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


IV. EXTINGUISHMENT OF ABORIGINAL TITLE

Prior to the constitutionalization of Aboriginal and treaty rights in 1982, Aboriginal title may have been extinguished in one of two ways: by voluntary surrender or unilaterally through legislation. (138) Title can now be extinguished only through voluntary surrender, and any infringements of title must be justified pursuant to the standards established by the Supreme Court. (139) Where Aboriginal title can be proven to have existed at the date of the assertion of sovereignty, extinguishment can be determined by ascertaining whether that title was surrendered voluntarily or, prior to 1982, by unilateral legislation. The onus is on the party seeking to prove extinguishment to bring evidence that title was extinguished by one of these two means. (140)

Should pre-1982 legislation be relied on as evidence of extinguishment, the ability of that legislation to extinguish title is constrained by three requirements. First, the legislative body must have been competent to legislate in respect of both common law property rights and Aboriginal land rights--that is, the legislation must not have been ultra vires the legislative body which enacted it. Second, the legislation in question must not have been repugnant to higher order constitutional laws or principles by which the legislative body was bound (e.g., Royal Proclamation, 1763, (141) treaties, etc.). (142) Third, any purported legislative extinguishment must satisfy the "clear and plain intent" standard. (143) This standard stipulates that the legislative body must have had the intention to extinguish the right in question; extinguishment could not have occurred incidentally.

A. Voluntary Surrender

The ability of Indigenous peoples to voluntarily enter into agreements with the Crown that have the effect of extinguishing title has never been questioned; rather, "[i]t has always been considered possible for a native people to cede aboriginal lands to the Crown by treaty." (144) This policy was given legal force in the Royal Proclamation, which "laid down a uniform legal regime governing native title, whereby native groups were recognized as holding communal rights to their unceded lands, subject only to a restriction of alienation." (145) As Professor Slattery stated, pursuant to the Royal Proclamation, "aboriginal peoples held continuing rights to their lands except where these rights have been extinguished by voluntary cession." (146) The Proclamation both established legal parameters for acquiring Indigenous lands and confirmed that Indigenous land rights were communally held, continued to exist where they had not been extinguished, and could be extinguished only by voluntary surrender to the Crown.

In Chippewas of Sarnia, the Ontario Court of Appeal held that the legal framework established by the Royal Proclamation--specifically, the prohibitions on alienation and the procedural requirements governing the acquisition of Aboriginal lands--was and is a part of the common law and exists independently of the Proclamation. (147) Thus, following the Proclamation, Aboriginal title could be extinguished by voluntary surrender, though only by surrender to the Crown. Following 1982, this is the only manner in which title may be extinguished.

B. Unilateral Legislation

Any purported legislative extinguishment of title must meet the three criteria outlined above: the legislation must have been intra vires the legislative body in question, the legislation must not have been repugnant to any higher order constitutional laws or principles, and the legislation must satisfy the clear and plain intent standard. In this section I outline these criteria with the aim of providing a clear articulation of what types of legislation may have extinguished title during distinct historical eras. This requires an analysis of executive and legislative authority, Imperial and colonial jurisdiction in the pre-confederation period, and federal and provincial jurisdiction in the post-confederation period. …

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