Aboriginal land title in Canada

Source of aboriginal title

In St. Catherine’s Milling and Lumber Co. v. The Queen (1888), the Supreme Court initially described aboriginal title as a “personal and usufructuary right” which derives its source from the Royal Proclamation of 1763. However, the Supreme Court's understanding of aboriginal title in Canadian constitutional law has changed over time. While the Royal Proclamation recognized the existence of aboriginal title, the constitutional document issued by King George III is not its source. It is now clear in Canadian constitutional law that the doctrine of terra nullius (roughly, "no man's land") never applied in Canada. To apply terra nullius would ignore aboriginal groups' relationship to the land and imply that prior to the assertion of Crown sovereignty, all land in Canada had never been occupied. Instead, the Royal Proclamation expressly recognizes that aboriginal peoples were in possession of the land prior to assertion of British sovereignty. Given that it arises from the prior occupation of land by indigenous people, aboriginal interest in land is described as a "burden" on the Crown's underlying title. This prior occupation is of importance and illustrates the sui generis, or unique, nature of aboriginal title. In Guerin v The Queen (1984), the Supreme Court described aboriginal title as a right that derives from indigenous people's historic occupation and possession of their traditional lands. The fact that aboriginal title arises from a possession before the assertion of European sovereignty is the principal element that differentiates it from estates such as fee simple estates. However, aboriginal title does confer ownership rights similar to those associated with a fee simple.

In Tsilhqot’in Nation v. British Columbia (2014), the Supreme Court stated:

The characteristics of Aboriginal title flow from the special relationship between the Crown and the Aboriginal group in question. It is this relationship that makes Aboriginal title sui generis or unique. Aboriginal title is what it is, the unique product of the historic relationship between the Crown and the Aboriginal group in question. Analogies to other forms of property ownership, for example, fee simple, may help us to understand aspects of Aboriginal title. But they cannot dictate precisely what it is or is not. 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".