80 Before Agriculture
title to their territories throughout the Nass Valley. Although the judges were
split on the decision 3–3, the message was clear: aboriginal title did, after all,
have some legal reality. Since then, arguments over who has which rights have
been full of legal complexity. Land claims have at times appeared to define the
nation.^8
The term ‘land claim’ is itself an anomaly, implying that the onus should be on
the original occupants to claim their homes, resources and territories from the
colonists. This is a reversal of common sense; the burden of proof should lie with
the newcomers. This reverse sense is a first indication of the onerous task indige-
nous groups have had to undertake. Their elders, historians and lawyers must find
ways of satisfying criteria set by the Canadian courts for testing whether or not a
claim can indeed be said to amount to a claim to aboriginal title. Litigants from
hunter-gatherer and fishing societies have had to prove that:
- they use and occupy a definite territory to the exclusion of all other peoples;
- they have used and occupied the territory ‘since time immemorial’;
- they are ‘an organized society’.
These tests have arisen from accumulated precedents in cases that reach back to the
19th century. But each of the particular requirements for evidence has been con-
firmed by Canadian courts in the 1970–1990 era. The problems inherent in proving
the first two requirements – exclusive use and occupancy – are severe. In many
hunter-gatherer systems, there are imprecisions and overlaps of territory that unset-
tle the demand for boundaries and boundary maintenance that the colonial model
requires. For oral cultures to prove continuity of land use beyond the present gen-
eration, to the satisfaction of courts that rely above all on first-hand experience and
written documents, is also a daunting undertaking. The imposition of legal process
and rules on the peoples the colonists have sought to dispossess makes it hard for
hunter-gatherers to give evidence of their own kind in their own way. But the dif-
ficulties that arise with questions about use and occupation of land do not chal-
lenge the hunter-gatherers’ humanity. It is in the ‘organized society’ test that the
deepest prejudices reveal themselves.^9
What are the qualities by which society is judged to be organized? Rules and
conventions of behaviour, shared economic practices, common religious beliefs
and customs – these things are society. To speak of society is to imply organization.
People who live without a shared set of values and rules cannot live as a people.
The human condition is composed of social realities. And the central indication of
this is language.
Language and society are inseparable. Each is a necessary condition for the
other. Children who grow up without any form of society do not learn to speak;
human societies do not exist without language. The organization of the human
mind requires a community of fellows who speak to one another, sharing and
thereby teaching the words and rules that constitute the language. We know what
words mean because they are used by a group of people to mean things. Society has