Aboriginal Title Claims to Private Land and the Legal Relevance of Disruptive Effects

(2018) 83 SCLR (2d) 129-166

38 Pages Posted: 8 Aug 2017 Last revised: 26 Mar 2018

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: August 4, 2017

Abstract

In some parts of Canada, including most of British Columbia, settlement proceeded in the absence of land cession treaties with Aboriginal peoples. This gives rise to possible Aboriginal title claims to significant tracts of privately owned land. The result is a challenging legal question linked to a highly fraught moral dilemma. Should the property rights of private owners or those of Aboriginal title holders prevail? Should a serious historic wrong be corrected, or should the reliance interests of innocent modern-day owners, and of the society in which they live, be protected? The author seeks to address these problems from the perspective of a sophisticated, rights-based jurisprudence. This approach emphasizes the rights of the parties, but does so within the broader context of the system of rights that the legal system is meant to protect. The author argues that while it is unlikely that past Crown grants to settlers had the effect of extinguishing Aboriginal title, the question of the remedies available to Aboriginal title claimants remains open. Courts considering remedial options can appropriately take account of disruptive effects on the wider legal system, including effects on foundational interests like private property rights. It is possible to vindicate Aboriginal title claims while protecting third-party reliance interests. The clearest way to do this is through monetary damage awards against the Crown, which is the party ultimately responsible for the wrong in these cases. The author argues that in most, if not all, cases of Aboriginal title claims to private land, this will be the most appropriate remedy. Courts can combine such monetary awards with orders for the Crown to cooperate in land exchanges or with proposals by First Nations to add land they purchase on the private market to their reserves, allowing them to reassemble a land base within their traditional territory. The author argues that this approach is consistent with existing private law and Aboriginal title jurisprudence, as well as principles governing remedies in constitutional cases.

Keywords: Property law, Aboriginal law, Aboriginal title, Remedies

Suggested Citation

Lavoie, Malcolm, Aboriginal Title Claims to Private Land and the Legal Relevance of Disruptive Effects (August 4, 2017). (2018) 83 SCLR (2d) 129-166, Available at SSRN: https://ssrn.com/abstract=3013710

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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