Research Paper Number

2/2017

Indigenous Law and Aboriginal Title

Document Type

Article

Publication Date

2017

Keywords

Indigenous peoples--Legal status, laws, etc.; Canada. Supreme Court; Canada

Abstract

This paper discusses the relevance of Indigenous law to Aboriginal title in Canada, as revealed in three leading Supreme Court decisions: Delgamuukw v. British Columbia (1997), R. v. Marshall; R. v. Bernard (2005), and Tsilhqot’in Nation v. British Columbia (2014). It concludes that Indigenous law relates to Aboriginal title in two ways: it is part of the evidence that can be relied upon to establish the exclusive occupation necessary for title at the time of Crown assertion of sovereignty, and it continues thereafter to govern the communal land rights of the Aboriginal titleholders. Moreover, the content of Indigenous law is not frozen at the moment of Crown sovereignty – it is dynamic and alterable by the Indigenous people concerned in accordance with their own system of governance.

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