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Phrase of the Week - Aboriginal Title

Aboriginal Title

Yukon Territory

... Aboriginal title is a subcategory of Aboriginal rights that deals solely with claims of rights to land.

Ross River Dena Council v. Canada (Attorney General) |

2015 CarswellYukon 67 (Y.T. S.C.) at para. 29 |

Gower J.)

Supreme Court of Canada

Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title ... that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group's aboriginal title. This inherent limit ... flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple.

. . . . .

Aboriginal title at common law is protected in its full form by s. 35(1) [of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11]. This conclusion flows from the express language of s. 35(1) itself, which states in full: “[the] existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed ...” On a plain reading of the provision, s. 35(1) did not create aboriginal rights; rather, it accorded constitutional status to those rights which were “existing” in 1982. The provision, at the very least, constitutionalized those rights which aboriginal peoples possessed at common law, since those rights existed at the time s. 35(1) came into force. Since aboriginal title was a common law right whose existence was recognized well before 1982 [for example, Calder v. British Columbia (Attorney General), 1973 CarswellBC 83 (S.C.C.)], s. 35(1) has constitutionalized it in its full form.

. . . . .

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, (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.

Delgamuukw v. British Columbia |

1997 CarswellBC 2359 (S.C.C.) at para. 111, 133, 143 

Lamer C.J.C. (Cory and Major JJ. concurring)

... the foundation of “aboriginal title” was succinctly described by Judson J. in Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 (S.C.C.), where, at p. 328, he stated: “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means ... Relying in part on Judson J.'s remarks, Dickson J. ... wrote in Guerin v. R., [1984] 2 S.C.R. 335 (S.C.C.), at p. 382, that aboriginal peoples have a “legal right to occupy and possess certain lands, the ultimate title to which is in the Crown”. As well, in Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654 (S.C.C.), this court stated, at p. 678: “The inescapable conclusion from the court's analysis of Indian title up to this point is that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy although ... it is difficult to describe what more in traditional property law terminology”. More recently, Judson J.'s views were reiterated in R. v. Van der Peet, [1996] 2 S.C.R. 507 (S.C.C.). There Lamer C.J. wrote for the majority, at para. 30, that the doctrine of aboriginal rights (one aspect of which is “aboriginal title”) arises from one simple fact: when Europeans arrived in North America, aboriginal peoples were already here [emphasis omitted], living in communities on the land, and participating in distinctive cultures, as they had done for centuries” ...

... the aboriginal right of possession is derived from the historic occupation and use of ancestral lands by aboriginal peoples. Put another way, “aboriginal title” is based on the continued occupation and use of the land as part of the aboriginal peoples' traditional way of life. This sui generis interest is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts. The best description of “aboriginal title”, as set out above, is a broad and general one derived from Judson J.'s pronouncements in [Calder v. British Columbia (Attorney General)]. Adopting the same approach, Dickson J. wrote in [Guerin v. R.] that the aboriginal right of occupancy is further characterized by two principal features. Firstly, this sui generis interest in the land is personal in that it is generally inalienable except to the Crown. Secondly, in dealing with this interest, the Crown is subject to a fiduciary obligation to treat aboriginal peoples fairly. Dickson J. went on to conclude, at p. 382, that “any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading”. I share his views and am ... reluctant to define more precisely the “right [of aboriginal peoples] to live on their lands as their forefathers had lived”; see [Calder v. British Columbia (Attorney General)], at p. 328.

Delgamuukw v. British Columbia |

1997 CarswellBC 2358 (S.C.C.) at para. 189, 190 |

La Forest J. (L'Heureux-Dubé J. concurring)

British Columbia

Aboriginal title is a sub-category of Aboriginal rights which deals solely with claims of rights to land: R. v. Vanderpeet (1996), 1996 CarswellBC 2309 (S.C.C.), at para. 74. Aboriginal title, like all Aboriginal rights, arises from the prior occupation of land ...

Thomas v. Rio Tinto Alcan Inc. | 

2013 CarswellBC 3804 (B.C. S.C.) at para. 105 

Cohen J.

... aboriginal title is a sui generis interest in land that is inalienable except to the federal government. Only the federal government has the capacity to affect this title.

Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) |

2005 CarswellBC 472 (B.C. C.A.) at para. 85 

Hall J.A.

... aboriginal title was not granted to Indian people; it was a title that existed prior to the time the white man came to this province. It would not be a disposition from the Crown.

Jules v. Harper Ranch Ltd. |

1989 CarswellBC 747 (B.C. S.C.) at para. 128 

MacDonald L.J.S.C.

In Hamlet of Baker Lake v. Minister of Indian Affairs & Northern Development (1979), 107 D.L.R. (3d) 513 [(Fed. T.D.)] at p. 542 ... Mr. Justice Mahoney listed the elements which must be proven to establish an aboriginal title cognizable at common law as follows:

1. That they and their ancestors were members of an organized society.

2. That the organized society occupied the specific territory over which they assert the aboriginal title.

3. That the occupation was to the exclusion of other organized societies.

4. That the occupation was an established fact at the time sovereignty was asserted by England.

Hunt v. Halcan Log Services Ltd. |

1986 CarswellBC 39 (B.C. S.C.) at para. 25 

Trainor J.

[In Guerin v. R., [1985] 1 C.N.L.R. 120 at 132 (S.C.C.) Dickson J. stated:]

In Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, this Court recognized aboriginal title as a legal right derived from the Indians' historic occupation and possession of their tribal lands.

R. v. Sparrow |

1986 CarswellBC 412 (B.C. C.A.) at para. 43 

Nemetz C.J., Seaton, Macdonald, Macfarlane and Esson JJ.A.


... aboriginal title is something that aboriginals enjoy independent of the Crown ... it is something the Crown can recognize, but it is not something the Crown can give.

Manitoba Métis Federation Inc. v. Canada (Attorney General) |

2007 CarswellMan 500 (Man. Q.B.) at para. 954 

MacInnes J.

Slattery [in “Understanding Aboriginal Rights,” (1987), 66 Canadian Bar Review 727] suggests four criteria must be satisfied and are essential features of Aboriginal title:

1) The parties asserting aboriginal title must constitute an organized group of native people.

2) The group must possess the lands claimed.

3) The group must have possessed the lands for a substantial period.

4) The lands must form part of the Indian Territories.

R. v. McPherson |

1992 CarswellMan 142 (Man. Prov. Ct.) at para. 43 |

Gregoire J.


A word is appropriate first on the uncertain term “aboriginal title”. That term is best reserved for the type of collective interest that aboriginal communities had in the lands they traditionally occupied before the arrival of the European settlers.

Inuit of Nunavut v. Canada (Attorney General) |

2014 CarswellNun 14 (Nun. C.A.) at para. 44 |

Slatter J.A. (O’Brien J.A. concurring)


In Baker Lake (Hamlet) et al v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C 518 (T.D.) ... Mahoney J. said at pp. 557-558 ... that the onus was upon the Indian claimants to establish aboriginal title by proving the following four elements:

(1) That they and their ancestors were members of an organized society.

(2) That the organized society occupied the specific territory over which they assert the aboriginal title.

(3) That the occupation was to the exclusion of other organized societies.

(4) That the occupation was an established fact at the time sovereignty was asserted by England.

Ontario (Attorney General) v. Bear Island Foundation |

1984 CarswellOnt 1320 (Ont. H.C.) at para. 31 

Steele J.
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