The Onus of Proof of Aboriginal Title

Osgoode Hall Law Journal, Vol. 37, pp. 775-803, 1999

15 Pages Posted: 28 Jul 2010

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: 1999

Abstract

In the Delgamuukw decision, the Supreme Court of Canada clearly placed the onus on the Aboriginal nations to prove their title by showing occupation of lands at the time the Crown asserted sovereignty. In this article, it is argued that the common law could assist them in this respect. They should be able to rely on present or past possession to raise a presumption of Aboriginal title, and so shift the burden onto the Crown to prove its own title. Moreover, Aboriginal nations may be more successful if they bring an action for trespass or for recovery of possession of land, rather than for declaration of Aboriginal title.

Keywords: Delgamuukw, onus, title claim, Aboriginal nations, common law, trespass, shift onus

JEL Classification: K39

Suggested Citation

McNeil, Kent, The Onus of Proof of Aboriginal Title (1999). Osgoode Hall Law Journal, Vol. 37, pp. 775-803, 1999, Available at SSRN: https://ssrn.com/abstract=1649595

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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