avoided. To put it crudely, is Aboriginal title simply a possessory action applicable to certain extant practices related to land? Or is it also a legal device for the pursuit of historical claims against the Crown? Should we conflate what common-law Aboriginal title is today with what it was (or was not), say, a century ago? Is common-law Aboriginal title a marble statue that stands monumentally through time as a proud statement of enduring and immutable legal truths ? Or is it a living form of law that expresses both a community's values at a particular time and that community's ever-evolving processes for the legitimation of the exercise of public authority?

Commentators on the Tsilhqot'in Nation case have raised other issues of retroactivity perceived as being harboured in the judgment.13 The Province appears not to have been too distracted by those possibilities, at least so far, and has taken a "moving forward" position.14 Nonetheless the irresolution of these possibilities raises questions about the role of adjudication in the resolution of Aboriginal peoples' claims. This is particularly the case where those claims are of a historical nature, and it is to this I turn in the second part of this commentary on Tsilhqot'in Nation.

2. TSILHQOTTN NATION IN CONTEXT

How does Tsilhqot'in Nation fit into the historical journey of the First Nations' jurisprudence that essentially began with Calderl In my book Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (15) I suggested that it was possible to see this jurisprudence as having been through a series of phases. These are outlined in this section, with a suggestion that the Supreme Court judgment has a context that in a key respect echoes the setting of Calder.

Calder was essentially a judicial response to the failure of Canadas political branches to achieve serious national commitment to addressing land claims. In Calder the Supreme Court characterized the longstanding principle of the non-justiciability of executive management (derived from the historical difficulty of impleading the Crown) as an outmoded relic of an older era, signaling that it was prepared to embark upon the formation of a doctrinal frame for possessory claims against the Crown. This willingness to use the common law therapeutically to nudge the political branches into more serious engagement with these land claims was informed by surrounding and contemporaneous public law values, including those then attending active judicial extension of the scope of administrative law. Given the state of Anglo-Commonwealth public law during the 1970s and into the 1980s, and as I have often observed elsewhere, (16) it would have been more surprising had common-law Aboriginal title not appeared. Courts would have had to explain why they were not extending public-law monitoring and protection to one class of claimant--the tribes--while actively doing so in many other spheres.

As it was, Calder was more the augury of a jurisprudence and pattern of negotiated claims settlement that did not emerge (other than very faintly) until more than 20 years later. During that time First Nations were busier with the political route offered by the patriation package of the Trudeau government in 1982. Although last-minute provision had been made for the recognition of "existing Aboriginal and treaty claims" in section 35 of the Constitution Act, 1982, (17) the mandated Constitutional Conferences (18) nourished First Nations' hopes for forms of political and constitutional renewal that were eventually dashed. The Meech Lake (1987) and Charlottetown (1992) Accords as well as the establishment in August 1991 of a Royal Commission on Aboriginal Peoples (eventually to report in 1996 (19) 20) set reconciliation as a laudable ideal, but ultimately this became no more than fruitless rhetoric.

By the mid-1990s, frustrated First Nations were returning to the courts and leaning on the leverage suggested by section 35 of the Constitution Act, 1982. There had been an initial, scene-setting moment in R v Sparrow, (20) the first major case on section 35 where the Supreme Court set out the means for prioritization of competing public and private interests in the erection and administration of resource management laws. Whilst the position in Sparrow on governmental regulation and abridgement of Aboriginal rights was a weather vane for the section 35 jurisprudence to come, the two important court benchmarks of the 1990s were the possessory actions and tests set out in the Van der Peet trilogy (21) (the rights test) and Delgamuukw (the title test). By the mid-1990s the Supreme Courts docket was jammed with First Nations cases. For all the judicial platitudes otherwise in Van der Peet and Delgamuukw, possessory actions were then being based upon the articulation and elaboration of legal principles that had been accepted in Canadian law before the enactment of section 35 and that, in the mid-1990s way of thinking anyway, had a conceptual life both previous to and apart from it. Calder and Guerin set out principles of possessory rights and a standard for Crown stewardship of Aboriginal assets in cases commenced before section 35 "recognized and affirmed" them. Though it carefully preserved "existing Aboriginal and treaty rights", section 35 operated prophylactically. It was not designed to provide the primary platform for title/rights possessory actions against the Crown (much less to provide a framework for such actions) so much as to provide protection from extinguishment. The same might be said of section 223 of the Native Title Act 1993 in Australia, (22) passed in response to the Mabo No 2 case. (23) This statutory provision purported to keep the common law as an independent generative source of native title but, by a course of judicial interpretation, it became seen as the whole platform. Something of the same trend appeared in the mid-1990s cases and the Canadian jurisprudences downplaying of the common-law foundation for the title/rights possessory actions, although section 35 was not to take a fuller, replacing role until the next century. The brave new legal world suggested in Calder, Guerin, and Mabo No 2 had turned into something much less bold--indeed disfiguring as the critics of Van der Peet pointed out. (24)

The Van der Peet test for Aboriginal rights (discussed more fully below) quickly attracted adverse attention as ossifying those rights "integral to a distinct culture" at the time of European contact. The test literally involved travelling to an antique, pre-contact land. Within a matter of weeks, a backtracking Supreme Court was distinguishing between "title" and "rights". (25) The Court later seemed to loosen the rights test in Sappier; Gray with a "logical evolution" element, allowing the Aboriginal right to harvest wood for the construction of temporary shelters to evolve into the present-day construction of permanent dwellings. (26)

The title/rights distinction was hastily offered as an amelioration of the botched-up rights test (27) and was elaborated by the Supreme Court the next year in Delgamuukw. The Van der Peet test quickly became problematic and awkward, if not embarrassing, as the judgment soon after (the next day, in fact) in Pamajewon (28) showed. In retrospect it was the dissenting judgment of McLachlin J (as she then was) in Van der Peet that signalled the new direction and invigoration of section 35 that was to come in the new century. She joined the majority in the two October judgments and in Delgamuukw, but she had laid the marker for the load-bearing role that section 35 would soon acquire when she became Chief Justice a week into 2000. (29) Her approach in Van der Peet had gone beyond the more narrow and straitening proprietary approach of the majority. She saw section 35 as establishing constitutional Aboriginal rights that could be of the common law, but that also transcended it so as to grant rights that would provide a firm foundation for the settlement of claims, were liberal and generous toward Aboriginal interests, and considered claims in the context of the historic way of life of the people asserting it. Above all, she insisted that the Court's approach had to be true to the Crowns position as fiduciary for the first peoples.

The Supreme Court looked at Aboriginal title in Delgamuukw, but the circumstances surrounding this first major reconsideration of its juridical foundations left ambiguities as to its nature. The case was remitted for retrial due to the trial judges failure to appreciate the evidentiary difficulties inherent in adjudicating Aboriginal claims. The foundation of title in exclusive use and occupation was reaffirmed, (30) a position on which McLachlin J now joined the majority, leaving her attempt in Van der Peet to found possessory rights in principles of the continuity of legal systems upon a change of sovereignty. The case was more significant for the Court distancing the title test from the criticized aspects of the rights test. The majority indicated that Canadian jurisprudence on Aboriginal title framed the "right to occupy and possess" in broad terms and, significantly, was not qualified by the restriction that use be tied to practice, custom, or tradition. The case left open whether Aboriginal title was (to use terms that came into widespread circulation) "territorial" (covering all land over which claimants exercised territorial authority), "postage stamp" (limited to those lands actually occupied), or "latticed" (a network of title patches linked by threads of rights).

The conjoint appeal in Marshall; Bernard (31) involved an appeal against a criminal conviction in which Aboriginal title was pleaded as a defence rather than as a substantive cause of action. The Supreme Court intimated willingness to give the Delgamuukw title test of exclusivity a loose quality. All that was required to prove the exclusivity associated with title, said the majority, was demonstration of effective control of the land by the group, from which a reasonable inference might be drawn that the group could have excluded others had it chosen to do so. (32) Nonetheless, the Court was also clear that an appeal against criminal conviction was not the opportune scenario for it to be delivering a comprehensive judgment on the nature of Aboriginal title. That opportunity finally came with Tsilhqot'in Nation, some 17 years after Delgamuukw.

Meanwhile, under Chief Justice McLachlin's leadership the Supreme Court seemed to be discarding the proprietary constraints of the possessory actions for other new constitutional forms of action based on section 35: notably, the duty to consult set out in Haida Nation (33) and the "honour of the Crown" in the Manitoba Metis Federation case. (34) The latter case showed that the courts would intervene (and write their own version of history) in order to prod the Crown towards resolution of historical (i.e., "specific" (35)) claims. Although this direction reflected the character of the litigation coming before it, there was a wider feeling that a form of jurisprudence that had its origins in a pre-section 35 era was being replaced with a more consciously fashioned constitutional one. Tsilhqot'in Nation indicates less that this perception was slightly misplaced or premature, and more that the possessory actions would be revitalized with the constitutional quality of this fresher jurisprudence.

The judgment in Tsilhqot'in Nation was necessary for more pressing reasons. The uncertainties that surrounded the Canadian cases on Aboriginal title were hardly incentivizing progression of title claims at the 100 negotiating tables across the country as of March 2014. (36) There have been six comprehensive claims settlements since 2006 (four of which included provisions related to self-government), (37) but this hardly represents a significant forward momentum. From the 1990s on, Canadian courts spoke often of "reconciliation" and the need for negotiated settlements whilst delivering judgments that did little to oil those processes or to spur the political will onto settlement. Courts are constrained by the form of action before them, of course, although the imaginative approach of Justice Vickers at trial in Tsilhqot'in Nation (38) (and in the result validated by the Supreme Court) may portend more therapeutic judicial management of these cases less strictly constrained by the pleadings. If the Supreme Courts judgment is to be seen as an endorsement of Justice Vickers's interventionist judicial technique, it would be one to be exercised watchfully in a field of litigation often marked by a bucking proceduralism and recurrent evidentiary issues of considerable cultural and juridical sensitivity, making trial hearings protracted, fraught, and highly exposed. Whilst sympathizing with the need for measures that expedite the political processes of claims resolution, one worries that this path is perilous in that it relies upon the calibre and experience--the nous--of the particular judge, and might even become counter-productive. Not every trial judge has been as vindicated (and as lionized) as Justice Vickers. (39) Besides, not long ago in the Lax Kw'alaams Indian Band case the Supreme Court issued a warning against the adoption of a "commission of inquiry" approach in civil proceedings, even in First Nations cases where the procedural rules were to be generously interpreted to facilitate the resolution of the underlying controversies in the public interest. (40)

If the MMF case was intended to nudge and quicken the pace of specific claims by making the "honour of the Crown" a present-day juridical measure of past Crown conduct (and a vague, ahistorical one at that), it might be that Tsilhqot'in Nation is attempting the same with comprehensive (title) claims. Tsilhqot'in Nation affirms a more "territorial" model of title for land claims over the more restricting "postage stamp" or "latticed" models; this development may be intended to push provincial and federal governments toward a more generous position on the geographical reach of title claims. Also, in giving title a more territorial quality, the judgment could be seen as fostering a provision for self-government in settlement negotiations without actually undoing the Courts caginess and reluctance to extend section 35 to include this as an inherent right. (41) Together, the Tsilhqot'in Nation and MMF cases are suggestive. They implicitly signal that the Supreme Court will be framing doctrine so as to address the inertia of comprehensive and specific claims settlement processes. In short, the Supreme Court has been deliberating with a weather eye on how the political branches are faring with claims resolution. Unimpressed, seems to be the verdict. This is a form of the juncture at which Calder was handed down 40 years ago: a judicial corrective of political stasis. To reanimate comprehensive claims settlement processes, it was necessary for the Supreme Court to show that Aboriginal title was not merely a spectral juridical possibility, but a viable juridical creature.

3. TIME (AND RETROACTIVITY) IN THE TEST FOR ABORIGINAL TITLE: ABORIGINAL TITLE "WHERE PRESENT OCCUPATION IS RELIED ON" VERSUS TITLE CRYSTALLIZING "AT CROWN SOVEREIGNTY"

Now that the Supreme Court has finally induced Aboriginal title into a live form, the elements that breathe life into it--its test--will become more closely inspected as title claims surge back into the courts and onto the negotiating tables in the renewed formatting suggested by the case. The Tsilhqot'in Nation case reaffirmed the Delgamuukw test:

   As we have seen, the Delgamuukw test for Aboriginal title to land
   is based on "occupation" prior to assertion of European
   sovereignty. To ground Aboriginal title this occupation must
   possess three characteristics. It must be sufficient; it must be
   continuous (where present occupation is relied on); and it must be
   exclusive. (42)


As is widely known and mentioned earlier, during the mid-1990s the Supreme Court was required to articulate the juridical test(s) for the pursuit of possessory actions against the Crown. In Delgamuukw Chief Justice Lamer famously described these as occurring along the spectrum from full exclusive title to site-specific, stand-alone rights in areas to which Aboriginal access was not exclusive. (43) The "Lamer spectrum" divided between title/rights. "Title" conferred exclusive Aboriginal possession, whilst the non-exclusive form could range from a bundle to stand-alone site-specific "rights".

In August 1996, the Supreme Court articulated the rights test, plainly intending it to be the test for all possessory forms. The Van der Peet test for proof of an Aboriginal right required that the alleged Aboriginal right be integral to the distinctive culture of the claimant groups society. In order to be integral, a practice, custom, or tradition must be of central significance to the society in question, with those practices, customs, and traditions having continuity with the practices, customs, and traditions that existed prior to contact. The "frozen in time" basis of the Aboriginal rights test received immediate and extensive criticism. John Borrows's was amongst the most trenchant and telling:

   With this test, as promised, Chief Justice Antonio Lamer has now
   told us what Aboriginal means. Aboriginal is retrospective. It is
   about what was, "once upon a time," central to the survival of a
   community, not necessarily about what is central, significant, and
   distinctive to the survival of these communities today. His test
   has the potential to reinforce troubling stereotypes about Indians.
   (44)


In Sappier; Gray the Supreme Court thawed the test by allowing the "logical evolution" of the right. Nonetheless and as the facts giving rise to the Van der Peet trilogy showed, the Courts could still baulk at imbuing those rights with a commercial element. In Lax Kw'alaams Indian Band, the Court endorsed the trial judge's application of the Van der Peet test. It agreed that on the facts the practices, customs, and traditions of the pre-contact society did not provide an evidentiary springboard to a constitutionally protected Aboriginal right to harvest and sell all varieties of fish in a modern commercial fishery. The Lax Kw'alaams Band was not a trading people in the pre-contact time period, except with respect to eulachon grease. Its trade in other fish products was sporadic, peripheral, and did not define what made the pre-contact society what it was. The Court could not see how "natural evolution" could justify the award of a quantitatively and qualitatively different right. There was, the Court said (agreeing with the trial judge's worry) a "lack of continuity and proportionality in the Lax Kw'alaams' attempt to build a full-blown twenty-first century commercial fishery on the narrow support of an ancestral trade in eulachon grease". (45) The Supreme Court s recent (as of 2014) position in the Ahousaht litigation suggests that the cautiousness towards acceptance of a commercial element might be eased by less equivocal evidence in the pre-contact society. (46) Lurking in the Supreme Courts approach is a continuity test beyond the Marshall; Bernard one (continuity of the claimant group) and tending towards a version of the Australian native title test, extending to continuity in the exercise and nature of the right itself.

As also noted, the Delgamuukw test for title represented a swift, if partial, curtailment of the severely constraining implications of the Van der Peet test and the reductionist quest for integral elements predating European contact. It has, however, taken until Tsilhqot'in Nation for the release of that manacle by way of a result that renders an actual title. Nonetheless, though the delaying of that result might have been attributable to the haphazard litigation-prone nature of common-law development, there lies a hostage to fortune in the key cases of Delgamuukw and Marshall; Bernard where title was tantalized but not served. This hostage remains captive in Tsilhqot'in Nation and it is one that the Supreme Court at some stage may well have to pronounce dead, smother, or set free.

The judgment in Tsilhqot'in Nation reminds us several times (47) that Aboriginal title crystallizes from occupation of land by the claimant community at the assertion of Crown sovereignty. This was a case that fell within the bracketed scenario of the Delgamuukw test, being one "where present occupation [was] relied on" in order "to establish title at the time of assertion of European sovereignty". (48) This "present occupation" was the probative foundation for the title claim that had also been made in Delgamuukw (remitted for retrial) and Marshall; Bernard (unsuccessful challenge of a criminal conviction).

Some clarification of the nature of the present occupation test was given in Marshall; Bernard. There the court explained that present occupation required a measure of continuity from the present-day use and occupation back to the moment or time of the assertion of European sovereignty. This was demonstrated by showing the claimant groups descent from the pre-sovereignty group whose practices are relied on for the right. (49) Continuity attached to the identity of the group rather than to the nature of their occupation. In giving this continuity requirement for a present-occupation title claim, the Court avoided a straightening or narrow continuity test analogous to the High Court of Australia's continuity test for native title. The Australian test encompasses continuity to the present day both in the identity of the claimant group and in their exercise as well as in the nature of the rights that comprise their native title. In Australian jurisprudence this continuity turns on a core notion of "tradition", the fulfillment of which has become a means by which the scope of the native title has been limited. By this test, the cognizability of any native title is drastically compromised where any intervening pattern of occupation between Crown sovereignty and the present has absorbed a non-traditional element as a result of colonial contact. The Australian outcome has been a continuity test easier to meet for groups that have lived far from the reach of white ways, and vastly harder to meet for groups that have had to adapt perforce of proximity to white settlement. The paradox then becomes that those groups that have struggled with and made some necessary adaptation to white neighbours and encroachment--those groups for whom maintenance of cultural integrity has been more challenging--are penalized in the application of a curtailing test that makes no allowance for any cultural resilience. (50) Happily the Supreme Court of Canada's continuity test did not make such an implicit (and anthropologically problematic--as well as culturally offensive) differentiation between those groups with a pristine and authentic "tradition" and those with a "creolized" and inauthentic one.

The captive possibility in the title test concerns the possibility of proof of title not by reference to present-day occupation, but by proof of title at the time of Crown sovereignty established by reference to past occupation. Crown sovereignty is the moment at which that title is said to "crystallize" at law. If by "crystallizing" the Court means that the title then became enforceable in the Crowns courts and against it, then it is a conclusion of considerable historical dubiousness. Though the shape of what would become the common-law doctrine was forming in the early 20th century, (51) it did not enter the legal mainstream until Calder. Rather, the doctrine argues not that a title crystallizing at Crown sovereignty could or should have been enforced against the Crown by its own courts in the pic-Calder era, but that it can be enforceable now in a post-Calder legal world that has come to include (especially in the McLachlin CJC era) the judicial interpretation of section 35. This enforceability raises little controversy in principle where the title is claimed by present occupation. But does it also entail a title said to have crystallized at Crown sovereignty being reinstated if there is sufficient historical evidence from a previous time that can meet the Delgamuukw test of effective control? Does Aboriginal title subsist in a cryonic state after its factual expiry as to restore past occupation so much as protect present and unexpired occupation? Is there a form of past-day Aboriginal title where occupation at Crown sovereignty and other than at the present day other can be relied on and restored by a court (so displacing subsequent long-term occupiers, including those under Crown grant)?

Kent McNeil certainly thinks so. As part of a collection on the Temagami Blockade (1988-89) published in 2003, he wrote an essay that picked up on this unexplored notion of an Aboriginal title at Crown sovereignty proven by past rather than present occupation. The essay raised the worrying implication of the restoration of a form of title that is essentially spectral in the sense of it being unsupported by present use and occupation but having existed at the time of Crown sovereignty. We thus come to fundamental questions and uncertainties as to the function of common-law Aboriginal title.

McNeil put the argument in favour of the restoration of a past-day title with seductive simplicity:

   [T]he fact remains that many Aboriginal people have been
   dispossessed, either partially or completely, of their traditional
   lands. Are these common law principles of any use where this has
   happened? The answer must be yes, because any occupation of lands,
   including past occupation, gives rise to the presumptions that the
   occupiers had possession and hence title at the time. So if an
   Aboriginal people can show that they occupied lands at any time
   after Crown assertion of sovereignty, the presumption should be
   that they had possession and title. As pointed out, the Crown could
   then try to rebut this presumption of Aboriginal title by proving
   that the lands were unoccupied when it asserted sovereignty. (52)


If the Crown cannot displace the factual foundation of the title claim by proving non-occupation, it must move onto the legal argument that the title was subsequently extinguished:

   Failing that, the Crown might present evidence to show that
   Aboriginal title had been surrendered or extinguished in the
   meantime, either by treaty or by legislative taking. But once
   again, the burden of proving surrender or extinguishment would be
   on the Crown because Aboriginal title, once proven to exist, is
   presumed to continue until shown to have been surrendered or
   extinguished. (53)


McNeil then delivers a rather stunningly casual moment of blithe disregard for the implications of dispossessing innocent present-day occupiers:

   Moreover, a grantee of the Crown would have the same burden of
   proof as the Crown itself because, if the Crown at the time the
   grant was issued did not have more than the underlying title that
   it has to all Aboriginal lands, the grant would be either null and
   void, or subject to the Aboriginal title and hence to the
   Aboriginal titleholders' right to exclusive use and occupation.
   (54)


As usual with McNeil there is an abundance of case citation in his footnotes and plentiful reference to his own work. By way of drawing on an Australian native title analogy, he makes passing reference in a footnote (55) to the Chippewas of Sarnia Band (56) case: There the Ontario Court of Appeal agreed with the first-instance court that present-day occupiers of land could not be dispossessed by claims to an improperly extinguished (and hence their title clouded by a subsisting) Aboriginal title. McNeil cites his "critique" of this case as though that alone were sufficient to discredit its authority, but overlooks the not-unimportant refusal twice by the McLachlin Supreme Court to grant leave to appeal (2001 and 2002). (57) This refusal suggests that the possibility of a past-day Aboriginal title is juridically dead at least as against third-party titleholders of the Crown. Whilst that is not to exclude other forms of court action that establish Crown accountability, such as that in MMF, actions to recover possession of lost lands from third parties based upon a subsisting past-day Aboriginal title may be doomed notwithstanding McNeils advocacy otherwise.

McNeil is drawing out the implications of the Aboriginal title test's parenthetical reference to proof based on present occupation and the possibility discussed by former chief justice Lamer in Delgamuukw and reaffirmed in Tsilhqot'in Nation that past occupation could theoretically result in valid title. But momentarily disregarding the Supreme Courts contradictory unwillingness to brook the possibility its judgments still seem to be incubating, we might ask more generally if common-law Aboriginal title is really a doctrine to validate what are essentially historical (specific) claims. In all the major cases except the ill-fated Sarnia case, the doctrine has been invoked to validate extant possessory rights. As a legal argument it was conceived in situations to protect what was there and had been there since Crown sovereignty, not to restore that which had been lost in the meantime, however colourable and impugnable those historical processes of loss. Aboriginal title was designed to protect Aboriginal rights and interests such as the indigenous habitat in the Australian outback from bauxite extraction, the indigenous habitat in northern Quebec from low-flying NATO jets and hydro projects, indigenous fishing and hunting rights in the prairies and the Laurentian peneplain, and Maori fishing rights around the New Zealand coastline. Its goals initially were preservative, not restorative. Though the title might have crystallized at Crown sovereignty, it was born essentially as a possessory action to protect rights that remained in the actual exercise. The companion doctrine of Crown fiduciary duty to First Nations' occupants, as it appeared in the 1980s, was aimed not at protecting extant possessory rights but at establishing standards of Crown accountability for their treatment. If the possessory action is going to be given the retroactive effect that the Supreme Court judgments have been harbouring, then there will need to be clear juridical explanation for this enlargement of the scope of Aboriginal title.

The jurisprudential course of development in the new century revised the proprietary orientation towards a more public law and fluid approach, one that looked towards the conduct of governmental relations with First Nations rather than more rigidifying questions of ownership. There was a clear need for a jurisprudential course that was more constitutionally expressive (and which the McLachlin Supreme Courts awakening of section 35 enabled) and less boxed in by the constraining proprietary paradigm of Aboriginal title/rights and, to a lesser extent, the fiduciary doctrine. And given that possessory actions remain a necessity, especially for the advancement of comprehensive claims processes, there was no doubt that the incompleteness of the title formulations in Delgamuukw and Marshall; Bernard needed attention and something of the corrective given in Tsilhqot'in Nation. Nevertheless, read alongside MMF, unsatisfactorily

open ends remain surrounding the feasibilities of pursuing historical (specific) claims through adjudicative processes.

McNeil presumed that the pursuit of specific claims through the courts by the sculpting of common-law proprietary principles would be an unproblematic strategy, likewise the granting of proprietary remedies. Even if (contra Sarnia) a past-day title possibility remains viable in Canadian law (as Tsilhqot'in Nation seems to have notionally kept open), it may be that courts will later smother it with heavy probative requirements. That is, the standard of evidence for proof of occupation at the time of Crown sovereignty might be set at so high a threshold as to become impossible to achieve. It would also require expert evidence of an anthropological and historical character that would be costly and take a long while to assemble only to be characterized by a court as insufficient to satisfy the legal test of effective (historical) occupation. Some might think it were better such an exercise, with all the resourcing that it would require (and drain) were never attempted in court.

The Australian version of Aboriginal title excludes the possibility that Canadian law continues to murkily harbor and that Tsilhqot'in Nation could have usefully removed. In Australia, to establish native title there must be continuity not only of the claimant group itself, but also oi their use and occupation of the claimed land since Crown sovereignty. Native title is thus a possessory right grounded in extant use and occupation. In Canada it seems also possibly to be a historical artifact that might be revived.

The New Zealand position also offers a useful comparison. A few weeks after Tsilhqot'in Nation was handed down, the New Zealand Supreme Court issued its judgments in Paki v Attorney-General, (58) In this case the New Zealand Supreme Court rejected the appellants' arguments that the Crown owed a fiduciary duty in relation to its 19th-century purchase of particular Maori land, (59) although the Court left open the possibility that such a duty might arise in future cases. (60) Unlike the Supreme Court of Canada (by implication in Tsilhqot'in Nation and directly in MMF), New Zealand's highest court has shown a distinct reluctance to be drawn into the processes attending the resolution of historical claims. These processes occur inside a political realm where "treaty partners" (61) negotiate and forge agreement, a Kiwi version of Canadas nation-to-nation setting. There is no clearer expression of the reason for this reluctance than Justice Young's statement that retroactive application of fiduciary doctrine "if accepted, would result in the examination of 19th century transactions through a 21st century lens, with a resulting risk of distortion." (62) While New Zealand does not have the equivalent of section 35, Canadians will note the reluctance of its courts to be drawn into litigation that addresses historical claims on grounds of the distortion of historical events that a contemporary juridical enquiry would seem to invite. (63)

There are other related questions of retroactivity inhabiting the Tsilhqot'in Nation judgments alongside the questions I have identified with respect to what I have termed "past-day title". It concerns those exercising rights (such as mineral or lumbering) granted by the Crown over land that has become amenable to an Aboriginal title claim similar to that in Tsilhqot'in Nation. The majority judgment includes obiter that signals a possible line of jurisprudential development and which has raised concerns for resource developers about a "retroactive 'veto'." (64) These concerns arise from paragraph 92 of the judgment, as follows:

   Once title is established, it may be necessary for the Crown to
   reassess prior conduct in light of the new reality in order to
   faithfully discharge its fiduciary duty to the title-holding group
   going forward. For example, if the Crown begins a project without
   consent prior to Aboriginal title being established, it may be
   required to cancel the project upon establishment of the title if
   continuation of the project would be unjustifiably infringing.
   Similarly, if legislation was validly enacted before title was
   established, such legislation may be rendered inapplicable going
   forward to the extent that it unjustifiably infringes Aboriginal
   title. (65)


Whatever may eventuate from further judicial amplification of the consequences of an established aboriginal title, one expects Tsilhqot'in Nation will give momentum to the comprehensive claims processes. My comment here is that it keeps a door slightly ajar for the possibility of the pursuit of a certain type of specific claim in the courts. Canadian courts continue to misleadingly treat common-law Aboriginal title as though it were both a historical legal reality and a late-20th century judicial contrivance. It is, of course, almost entirely the latter--and an important one at that. Tsilhqot'in Nation is an important stage in the life of that contemporary doctrine, but one rather wishes for a clearer characterization from Canadian courts of common-law Aboriginal title as a means for the protection of extant use and occupation. It is a possessory action grounded in a title that subsists today from First Nations' continued use and occupation. It is cognizable because that title is manifest today, not because it technically crystallized at Crown sovereignty. The function of the doctrine is to vigorously protect rights that remain in the actual exercise, not to revive, in possessory form, rights that have been lost by colourable historical processes such as usurpation or improper extinguishment.

P.G. MCHUGH ([dagger])

([dagger]) Paul McHugh is Professor of Law and Legal History at the University of Cambridge. He is the author of Aboriginal Societies and the Common Law (Oxford: Oxford University Press, 2004) and Aboriginal Title (Oxford: Oxford University Press, 2011).

(1) The Examiner, 524 (11 January 1818) 24.

(2) Guerin v R, [1984] 2 SCR 335, 59 BCLR301 [Guerin],

(3) St. Catharines Milling and Lumber Co v R (1887), 13 SCR 577, 13 OAR 148 [St. Catharines Milling],

(4) See Kent McNeil, "Indigenous Rights Litigation, Legal History, and the Role of Experts" (2014) 77:2 Sask L Rev 173 at 180, n 35.

(5) Tsilhqot'in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 256 [Tsilhqot'in Nation].

(6) Charles Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven, Conn: Yale University Press, 1987).

(7) Williams v Lee, 358 US 217,79 S Ct 269 (1959).

(8) Fred L Ragsdale, Book Review of American Indians, Time, and the Law by Charles Wilkinson, (1987) 27:3 Nat Resources J 764.

(9) Calder et al v British Columbia (Attorney General), [1973] SCR 313, 34 DLR (3d) 145 [Calder].

(10) William Blackstone, Commentaries on the Laws of England. (Oxford: Clarendon Press, 1765).

(11) See David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, UK: Cambridge University Press, 2002).

(12) Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw].

(13) See e.g. Tracy A Pratt & Neal J Smitheman, "Tsilhqot'in Nation Case: What It Means for Resource Development in Ontario", Mining Markets (11 August 2014), online: <www.miningmarkets.ca>. Attention has particularly focused upon paragraph 92 of the Tsilhqot'in Nation judgment, supra note 5:

   Once title is established, it may be necessary for the Crown to
   reassess prior conduct in light of the new reality in order to
   faithfully discharge its fiduciary duty to the title-holding group
   going forward. For example, if the Crown begins a project without
   consent prior to Aboriginal title being established, it may be
   required to cancel the project upon establishment of the title if
   continuation of the project would be unjustifiably infringing.


(14) "Province, First Nation Agree to Interim Rules for Land Won at Supreme Court", The Globe and Mail (13 March 2015), online: <www.theglobeandmail.com>.

(15) PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford: Oxford University Press, 2011) [McHugh, Aboriginal Title].

(16) See ibid at 5-6.

(17) Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

(18) The record of these several conferences is set out online: Library of Parliament, "Constitutional Conferences", online: <www.parl.gc.ca>.

(19) Report of the Royal Commission on Aboriginal Peoples (Ottawa: Communication Group, 1996).

(20) R v Sparrow, [1990] 1 SCR 1075,70 DLR (4th) 385.

(21) R v Van der Peet, [1996] 2 SCR 507, 137 DLR (4th) 289 [Van der Peet]; R v NTC Smokehouse Ltd, [1996] 2 SCR 672, 137 DLR (4th) 528; R v Gladstone, [1996] 2 SCR 723,137 DLR (4th) 648.

(22) (Cth).

(23) Mabo v Queensland (No 2), [1992] HCA23, 175 CLR 1.

(24) See infra note 41 and accompanying discussion in text.

(25) See R v Adams, [1996] 3 SCR 101, 138 DLR (4th) 657; R v Cote, [1996] 3 SCR 139, 138 DLR (4th) 385 (both judgments delivered in October 1996).

(26) R v Sappier; R v Gray, 2006 SCC 54 at paras 24-28, [2006] 2 SCR 686 [Sappier; Gray], The facts of this case were "hardly pushing the envelope" with a markedly commercial edge to the "rights" claim: McHugh, Aboriginal Title, supra note 15 at 136-37.

(27) See Kent McNeil, "Aboriginal Title and Aboriginal Rights: What's the Connection?" (1997) 36:1 Alta L Rev 117.

(28) R v Pamajewon, [1996] 2 SCR 821, 138 DLR (4th) 204. This decision was handed down on 22 August 1996, Van der Peet on 21 August 1996.

(29) Beverley McLachlin replaced Antonio Lamer as Chief Justice of the Supreme Court of Canada on 7 January 2000.

(30) See Van der Peel, supra note 21 at para 41; Tsilhqot'in Nation, supra note 5 at para 25.

(31) R v Marshall; R v Bernard, 2005 SCC 43, [2005] 2 SCR 220 [Marshall; Bernard].

(32) See ibid at para 65.

(33) Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550.

(34) Manitoba Metis Federation Inc v Canada, 2013 SCC 14, [2013] 1 SCR 623 [MMF\.

(35) "Specific claims" is the term used to describe claims that raise past grievances of First Nations related to Canada's obligations under historic treaties or the way it managed First Nations' funds or other assets.

(36) See Aboriginal Affairs and Northern Development Canada, "Comprehensive Claims", online: <www.aadnc-aandc.gc.ca/eng/1100100030577/1100100030578>.

(37) The six comprehensive land claim agreements include several in British Columbia: the Tsawwassen First Nation Final Agreement (2009); the five Maa-nulth First Nations Final Agreement (2011); the Yale First Nation Final Agreement (2013); and the Tla'amin Final Agreement (2014). Settlements also occurred in Quebec (Nunavik Inuit Land Claims Agreement (2008) and the Eeyou Marine Region Land Claims Agreement (2012)) and in Manitoba (e.g. the Sioux Valley Dakota Nation's self-government agreement (2014)).

(38) Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700, [2008] 1 CNLR 112.

(39) The Supreme Court's correction of the trial judgment of MacEachern J in Delgamuukw has been noted already. A recent example of this is the Court finding "overriding and palpable errors" to have been made by the trial judge Sanderson J in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 at para 40, [2014] 2 SCR 447, aff'g 2013 ONCA 158,114 OR (3d) 401, rev'g 2011 ONSC 4801, [2012] 1 CNLR 13. Overall, trial judges and counsel will get little navigational guidance from the Supreme Court's position on the role of the trial judge in First Nations' possessory actions.

(40) Lax Kw'alaams Indian Band v Canada (Attorney General'), 2011 SCC 56 at para 40, [2011] 3 SCR 535 [Lax Kw'alaams Indian Band].

(41) See e.g. Mitchell v MNR, 2001 SCC 33, [2001] 1 SCR 911. See also Kent McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon: University of Saskatchewan Native Law Centre, 2001) at 161-355 (where the author tries to pump Aboriginal title into a territorial right of self-government).

(42) Tsilhqot'in Nation, supra note 5 at para 25 [emphasis in original],

(43) Delgamuukw, supra note 12 at para 138.

(44) John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 60. For other criticism from this time, see Russel Lawrence Barsh & James Youngblood Henderson, "The Supreme Courts Van der Peet Trilogy: Naive Imperialism and Ropes of Sand" (1997) 42:4 McGill LJ 993; Leonard I Rotman, "Hunting for Answers in a Strange Kettle of Fish: Unilateralism, Paternalism, and Fiduciary Rhetoric in Badger and Van der Peet" (1997) 8:2 Const Forum Const 40; Michael Asch, "From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973-96" in Paul Havemann, ed, Indigenous Peoples' Rights in Australia, Canada, & New Zealand (Auckland, NZ: Oxford University Press, 1999) 428.

(45) Lax Kw'alaams Indian Band, supra note 40 at para 8.

(46) Ahousaht Indian Band and Ahousaht Nation v Canada (Attorney General), 2009 BCSC 1494, [2010] 1 CNLR 1, aff'd 2011 BCCA 237, 2011 CSCR 353, aff'd 2013 BCCA 300, leave to appeal to SCC refused, 34387 (30 January 2014).

(47) Tsilhqot'in Nation, supra note 5 at paras 28, 30,46-48, 50.

(48) Ibid at para 50.

(49) Marshall; Bernard, supra note 31 at paras 45-60,70,72.

(50) See Simon Young's excellent analysis in The Trouble with Tradition: Native Title and Cultural Change (Sydney: Federation Press, 2008).

(51) See Hamar Foster & Benjamin L Berger, "From Humble Prayers to Legal Demands: The Cowichan Petition of 1909 and the British Columbia Indian Land Question" in Hamar Foster, Benjamin L Berger & AR Buck, eds, The Grand Experiment: Law & Legal Culture in British Settler Societies (Vancouver, BC: University of British Columbia Press, 2008) 240.

(52) Kent McNeil, "Aboriginal Title on the Ground: Establishing and Protecting Occupation of Land" in Bruce W Hodgins, Ute Lischke & David T McNab, eds, Blockades and Resistance: Studies in Actions of Peace and the Temagami Blockades of 1988-89 (Waterloo, Ont: Wilfrid Laurier University Press, 2003) 147 at 153 [McNeil, "Aboriginal Title on the Ground"] .

(53) Ibid .

(54) Ibid. McNeil does not engage the literature on this, notably Jeremy Waldron's sequence of essays: "Superseding Historic Injustice" (1992) 103:1 Ethics 4; "Redressing Historic Injustice" (2002) 52:1 UTLJ 135; "Indigeneity? First Peoples and Last Occupancy" (2003) 1 NZ J Public & Inti L 55; "Settlement, Return and the Supersession Thesis" (2004) 5:2 Theor Inq Law 237.

(55) McNeil, "Aboriginal Title on the Ground", supra note 52 at 266-67, n 49.

(56) Chippewas of Sarnia Band v Canada (Attorney General) (2000), 51 OR (3d) 641, 195 DLR (4th) 135 (CA), aff'g 40 RPR (3d) 49, [1999] OJ No 1406 (QL) (Sup Ct J) [Sarnia].

(57) Ibid, leave to appeal to SCC refused, 28365 (8 November 2001). The Chippewas filed for a reconsideration of the application for leave and this was also declined (13 June 2002).

(58) Paki v Attorney-General (No 2), [2014] NZSC 118, [2015] 1 NZLR67 [Paki],

(59) See PG McHugh, "The Legal Basis of Maori Claims Against the Crown" (1988) 18 VUWLR 1 (in New Zealand, the argument that limitations and laches did not run in relation to actions for Crown breach of fiduciary duty to Maori). The Canadian position is that the Crown can rely upon statutory limitation periods. See e.g. Wewaykum Indian Band v Canada, 2002 SCC 79, [2002] 4 SCR 245; Sarnia, supra note 56. The exception is for actions seeking declaratory relief in relation to the constitutionality (a broadly applied notion) or otherwise of Crown action. See e.g. MMF, supra note 34.

(60) Paki, supra note 58 at paras 187-89.

(61) This terminology was invoked in the famous Maori Council series of cases of the late 1980s: New Zealand Maori Council v Attorney-General, [1987] 1 NZLR 641, [1987] 6 NZAR 353 (CA); Tainui Maori Trust Board v Attorney-General, [1989] 2 NZLR 513 (CA); Te Runanga o Muriwhenua Inc v Attorney-General, [1990] 2 NZLR 641 (CA). See also Rt Hon Robin Cooke, "The Challenge of

Treaty of Waitangi Jurisprudence" (Harkness Henry Lecture delivered at the University of Waikato, Hamilton, NZ, 24 September 1994), (1994) 2 Waikato L Rev 1 at 10, n 27:

   [t]he first Muriwhenua judgment also led to an exchange rather out
   of the ordinary. In her Waitangi Day speech in 1990 Her Majesty the
   Queen had quoted some words from the first Maori Council case about
   partnership and the utmost good faith. She built on these words in
   a way referred to in the Muriwhenua judgment ... and there was some
   consequent correspondence.


See also Joe Williams, "Future Directions" in Jacinta Ruru, ed, In Good Faith: Symposium Proceedings Marking the 20th Anniversary of the Lands Case (Otago, NZ: University of Otago, 2008) 121 at 127. Kendal Luskie summarizes Williams's argument as follows:

   [T]he Court of Appeals description of the Crown-Maori relationship
   as being akin to partnership is empowering to Maori, and such a
   description would not be used to define the relationship between
   the Crown and Indigenous peoples by the top courts in Australia,
   the United States or Canada [where First Nations self-determination
   is not judicially recognised as a right encompassed by section 35]:


The Relationship between the New Zealand Crown and Maori: A Future for Fiduciary Obligations? (LLB (Honours) Dissertation, University of Otago Faculty of Law, 2010) [unpublished] at 55, n 362.

(62) Paki, supra note 58 at para 309. See also ibid at para 192 (on using common-law or equitable means to disrupt claims settlement processes encompassed in statute; strictly speaking, this observation needs qualification to the extent that historical treaty claims can and have been resolved by extra-statutory direct negotiation rather than statutory Waitangi Tribunal processes).

(63) This reluctance has encompassed not only substantive adjudication upon historical claims (which Maori claims to remnant rights around the coastline were not), but also to the more usual administrative law procedural grounds of intervention. See Jessica Andrew, "Administrative Review of the Treaty of Waitangi Settlement Process" (2008) 39:2 VUWLR 225; David V Williams, "Wi Parata is Dead, Long Live Wi Parata" in Andrew Erueti & Claire Charters, eds, Maori Property Rights and the Foreshore and Seabed: The Last Frontier (Wellington, NZ: Victoria University of Wellington University Press, 2007) at 36.

(64) Pratt & Smitheman, supra note 13.

(65) Tsilhqot'in Nation, supra note 5 at para 92.
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Title Annotation:Special Edition: Tsilhqot'in Nation v. British Columbia Decision
Author:McHugh, P.G.
Publication:University of British Columbia Law Review
Date:Oct 1, 2015
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