The law of Native American hunting, fishing and gathering rights outside of reservation boundaries in the United States and Canada.

• Author: Charlton, Guy
• Position: III. The Canadian Doctrine of Off-Reserve Hunting, Fishing and Gathering Rights E. Determining the Content and the Scope of Hunting, Fishing and Gathering Rights through IV. Conclusion: Politics, Law and History in American and Canadian Indigenous Usufructuary Rights, with footnotes, p. 142-169

5. Determining the Content and the Scope of Hunting, Fishing and Gathering Rights

   Emphasis on the idea that sec. 35 rights are "aboriginal" colors the entire analysis used to determine the nature and extent of protected hunting, fishing, and gathering rights. "Aboriginal rights cannot ... be defined on the basis of the philosophical precepts of the liberal enlightenment ... They arise from the fact that aboriginal people are aboriginal." Because these rights are held collectively by a group and flow from the pre-existing possession and use of the territory prior "to the arrival of Europeans" and, at the same time, must be reconciled with the assertion of British sovereignty, the rights themselves are circumscribed by judicial understandings of what traditional aboriginal practices and traditions involve. In light of this basic premise, which implicitly contrasts aboriginal rights to those of the "liberal enlightenment," rights and duties are given content. (285)

   Thus, aboriginal rights must be specifically framed and historically grounded rather than conceptualized in a broad or universal manner. (286) This framing is the "necessary specificity, which comes from granting special constitutional protection to one part of Canadian society." (287)

   1. Aboriginal Title

      Until R. v. Adams and R. v. Cote a judicial finding that the claimant group held aboriginal title over a territory was considered necessary in order for there to be aboriginal rights to hunt, fish, and gather. At present, the courts consider aboriginal title to be "simply one manifestation of a broader-based conception of aboriginal rights." (288) Since those decisions however, aboriginal groups have continued to make claims that various usafructuary uses are permitted because they hold unsurrendered aboriginal title to the land they occupied at the time the British asserted sovereignty in their territory. These aboriginal title claims are claims to land and the various usufructuary rights practiced are parasitic on the underlying title.

      "[A]boriginal title exists when the bundle of aboriginal rights is large enough to command the recognition of a sui generis proprietary interest to occupy and use the land." (289) It is a right of use and occupation prior to the assertion of British sovereignty, is held communally, and it is inalienable except to the Crown. It is more than the right to engage in a set of specific practices and is characterized as an interest in land itself. The interest is sui generis because it "cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems." (290) Aboriginal title pre-dates and survives the assertion of British sovereignty and provides the aboriginals who occupied the particular territory "the full benefit of the land, including subsurface and any non-precious metals contained therein." (291)

      The characterization of aboriginal title as a form of "inalienable fee simple" is reflected in the seminal Indian law cases of American Chief Justice John Marshall in the early 19th century. This line of cases embraced the notion that tribal occupancy rights provided the tribe with full use of the soil and enabled the tribe to the use the territory as they thought appropriate. (292) From this perspective, the only difference between a fee simple estate and common law aboriginal title is that individual settlers, by common law and legislation, were prevented from purchasing aboriginal titled land. (293) In Delgamuukw, however, the Supreme Court of Canada conceptualized aboriginal title differently. For the Delgamuukw Court:

      [T]he content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land. (294) The historic aboriginal occupation and use of a particular territory is reconciled with the core common law conceptions of occupancy and title. (295) This reconciliation process "must be sensitive to the context-specific nature of common law title, as well as the aboriginal perspective." (296) "Absolute congruity is not required, so long as the practices engage the core idea of the modern right." (297)

      From a common law perspective, the content of occupation and use as well as customary law covering the claimed activity, and the extent to which it can be reconciled with the common law, is dependent upon the tribal particular culture, demography, natural resources, and the existence and nature of a land tenure system. As one source of aboriginal title is occupancy, use and possession under tribal law, the appropriate time period to examine the aboriginal perspective is at the time the British asserted sovereignty rather than the pre-contact period (as in the case of other aboriginal rights). (298) In short, an aboriginal group cannot claim aboriginal title to territory they did not possess at the time the British asserted their sovereignty and radical title to the area.

      Two core common law factors are considered important. First, the court must determine whether the tribal occupation is sufficient to ground title. Occupancy may be established in many different ways; from the building of dwellings, planting fields, or by using specific territory for hunting and fishing, or otherwise exploiting various resources. The legal character of the occupation is based on the aboriginal societies' traditional way of life. This will vary among tribes and be dependent upon a "group's size, manner of life, material resources, and technological abilities, and the character of the lands claimed". (299) As noted, the land must be occupied prior to British sovereignty. In addition, if present occupancy is used as evidence of historic occupancy there must be continuity between the present and pre-sovereignty occupation. (300) Second, the occupancy must be exclusive at the time of sovereignty. In Marshall III, McLachlin, C.J., writing for the majority, set forth the criteria necessary to sufficient exclusive occupancy to prove aboriginal title:

      [E]xclusive possession in the sense of intention and capacity to control is required to establish aboriginal title. Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources. Less intensive uses may give rise to different rights. The requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law. These principles apply to nomadic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes ... The ultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the aboriginal perspective as well as fidelity to the common law concepts involved. (301) If an aboriginal group cannot show that it occupied and used a particular territory exclusively, it could still assert a claim for an aboriginal right to engage in certain activities on the territory.

      Lamer, C.J., who authored the majority opinion in Delgamuukw, insisted that aboriginal title was not equivalent to a usufructuary right to engage in traditional aboriginal practices:

      Despite the fact that the jurisprudence on aboriginal title is somewhat underdeveloped, it is clear that the uses to which lands held pursuant to aboriginal title can be put is not restricted to the practices, customs and traditions of aboriginal peoples integral to distinctive aboriginal cultures. (302) On the surface the approach is a marked departure from earlier jurisprudence which conflated aboriginal title and aboriginal rights such that "that aboriginal title was often considered to be no more that a bundle of rights to engage in traditional activities that were also considered aboriginal rights." (303) However, upon closer analysis there seems to be little difference between an aboriginal rights claim and an aboriginal title claim. While Lamer C.J.'s discussion departs in some sense from precedent, it remains consistent with the underlying principles of previous case-law. This earlier case law equated the content of aboriginal title with the use of the territory for traditional hunting, fishing and gathering activities.

      The conflation of the doctrine of aboriginal title and the doctrine of aboriginal rights is evident in St. Catherine's Milling and Lumbering Co. There Lord Watson, while declining to ascertain the "precise quality of the Indian right" did find that aboriginal title was not fee simple (as posited under the doctrine of common law aboriginal title). Otherwise the decision would have been in favor if the Dominion. (304) Rather, "the tenure of the Indians was a personal and usufructuary right" as recognized by the Proclamation of 1763. Such tenure was simply a burden upon the Crown's underlying proprietary title. In the circumstances, the "usufruct" that composed the aboriginal right was described by the Proclamation, which characterized the reserved aboriginal lands as "hunting grounds."

      Lord Watson's conflation of aboriginal title and aboriginal rights, which then consisted of various traditional use rights, is even more evident in Strong, J.'s earlier dissent when the case was before the Supreme Court of Canada:

      [I]n reference to Indian habits and modes of life and the hunting grounds of the tribes were as much in their actual occupation as the cleared fields of the whites, and this was the tenure of Indian lands by the laws of all the colonies. (305) In either case, the mutually...