The Recognition of Aboriginal Title and its Relationship with Settler State Land Titles Systems
University of British Columbia Law Review (Fall 2014 Forthcoming)
54 Pages Posted: 20 Aug 2014
Date Written: August 15, 2014
In this paper we begin to examine whether or not it is possible to create space for Aboriginal title within settler state land titles systems. We first explore how the Canadian state has recognized Aboriginal title to date, focusing on the terms of modern land claim agreements but also dealing with the implications of the recent judicial declaration of Aboriginal title. We then consider how these different types of recognition deal with the relationship between Aboriginal title and the settler state land titles systems. We propose a typology for thinking about these two issues which divides the current types of recognition into five models: (1) recognition through inclusion in settler state land titles systems; (2) recognition through inclusion in settler state land titles systems with modifications; (3) recognition through parallel land titles systems; (4) recognition by agreement; and (5) recognition by judicial declaration. For each model, we identify the key characteristics of the form of recognition and provide an example. In our conclusion, we include a preliminary assessment of how much space appears to have been created for Aboriginal title by each of the models. This paper is the first step in our larger project that considers two linked questions: first, whether it is possible to create space for Aboriginal title within settler state land titles systems; and, second, whether it is possible to preserve the integrity of Aboriginal conceptions of property within settler state land titles systems.
Keywords: Aboriginal title, land claims agreements, land title systems, Torrens title systems
Suggested Citation: Suggested Citation