As the Supreme Court reaffirms in Tsilhqot’in Nation v. British Columbia (2014), Aboriginal title is a sui generis right which cannot be described in traditional property terms. This article argues that the explanation for this fact is that Aboriginal title is not a concept of private law. It is a concept of public law. It does not deal with the rights of private entities but with the rights and powers of constitutional entities that form part of the Canadian federation. If we look for analogies to Aboriginal title, we find a close parallel in Provincial title – the rights held by the Provinces to lands within their boundaries. Indeed a comparison between Aboriginal title and Provincial title has the capacity to clarify some puzzling aspects of the subject.
"The Constitutional Dimensions of Aboriginal Title."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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