The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.

What is Aboriginal title to land?

The Court has determined that Aboriginal title is a collective right of an Aboriginal group, which provides a beneficial interest in the land.

Aboriginal title gives the Aboriginal group the right to:

• development of agriculture, forestry, mining, and hydroelectric power,
• protection of the environment or an endangered species,
• the building of infrastructure, and
• the settlement of foreign populations to accomplish any of the above.

It is important to note however, that Aboriginal title is not the same as fee simple ownership, which is complete ownership with no limitations or restrictions. Aboriginal title is unique and comes with limitations and conditions. For example, as it is a collective title, the land must be used in a way such that future generations can continue to use and enjoy it. Further, the land cannot be sold, and title cannot be transferred, unless it is sold, transferred, and/or surrendered to the Crown. Such sales, transfers, or surrenders are normally subject to community ratification votes that follow the Indian Referendum Regulations.

How is Aboriginal title established?

In 2014, the Supreme Court dealt with the issue of Aboriginal title in the case of Tsilhqot’in v British Columbia. The Court determined that the legal test for Aboriginal title was properly set out in the prior case of Delgamuukw v British Columbia.

As a result of these two cases, the general requirements for Aboriginal title are:

(i)   sufficient occupation of the land claimed to establish title at the time of assertion of European sovereignty;
(ii)  continuity of occupation where present occupation is relied on; and
(iii) exclusive historic occupation.

Sufficient Occupation: The Court held that the meaning of what constitutes sufficient occupation must be approached in a culturally sensitive way. It is to be interpreted with consideration for both common law and Aboriginal perspectives. To establish sufficiency, the group must show evidence of a “strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group”. For example, sufficient occupation would exist where the land was being cultivated and houses had been built on it. Further, the Court held that title should not be narrowly restricted to specific village sites and farms, but rather, should include lands where the group regularly hunts, fishes or traps.

Continuity: As for continuity of possession, the Court held that it is unnecessary to prove an unbroken chain of continuity. Rather, the group must provide evidence that the present occupation is “rooted in (the past) to pre-sovereignty times”.

Exclusivity: Exclusivity was determined to mean the “intention and capacity to retain exclusive control” over the lands. Evidence of exclusivity should be considered from both a common law and Aboriginal perspective. For example, although proof that others were excluded from the land does show exclusivity, permission given to other groups to use the land, will not necessarily negate exclusivity. In addition, the existence of treaties that grant permission to other groups to enter the land also serves to establish exclusivity to the group granting the permission.

The Supreme Court of Canada also determined that the principle of European sovereignty over previously unclaimed land, also known as the doctrine of terra nullius, had no influence over the discussion of ownership of the land in Canada. This was because the land was determined to be previously claimed under the sovereign governorship of the various Indigenous Peoples who occupied Canada prior to its settlement by the European Powers.

Use or development of Aboriginal lands by non-Aboriginal groups

The Supreme Court of Canada has frequently stated that their confirmations of Indigenous rights and particularly Aboriginal title, do not constitute a veto power over development.

Where non-Aboriginal groups seek to use the land under Aboriginal title, consent must be sought from the titleholders.

If consent is not given, and the government wishes to develop the land for public good, it may seek the Court’s permission on the grounds of justification under s.35 of the Constitution Act. It is important to note that regardless of whether title is established or unproven, the Crown has a duty to consult with the Aboriginal group, as was done with the Court’s judgements on fiduciary duty in Guerin v The Queen, R v Sparrow, and Delgamuukw v British Columbia.

Where title is proven, however, the Crown must not only consult with the group, but also provide a compelling and substantive objective to the governmental action in question.

The Court in Delgamuukw v British Columbia provided examples of what may be valid justifications for infringing Aboriginal title, including:

• development of agriculture, forestry, mining, and hydroelectric power,
• protection of the environment or an endangered species,
• the building of infrastructure, and
• the settlement of foreign populations to accomplish any of the above.

For more information, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.

								
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