The Lawyer's Daily is now Law360 Canada. Click here to learn more.

Rethinking degree of proof required in Indigenous legal actions | Stephen O’Neill

Wednesday, July 21, 2021 @ 9:01 AM | By Stephen O’Neill

Stephen O'Neill %>
Stephen O'Neill
“Know from whence you came. If you know whence you came, there are absolutely no limitations to where you can go.”           James Baldwin

In Haida Nation v. British Columbia (Minister of Forests) [2004] S.C.R. 511, Chief Justice Beverley McLachlin wrote “[p]ut simply, Canada’s Aboriginal Peoples were here when Europeans came and were never conquered.” While that is true in law and in fact, for Indigenous peoples in Canada, proving a claim in a civil court to an Aboriginal or a treaty right can be beyond onerous. Indeed, in the same Haida Nation decision, the chief justice also went on to state “[t]he Haida’s claim to title to Haida Gwaii is strong, as found by the chambers judge. But it is also complex and will take many years to prove.” 

In Tsilhqot'in Nation v. British Columbia 2014 SCC 44, for the first time in Canadian history, the Supreme Court of Canada unanimously granted a declaration of Aboriginal title to lands outside of a reserve. The trial decision itself spanned five years and 339 days of evidence and argument (the Delgamuukw trial was 374 days), and Justice David Vickers' decision encompassed 473 pages. More than 35 lawyers were involved in the trial proceedings.

The common law which recognizes underlying or radical Crown title to the lands of Canada, based on the Doctrine of Discovery, as supported by Papal bulls (that land not inhabited by Christians was entitled to be discovered, claimed and exploited), is the same law which also requires that proof of a claim to an Aboriginal or treaty right, in civil proceedings, must be on a balance of probabilities, that is, more likely than not.

On June 11, 2008, the prime minister of Canada offered a full apology on behalf of Canadians for the Indian residential school system. In his apology, he stated in part as follows:

Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country. […] There is no place in Canada for the attitudes that inspired the Indian Residential School system to ever prevail again.

Nevertheless, the acceptance by the Canadian justice system that underlying title to the lands of Canada is vested in the Crown, based on the Doctrine of Discovery, arguably provides a secure place in Canada for these same attitudes to prevail. However, in recent years, pronouncements from the courts leave hope that the Principle of Reconciliation will be honoured both in theory and in practice, and that these attitudes will eventually wend their way out of the court system.

As Justice Ian Binnie stated in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69: “[t]he fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.”]

After the Tsilhqot’in decision was handed down, the Tsilhqot’in government stated in a newsletter as follows: “This Judgment of the Supreme Court of Canada sweeps away the excuses and justifications used by the Government to deny real recognition of Aboriginal title in Canada”. But in truth, if only it were so easy, particularly when it comes to the degree of proof demanded in Indigenous civil legal actions.

If reconciliation is an honourable goal to be pursued by all levels of government in good faith, then in any civil proceeding involving claims to Aboriginal or treaty right(s), the justice system must be sensitive and vigilant to the degree or strength of proof that is being demanded of Indigenous peoples in their search for justice in Canadian courts. If all is on the table to be proved, bar none, and if the courts become awash with expert reports from ethno-historians, historians, geographers, cartographers, botanists, biologists, environmentalists, resource specialists and many more, to name only a few, the justice system will have directly or indirectly raised the standard of civil proof to one more approaching a criminal proceeding, namely proof beyond a reasonable doubt, simply by virtue of the demands being made in the trial process and the evidence required to be amassed for those purposes.

Indeed, if every single point and issue is to be joined by the parties and demanded to be proved in a civil proceeding, then the justice system itself will have become responsible for sanctioning an insidious cancer of impossibly high proof to find its way into civil proceedings involving proof of Aboriginal or treaty rights and title. Stated differently, through the proof process, Crown lawyers, lawyers for Indigenous parties and the judiciary itself will then have failed to exercise the strong degree of caution, respect and sensitivity that is demanded if the Principle of Reconciliation is to be given true meaning.

In writing about pleadings in Aboriginal land claims cases, the chief justice in Tsilhqotin went on to state:

[A] functional approach should be taken to pleadings in Aboriginal cases. […] What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved.

These words ought also to be borne in mind, so as to ensure that in civil proceedings involving Indigenous legal issues, the burden of proof is not unwittingly raised and accepted to be proof more akin to the criminal standard of proof beyond a reasonable doubt, rather than the civil standard of proof on a balance of probabilities (preponderance of evidence).

If the Principle of Reconciliation and the requirements of proof in civil courtrooms in Canada are to lead us away from the attitudes and objectives that inspired the Indian Residential School system, as well as the attitudes upon which the Doctrine of Discovery rests, then a heavy responsibility weighs upon all justice system participants to ensure that the degree of proof required in civil proceedings relating to Indigenous claims to treaty and Aboriginal rights, is fair, tempered, reasonable and realistic, given the fundamental importance of “reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.”

(Correction: This story has been updated to properly identify the judge in the Delgamuukw trial as Justice David Vickers.)

Stephen O’Neill was appointed a judge of the Ontario Superior Court of Justice in 1999, retiring in 2015. Before his appointment as a judge, he practised law out of Sudbury, focusing on Indigenous legal and justice issues. He has travelled extensively throughout northeastern Ontario and he has written and spoken extensively on Indigenous and Crown /Aboriginal issues. He recommenced the practice of law in 2016 with the firm Nahwegahbow, Corbiere and his practice is devoted solely to First Nations issues. In 2009, Justice O’Neill determined to paddle across Canada, following the historic Route of the Voyageurs. He has reached Yellowknife and will undertake the final phase to Tuktoyaktuk and the Arctic Ocean in 2022.

Interested in writing for us? To learn more about how you can add your voice to 
The Lawyer’s Daily, contact Analysis Editor Peter Carter at or call 647-776-6740.