Aboriginal Title

Question 1

Three views

Answer 1

Whim of sovereign (only a moral right to occupy). Personal rights to hunt/fish (surrenderable to the crown). Communal ownership like fee simple (surrenderable only to the crown)

Question 2

Burden

Answer 2

Aboriginal title exists as a burden on Crown’s allodial title

Question 3

Delgamuukw - Content of aboriginal title

Answer 3

Sui generis - in and of itself, not derived from anything else. Inalienable except to the crown. Communal ownership gives rise to inherent limits (land must be preserved for future generations). Exclusive use/occupation - more than just a right to hunt/fish, it is the exclusive right to use to the land for any purpose (historical or modern)

Question 4

Delgamuukw - Spectrum

Answer 4

Free standing rights not enough to support a title claim (pure rights) — site specific rights that take place on land, but are not enough to support a title claim (right to site, but not enough to ground exclusive occupation) — aboriginal title giving right to the land itself to the exclusion of others (land important to their culture, sufficient activity on it to constitute exclusive occupation)

Question 5

Delgamuukw - Procedure

Answer 5

Reconciliation of what can be admitted as evidence and what cannot. Originally, no heresay, but modified for people with oral traditions. But still needs to fit within Canadian legal system (remain credible)

Question 6

Tsilqot’in Nation v BC

Answer 6

Occupation needs to be examined in a content specific manner (ex - surrounding lands that are uninhabitable but still use). But there still needs to be an element of regular and exclusive occupation. *site specific rights pushed more to the land title end of the spectrum

Question 7

Tsilqot’in Nation - Justification

Answer 7

If a claim is established, Crown as allodial owner may interfere with consent of nation under certain circumstances (compelling and substantial objective that is consistent with the fiduciary duty they have, only interfering for the purpose of the broader society)

Question 8

Ktunaxa Nation v BC - Consultation

Answer 8

Crown has obligation to act honourably and has a duty to consult (linked to FD) when they know/should know of a claim. Aboriginal group has a duty to define their claim clearly and not frustrate Crown’s good faith. (no getting title by refusing to engage)

Question 9

Religion as a claim for property

Answer 9

No dice. Can’t protect actual object of belief under section 2A of Charter. However, religion can still be used as a support for a title claim.

Question 10

Inconsistency

Answer 10

Some inconsistency between the right to surrender and the preservation of the land for future members