Aboriginal title arises upon proof of continued occupancy of the lands in question at the time at which the Crown asserted sovereignty.(footnote #15) The Supreme Courts decision in Delgamuukw is the latest pronouncement on aboriginal title. Title to land gives aboriginal people the exclusive right to use and occupy the land for a number of purposes which do not need to be related to traditional aboriginal practices, like mining for example. However the uses protected by aboriginal title do not include the right to destroy the land as this would be contrary to the groups attachment to the land that gives rise to the title right.(footnote #16) Aboriginal title is held collectively by all members of an aboriginal nation rather then individually. Thus decisions with respect to the land are made by the community.(footnote #17)
Occupancy may be proved in a number of ways including present and historical construction of dwellings, cultivation, enclosure of fields, defined hunting, fishing and plant gathering areas.
Justice Turnbull, in the second birds-eye maple decision concluded that the British Crown never obtained title to the land in New Brunswick from the Indians. He arrived at this conclusion by reference to treaties and historical documents that had been before him in a previous case, and that were in fact appended to that case.(footnote #18) The provinces successful appeal was based on the argument that a Judge cannot rely on his own extensive research done after the parties to a case had completed their submissions.
Had enough evidence of occupancy been introduced at trial by way of treaties of peace and friendship and evidence of occupancy, the courts might have found aboriginal title to be alive and well in New Brunswick. Then what? Aboriginal title can be infringed in the same manner as set out in the Sparrow doctrine, where there is a compelling legislative objective, so long as the infringement is consistent with the fiduciary relationship between the Crown and aboriginals.
The Supreme Court added to conservation other activities that seek to reconcile the aboriginal societies with the broader community including the "pursuit of economic and regional fairness" to the list of valid objectives.(footnote #19) Valid objectives are considered on a case by case basis but could include resource development.(footnote #20) However, the Court emphasized that the pursuit of these objectives can only infringe aboriginal title if aboriginal peoples interests are accommodated. This accommodation could include consultation with aboriginal peoples about development, that the conferral of leases for forestry reflect prior occupation of aboriginal title lands and the provision of fair compensation through royalties or reduced licence fees. The specifics of such an accommodation have not been conclusively worked out by the courts. However, the Supreme Court has stated on more then one occasion that the Canadian Constitution provides a solid basis upon which to negotiate.(footnote #21)