Indigenous Law and Aboriginal Title

26 Pages Posted: 18 Aug 2016 Last revised: 15 Sep 2016

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: August 12, 2016


This paper discusses the relevance of Indigenous law to Aboriginal title in Canada, as revealed in three leading Supreme Court decisions: Delgamuukw v. British Columbia (1997), R. v. Marshall; R. v. Bernard (2005), and Tsilhqot’in Nation v. British Columbia (2014). It concludes that Indigenous law relates to Aboriginal title in two ways: it is part of the evidence that can be relied upon to establish the exclusive occupation necessary for title at the time of Crown assertion of sovereignty, and it continues thereafter to govern the communal land rights of the Aboriginal titleholders. Moreover, the content of Indigenous law is not frozen at the moment of Crown sovereignty – it is dynamic and alterable by the Indigenous people concerned in accordance with their own system of governance.

Keywords: Indigenous law, Aboriginal title, Indigenous governance

JEL Classification: A00

Suggested Citation

McNeil, Kent, Indigenous Law and Aboriginal Title (August 12, 2016). Osgoode Legal Studies Research Paper No. 2/2017, Available at SSRN: or

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3

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