THE SOURCE, NATURE, AND CONTENT OF THE CROWN’S UNDERLYING TITLE TO ABORIGINAL TITLE LANDS
Keywords:doctrine of discovery, Indigenous peoples, Aboriginal title, First Nations, colonialism, radical title, underlying title, Crown title, doctrine of tenure, sovereignty, Constitution, property law
The highest courts in Australia, Canada, and New Zealand have consistently held that the Crown has the underlying title to Aboriginal title lands. The United States Supreme Court has likewise concluded that either the federal or state governments have the underlying title to Indian lands. However, the source, nature, and content of this title remain obscure. This article will examine the relevant case law and contend that, in Canada, the Crown’s underlying title is a purely proprietary interest that does not amount to a current beneficial interest and does not entail any jurisdictional authority. It is sourced in the doctrine of tenure and is not unlike the title the Crown has under the common law to lands that are held in fee simple.