Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion

46 Pages Posted: 1 Feb 2016

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Abstract

Canadian courts have held that Aboriginal title is extinguishable consensually by means of a treaty with the Aboriginal nation concerned. Legislative extinguishment was also possible prior to recognition of Aboriginal title in the Constitution of Canada in 1982. These methods of extinguishment are discussed in Parts 1 and 2 of this article. It is suggested that extinguishment by treaty could occur only if that were permissible by the law of the Aboriginal nation. Extinguishment by legislation would have depended on the legislative body having the constitutional authority to extinguish the title. In addition, the legislative intention to extinguish would have had to be clear and plain. Finally, Part 3 of the article discusses the recent emergence in the Ontario Court of Appeal's decision in the Chippewas of Sarnia case of what appears to be a third method of extinguishment of Aboriginal title, namely extinguishment through the exercise of judicial discretion. This aspect of the Court of Appeals decision is criticized as a disturbing departure from established judicial precedent and legal principle.

Suggested Citation

McNeil, Kent, Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion. Ottawa Law Review, Vol. 33, No. 2, 2002, Available at SSRN: https://ssrn.com/abstract=2724819

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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