After Tsilhqot'in Nation: The Aboriginal Title Question in Canada's Maritime Provinces

By Hamilton, Robert | University of New Brunswick Law Journal, January 2016 | Go to article overview

After Tsilhqot'in Nation: The Aboriginal Title Question in Canada's Maritime Provinces


Hamilton, Robert, University of New Brunswick Law Journal


  I.    Introduction  II.    Site-Specific/Intensive Use vs. Territorial/Exclusive           Occupation      A. Sufficiency and Exclusivity      B. Continuity III.    Proof of Title in the Maritime Provinces      A. The Marshall and Bernard Decisions      B. Historical Occupation      C. Title by Treaty  IV.    Extinguishment of Aboriginal Title      A. Voluntary Surrender      B. Unilateral Legislation        1. Executive and Legislative Authority        2. Imperial and Colonial Jurisdiction        3. Post-Confederation        4. Conclusions on Extinguishment   V.    Extinguishment in the Maritime Provinces      A. Voluntary Surrender      B. Unilateral Legislation        1. Colonial Authority        2. Clear and Plain Intent      C. Instances of Possible Extinguishment        1. Colonial Legislation        2. Imperial Legislation        3. Federal Legislation VI.     Conclusion 

I. INTRODUCTION (1)

The Supreme Court of Canada made a declaration of Aboriginal title for the first time in 2014 in its landmark Tsilhqot'in Nation (2) decision, a decision with "ground shifting implications." (3) Governments and First Nations across the country are only beginning to adjust to the consequences of the decision, which may be particularly impactful in areas where it is acknowledged that Aboriginal title has never been ceded, such as the Maritime Provinces. (4) The only Aboriginal title case from the region that has reached the Supreme Court left several important doctrinal questions unanswered and, as will be explained, should not be read as precluding a future finding of title in the region. As such, Aboriginal title in the Maritime Provinces must be assessed in light of the principles articulated in Tsilhqot'in. This is particularly important at this time, as unresolved title issues have contributed to disputes over resource development in the region and more conflict is likely while title issues remain outstanding.

This paper analyzes Aboriginal title in the Maritime Provinces in light of the Tsilhqot'in decision with the aim of providing insight into how future title litigation emerging from the region may be assessed in the courts. I begin by reviewing the Supreme Court's ruling in Tsilhqot'in--specifically, the Court's adoption of the territorial approach to Aboriginal title claims. On the basis of this approach, and referring to case law and relevant historical materials, I argue that Aboriginal title existed in the region at the time of the assertion of British sovereignty. While concluding that title undoubtedly existed in the region, I stop short of attempting to determine where it may have existed, for such a determination would require a depth of research not possible here. Having concluded that title existed, I review the legal framework governing the extinguishment of Aboriginal title to assess whether Aboriginal title has been extinguished in the Maritime Provinces. I conclude that Aboriginal title has likely not been extinguished on a large scale, a conclusion which strongly suggests that Aboriginal title continues to exist in the region today. Finally, I point to some further issues raised by this conclusion.

II. SITE-SPECIFIC/INTENSIVE USE VS. TERRITORIAL/EXCLUSIVE OCCUPATION

In Tsilhqot'in, the Supreme Court clarified the 'site-specific' and 'territorial' approaches to Aboriginal title. (5) The site-specific approach conceives of title as applying to small tracts or plots of land surrounded by larger areas over which other Aboriginal or treaty rights may exist.b The territorial approach, by contrast, conceives of title as applying to broad, contiguous tracts of land. In Tsilhqot'in, the unanimous Court held the territorial approach to be correct. The distinction between the approaches, and the differing results that emerge from each, can be seen clearly in how the two standards have been applied by the courts.

The trial judge in Tsilhqot'in applied a territorial standard and "held that 'occupation' was established for the purpose of proving title by showing regular and exclusive use of sites or territory. …

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