What's Law Got to Do with it? The Protection of Aboriginal Title in Canada

Abstract

This essay presents and contrasts two narratives on the past and future of the law of Aboriginal title. The first narrative, drawn from the Final Report of the Royal Commission on Aboriginal Peoples, grounds the law of Aboriginal title in inter-societal norms that enabled the mutual coexistence of colonists and settlers in North America. It locates Aboriginal territorial dispossession in colonial policies and practices that failed to conform to the spirit of mutual coexistence, and calls on governments to provide Aboriginal people with lands and resources necessary for self-sufficiency. The counter-narrative describes the law of Aboriginal title as a relatively minor exception to a more general legal legacy of Aboriginal territorial dispossession. It argues that the law should acknowledge that it has produced unjust distributions of title in Canada. It calls on the law of Aboriginal title to allocate proprietary power to Aboriginal people in ways that force governments to introduce reforms similar to those recommended by the Royal Commission.