Honouring the Truth Reconciling for the Future

The challenge of reconciliation • 271since first contact and that the rights claimed over the territory continued from thento the present. The Commission believes that there is good reason to question thisrequirement, particularly in view of the fact that much of the record upon whichcourts rely is documentary proof or oral testimony from acknowledged Elder experts.History shows that for many years after Confederation, Aboriginal claimants were precludedfrom accessing legal advice or the courts in order to assert their claims, andthat many of their best Elder experts have passed on without having had an opportunityto record their evidence.The Commission believes that it is manifestly unfair for Aboriginal claimants to beheld to the requisite standard of proof throughout legal proceedings. However, it isreasonable to require that an Aboriginal claimant establish occupation of specifiedterritory at the requisite period of time. That could be at the time of contact or at thetime of Crown assertion of sovereignty. It is our view that once occupation has beenproven, then the onus should shift to the other party to show that the claim no longerexists, either through extinguishment, surrender, or some other valid legal means. 64Therefore, we conclude that Aboriginal claims of title and rights should be acceptedon assertion, with the burden of proof placed on those who object to such claims.Call to Action52) We call upon the Government of Canada, provincial and territorial governments,and the courts to adopt the following legal principles:i. Aboriginal title claims are accepted once the Aboriginal claimant has establishedoccupation over a particular territory at a particular point in time.ii. Once Aboriginal title has been established, the burden of proving any limitationon any rights arising from the existence of that title shifts to the partyasserting such a limitation.The report of the Royal Commission on Aboriginal Peoples emphasized that therestoration of civic trust is essential to reconciliation. It concluded that “the purposeof engaging in a transaction of acknowledgement and forgiveness is not to bindAboriginal and non-Aboriginal people in a repeating drama of blame and guilt, butjointly to acknowledge the past so that both sides are freed to embrace a shared futurewith a measure of trust.” The report added that “the restoration of trust is essentialto the great enterprise of forging peaceful relations.” 65 The Truth and ReconciliationCommission of Canada agrees with these findings.For reconciliation to take root, Canada, as the party to the relationship that hasbreached that trust, has the primary obligation to do the work needed to regain thetrust of Aboriginal peoples. It is our view that at the time of Confederation, and insubsequent Treaty negotiations, Aboriginal peoples placed a great deal of faith in the