Aboriginal Title in the Canadian Legal System: The Story of Delgamuukw v. British Columbia

INDIAN LAW STORIES, pp. 591-603, Carole Goldberg et al, eds., 2011

University of Washington School of Law Research Paper No. 2011-02

14 Pages Posted: 13 Jun 2010 Last revised: 20 Aug 2011

See all articles by Robert T. Anderson

Robert T. Anderson

University of Washington School of Law

Date Written: May 13, 2010

Abstract

Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia (B.C.) – an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on a treaty process to resolve conflicting interests, but not in the fashion utilized in the United States. In the U.S., treaties and agreements with Indian tribes generally resulted in the extinguishment of all indigenous property rights in sweeping terms. In addition, payment of compensation pursuant to the Indian Claims Commission process extinguished legal claims to lands taken previously without payment of compensation. To be sure, most of the roughly 300 tribes in the contiguous forty-eight states reserved homelands, or were moved to other areas set aside for their use and occupancy, and some retained extensive rights to access off-reservation wildlife resources. In British Columbia, however, no earlier treaties ceded aboriginal lands, and the provincial government has recognized that the “extinguishment” of aboriginal title is unacceptable to aboriginal nations. There are over sixty aboriginal nations engaged in forty-nine sets of negotiations with a stated goal of reconciling aboriginal rights and title with the fact the non-aboriginal people and governments are in Canada to stay. This chapter explores the foundation beneath the current negotiations.

Keywords: Aboriginial, Indian, Native American, Land Claims, Indigenous Rights

JEL Classification: K11, K32

Suggested Citation

Anderson, Robert T., Aboriginal Title in the Canadian Legal System: The Story of Delgamuukw v. British Columbia (May 13, 2010). INDIAN LAW STORIES, pp. 591-603, Carole Goldberg et al, eds., 2011, University of Washington School of Law Research Paper No. 2011-02, Available at SSRN: https://ssrn.com/abstract=1624387

Robert T. Anderson (Contact Author)

University of Washington School of Law ( email )

Seattle, WA
206.685-2861 (Phone)

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=104

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