Aboriginal Rights

Canadian courts have defined Aboriginal title as a sui generis blend of common law and Aboriginal conceptions of land ownership. This lesson explores the source, nature and importance of Aboriginal property rights in Canada.

We’ll cover the topic of Aboriginal interests over three four classes. The first class sets the stage through a guest lecture to introduce students to the practical realities of winning recognition of Aboriginal rights in Canada. Read pages 75-96 and 391-395.

UPDATE: Please read pages 77-80, 95 (the questions), and 391-95. (Pages 80-96 are no longer required; they are optional to help students unfamiliar with indigenous traditions and legal systems better understand the cases that follow later in the week.) While I normally try not to assign readings for our Monday sessions, these few pages are important.

Then we get into the legal details, starting with some legal history and then contemporary jurisprudence. Please read pages 396-440. That’s a lot of reading, but it covers two full classes. [UPDATE: Note that the readings for Wednesday and Friday are combined: pages 396-446. I’m hoping you can get a head start, because it’s most useful to read all of Delgamuukw and Tsilhqot’in together. But if you really need to chunk it into pieces, start for Wednesday with (a) pages 396-403, 415-420, 428-430, and 434-440; and then (b) fill in the rest for Friday. (And if you’re really desperate — though this shortcut is NOT recommended — please at the very least read pages 436-440.)]

The second part of our regular class activities, based on the readings above, focusses on the “what” and the “why” of Aboriginal title (what is it, and why is it recognized?), and the third part elaborates on the “how” of this topic (how is Aboriginal title proven, and how can it be infringed or extinguished?).

We normally conclude by contextualizing our discussion through a documentary film about the history of Aboriginal Peoples of Canada, the cultural violence perpetrated against them, and attempts at reconciliation among Aboriginal and non-Aboriginal Canadians. We will connect this film with the recognition of Aboriginal rights on reservations, created through historic treaties, and the modern treaty framework for settling land claims and recognizing indigenous rights to self-determination. In 2019-2020, the film and readings on pages 446-459 are optional.

Honour of the Crown” is an NFB documentary about the challenges of negotiating treaty land claims. The film provides a perspective that you simply can’t get from reading cases. It highlights the socio-legal, cultural, political and economic context in which treaty negotiation issues are debated. It also conveys the easy-to-overlook point that Aboriginal land rights about more than simply litigating Aboriginal title cases in the Courts.  More about the treaty at the heart of the negotiations covered in the documentary is online at Treaty8.org. Also, more documentaries, including “Is the Crown at War with Us,” can be streamed and watched online at the NFB’s site on land claims and aboriginal rights.