Aboriginal Title

Question 1

Colonial concepts of property

Answer 1

• fee simple ownership
• terra nullius
• thaumaturgic theory of private property
• ‘civilized’ use

Question 2

Indigenous concepts of property

Answer 2

• communitarian
• multi-generational/multi-species
• stewardship

Question 3

Case law history

Answer 3

Johnson (US case)
- terra nullius as basis for colonial claim

St Catherines Milling
- grants very limited right of use under Royal Proclamation of 1763

Calder (1973)
- replaces St Catherines: source of Indigenous right is pre-settlement tradition

Guerin (1984)
- “honour of the crown” establishes fiduciary relationship

Question 4

Statutory history

Answer 4

1. Royal Proclamation 1763
   - established treaty, age of paternalism
2. Indian Act 1877
   - goals of assimilation, cultural genocide
3. Charter 1982
   - constitutionally enshrines indigenous rights

Question 5

Nature of Indigenous right

Answer 5

(Delgamuukw)

• ‘sui generis’ right under s 35 of the Charter, requires application of common law and Indigenous approach
• alienable only to the crown
• held communally
• authenticity sources from pre-settlement occupation

Question 6

Content of Indigenous right

Answer 6

(Delgamuukw)

• Exclusive use and ownership of land for traditional or non-traditional uses
• Limited: must not be irreconcilable with attachment to land
• uses must guarantee continuity and occupancy of Indigenous practices/people on land

Question 7

Steps to making Indigenous land claim

Answer 7

(Delgamuukw, Tshilquot’in Nation)

1. Pre-contact occupation
2. Continuity
3. Exclusivity

Question 8

Steps for the government to justify infringement on Indigenous claim

Answer 8

(Delgamuuk, Tshilquot’in Nation)

1. Duty to consult
2. Substantial Objective (usually natural resources)
3. Consistent w/ fiduciary obligation

Question 9

How do you show pre-contact occupation?

Answer 9

• present occupation can establish prior occupation
• show common law rules (intention + possession/occupation), and Indigenous rules (ceremonial, practical use)
• type of use will depend on nature of claim (Tsihlquot’in)

Question 10

How do you show continuity?

Answer 10

• presence of inter-generational liquidity

- doesn’t have to be an “unbroken chain” (Tsihlquot’in)

Question 11

How do you show the occupation was exclusive?

Answer 11

• inferred from the circumstances, usually some act to maintain the land
• can also be inferred from relationship with other communities (like if they had to ask for permission (Tsihlquot’in)

Question 12

How does the gov’t show they’ve satisfied the ‘duty to consult’?

Answer 12

• exists on a spectrum: greater duty required depending on the seriousness of the adverse impact on the community
• arises from the ‘honour of crown’

Question 13

How is a breach consistent with the fiduciary obligation of the crown?

Answer 13

• the means must be proportional to the objective

- aboriginal interests must be placed first