A Connection of Central Significance: Sufficient Occupancy and Aboriginal Title

Abstract

This paper is an extended commentary on a recent British Columbia Court of Appeal Decision, William v British Columbia, 2012 BCCA 285. It rehearses and critiques the central debate between the appellant and respondent regarding the quality or character of physical occupation necessary to successfully ground an Aboriginal title claim under section 35 of the Constitution Act, 1982. Ultimately, it argues that the Court of Appeal erred in its endorsement of a site-specific understanding of sufficient occupancy, and further, that the central debate itself is orthogonal to the true concern underlying the occupancy requirement. It concludes with an alternative test for sufficient occupancy which is more consistent with the previous jurisprudence and the goals of Aboriginal title and Canadian Aboriginal rights writ large.