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Backgrounder - Aboriginal Title in Canada's Courts

Aboriginal title is based in history

Before Europeans arrived in North America, Canada was home to Aboriginal people. Aboriginal rights and title stem from this prior occupancy - rights held as a result of longstanding use and occupancy of the land. Under the law, the unique legal and constitutional status of Aboriginal people derives from the fact that they are the descendants of the people that were resident in North America long before Europeans arrived.

As early as the 18th century, Britain recognized that Aboriginal people had claims to the land, and major treaties were signed as settlement moved west across Canada. Today, there are still areas in Canada where treaties have not been signed and Aboriginal claims are not fully resolved. Some First Nations assert that because they did not surrender their traditional lands to the Crown, they still hold Aboriginal title to these lands.

Like Aboriginal rights, Aboriginal title is communal (an individual cannot hold Aboriginal title) and it is site, fact and group specific. However, Aboriginal title can be distinguished from other Aboriginal rights in that:

Aboriginal rights refer to practices, traditions and customs that distinguish the unique culture of each First Nation and were practiced prior to European contact. The rights of certain peoples to hunt, trap and fish on ancestral lands are examples of Aboriginal rights.

Aboriginal title, as currently defined by the courts, is a right in the land itself - not just the right to hunt, fish and gather from it.

Aboriginal rights are unique because they are protected by the Canadian Constitution. In 1982, the Canadian Constitution was amended to recognize and affirm already existing Aboriginal rights, but did not define them or identify where they may exist. Aboriginal title is now beginning to receive judicial definition.

Aboriginal title and the courts

Over the last 35 years, a number of court decisions have made reference to Aboriginal title. In 1973, the Supreme Court of Canada confirmed the existence of Aboriginal title as a concept in Canadian common law.

Since then, the courts have provided more information on what Aboriginal title is and how Aboriginal title can be proven in the courts. The Supreme Court of Canada has stated that in order to prove Aboriginal title in the courts, there needs to be a thorough examination of an Aboriginal group's traditional use and occupation of an area.

The courts have also made distinctions between Aboriginal title, which is communal, and individual property ownership.

Important court cases that reference Aboriginal title include: Calder, James Bay Cree, Delgamuukw, Bernard and Marshall, Roger William, and Ahousaht.

In the 1973 Calder decision, the Supreme Court of Canada confirmed the existence of Aboriginal title as a concept in Canadian common law. In this case, the Nisga'a Nation claimed Aboriginal title to its traditional lands in BC. While all the judges recognized that Aboriginal title existed as a concept in Canadian common law, their views differed on whether Aboriginal title still remained. The Supreme Court of Canada was divided 3:3:1 with one group of judges finding that Aboriginal title of the Nisga'a had survived until modern times, the other group holding that Aboriginal title was extinguished by general laws adopted by the colonial government of BC before 1870, and a single judge deciding against the Nisga'a claim on a procedural ground.

In the mid 1970s, the Cree of James Bay went to court to stop the James Bay hydro-electric project. The Cree argued that they had title to the land that would be flooded by the project. They also argued that the project would threaten their traditional way of life by damaging the environment. In 1973, the Quebec Superior Court ruled in favour of the Cree, noting the First Nation had been occupying and using the land to a full extent. This decision was reversed by the Quebec Court of Appeal in 1974. However, the legal claims brought forward by the First Nation were subsequently resolved through negotiation and the signing of a treaty with the Governments of Canada and Quebec.

In the Delgamuukw case, the Gitxsan and Wet'suwet'en laid claim to their traditional territory in BC, asserting that pre-existing Aboriginal rights and title had not been extinguished. In the 1997 Supreme Court of Canada decision, the issue of Aboriginal title was sent back to trial, as the judge erred in consideration of the facts presented in court. However, in the reasoning for the decision, the Supreme Court of Canada provided its first comprehensive statements on, and established a legal test for, Aboriginal title. The court said:

  • Aboriginal title is a collective right by an Aboriginal group to the exclusive use and occupation of land for a variety of purposes, which need not be activities that the group has traditionally carried out on the land;
  • Aboriginal title is an Aboriginal right protected under section 35 of the Canadian Constitution;
  • Aboriginal title lands must not be used in a way that is irreconcilable with the nature of the group's attachment to the land; and,
  • In order for the Crown to justify an infringement of Aboriginal title, it must demonstrate a compelling and substantive legislative objective, it must have consulted with the Aboriginal group prior to acting, and in some cases, compensation may be required.

In the Bernard and Marshall cases, two members of the Mi'kmaq First Nation were charged with unlawfully cutting and possessing timber from provincial Crown lands in New Brunswick and Nova Scotia, respectively. In their defence, it was argued that the Mi'kmaq members did not require provincial authorization for their actions because they had either Aboriginal title or a treaty right to do so. In this case, the court applied the legal test for Aboriginal title in order to render a decision. In 2006, a majority of the Supreme Court of Canada said that Aboriginal title was not proven, nor was there a treaty right that allowed their actions. In the reasons for the decision, the judges provided varying opinions and comments on the legal test for Aboriginal title.

In the Roger William litigation, the Xeni Gwet'in asserted that commercial logging activity would infringe on their Aboriginal rights and title and they initiated legal action.  In court, the Xeni Gwet'in claimed Aboriginal title and Aboriginal rights to hunt and trap within 4,381 square kilometres of land in British Columbia.   In the 2007 lower court decision, the court did not make a declaration of Aboriginal title but did make numerous declarations regarding specific Aboriginal rights for the Tsilhqot'in Nation.  While the BC Supreme Court decision did not find Aboriginal title because of an issue related to the pleadings of the case, it did, however, express its opinion that the Tsilhqot'in Nation could prove Aboriginal title to parts of its claimed traditional territory. The court's comments regarding where Aboriginal title might exist are not legally binding.  All parties to the litigation have appealed this decision to the British Columbia Court of Appeal.

In the Ahousaht litigation, the Nuu-chah-nulth brought forward a variety of claims, including: (1) an Aboriginal right to harvest and sell fish on a commercial scale; and, (2) Aboriginal title to submerged lands, including several rivers, foreshore and submerged seabeds off the shores of west Vancouver Island.  In the 2009 lower court decision, the Court did not find Aboriginal title.  However, the BC Supreme Court declared that the Nuu-chah-nulth had an Aboriginal right to harvest and sell all species of fisheries resources – but that this right does not equate to an unrestricted right to the commercial sale of fish and that it must be exercised within an offshore boundary of 9 nautical miles. The court also granted the litigating parties two years to consult and negotiate a regulatory regime that recognizes the Nuu-chah-nulth's Aboriginal fishing rights.  The Government of Canada has appealed this decision to the BC Court of Appeal.

In addition to the legal decisions noted above, there are several outstanding court cases where First Nations are bringing forward claims of Aboriginal title. These cases include: Roger William vs. Canada and British Columbia; Chief George H. and Eel Ground Indian Band vs. Canada; and, Union of Nova Scotia Indians and Confederacy of Mainland Mi'kmaq vs. Canada and Nova Scotia. The outcomes of these court cases will affect the law with respect to Aboriginal title in Canada.

As of this writing, no First Nation has proven Aboriginal title in Canada's courts.

Resolving Outstanding Claims

Many claims to Aboriginal rights and title remain outstanding across Canada. These claims will be resolved either through negotiations with First Nations, or they will be decided by the courts on a case-by-case basis. While case law has established the existence of Aboriginal title conceptually and has provided guidance on the definition of Aboriginal title, most of today's claims regarding Aboriginal rights and title are resolved through negotiation processes, such as the BC treaty process or the Comprehensive Claims process. Negotiated agreements give First Nations and federal and provincial/territorial governments the opportunity to define their relationships and establish fair agreements that work for all Canadians.

Since 1973, 22 modern treaties have been negotiated across Canada.

For information on these negotiation processes, and other processes to resolve outstanding claims with Aboriginal people, please contact Indian and Northern Affairs Canada at:

Phone: (toll-free) 1-800-567-9604

February 2010