Title as Recognition
Kelly Sikkema on Unsplash
Learning Outcomes
By the end of this week, you should be able to:
- Distinguish between the concepts of "radical title" and "beneficial title", and trace their connection to the feudal concepts of tenure and estates.
- Contrast the role of possession in early common law jurisprudence on recognized Indigenous rights in land with its role in settler contexts we have studied so far.
- Identify the relevance of the Royal Proclamation (1763) to Indigenous land rights in the early jurisprudence on Indigenous land rights.
- Describe the reasoning in the St. Catherine's Milling case as an illustration of the classical common law style.
- Discuss and critically analyze the assumptions that underlie title as a form of legal recognition.
The Legal Imprimatur of Title #
So far in our course we have discussed the central role of possession in Anglo-Canadian law and its complex connections to ownership and title going back to early liberal theory. But to date, we have not talked much about what these terms of “ownership and “title” really mean. Our goal this week is a more thorough understanding of title and its various forms–with a focus on the history and context surrounding the common law doctrine of “Aboriginal title”.
Our Problem this Week #
This week, our problem takes a different form than the “hypothetical” fact pattern we’ve studied in the past few lessons. Instead, we explore the context of a contemporary land claim by the Wolastoqey Nation to their traditional territory encompassing much of present-day New Brunswick. Start your reading of the problem here.