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Just the Facts! Aboriginal Title and Proof of Occupation after Marshall; Bernard

This paper examines some recent developments in aboriginal title. While the body of case law concerning aboriginal law is rapidly growing, there remains only a very small handful of cases that provide specific guidance on aboriginal rights and aboriginal title. Consequently, the case focused on here--R. v. Marshall; R. v. Bernard is not particularly recent. However, they have been the subject of considerable discussion and debate in the academic and professional literature and in courtrooms as we grapple with how the broad principles set out in those cases will apply on the ground or, in one recent case, on the water.

I have chosen to make aboriginal title the focus of this paper, largely because Marshall; Bernard has probably generated the most discussion and debate, particularly with regard to the geographical scope of aboriginal title. The discussions over Marhsall; Bernard in the literature and in courtrooms seem to cast the geographical scope in two extremes--small sites v. territorial approach. It will be my argument that casting the analysis in these terms is unhelpful in that it skews the Supreme Court of Canada’s fundamental conclusion in Marshall; Bernard which is that proof of occupation for aboriginal title is highly contextual and fact-dependent. I will also comment on seasonal use of land as a basis for aboriginal title and the role of the aboriginal perspective in defining occupation. I will begin the section on aboriginal title with a review of the leading cases and the general principles that emerge from these cases.

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