Aboriginal Rights Defences
Defending or bringing Aboriginal Rights cases in court is very complicated.
The Delgamuukw Trial remains the longest trial in British Columbia history, the trial judge sat for 374 days over three years, longer than the Air India trial and other high-profile trial. This changed from the Calder case, the first Aboriginal Title trial in the 1970s which took only 7 days, and is due to the procedural ruling that Aboriginal peoples have to prove their title to the land rather than asking governments to show whether they extinguished Aboriginal Title in the respective territory, a point on which the Supreme Court of Canada already ruled on finding that there had been no extinguishment.
The so-called reverse burden of proof makes defending Aboriginal rights very time consuming and complex. It requires calling oral evidence from Aboriginal elders, land users and other experts who can attest to a long-standing pattern of occupation and/or use by indigenous peoples.
Aboriginal Title and Rights while protected by the Constitution of Canada, are sui generis rights (rights of their own kind) that are rooted in indigenous laws and practices. Indigenous peoples hold the knowledge and oral traditions that are key to proving Aboriginal Rights and as your lawyers we will work with you to ensure that your evidence is presented in a way that lays out the full spectre of indigenous rights for the court.
There are a number of steps to an Aboriginal rights case:
- First our side has to establish the Aboriginal right through oral evidence an expert testimony.
- The next step is to establish that a regulation or development infringes Aboriginal Rights.
- Then the burden shifts to the government or the corporation to provide a justification, such as public interest, conservation concerns and resource management concerns. At this stage issues of as little infringement as possible and compensation come into play.
At Tessmer Law Offices we know that indigenous peoples hold the longest-term traditional knowledge about sustainable use of your land and resources and are in a good position to challenge decisions that do not always ensure conservation and sustainable resource management.
We believe it is increasingly important to present evidence about the overall economic dimension of indigenous rights, how indigenous peoples suffer from loss of their traditional territories and resources. This will also strengthen your position in negotiations.
Federal and Provincial Policies Violate Indigenous Rights
The courts have ruled that the government has a fiduciary obligation to Aboriginal peoples, that Aboriginal peoples have to be consulted, and that Aboriginal interests have to be accommodated in a meaningful way – even in the pre-proof stage before Aboriginal Title has been proven in court.
This means that indigenous peoples have to be involved in all decision-making that affects your traditional territories such as forestry and mining and any other developments.
International law establishes the principle of free prior informed consent of indigenous peoples and also recognizes indigenous land rights and self-determination. These principles are also enshrined in the recently adopted UN Declaration on the Rights of Indigenous Peoples.
One of Tessmer Law Offices’ advocates, Nicole Schabus, has worked with indigenous peoples from the local to the international level. She has made submissions to UN human rights bodies and even presented the first ever indigenous submission to international trade tribunals that was officially accepted by both the World Trade Organization and NAFTA. Nicole continues to attend international environmental negotiations especially under the Convention on Biological Diversity that take into account the traditional ecological knowledge of indigenous peoples.
Tessmer Law Offices also incorporates international law principles in their arguments and submissions in court.
