After Tsilhqot'In Nation: The Aboriginal Title Question in Canada's Maritime Provinces

University of New Brunswick Law Journal, VOL/TOME 67 (2016)

51 Pages Posted: 7 Dec 2016

See all articles by Robert Hamilton

Robert Hamilton

University of Calgary - Faculty of Law

Date Written: August 5, 2016

Abstract

This essay analyzes Aboriginal title in the Maritime Provinces in light of the Supreme Court of Canada's Tsilhqot’in Nation decision with the aim of assessing how future title litigation from the region may be addressed in the courts. The essay first reviews the Supreme Court’s ruling in Tsilhqot’in, specifically the Court’s adoption of the territorial approach to Aboriginal title claims. On the basis of this approach, this essay argues that Aboriginal title existed in the region at the time of the assertion of British sovereignty. While this essay concludes that Aboriginal title undoubtedly existed in the region, it stops short of attempting to determine precisely where it may have existed. Such a determination would require a depth of research not possible here. Having concluded that title existed, this essay then reviews the legal framework governing the extinguishment of Aboriginal title to assess whether Aboriginal title has been extinguished in the Maritime Provinces. It concludes that Aboriginal title has likely not been extinguished on a large scale, a conclusion which strongly suggests that Aboriginal title continues to exist in the region today. The essay concludes by pointing to some further issues raised by this conclusion.

Keywords: Aboriginal title, Maritime Provinces, Peace and Friendship Treaties, Aboriginal Rights

Suggested Citation

Hamilton, Robert, After Tsilhqot'In Nation: The Aboriginal Title Question in Canada's Maritime Provinces (August 5, 2016). University of New Brunswick Law Journal, VOL/TOME 67 (2016), Available at SSRN: https://ssrn.com/abstract=2880926

Robert 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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