Extracting Indigenous jurisdiction on private land: the duty to consult and Indigenous relations with place in Canadian law
Bartel, Robyn, and Jennifer Carter. Handbook on Space, Place and Law. Edward Elgar Publishing Limited, 2021.
Indigenous relations with land are grounded in place-based legal orders which have been regulating the territories now making up Canada for millennia (Borrows 2010, 2018; McGregor 2010). Judicial consideration of Indigenous relations with place has focused on the duty to consult and accommodate with respect to ‘Crown land’ – lands for which federal and provincial governments are the deemed owners. This emphasis on Crown lands is logical – 89 per cent of land in Canada is held by either the federal or provincial Crown (Neimanis 2013). Indigenous claims often expressly exclude private land, wary of courts’ willingness to unsettle third-party expectations, and conscious of relationships with neighbours (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44). However, this emphasis has come at the expense of attention to Indigenous property relations in areas that have been largely privatized. The creation of fee simple lands from Indigenous territories has had a disproportionate impact on particular nations. For example, in heavily populated southern areas the majority of Indigenous lands are now owned by third parties and therefore excluded from modern treaty settlement or other land claims processes (Reynolds 2018). Private lands are also largely controlled by the ‘agenda’ of the private owner (Katz 2008; Van Wagner 2017).
Van Wagner, Estair, "Extracting Indigenous jurisdiction on private land: the duty to consult and Indigenous relations with place in Canadian law" (2021). Articles & Book Chapters. 2879.
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