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 three classes. The first class sets the stage through a guest lecture by Professor Scott Robertson. Mr. Robertson, one of the country’s top indigenous law litigators, introduces students to the practical realties of winning recognition of Aboriginal rights in Canada. Read pages 75-96, 391-395, and 446-459.

Then we get into the legal details, starting with some legal history and then contemporary jurisprudence. Please read pages 396-446. That’s a lot of reading, but it covers two full classes.

The second part of our regular class activities, based on the readings above, focusses on the “what” and the “why” of Aboriginal title (what is it, and why is it recognized?), and the third part elaborates on the “how” of this topic (how is Aboriginal title proven, and how can it be infringed or extinguished?).

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.