Aboriginal land title in Canada

In Canada, aboriginal title is considered a sui genereis interest in land in the sense that its characteristics cannot be completely explained by reference either to only the common law rules of real property, or to only the rules of property found in aboriginal legal systems.[1][2][3][4] The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title.[2][5] Like other aboriginal rights, aboriginal title must be understood by reference to both common law and aboriginal perspectives.[2] Aboriginal title is properly characterized as neither a personal right nor a real right nor a combination of the two even though it may appear to have characteristics of both real and personal rights.[6] Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachement.[6][7]

Source of aboriginal title

In St. Catherine’s Milling and Lumber Co. v. The Queen, the Supreme Court initially described aboriginal title as a “personal and usufructuary right” which derives its source from the Royal Proclamation of 1763.[8] However, the Supreme Court understanding of aboriginal title in Canadian constitutional law changed over time. Despite the fact that the Royal Proclamation recognized the existence of aboriginal title, it is now clear that this constitutional document does not constitute the source of aboriginal title. Aboriginal title in Canada arises from the prior occupation of land by indigenous people.[2] It is based on the existence of an “occupation” of land prior to assertion of European sovereignty.[9] This prior occupation is of importance and illustrates the sui generis nature of aboriginal title. In Guerin v The Queen, the Supreme Court described aboriginal title as a right that derives from indigenous people's historic occupation and possession of their traditional lands. As such, what makes aboriginal title sui generis is that it arrises from a possession of land before the assertion of British sovereignty. This element of aboriginal title differentiates it from estates such as fee simple estates which arise after the British assertion of sovereignty. However, aboriginal title does confer ownership rights similar to those associated with a fee simple[9]

In Tsilhqot’in Nation v. British Columbia, the Supreme Court stated: "The characteristics of Aboriginal title flow from the special relationship between the Crown and the Aboriginal group in question. It is this relationship that makes Aboriginal title sui generis or unique. Aboriginal title is what it is, the unique product of the historic relationship between the Crown and the Aboriginal group in question. Analogies to other forms of property ownership, for example, fee simple, may help us to understand aspects of Aboriginal title. But they cannot dictate precisely what it is or is not. As Justice Gérard Vincent La Forest put it in Delgamuukw v. British Columbia, Aboriginal title “is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts".[9]

The Content of Aboriginal Title

Aboriginal title to land can be described by two main characteristics. First, aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes. This exclusive use and occupation of land does not need to be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.[9] In other words, aboriginal title to land is not limited in any way to the historic and traditional uses of land by aboriginal people (e.g. hunting, fishing). Instead, aboriginal title encompass a wide variety of uses that includes natural ressources on and under the ground.[10]

Aboriginal title confers the right to decide how the land will be used, enjoyed, occupied, possessed, pro-actively use and managed, and the right to the economic benefits of the land.[6] In other words, "[w]hat aboriginal title confers is the right to the land itself[2][9]".

But, there is an inherent limit to these uses which can be described by the second main characteristic of aboriginal title. Lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to aboriginal title.[2][11] In other words, the exclusive protected use of land by indigenous people must not be irreconcilable with the nature of the group’s attachment to that land.[9][6]

Proof of Aboriginal Title

In Delgamuukw v. British Columbia, the Supreme Court stated that in order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy three main criteria. First, the asserted land must have been occupied by the aboriginal group prior to sovereignty. Second, if present occupation of the asserted land is relied on by the aboriginal group as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation. And finally, at sovereignty, the occupation of the asserted land must have been exclusive.[2][12]

Sufficiency of Occupation

Continuity of Occupation

Exclusivity of Occupation

Infringements of Aboriginal Title

Duty to Consult

References

1. "Guerin v. The Queen, [1984] 2 SCR 335". Supreme Court of Canada.
2. "Delgamuukw v. British Columbia, [1997] 3 SCR 1010". Supreme Court of Canada.
3. "R. v. Sparrow, [1990] 1 SCR 1075". Supreme Court of Canada.
4. Slattery, Brian (2007-01-01). "THE METAMORPHOSIS OF ABORIGINAL TITLE". The Canadian Bar Review. 85 (2). ISSN 0008-3003.
5. "R. v. Van der Peet, [1996] 2 SCR 507". Supreme Court of Canada.
6. "Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4". Supreme Court of Canada.
7. Private law dictionary and bilingual lexicons. Property. Allard, France, 1964-, Paul-André Crépeau Centre for Private and Comparative Law,. Cowansville, Québec, Canada. ISBN 978-2-89635-731-4. OCLC 806536250.CS1 maint: extra punctuation (link) CS1 maint: others (link)
8. Slattery, Brian (2019-12-07). "Aboriginal Title and the Royal Proclamation of 1763: Origins and Illusions". Rochester, NY. Cite journal requires |journal= (help)
9. "Tsilhqot'in Nation v. British Columbia, 2014] 2 SCR 257". Supreme Court of Canada.
10. McNeil, Kent (2016-01-01). "Indigenous Law and Aboriginal Title". All Papers.
11. Slattery, Brian (2015-12-31). "The Constitutional Dimensions of Aboriginal Title". The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference. 71 (1).
12. McNeil, Kent (2013-01-01). "Aboriginal Title in Canada: Site-Specific or Territorial?". All Papers.

Further reading

• Declaration on the Rights of Indigenous Peoples

External links

• The Constitutional Dimensions of Aboriginal Title, at Osgoode Hall Law School of York University