Tuesday, April 14, 2015

Clarity and confusion? The new jurisprudence of aboriginal title

The Supreme Court of Canada has revolutionized the jurisprudence of aboriginal rights and title. Various decisions have overturned the doctrine of adverse occupancy, which at one time had been thought to have extinguished aboriginal title in British Columbia (Delgamukkw); created a governmental duty to consult First Nations regarding use of land to which they have a claim of aboriginal rights or title (Haida Nation); approved a specific claim to aboriginal title (Tsilhqot’in); and extended the duty of consultation to First Nations whose aboriginal title was previously thought to have been extinguished by treaty (Mikisew). These decisions have created a new range of property rights for First Nations, which they should be able to use to advance their prosperity. However, the new jurisprudence has also set up many barriers to voluntary market transactions by multiplying the number of owners and claimants, and laying down opaque und unpredictable rules for making decisions about lands that are subject to claims of aboriginal title or to treaty rights such as hunting and fishing.

Source: Fraser Institute

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