Aboriginal Title

Question 1

Delgamuukw v BC

Answer 1

Issue:

1. What is the content of Aboriginal title under 35(1)
2. What is the test for proof of title?
3. Does title mandate a modified approach to the test of justification (like Sparrow/Gladstone)

Held:
1. Distinct from fee simple: it’s a sui generis interest in land. The content of aboriginal title can be summarized by two propositions:
- first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and
- second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land.
Ab. peoples may surrender lands to Crown and convert them into non-title lands if they wish to do so (eg to build a parking lot over the land)

2. In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria:
   (i) the land must have been occupied prior to sovereignty (not first contact),
   (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and
   (iii) at sovereignty, that occupation must have been exclusive
3. The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis.

Question 2

Tsilhqot’in Nation v BC

Answer 2

Facts: P lives on land in BC and claims title over designated area (with exception of some underwater parts). Wants to stop forestry licenses on the land as it infringes with their rights under title.

Held: The evidence in this case supports the trial judge’s conclusion of sufficient occupation, continuity, and exclusivity. SCC grants P Aboriginal title. SCC further declares that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations

• The legislature intended the Forest Act to apply to lands under claims for Aboriginal title, up to the time title is confirmed by agreement or court order.
  o Once Aboriginal title is confirmed, however, the lands are “vested” in the Aboriginal group and the lands are no longer Crown lands