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possibilities for co-occupation, mean that it is best used in conjunction with ethnographies, oral histories, and historical documents.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.

Reorienting Bioarchaeology for an Era of Reconciliation

“…For example, archaeological data was among the evidence used to argue the Supreme Court of Canada case of Tsilhqot'in Nation versus British Columbia. Herein the Tsilhqot'in Nation sought Aboriginal title and received a successful judgement with the help of archaeological data that illustrated their long-standing occupation of their traditional lands (Hogg and Welch 2020;Tsilhqot'in 2014).…”

Archaeology for the courtroom: the Ayodhya Case and the fashioning of a hybrid episteme

“…I call archaeology-as-legal-evidence a hybrid because here, archaeological practice and interpretation are determined both by conventions of ASI archaeology and the requirements and structure of legal disputes. The use of archaeology as legal evidence has been discussed in contexts outside of India in relation to indigenous rights over land and remains (Ferris, 2003; Harrison, 2005; Hogg and Welch, 2020; Martindale, 2014; among others) and forensic archaeology (Crossland, 2013), and such instances inform this discussion to some extent. The varying regional contexts and purposes notwithstanding, these studies suggest how judicial expectations, adversarial framing of court cases and the different ‘evidential regimes’ (Crossland, 2013) of law and archaeology operate in the constitution of archaeology as legal evidence.…”