Archaeological Data as Evidence in Aboriginal Rights and Title Litigation in Canada

Date created: 
John R. Welch
Environment: Department of Archaeology
Aboriginal rights and title
Court evidence
Expert witnesses

Aboriginal rights and title acknowledge and affirm Indigenous peoples as the original occupants of Canada. Notwithstanding this acknowledgment, the legal tests to prove Aboriginal rights or title require pre-contact or pre-sovereignty evidence of land occupation and use. Archaeology’s ability to challenge, substantiate, and add temporal dimensions to oral and documentary histories makes it an essential tool in the resolution of Aboriginal rights and title. Archaeologists, as ethics-bound stewards of the material past, need to understand how their data has been used in these claims. This dissertation examines the use and consideration of archaeological data as evidence in Aboriginal rights and title litigation in Canada. Using qualitative methods, I assess court decisions, expert witness reports, academic literature, and interviews with archaeologists and lawyers to understand how archaeological evidence has influenced the legal tests for Aboriginal rights and title. In particular, I consider the types of archaeological data considered for these tests and the standards data must meet to be considered in court. I frame these research questions in three different studies, each considering a different perspective: a broad overview of past litigation; an in-depth case study of the Tsilhqot’in (2014) decision; and an analysis of the experiences of expert witnesses and lawyers. My studies show that archaeological data can indicate pre-contact occupation and use of specific places within a territory. Evidence of occupation sites and lithic and faunal analyses fit within accepted definitions of occupation and meet the criteria for the tests for both Aboriginal rights and Aboriginal title. Archaeological data has been important evidence in multiple court decisions, including Baker Lake (1979), Adams (1996), and Tsilhqot’in (2014). Its ability to be tangible evidence of occupation and use may outweigh its limitations, including the inherent limits of the material record and the inability to indicate ethnicity. My investigation indicates that archaeological data have and will continue to be used as evidence in Aboriginal rights and title litigation, particularly to bolster oral histories and historical records.

Thesis type: 
(Thesis) Ph.D.
Document type: 
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