Document Type

Book Chapter

Publication Date


Source Publication

Common Law Aboriginal Title (Oxford: Clarendon Press, 1989)


The common law relating to land relies heavily on possession as a source of title and proprietary rights. Even a trespasser who wrongfully takes possession of land acquires a title to it that is good against anyone who cannot prove he or she has a better title. This is due in part to the rule that title is presumed from possession, but in addition it relies upon the incapacity of an outside claimant to rely on a jus tertii. In other words, the claimant is barred from pointing to a third party’s title under which he or she does not claim, as the existence of that title cannot be the basis for the claimant to acquire the land from the person in possession, even if that person has no right beyond that which accompanies bare possession. This chapter examines the historical development of this body of law from the real actions to the action of ejectment, which is the forerunner of the modern action for the recovery of possession of land. It reveals that title to land in the common law is generally relative rather than absolute: in any given legal action, the question is not who is the owner, but rather who among the parties before the court has a better right to the land. The person in possession will always win against everyone else who cannot prove that they have a better title. In Common Law Aboriginal Title, the author argues that the common law should attribute title to Indigenous peoples who were in possession of lands in territories colonized by the British Crown because there is no basis in law for the Crown to have a title that is better than the title by possession that the Indigenous peoples would have. This was basically affirmed by the Supreme Court of Canada in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, decided eight years after Common Law Aboriginal Title was published.