Over the next two weeks, we will return to our study of Indigenous lands and territories, starting with an exploration of the Anglo-Canadian legal structure of reserve lands governed under the federal Indian Act and continuing into the contemporary common law doctrine of Aboriginal title.
Learning Objectives
Learning objectives are statements about the skills, knowledge and attitudes learners will acquire or develop when they complete this lesson.
By the end of this week, you should be able to:
- Explain the structure of property rights on reserve lands.
- Analyze how property rights on reserve land are affected by development of a Land Code under the FAFNLMA.
- Describe the analytical framework for the contemporary doctrine of Aboriginal Title and key critiques.
We now return to the context of Indigenous lands and land relations. Last term, we began to understand the historical basis of treaty relationships and of the common law doctrine of Aboriginal title. We continue to these topics and start this week by focusing on the legal status of reserve lands.
We will then shift our focus to the common law doctrine of Aboriginal title. We have traced the evolution of that doctrine from the Royal Proclamation in 1763, through St. Catherine’s Milling in the late nineteenth century and look next at Guerin in the last quarter of the twentieth century. The contemporary path of the Aboriginal title doctrine since those cases has been charted through a combination of constitutional reform, litigation in the courts, and negotiation between Indigenous nations and the Crown.
The Supreme Court of Canada’s landmark ruling in Delgamuukw in 1997—building on the constitutional recognition of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982—laid much of the jurisprudential groundwork for the contemporary doctrine. But it was not until several years later, with the Court’s decision in Tsilhqot’in, that a claim for recognition of Aboriginal title was successfully made out. In the intervening years, the Supreme Court also established the basis for the Crown’s constitutional duty to consult with Indigenous communities where state action was contemplated that might infringe on Aboriginal title before it was proven in court.
The contemporary doctrine of common law Aboriginal title is complex—made even more so by the web of legal and political relationships that form the important context in which critical issues around the doctrine must be addressed. Our goal this week is the understand the main elements of this doctrine, building on material we have developed through our course. Next week we will turn to the most recent and ongoing litigation in British Columbia and in New Brunswick to address some key controversies and un-answered questions.
Weekly Problem: Membertou First Nation and the FNLMF
After you have read through the background for this week's lesson above, your next step is to review the weekly problem.
Our problem this week examines the context of land rights and governance under the federal Indian Act and the Membertou First Nation's adoption of the First Nations Land Management Framework.