This is an extract of our Title document, which we sell as part of our Aboriginal Law Notes collection written by the top tier of University Of Victoria; University Of Toronto students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Aboriginal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Title Content, Scope, Origins (Delgamuukw)
-arises from prior-occupation to Cr sovereignty
- nature of the interest in land:
-Adams/Cote: title is a sub set of rights
- more than an aboriginal right to engage in specific activities on the land- need not be aspects of distinct culture
- a right to exclusive use and occupation of land
-includes an economic component
- affirmed by:
1.) jurisprudence: Guerin: title is an interest in the land: legal right to occupation and possession
2.) relationship to reserve land: s. 18 IA: nature of interest in reserve land is broad and not dependent on particular uses
3.) Indian Oil and Gas Act: presumption that FN interest in reserve land includes mineral rights, which is not a traditional USE of land and therefore the title award is not just uses of the land. Characteristics: (Delgamuukw)
1. Sui Generis: its characteristics cannot be completely articulated by CL or by FN law, must be understood by equally looking at both systems and perspectives: therefore title is not like other interests in the land at CL:
1. Inalienable to anyone but the Crown: done to protect Indian land from being sold to settlers. Thought that aboriginal groups did not understand property law at the time and could be taken advantage of and sell land without understanding the implications.
2. subject to an inherent limit: not a full inalienable fee simple: cannot be used in a manner that is irreconcilable with the nature of the claimant's attachment to the land. The law of title seeks to determine presovereignty rights but also seeks to secure the rights and afford legal protection to the present and future users of the land. If the use threatens the future relationship then it is excluded from aboriginal title.
2. Protected by section 35(1): constitutionalized the aboriginal rights at common law. The existence of title right in CL is sufficient by not necessary for proof of title under s. 35(1) because of the purposes of s. 35(1):
2. upholding the honour of the Crown
3. to preserve the integral and defining features of distinctive FN societies; to potentially protect against historical injustices (Delga) Interpretative Approach to s. 35 (Sparrow)
- rights are not frozen: must be interpreted as an evolving, adapting to new contexts
- the court must take a purposive, liberal approach to ensure rights claims are not static: must look at the analysis in light of the underlying reasons behind se. 35(1) rights protections: recognition of prior occupancy and reconciliation
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