ABORIGINAL TITLE IN CANADA: SITE-SPECIFIC OR TERRITORIAL?

Abstract

This article describes three different approaches to Aboriginal title in Canada: (1) a common law approach, whereby title is based on physical occupation and defined by the common law; (2) an Indigenous law approach, whereby it is based on and defined by Indigenous law; (3) a territorial approach, whereby it is based on occupation of territory by effective control, manifested in part through the exercise of governmental authority. The author argues that the third approach, “territorial Aboriginal title,” is consistent with the Supreme Court’s 1997 decision in the Delgamuukw case, and supports an inherent right of self-government because it includes jurisdictional elements as well as property rights. He suggests that the Court should follow this approach in its important up-coming decision in the Tsilhqot’in Nation case.