The Onus of Proof of Aboriginal Title
Osgoode Hall Law Journal, Vol. 37, pp. 775-803, 1999
15 Pages Posted: 28 Jul 2010
Date Written: 1999
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: Suggested Citation