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

See all articles by Nigel Bankes

Nigel Bankes

University of Calgary - Faculty of Law; University of Tromso - Faculty of Law

Sharon Mascher

Faculty of Law, University of Calgary; Faculty of Arts, Business, Law and Education, University of Western Australia

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Date Written: August 15, 2014

Abstract

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

Bankes, Nigel and Mascher, Sharon and Hamilton, Jonnette Watson, The Recognition of Aboriginal Title and its Relationship with Settler State Land Titles Systems (August 15, 2014). University of British Columbia Law Review (Fall 2014 Forthcoming), Available at SSRN: https://ssrn.com/abstract=2482631

Nigel Bankes

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

University of Tromso - Faculty of Law ( email )

Tromsø, 9037
Norway

Sharon Mascher

Faculty of Law, University of Calgary ( email )

University Drive
Calgary, Alberta T2N 1N4
Canada

Faculty of Arts, Business, Law and Education, University of Western Australia ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

Jonnette Watson Hamilton (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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