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Aboriginal/Indigenous

Aboriginal Title

From Calder to Tsilhqot'in.

Aboriginal title is a sui generis interest in land arising from indigenous occupation prior to European assertion of sovereignty. Calder (1973) first recognised that title exists at common law independently of statute or proclamation. Delgamuukw (1997) articulated its content (exclusive use and occupation, collective, alienable only to the Crown, subject to an inherent limit) and its proof (occupation prior to sovereignty, continuity, exclusivity). Tsilhqot'in (2014) granted the first declaration of title, adopting a territorial — not site-specific — approach to occupation suited to semi-nomadic peoples.

Key principles

  • Sui generis interest
    Distinct from common-law fee simple.
  • Inherent limit
    Title cannot be used in ways inconsistent with the group's attachment to the land.
  • Occupation test
    Sufficient, continuous and exclusive occupation viewed from both common-law and Aboriginal perspectives.

Cases (3)

Calder v British Columbia (Attorney General)

landmark
[1973] SCR 313
Supreme Court of Canada· 1973· Aboriginal/Indigenous

Delgamuukw v British Columbia

landmark
[1997] 3 SCR 1010
Supreme Court of Canada· 1997· Aboriginal/Indigenous

Tsilhqot'in Nation v British Columbia

landmark
[2014] 2 SCR 257
Supreme Court of Canada· 2014· Aboriginal/Indigenous