I. INTRODUCTION

Has the decision of the Supreme Court of Canada in Mitchell v. The Minister of National Revenue clarified the evidentiary rules previously established by it for proving Aboriginal rights, or has it altered or added another layer to those rules?

In order to determine this question, a brief review of the major Supreme Court of Canada decisions, pre-Mitchell, on proving Aboriginal rights is in order.

A. R. v. VAN DER PEET

In the companion cases of R. v. Van der Peet, R. v. Gladstone and R. v. N.T.C. Smokehouse the Supreme Court set out a test for the establishment of Aboriginal rights. The burden of meeting this test lies upon Aboriginal claimants, as the burden of proving the existence of an Aboriginal right lies with the party claiming it. The Court held that Aboriginal rights within the meaning of section 35 of the Constitution Act, 1982 must be derived from a pre-contact activity that was an element of a practice, custom or tradition integral to the Aboriginal claimant's distinctive culture. This is often referred to as the "integral to a distinctive culture" test.

The Court outlined a number of principles which must be kept in mind in making the determination of whether an Aboriginal claimant has met the 'integral to the distinctive culture test'. A number of these principles appear to be truisms. For instance, we are told that, in assessing Aboriginal claims, courts must take into account the perspective of Aboriginal peoples themselves. However, while Courts adjudicating Aboriginal rights claims must be sensitive to the Aboriginal perspective, but they must also be aware that Aboriginal rights exist within the general legal system of Canada.

Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims. The court must not undervalue the evidence presented by Aboriginal claimants simply because it does not conform precisely with the evidentiary standards that would be applied in other cases.

Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right. To characterize the claim correctly, the court should consider the nature of the action which the applicant claimed was done pursuant to an Aboriginal right, the nature of the government regulation, statute or action being impugned, and the tradition, custom or practice being relied upon to establish the right.

In order to be integral, a practice, custom or tradition must be of central significance to the Aboriginal society in question. The claimant must prove more than the existence of the practice. The practice had to be a central and significant part of the society's distinctive culture. It must be something that truly made the society what it was. For a practice, tradition or custom to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists. Incidental practices, customs and traditions cannot qualify as Aboriginal rights. Where two customs exist, but one is merely incidental to the other, the custom which is integral to the Aboriginal community in question will qualify as an Aboriginal right. The incidental practice will not qualify.

The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the traditions, customs and practices that were integral to the Aboriginal society prior to contact. The time period that a court must consider is the period prior to contact with the Europeans. This does not mean that the Aboriginal group must meet the impossible task of producing conclusive evidence from pre-contact times about the traditions in their community. The evidence may relate to Aboriginal practices post-contact. The evidence simply needs to be directed at demonstrating which aspects of the Aboriginal community have their origins pre-contact. Therefore, where an Aboriginal community can demonstrate that a particular practice is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an Aboriginal right for the purposes of subsection 35(1).

Claims to Aboriginal rights must be adjudicated on a specific rather than a general basis. The existence of an Aboriginal right will depend entirely on the traditions, customs or practices of the particular Aboriginal community claiming the right. Aboriginal rights are not general or universal; their scope and existence must be determined on a case by case basis.

The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct. A tradition that is distinct is one that is unique while a tradition that is distinctive is one that is distinguishing. It is a claim that this tradition makes the culture what it is, not that the tradition is different from the practices of another culture. For instance, hunting is a distinctive practice even if it is common to virtually all First Nations. However, the Court also states that one cannot look at the aspects of Aboriginal society that are true to every human society

The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition became integral only because of that influence. If the practice existed pre-contact, the fact that the practice continued and adapted is not relevant to the determination. For instance, hunting remains a distinctive part of a First Nation's culture even if it is now done with firearms. On the other hand, where the practice arose solely in response to European influences then the practice does not meet the standard for recognition as an Aboriginal right.

Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples. Aboriginal rights arise from the prior occupation of land, and also from the prior social organization and distinctive cultures of the peoples on that land. But, courts must not focus entirely on the relationship of Aboriginal peoples with the land. They must also look at the practices, customs and traditions arising from the claimant's distinctive culture and society. For example, a First Nations's language obviously developed on its territory, but it remains part of the distinctive culture of members of that Nation, wherever they are.

Finally, the Court affirmed that appellate courts owe considerable deference to findings made by the trial judge concerning the facts which prove, or fail to prove, an Aboriginal right. This meant that, even though the trial judge in Van der Peet applied the wrong tests for determining the scope of the Aboriginal right on the basis of the facts, his actual findings of fact in relation to the Aboriginal rights claimed were maintained by the Supreme Court. According to the Supreme Court: "that Scarlett Prov. Ct. J. was not entirely correct in his legal analysis of the facts as he found them does not mean that he made a clear and palpable error in reviewing the evidence and making those findings of fact." (para. 83, emphasis in the original).

B. R v. PAMAJEWON

While judgment in this case was rendered before the Supreme Court made public its judgment and reasons in Van der Peet, the reasons for judgment in Pamajewon were released the day after Van der Peet.

While Van der Peet and its companion cases all involved claims of Aboriginal rights to trade in fish, in Pamajewon the fact situation and right claimed involved gambling in the words of the Court "high stakes gambling" and a claim that the Aboriginal claimants' right to self-government encompassed the right to regulate on reserve gambling.

These claims were rejected outright. While the Court was prepared to assume without deciding that s. 35(1) includes self-government rights, it insisted that those rights must be proven in accordance with the 'integral to the distinctive culture' test. The Court rejected the argument that a more general right to manage Aboriginal reserve lands could encompass the right to organize and regulate high stakes gambling.

With respect to the evidence led, the Court noted that, while there was evidence that the Ojibwa gambled, the evidence did not demonstrate that gambling was of central significance to the Ojibwa people. Furthermore, the Court indicated that even if it had been established that gambling was a central significance to the Ojibwa people, that would not suffice in this case as they would also have to prove that gambling was the subject of regulation by the Ojibwa community.

Finally the Court expressed its agreement with an observation made by the trial judge that "commercial lotteries such as bingo are a twentieth century phenomena and nothing of the kind existed amongst aboriginal peoples and was never part of the means by which those societies were traditionally sustained or socialized".

C. DELGAMUUKW v. BRITISH COLUMBIA

While this judgment is perhaps most significant for the Court's conclusions regarding the nature and meaning of Aboriginal title, the Court also reiterated the principles of evidence it enunciated in Van der Peet and applied those principles to Aboriginal oral traditions and histories.

On the issue of principles of appellate review of evidentiary findings, the Court explained that "this Court has been extremely reluctant to interfere with findings of fact made at trial, especially when those findings of fact are based on an assessment of the testimony and credibility of witnesses".

However, they found that the trial judge had made an error in giving "no independent weight at all" to the oral histories tendered by the Aboriginal claimants, in discounting the 'recollections of aboriginal life' offered by members of the Gitksan and Wet'suwet'en nations and in refusing to admit into evidence the territorial affidavits filed the chiefs of those nations. The Chief Justice held that:

[T]he trial judge expected too much of the oral history of the appellants, as expressed in the recollections of aboriginal life of members of the appellant nations. He expected that evidence to provide definitive and precise evidence of pre-contact aboriginal activities on the territory in question. However, as I held in Van der Peet, this will be almost an impossible burden to meet. Rather, if oral history cannot conclusively establish pre-sovereignty (after this decision) occupation of land, it may still be relevant to demonstrate that current occupation has its origins prior to sovereignty. (para. 101, emphasis added)

Thus, oral history and traditions are relevant even if they do not provide precise evidence of pre-contact Aboriginal activities on the territory in question; furthermore, they are relevant even if they relate to occupation occurring after Crown sovereignty.

The trial judge's errors in excluding oral traditions and discounting their weight warranted appellate interference as it meant that his factual findings could not stand. The Court ordered a new trial.

II. WHAT THE PARTIES ATTEMPTED TO ESTABLISH IN MITCHELL

A. THE EVIDENCE PUT FORWARD BY THE MOHAWKS OF AKWESASNE

The evidence in support of the case put forward by the Mohawks of Akwesasne in Mitchell was formulated and planned prior to the release of the Van der Peet judgment, but the trial began in October 1996, some months after the release of Van der Peet.

The claim had originally been based upon both Aboriginal rights and on treaty rights. The treaty rights argument was based upon the rights in Article XV of the Treaty of Utrecht and Article III of the Jay Treaty as confirmed by Article IX of the Treaty of Ghent, as well as on treaty councils between the Crown and First Nations which took place in 1795, 1796 and 1815. The treaty rights argument was unsuccessful in both the Federal Court and the Federal Court of Appeal and was not appealed to the Supreme Court of Canada.

On behalf of the Mohawks of Akwesasne, Grand Chief Mitchell asserted an Aboriginal right to cross the Canada/United States border with personal and community goods, the right not to pay duties or taxes on those goods and the right to trade across the border with other First Nations. He asserted that this practice constituted a continuation of the practices of his ancestors the Mohawk people who are part of the Haudenosaunee or the Six Nations Confederacy.

Evidence was led to demonstrate that trade was integral to the distinctive culture of the Mohawk people and that the Mohawks whose homelands were in the Mohawk Valley prior to the arrival of the Europeans, regularly exploited the area in the St. Lawrence Valley which is now part of Canadian territory. The Mohawks exploitation of this area also included trade.

The Aboriginal right as pleaded had inherent limitations. Personal and community goods imply a limitation as to type of goods and quantity of goods. We also specified that this case was not about any right to bring across the Canada-U.S. border any form of fire-arm or any form of restricted or prohibited goods. Nor did the facts in this case raise the issue of importation into Canada of commercial goods for the primary purpose of competing in the commercial mainstream in Canada. The right would be subject to search and declaration requirements at the border.

Our claims were based upon evidence which we contended showed that the ancestors of the Mohawks of Akwesasne had used the territory in and around Akwesasne for trading, travelling with goods and diplomacy since before the arrival of the Europeans. The evidence in support of the existence of the Aboriginal right was in the form of expert reports filed by three experts (two historians and one expert in archival research) and their testimony, as well as the evidence of members of the Mohawks of Akwesasne such as Grand Chief Mitchell and elders from the community.

B. THE EVIDENCE PUT FORWARD BY THE MINISTER OF NATIONAL REVENUE

At trial the Minister attacked all aspects of the Mohawks' case. The Minister argued that Mohawks themselves were "newcomers to Canada, and in fact they came after the French in 1657". Therefore, as "immigrants" to Canada, the Minister alleged that the Mohawks of Akwesasne could not claim Aboriginal rights as Aboriginal peoples of Canada.

Furthermore, the Minister argued that the Mohawks of Akwesasne, and its sister communities of Kahnawake and Kanesatake, were not, in fact, Mohawk, but constituted a distinct entity and polity, and were renounced as Iroquois people.

The government's expert did concede that the Mohawks had engaged in small scale trade before contact, but insisted that this trade did not extend north to what is today Canada. Furthermore, the government also contended that, even assuming the Aboriginal practice existed, there was no infringement because there is evidence that the concept of tribute, tolls and boundaries existed in pre-contact times.

Finally, the Minister argued that the Aboriginal right, if it had ever existed, had been extinguished by operation of law. No evidence was led by the government regarding extinguishment.

C. JUDGMENT AT TRIAL

The trial lasted over 30 days and evidence was led for 27 of those days.

Mr. Justice McKeown concluded that the Mohawks, whose homelands were in the Mohawk valley, regularly travelled over, used, controlled and exploited the area in the upper St. Lawrence valley (including Akwesasne) which is now part of Canada prior to the arrival of the Europeans. Trading and travelling freely made Mohawk society what it was. The activities of the Mohawks centred around travel, diplomacy and trade. This activity was integral and not incidental to Mohawk society.

The trial judge found that the Iroquois trading network was extended through warfare as was European trade at that time, and Aboriginal peoples should not be held to a different standard from Europeans on the use of warfare to expand trading rights and territory. He further concluded that the Mohawks travelled from their homeland in what is now the United States into what is now Canada for trade related purposes, prior to the arrival of the Europeans, with their goods for personal and community use, without having to pay duty or taxes on those goods.

The trial judge relied on a wide variety of the evidence led to reach his conclusions. That evidence related to the period before contact (in this case, 1609) and immediately after contact. Evidence of post-contact activities is relevant in light of the Supreme Court of Canada's conclusions in Van der Peet that an Aboriginal group need not meet the impossible task of producing conclusive evidence from pre-contact times about the traditions in their community. Recall that the Court stipulated that: "The evidence may relate to aboriginal practices post-contact. The evidence simply needs to be directed at demonstrating which aspects of the aboriginal community have their origins pre-contact."

With respect to the Aboriginal right to trade, McKeown J. relied upon the evidence which included the following:

an account from Harmen van den Bogaert, whose journals form the earliest recorded European observations of Mohawk life and traditions, in which van den Bogaert observed the arrival of Iroquois women, perhaps Oneida, carrying dried salmon and green tobacco which they then sold in at least two Mohawk villages, as well as his observation of several kinds of European trade goods in the Mohawk villages;

evidence, from Akwesasne's expert witnesses that the geographic position of the Mohawks enabled them to gain easy access to the St. Lawrence valley and the lower Great Lakes country for the purposes of trade and diplomacy and that the Mohawks had historically exploited their geographic position in pursuit of trade;

the accepted academic consensus that a treaty of 1645 between the Iroquois (including the Mohawks), the French and the Hurons and Algonquins (Aboriginal nations, located to the north, within present-day Ontario and Quebec) which was negotiated at Montreal, was a means to open access to trade between the parties;

evidence that, from the 16th century on, there was small scale long distance trade between the Iroquois people and that this trade was "vitally important to them";

evidence that trade was a vital factor in the decision by a number of Mohawks of Mohawk valley to establish a permanent community in Caughnawaga/Kahnawake near Montreal in the early 17th century;

evidence that the Mohawks and other members of the Iroquois insisted that trade be included in a Treaty in 1664 which is the first treaty to be signed by Aboriginal peoples in North America with Europeans;

evidence that the Mohawks and the Iroquois travelled freely into the territory which today constitutes Canada in order to engage in commercially motivated warfare and expand their control over trade;

evidence of the existence of an extensive trade network between Montreal and Albany during the 17th and 18th centuries in which the major Iroquois participants were the Mohawks;

evidence of oral traditions regarding Mohawk use of the area around Akwesasne and oral traditions regarding guarantees made to the Iroquois of the right to cross the border with goods;

evidence of a continuing effort by the Mohawks of Akwesasne to participate in their border-crossing activities throughout the 19th and 20th centuries.

D. THE JUDGMENT OF THE FEDERAL COURT OF APPEAL

The Minister appealed the judgment to the Federal Court of Appeal, arguing that the trial judge had erred (1) in finding an Aboriginal right which the Minister contended was "irreconcilable with the sovereignty of the Crown", (2) in improperly characterizing the Aboriginal right in that he had incorrectly interpreted the historical and contemporary evidence and legal issues on the Aboriginal practices which support the Aboriginal right; (3) in finding that the right had not been extinguished and (4) in finding that the Mohawks of Akwesasne had established a right to bring goods into Canada duty-free for the purposes of non-commercial scale trade.

It should be noted that the Minister's appeal on the evidence related only to the evidence in relation to the Aboriginal right to trade and not to the evidence supporting the Mohawk Aboriginal right to bring good across for personal and community use.

The case on appeal, which included the transcripts of evidence at trial, constituted 100 volumes of material.

The Court of Appeal upheld the judgment of McKeown J., except that the Court specified the geographic area where the right could be exercised.

The major issue in the judgment of the Federal Court of Appeal was the issue of extinguishment, and the majority of the Court's reasons were devoted to upholding the judgment of the trial judge on extinguishment. With respect to the fourth ground of appeal, which was directed at the evidentiary issues, Justice L‚tourneau would have limited the scope of the Aboriginal right on the basis that the wording of Article III of the Jay Treaty should be applied to limit the scope of the Aboriginal right to goods brought in at Cornwall Island for personal use or consumption or for collective use or consumption by the members of the Mohawks of Akwesasne. L‚tourneau J.A. further held that the trial judge had erred in interpreting the wording of Article III of the Jay Treaty to include non-commercial scale trading.

The majority judges disagreed with this approach, stating that "the Jay Treaty could not possibly be employed to limit the scope of the aboriginal right" because "the fact that aboriginals may have been granted a more limited form of the aboriginal right in an international treaty cannot serve to restrict the right which is protected by s. 35 of the Constitution Act, 1982."

With respect to the issue of whether the Aboriginal right includes the right to trade goods brought into Canada with other First Nations, the majority of the Federal Court of Appeal (Isaac C.J. and Sexton J.A.) concluded that "the trial judge properly considered the totality of the evidence of pre-contact trade before coming to his conclusion", and that "the evidence relied on by the trial judge is sufficient to ground his finding of pre-contact trade." Noting that the issue at trial was not the existence of trading itself since "the fact that trading was an important part of the Iroquois Nations is well documented", the majority pointed out that the contested issue at trial was the geographic extent of the trade. On this issue, they concluded that "the trial judge made a full appraisal of the submissions of both parties on the existence of North-South trade before reaching his conclusion."

E. THE JUDGMENT OF THE SUPREME COURT OF CANADA

The Minister's appeal to the Supreme Court of Canada proceeded on the same grounds as the appeal to the Court of Appeal.

Once again the Minister's appeal on the evidence related only to the evidence in relation to the Aboriginal right to trade and not to the evidence supporting the Mohawk Aboriginal right to bring good across for personal and community use. However, due to the Court's re-characterization of the right as wholly constituting an Aboriginal right to bring goods across the St. Lawrence River for the purposes of trade, this evidentiary appeal came to apply to all aspects of the Aboriginal right in this case.

It should be noted that under the present Rules of the Supreme Court of Canada only one copy of the entire case on appeal is sent up to the Court. For their arguments, the parties must each file a record which contains the judgments of the courts below and only so much of the evidence "as is necessary to raise the question for decision of the Court". In this appeal the parties filed a total of six volumes of material, including judgments of the courts below, as their record.

While affirming that in pre-contact times the Mohawks travelled north across the St. Lawrence with goods and that trade was a central and distinguishing feature of the Mohawk people, the Court stated that the "critical question" was "whether these trading practices and northerly travel coincided prior to the arrival of Europeans" (emphasis in the original). According to Chief Justice McLachlin, "the trial judge's affirmative response to this question finds virtually no support in the evidentiary record."

The Court proceeded to summarize some of the trial judge's conclusions regarding pre-contact north-south trade and concluded that the evidence on which he relied was " at best, tenuous and scant, and is perhaps better characterized as an absence of even minimally cogent evidence".

Furthermore, the Court held that, even if it were to defer to the trial judge's conclusions on the existence of pre-contact north-south trade, it would find that such pre-contact trade across the St. Lawrence by the Mohawks was not integral to their distinctive culture.

On this basis the Court overturned the conclusions of the trial judge as confirmed by the majority of the Federal Court of Appeal.

III. ANALYSIS OF THE SUPREME COURT OF CANADA'S TREATMENT OF THE EVIDENCE IN MITCHELL

A. ON THE BASIS OF THE RECORD AT TRIAL

The Supreme Court concluded that the evidence relied on by the trial judge was "tenuous and scant" by purporting to review the evidence upon which he relied.

With respect to archaeological evidence, the Court discounted evidence that the Mohawks traded in copper which originated on the north shore of Lake Superior because it found that the evidence only showed that the copper originated on the north shore of Lake Superior and not that the Mohawks obtained the copper through direct trading with their northern neighbours. The Court discounted a second archaeological document because it only provides evidence in north-south trade in a single item this the Supreme Court found was not sufficiently compelling.

With respect to this aspect of the evidence, I note simply that the Court did not find that the trial judge had in any way erred in taking into account the archaeological evidence it simply disputed the weight which he (and the majority of the Court of Appeal) had placed upon it.

The Supreme Court noted that Grand Chief Mitchell's evidence of Mohawk tradition focussed on Akwesasne as a place where the Mohawks hunted, fished and planted. While the Court found this evidence was properly admitted, they also concluded that the oral tradition did not refer specifically to trade. This is correct.

The Court discounted the weight accorded by the trial judge to a treaty concluded in 1645 between the Mohawks and other Iroquois and First Nations to the north of the St. Lawrence. The Court determined that the Mohawk negotiator of this treaty had not referred to pre-existing trade.

With respect, the Supreme Court's brief analysis of the 1645 treaty and what it means makes short shrift of the evidence led by the expert witness for the Mohawks on the meaning of the treaty. Since the 1645 Treaty was only a few decades after the date of first contact, the early date of the treaty and its consistency with pre-contact Iroquois treaty-making made it a vital piece of evidence in respect of Mohawk trading practices before contact. The imagery employed by the Mohawk negotiator focussed on rivers as metaphors for trade. This tied in to evidence led by the expert witnesses for the Mohawks which focussed on the geographic location of the Mohawks before contact, their ease of access to routes up the Hudson-Lake Champlain-Richelieu corridor to the St. Lawrence and Great Lakes and their skilful use of this particular geographic advantage for the purpose of trade and diplomacy. No mention is made of this evidence, nor the trial judge's reliance on it in the Supreme Court`s judgment.

Furthermore, no mention is made of the trial judge's reliance on evidence which established the interrelation between war/raiding and trade in Mohawk history. The trial judge accepted testimony from an expert witness for the Mohawks in which he described well used trade routes that constituted both trade routes and military routes from the Mohawk valley in present day New York State into present day Quebec. While the Supreme Court was willing to accept the evidence regarding the warring activities of the Mohawk people, the Court did not deal in any way with this interrelationship between war and trade which was the subject of specific findings of fact by the trial judge.

Finally the Court noted that the trial judge relied upon evidence of Mohawk participation in the Montreal-Albany fur trade to suggest pre-contact trade along a northerly route. The Court noted that this was an inference which could be drawn from evidence; however, it overruled the trial judge's inference in this case as being made in the absence of any evidence substantiating a pre-contact trade along this northerly route.

The Court failed to take notice of a document which is highlighted in the judgment of McKeown J. in this regard. The document is a letter dated 1681 from the Governor of New France to the King in which he refers to north-south trade along the watercourses between Montreal and Albany in which the Iroquois played a key role and in which (in the Governor's words) they had been engaged "for a long time". The issue of the weight to be attributed to the Governor's reference to trade along this corridor having taken place "for a long time" was debated by the expert witnesses and was a subject of Justice McKeown's decision.

It is striking that the focus of the Supreme Court of Canada was on reviewing and discounting particular items in the evidentiary record. The majority of the Federal Court of Appeal, in contrast, examined the trial judge's handling of the "totality" of the evidence.

It is also striking that, while the Court makes much of what it sees as a contradiction in McKeown J.'s finding of an Aboriginal right on the basis of "little direct evidence", the Court also found that: "McKeown J. correctly observed that indisputable evidence is not required to establish an aboriginal right. Neither must the claim be established on the basis of direct evidence of pre-contact practices, customs and traditions, which is inevitably scarce. Either requirement would 'preclude in practice any successful claim for the existence' of an aboriginal right".

I note that in Delgamuukw, the Court ruled that oral traditions, histories and recollections of Aboriginal life are relevant to the inquiry of Aboriginal title even if such evidence does not provide definitive and precise evidence of pre-contact aboriginal activities in the territory in question.

The fact is that a court must inevitably rely on inference and conjecture with respect to Aboriginal rights, because the parties are obliged to prove that specific activities occurred before contact with Europeans, in large part on the basis of observations and other evidence of activities which took place in the years following contact.

B. ON THE BASIS OF THE SUPREME COURT'S ANALYSIS OF THE EVIDENCE IN ADAMS

It is also useful to compare the Supreme Court of Canada's analysis of the legal conclusions to be reached from the evidence in R. v. Adams with its analysis in Mitchell. Adams was also a case on the Aboriginal rights of the Mohawks of Akwesasne; and in Mitchell, the Court points to Adams as an example where the evidence "clearly demonstrated" the existence of the Aboriginal right. Adams involved an Aboriginal right to fish for food rather than a right to trade in goods from the United States with other First Nations.

It must be kept in mind that the evidence in Adams was led during a trial in 1985, long before the Van der Peet test, or any other test, had been enunciated.

The clear evidence of the existence of the fishing right is summarized by the Court in paragraphs 44 and 45 of its judgment:

From 1603 to the 1650s the area was the subject of conflict between various aboriginal peoples, including the Mohawks. During this period the Mohawks clearly fished for food in the St. Lawrence River, either because the Mohawks exercised military control over the region and adopted the territory as fishing and hunting grounds, or because the Mohawks conducted military campaigns in the region during which they were required to rely on the fish in the St. Lawrence River and Lake St. Francis for sustenance.

This general picture, regardless of the uncertainty which arises because of the witnesses' conflicting characterizations of the Mohawks' control and use over this area from 1603 to 1632, supports the trial judge's conclusion that the Mohawks have an aboriginal right to fish for food in Lake St. Francis. Either because reliance on the fish in the St. Lawrence River for food was a necessary part of their campaigns of war, or because the lands of this area constituted Mohawk hunting and fishing grounds, the evidence presented at trial demonstrates that fishing for food in the St. Lawrence River and, in particular, in Lake St. Francis, was a significant part of the life of the Mohawks from a time dating from at least 1603 and the arrival of Samuel de Champlain into the area. The fish were not significant to the Mohawks for social or ceremonial reasons; however, they were an important and significant source of subsistence for the Mohawks.

This conclusion is sufficient to satisfy the Van der Peet test.

Compare this analysis to the Court's appreciation of the evidence in Mitchell. The Court accepts, as did the trial judge, Grand Chief Mitchell's evidence that Akwesasne was part of Mohawk hunting, fishing and planting territory (para. 48). The Court also found that "trade was a central, distinguishing feature of the Iroquois in general and the Mohawks in particular" (para. 41). The Court also notes that the evidence establishes that, before contact, the Mohawks travelled north on occasion across the St. Lawrence river, and is prepared to assume that they travelled with goods to sustain themselves. Yet, this evidence is held not to be sufficient to support an Aboriginal right to trade with other First Nations.

The trial judge in Mitchell noted that, in Adams, the Supreme Court had recognized that Aboriginal fishing rights could be established by evidence of presence in the area in pursuit of raiding expeditions. He held in Mitchell that Mohawk territorial expansion was connected to trading activities.

Was the evidence of the fishing right in Adams any clearer than the evidence of the trading right in Mitchell? Isn't it, rather, that the Supreme Court requires more evidence to establish a trading right than it does to establish a sustenance right such as a fishing right?

IV. HOW DOES THE ANALYSIS AND RESULT IN MITCHELL RELATE TO EVIDENTIARY CHOICES IN FUTURE CASES?

A. THE 'PARTICULARIZATION OF ABORIGINAL RIGHTS' AND EVIDENCE IN SUPPORT

Mitchell follows a trend in the Supreme Court of Canada which I will refer to as the 'particularization of Aboriginal rights'. This particularization is not just of the scope of the right itself, but also a particularization of the evidence required to support the existence of the right. Thus, in Pamajewon, the Court determined that it would not entertain a broad claim of a right to self government but that it would require a specified, limited allegation of a right to self government to do "X" activity.

Moreover, an Aboriginal claimant who wishes to establish a right to self-government over "X" activity would have to show more than that this activity was central to their culture they would also have to demonstrate that regulation of "X" activity was integral to their distinctive culture. And, this evidence has to demonstrate that all this was so before contact with Europeans, which, depending upon which part of the country with which we are dealing, is anywhere from about 425 to 200 years ago.

The only exception to the particularization trend is subsistence activities, such as hunting, fishing and gathering rights. As long as an Aboriginal claim can show that his or her people had a meaningful connection to the territory in question before or at contact, the Supreme Court seems willing to infer that this connection is enough to support Aboriginal rights to hunt, fish or gather for personal use or use of the community.

I note that this may not be the case when the right involves an Aboriginal right to trade in the product of hunting or fishing. In a case being argued by our office in Vancouver on behalf of a Heiltsuk claimant, the Crown is arguing that, while Gladstone established that the Heiltsuk people have an Aboriginal right to trade in herring spawn on kelp, this judgment does not extend to a Heiltsuk Aboriginal right to trade black cod. The Crown is arguing that there must be specific evidence led to establish an Aboriginal right to trade in black cod. If this argument is upheld, such species specific evidence would constitute a further 'particularization' of the evidence required to prove such an Aboriginal right.

We do not know whether the Crown's argument in that case will eventually be rejected or adopted by the Supreme Court of Canada. However, it appears that the Court is inclined to recognize that sustenance and folkloric activities are within the scope of Aboriginal rights. Activities which appear to be contemporary in nature risk being characterized as "twentieth century phenomena" and not within the scope of Aboriginal rights. Significant evidence must therefore be led to counter any characterization of a right as a twentieth century phenomenon, because the Court's statements in Pamajewon indicate that as long as government can successfully characterize an activity as a "twentieth century phenomenon" that activity can never form the basis of an Aboriginal right.

B. ORAL TRADITION AS EVIDENCE POSSIBLE FUTURE TRENDS

Probably the most vital type of 'direct' evidence available to an Aboriginal claimant wishing to establish an Aboriginal right is oral tradition. Certainly the judgment in Delgamuukw mandates trial judges to accept this type of evidence as independently valid in its own right. In my opinion Delgamuukw stands, as well, for the principle that oral tradition can be used to establish facts which are contradicted by a documentary record.

However, the use of oral traditions as evidence in Aboriginal rights cases may become more limited in light of recent cases, including Mitchell.

In an Aboriginal rights case in Alberta the Crown has argued that Mitchell provides guidance about the admission and interpretation of oral traditions and that it enables a Court to rule inadmissible certain oral histories (on videotape) which are being tendered in that case. The Crown relied on paragraph 31 of the decision of the Supreme Court in Mitchell:

In Delgamuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasized that admissibility must be determined on a case-by-case basis (para. 87). Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge.

It seems obvious that Delgamuukw could not have mandated any hard rules on the weight which should be accorded to oral traditions, as this issue can only be determined by a trier of fact. It is also obvious that government lawyers will take comfort in this passage from Mitchell and will use it to argue for decreased admissibility of and reliance on oral traditions and oral history.

A further problem arises for Aboriginal claimants where the Crown argues that their oral history is too minimal to contradict a mass of written documents. This is what occurred in R. v. Marshall, the Mi'kmaq title case in which judgment was recently released by the Nova Scotia Provincial Court. Although this judgment was released before Mitchell, the theme of minimal Aboriginal evidence arises therein as well.

Commenting on Delgamuukw, the Court noted that "the Supreme Court of Canada said courts must put oral traditions on the same footing as documentary evidence in cases involving Aboriginals. The court did not say oral tradition was better than documentary evidence or that the smallest amount of oral tradition was to be accepted over a mountain of documentary evidence". Thus, the Nova Scotia Provincial Court found the "massive written record" to be far more convincing that "the minimal oral evidence".

It is far too soon to determine whether the courts will require Aboriginal claimants to tender numerous oral traditions in order to contradict a written record, or whether courts will truly respect the unique nature of oral tradition for what it is a history of a people and not reduce it to an analysis of one (written) document versus one (oral) document.

C. CLAIMS TO SELF GOVERNMENT AND EVIDENCE IN SUPPORT

Possibly the most difficult Aboriginal claims to particularize are those to self-governance. For instance, is an Aboriginal right to recognition of the legal validity of customary adoption established by proving that kinship ties in general were the subject of Aboriginal law and regulation before contact with Europeans? Or, is it established by proving specifically that Aboriginal laws or regulation on adoption were integral to the Aboriginal culture in question before contact? If it is the former it would be relatively easy to establish on the basis of general evidence. If it is the latter, then the evidence would be more difficult to gather. 

Many would argue (and I would agree) that it is axiomatic that Aboriginal societies governed kinship ties before contact. It may be that for this type of Aboriginal governance right the courts would require only minimal evidence. But, other claims of Aboriginal rights to self-governance, such as a right to regulate gaming activities or a right to licence traditional medicines and their modern derivatives, are likely to be difficult to establish without extensive, detailed evidence evidence which, given the passage of time and the oral nature of Aboriginal societies, may no longer be available to us.

It seems clear that the evidentiary holdings of the Supreme Court of Canada in Mitchell, Pamajewon and Van der Peet would require an Aboriginal party claiming a right to licence traditional medicines to provide more than just evidence that in pre-contact times their ancestors used and produced traditional medicines. They would have to show societal regulation of these traditional medicines and they would have to show that this societal regulation was integral to their distinctive culture all this on the basis of clear evidence.

The particularization of Aboriginal rights is well illustrated by the recent judgment of the Manitoba Court of Appeal in R. v. Nelson where the Aboriginal claimant had operated video lottery terminals on reserve and was charged with unlawfully keeping gambling devices. He argued an Aboriginal right in defence. The Court held that evidence presented at trial that his Aboriginal ancestors gambled "might be a foundation to claim an Aboriginal right to engage in those games with whatever paraphernalia is associated with them. But there was not a scintilla of evidence presented that it was part of the Aboriginal culture that an organizer of a gambling game should take a profit for his efforts in a game where he himself did not play, but only stood to benefit from the gambling of others".

Thus, for claims to Aboriginal rights to gambling the evidence of pre-contact activities would have to mirror in every detail the activity today for which the right was being claimed. This is manifestly not the case for hunting and fishing sustenance rights, which the Supreme Court has repeatedly held may be exercised by modern means.

V. CONCLUSION

Has the decision of the Supreme Court of Canada in Mitchell v. The Minister of National Revenue clarified the evidentiary rules previously established by it for proving Aboriginal rights, or has it altered or added another layer to those rules?

The decision appears to have established that there are additional layers of evidence required when Aboriginal claimants assert Aboriginal rights which go beyond traditional sustenance rights to hunt, fish and gather. It may have given the government additional arguments to challenge the admissibility and weight of oral histories and traditions of Aboriginal peoples.

Finally the decision appears to have set a 'threshold' for evidence which is required in support of Aboriginal rights which depart from the hunting and fishing rights with which the Court is familiar.

Text and Graphics © 1999/2002 by Darren Bonaparte.