THE CANADIAN PRESS/Darryl Dyck. Delgamuukw, supra n. 11, at p. 1081 and p. 1091. 155. 129. It is a communal property right belonging to Indigenous communities and is not held by any specific individual in that group. As with other Indigenous Nations, Wet’suwet’en Aboriginal title exists as a matter of law. Aboriginal title cannot be extinguished without consultation and compensation. [citation needed]. 135–154. Anti-Slavery International Newsletter, June 1994, No. n. 17, at pp. Factory at Chorzow (Claim for Indemnity) case (Germany v. Poland), Merits, PCIJ Series A, No. 211–212. hunting, fishing).

n. 5, at pp. See R v. Adams, 3 SCR (1996) pp. See Shutkin, loc.

Dupuis, R. and McNeil, K., Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, Vol. Analogies to other forms of property ownership, for example, fee simple, may help us to understand aspects of Aboriginal title. 87. 58. 3, s. 91(24). The need to respect the rule of law is often raised when it comes to pipelines; in fact, the Prime Minister himself raised it in response to the recent arrests in Wet’suwet’en territory.

St. Catherine's Milling and Lumber Co. v. The Queen, 14 A.C. 46 (1888) p. 54. 114. This is the same policy endorsed by every provincial government since British Columbia became a part of Canada. 32–33, W.A. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
C. Tennant, ‘Indigenous Peoples, International Institutions, and the International Legal literature from 1945–1993’, 16 HRQ (1994) pp. In the early days of the colonization of what is now British Columbia, the British government was well aware that based on its own laws it was highly questionable that it had any right to occupy Indigenous lands or assign rights in those lands to individuals or companies. Unfortunately, misconceptions and conflicting information threaten to derail this important conversation. 70. Their occupation, use of and jurisdiction over these lands is known as Aboriginal title. As a matter of justice the state necessarily is involved in supporting ‘societal cultures’ to rectify and prevent these minorities facing disadvantages, Kymlicka, op. Canadian courts can recognize Wet’suwet’en Aboriginal title, but they cannot create it. Professor Kent McNeil has written it could be seen as meaning section 35 allows for Aboriginal self-government, while the Charter is concerned with more individual rights. Communication No. [12], Despite this, professors Ted Morton and Rainer Knopff, in their criticisms of Charter case law and growing judicial discretion, treat section 35 as if it were part of the Charter. R v. Van der Peet, 2 SCR (1996) pp. The source of the Province’s authority over Indigenous lands remains unresolved in Canadian law today. 21. 925–961, J. Woodliffe, ‘Biodiversity of Indigenous Peoples’, in M. Bowman and C. Redgwell, eds., International Law and the Conservation of Biological Diversity (The Hague, Kluwer Law International 1996) pp. See W. F. Flanagan, ‘Piercing the Veil of Real Property: Delgamuukw v British Columbia’, 24 Queen's LJ (1998) p. 279, who argues that the sui generis concept of aboriginal title is questionable i f it is a device to restrict the scope of aboriginal title, rather than a culturally sensitive approach that recognises that ‘alien’ common law principles of property law should not apply to aboriginal title. 1104–1106. 153.

Entered into force 5 September 1991. 62. The new trial has never been held, meaning that Aboriginal title to this land, and which Indigenous nation holds it, has not been determined. The RCMP was enforcing an interim injunction obtained by Coastal GasLink Pipeline Ltd. (a subsidiary of TransCanada Pipelines) to prevent interference with work on its planned natural gas pipeline crossing Wet’suwet’en territory. Only the federal government has the power to legislate for First Nations and their lands. 83. 11 (UK). Mabo, supra n. 6, at pp. Delgamuukw, supra n. 11, at p. 1100. 90. 108.

n. 5. Vancouver, BC V6A 0A5, "Agreeing to Share: Treaty 3, History & the Courts,". First, the Wet’suwet’en, like many Indigenous groups in Canada, are governed by both a traditional governance system and elected Chiefs and Councils. 479–511. The Crown lost this argument in the Tsilhqot’in decision. Anaya, op. [2][12], Last edited on 5 September 2020, at 16:26, St. Catherine’s Milling and Lumber Co. v. The Queen, "Delgamuukw v. British Columbia, [1997] 3 SCR 1010", "Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4", "Tsilhqot'in Nation v. British Columbia, 2014] 2 SCR 257", "The Constitutional Dimensions of Aboriginal Title", "Aboriginal Title in Canada: Site-Specific or Territorial? 147. See also R.L. This principle of the "honour of the crown" imposes a number of duties upon the government.[5]. The millions of dollars (and many years or decades) required to take an Aboriginal title case to trial, and likely through appeals, is prohibitive for many Indigenous nations. | Souhaitez-vous réagir à cet article ?

[8] However, the Supreme Court understanding of aboriginal title in Canadian constitutional law changed over time. 47. 1094–1095.

What Does Aboriginal Title Mean For Private Property Interests? cit. 35–36. II of the Constitution Act, 1982, ibid.

R. Kapashesit and M. Klippenstein, ‘Aboriginal Group Rights and Environmental Protection’, 36 McGill LJ (1991) pp. As Justice Gérard Vincent La Forest put it in Delgamuukw v. British Columbia, Aboriginal title “is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts". 122. 197/1985, Kitok v. Sweden, adopted on 27 July 1988, para. 104–105. 65.

cit n. 37, at pp. I of the Constitution Act, 1982, Schedule B of the Canada Act, 1982, ch. 46).

Its existence was not created by section 35 of the Constitution Act, nor does it depend on recognition by Canadian courts. Sands, P., Principles of International Environmental Law: Frameworks, Standards and Implementation, Vol. But what about the Wet’suwet’en not having proven their Aboriginal title in court? Aboriginal Title includes surface and sub-surface rights. Regardless of whether there is a court declaration, it is open to the Province to recognize and respect the existence of Wet’suwet’en title at any time. See also Views on communication No.

14, at p. 782: ‘“existing” … suggests that the rights in question are affirmed in a contemporary form rather than in their primeval simplicity and vigour.’. 66.
35.

cit.

For example, consider Canada's support for use of the term ‘self-determination’, Statement by Canada at Working Group on the Draft Declaration, UN Commission on Human Rights 1996. n. 43, at ch.

115. 8, paras. Slattery, ibid. What is “title?” Aboriginal title refers to the inherent Aboriginal right to land or a territory. 75.

You are welcome to republish this Policy Options article online and in print periodicals. Constitution Act, 1867 (UK), 30 and 31 Vict., ch.