Aboriginal Title and Section 88 of the Indian Act

34 University of British Columbia Law Review 159-94, 2000

37 Pages Posted: 20 Jul 2013

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: 2000

Abstract

The decision of the Supreme Court of Canada in Delgamuukw v. British Columbia firmly established that Aboriginal title lands are within exclusive federal jurisdiction because they are encompassed by the words "[l]ands reserved for the Indians" in s. 91(24) of the Constitution Act,1867. Delivering the principal judgment, Lamer C.J.C. went on to say that Aboriginal rights generally, including both Aboriginal title and other rights, are within "the core of Indianness which lies at the heart of s. 91(24)," and so "[p]rovincial governments are prevented from legislating in relation to both types of aboriginal rights."As a result, he concludes that the provinces cannot extinguish Aboriginal title, either directly by specific legislation, or indirectly by legislation of general application. Moreover, he held that the power to extinguish Aboriginal title was not conferred on the provinces by s. 88 of the Indian Act, which, with certain exceptions to be considered below, makes provincial laws of general application that "touch on the Indianness at the core of s. 91(24)" apply to "Indians," as defined in the Act, by referentially incorporating those laws into federal law.

Keywords: Aboriginal, title, s.88, Indian, Act, Supreme, court, law, land, decision

JEL Classification: K40, K41, K42

Suggested Citation

McNeil, Kent, Aboriginal Title and Section 88 of the Indian Act (2000). 34 University of British Columbia Law Review 159-94, 2000, Available at SSRN: https://ssrn.com/abstract=2259682

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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