Aboriginal Title and Indigenous Governance: Identifying the Holders of Rights and Authority

50 Pages Posted: 24 Jul 2016 Last revised: 11 Aug 2016

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: May 31, 2016

Abstract

Aboriginal rights, including Aboriginal title to land, are communal rights that are vested in Indigenous collectivities that are connected to the specific Indigenous groups that occupied and used land prior to European colonization of Canada. Identifying the present-day collectivities that hold these rights is therefore essential. This research paper examines the jurisprudence on this matter in relation to three categories of court decisions: Aboriginal title cases, Aboriginal rights cases apart from title, and duty to consult cases. Analysis of the case law reveals that identification of current rights holders is treated as a matter of fact that depends in part on the laws of the Indigenous people concerned. Although the courts have generally avoided considering the implications of this for self-government, the author contends that Aboriginal rights necessarily entail governance authority that must likewise be vested in rights-holding collectivities.

Keywords: Indigenous rights, Aboriginal title, Indigenous governance, Indigenous rights holders

JEL Classification: Z00

Suggested Citation

McNeil, Kent, Aboriginal Title and Indigenous Governance: Identifying the Holders of Rights and Authority (May 31, 2016). Osgoode Legal Studies Research Paper No. 67/2016, Available at SSRN: https://ssrn.com/abstract=2813637 or http://dx.doi.org/10.2139/ssrn.2813637

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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