Aboriginal Rights

Canadian courts have defined Aboriginal title as a sui generis blend of common law and Aboriginal conceptions of land ownership. This lesson explores the source, nature and importance of Aboriginal property rights in Canada.

We’ll cover the topic of Aboriginal interests over four classes. The first class sets the stage through a guest lecture by Professor Tenille Brown. She’s going to provide some background on Aboriginal perspectives about governance, rights and land. Her comments will be based on the readings in the casebook found at pages 84-104. The second class is also a guest lecture, this time from Bob Potts. Mr. Potts’ is a very experienced practitioner of Aboriginal law, and long-time counsel to the Algonquin of Ontario in its Agreement in Principle with the federal and provincial governments in respect of large tracts of land in Eastern Ontario.

Then we get into the legal details, starting with some legal history and then contemporary jurisprudence. Please read pages 403-417. Actually, if you could push through all of the central case of Delgamuukw, i.e. up to page 446, that would be extremely useful. You’ll have to read this for the next class anyways. If you didn’t get through all of the case in one push, that’s ok. We’ll deal with issues of proof and infringement (pages 417-446) in a separate class. Note that pages 432-439 are optional in this section.

The second part of our regular class activities focusses on the “what” and the “why” of Aboriginal title (what is it, and why is it recognized?), and the last part elaborates on the “how” of this topic (how is Aboriginal title proven, and how can it be infringed or extinguished?). For our second class, it is impossible to ignore the monumental decision of the Supreme Court of Canada last year in Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, 2014 SCC 44 (CanLII). At this stage in the term, almost all of your readings have been from our edited casebook. For this one, I want you to go straight to the source. Read paragraphs 1-97 of the judgement (there’s no need to also read the full headnote and preliminary matter, unless you want to get the full picture of what’s left out when we edit these cases down for you.) During class, we’ll try to consider the impact of Tsilhqot’in on matters such as the Northern Gateway pipeline, which has been and continues to be a topic of considerable discussion.

In past years (but not this year), we’ve concluded by contextualizing our discussion through a documentary film about the history of Aboriginal Peoples of Canada, the cultural violence perpetrated against them, and attempts at reconciliation among Aboriginal and non-Aboriginal Canadians. “Honour of the Crown” is an NFB documentary about the challenges of negotiating treaty land claims. If you are interested and have time, the film provides a perspective that you simply can’t get from reading cases. It highlights the socio-legal, cultural, political and economic context in which treaty negotiation issues are debated. It also conveys the easy-to-overlook point that Aboriginal land rights about more than simply litigating Aboriginal title cases in the Courts. More about the treaty at the heart of the negotiations covered in the documentary is online at Treaty8.org. Also, more documentaries, including “Is the Crown at War with Us,” can be streamed and watched online at the NFB’s site on land claims and aboriginal rights.

The privitization of reserve land is another important topic, but also one which we won’t have as much time to cover this year as in the past. If interest, I strongly suggest you inform yourself on the issue by reading mainstream media coverage of the topic. Hereherehere and here are good examples of different perspectives.