Quote:
Originally Posted by Iowa_Flames_Fan
Hmm. Well, if that is what you're saying, I guess I disagree--in the sense that I think that Delgamuukw announced that a claim such as this was possible, but the post-Delgamuukw jurisprudence treated aboriginal title as almost like a unicorn--a fun idea, but so impractical and difficult to prove that it was almost a hypothetical right, and there was no need to decide, for instance, what aboriginal title actually meant. The BC Court of Appeal in the recent litigation was a perfect example: it was one more decision following the Delgamuukw tradition of saying "we don't know what aboriginal title is, but it isn't THIS."
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I tend to disagree with that... I'm not an aboriginal law expert, but we did know quite a bit about the nature of aboriginal title before this. Here's some stuff from a 2013 BC decision.
(a) Aboriginal title is a collective right to land held by all members of an Aboriginal nation. It cannot be held by individual Aboriginal persons;
(b) Aboriginal title is inalienable - it cannot be transferred, sold, or surrendered except to the Crown;
(c) Aboriginal title encompasses the right to exclusive use and occupation of the land for a variety of purposes. Permissible uses are not restricted to uses which were elements of traditional practices;
(d) Aboriginal title is meant to protect Aboriginal peoples' relationship with their land. Aboriginal title lands cannot be put to uses which are irreconcilable with the claimants' attachment to the land, in the past, present day, or future;
(e) The reconciliation of the prior occupation of North America by Aboriginal peoples with the assertion of Crown sovereignty requires that the Aboriginal perspective and the common law be given equal weight;
(f) Aboriginal title is a
sui generis interest in land, a right to the land itself, but it is not an absolute right. Aboriginal title may be infringed by the Crown where the test for justification can be met;
(g) The Crown's ability to infringe flows from the court's finding that the purpose of s. 35(1) of the
Constitution Act, 1982 was aimed at recognition of the prior occupation of North America by distinctive Aboriginal societies and reconciliation of Aboriginal prior occupation with the assertion of Crown sovereignty;
(h) Aboriginal rights and Aboriginal title are related concepts, and Aboriginal title is a sub-category of Aboriginal rights which deals solely with claims of rights to land;
(i) Aboriginal title, like all Aboriginal rights, arises from the prior occupation of land, but other Aboriginal rights may also arise from the prior social organization and distinctive cultures of Aboriginal peoples on that land;
(j) To establish Aboriginal title, claimants must prove occupation of the land by their ancestors prior to, and exclusive occupation at the time of, sovereignty;
(k)The Crown has a duty to consult with and accommodate the interests of Aboriginal peoples who have asserted, but not yet proven claims to Aboriginal rights;
(l) Aboriginal title and an Aboriginal interest in reserve land are "fundamentally similar" (per the SCC in
Osoyoos Indian Band in 2006);
I don't think it was a unicorn until now. The nature of aboriginal title has evolved through the jurisprudence, and my sense is that this is another step - an important one, but not a surprising or revolutionary one - in that evolution. Just my opinion though, and I'm supposed to go to a presentation by Sandy Carpenter on this on Thursday, so I'll have a much more informed opinion after that.
