In R. v. Marshall (2005) and R. v. Bernard (2005) the Supreme Court of Canada set limits on aboriginal title, adopted strict proof of aboriginal title. It stated that any claim to aboriginal title would depend on the specific facts relating to the Aboriginal group and its historical relationship to the land in question. Traditional practices must translate into a modern legal right, and it is the task of the court to consider any proper limitations on the modern exercise of those rights. As with the treaty right, an aboriginal practice cannot be transformed into a different modern right.
The court further stated that aboriginal title would require evidence of exclusive and regular use of land for hunting, fishing or resource exploitation. Seasonal hunting and fishing in a particular area amounted to hunting or fishing rights only, not aboriginal title. However, the court did not rule out the possibility that nomadic and semi-nomadic peoples could prove aboriginal title. The court also emphasized that there must be continuity between the persons asserting the modern right and a pre-sovereignty group.
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