Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction
61 Saskatchewan Law Review 431-65
18 Pages Posted: 7 May 2013
Date Written: 1998
The recent decision of the Supreme Court of Canada in Delgamuukw v. British Columbia calls for re-examination of a number of significant Aboriginal rights issues. The crucial role of oral histories in Aboriginal rights litigation was emphasized by the Court, and guidelines were laid down for trial judges to admit and give proper weight to that evidence. For the first time the Court addressed the vital issue of the content of Aboriginal title and provided direction on how that title can be proved.The Court also dealt with the constitutional protection accorded to Aboriginal title by s. 35(1) of the Constitution Act, 1982 and explained how infringements of that title can be justified. Finally, the Court discussed the issue of the division of powers between the Parliament of Canada and the provincial legislatures in relation to Aboriginal rights. This last issue will be the focus of this article. I will attempt to show that the Court's pronouncements on this issue result in a fundamental realignment of constitutional jurisdiction within the provinces where Aboriginal title can be established.
Keywords: aboriginal, title, jurisdiction, powers, s. 35, Constitution, Supreme Court, Canada, rights
JEL Classification: K40, K41, K42
Suggested Citation: Suggested Citation