Aboriginal Title in Canada: Site-Specific or Territorial?

Kent McNeil 

Osgoode Hall Law School - York University
July 1, 2013

Abstract:      
This paper addresses the issue of Aboriginal title to land, and the relationship I see between Indigenous law and the common law in this context. In my understanding, there have been three judicial approaches to Aboriginal title: 1. A purely proprietary approach, based on occupation of land and the effect given to occupation by the common law (common law Aboriginal title). 2. An Indigenous law approach, whereby Aboriginal title arises from and is defined by pre-existing Indigenous law (Indigenous law title). 3. A territorial approach, whereby Aboriginal title is derived from both common law and Indigenous law and has governmental dimensions (territorial Aboriginal title). I am going to describe each of these, and then offer some critical comments on the Supreme Court of Canada’s decision in R. v. Marshall; R. v. Bernard and the British Columbia Court of Appeal’s more recent decision in William v. British Columbia (the Tsilhqot'in Nation case).

Number of Pages in PDF File: 16

Keywords: aboriginal, title, land, territory, indigenous, court, law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2294552