Aboriginal rights and title for archaeologists: A history of archaeological evidence in Canadian litigation

Abstract

Archaeological evidence has been used to assess pre-contact occupation and use of land since the first modern Aboriginal title claim in Canada. Archaeology’s ability to alternately challenge, support, and add substantive spatial and temporal dimensions to oral histories and documentary histories makes it a crucial tool in the resolution of Aboriginal rights and title. This article assesses how archaeological evidence has been considered in Aboriginal rights and title litigation in Canada, both over time and in different types of cases. The examination indicates that archaeological data have been judged to be sufficient evidence of pre-contact occupation and use. However, some limitations inherent in archaeological data, especially challenges in archaeology’s capacities to demonstrate continuous occupation and exclude possibilities for co-occupation, mean that it is best used in conjunction with ethnographies, oral histories, and historical documents. So long as courts affirm that it is the sole material evidence of pre-contact occupation, archaeological data will continue to be considered in future litigation.