A Connection of Central Significance: Sufficient Occupancy and Aboriginal Title

38 Pages Posted: 27 Jun 2014 Last revised: 26 Jul 2014

See all articles by John Wilson

John Wilson

York University - Osgoode Hall Law School

Date Written: May 25, 2014

Abstract

This paper is an extended commentary on a recent British Columbia Court of Appeal Decision, William v British Columbia, 2012 BCCA 285. It rehearses and critiques the central debate between the appellant and respondent regarding the quality or character of physical occupation necessary to successfully ground an Aboriginal title claim under section 35 of the Constitution Act, 1982. Ultimately, it argues that the Court of Appeal erred in its endorsement of a "site-specific" understanding of sufficient occupancy, and further, that the central debate itself is orthogonal to the true concern underlying the occupancy requirement. It concludes with an alternative test for sufficient occupancy which is more consistent with the previous jurisprudence and the goals of Aboriginal title and Canadian Aboriginal rights writ large.

Keywords: Constitutional Law, Aboriginal Rights, Aboriginal Title

JEL Classification: K11, K00

Suggested Citation

Wilson, John, A Connection of Central Significance: Sufficient Occupancy and Aboriginal Title (May 25, 2014). Osgoode Legal Studies Research Paper No. 58/2014, Available at SSRN: https://ssrn.com/abstract=2458576 or http://dx.doi.org/10.2139/ssrn.2458576

John Wilson (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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