Recognition of aboriginal title in Canada

Aboriginal title

Aboriginal title is a fundamental right recognized in the common law that comes from the indigenous people’s occupation, use, and management of ancestral lands before colonization.  In other words, Aboriginal title is not a right granted by the government but a property right that Crown initially recognized in the Royal Proclamation of 1763 (Wood & Rossiter, 2011). The major legal steps that led to its recognition are as follows. First, the Calder vs. British Columbia was important for the formal recognition of Aboriginal title. The outcome gave a significant agreement that paved the way for addressing the Aboriginal title in Canada. Second, R vs. Guerin stated that Aboriginal title was unique, and the crown had a responsibility to protect it for Aboriginal people. The statement opened a plat for the recognition of Aboriginal title.

Another legal step responsible for the recognition of Aboriginal title is Delgamuukw v British Columbia that happened in 1997. It is the most comprehensive legal decision on the issue of Aboriginal title. Delgamuukw introduced how the courts will handle the Aboriginal title. It involved setting out a test to find out whether Aboriginal title does exist and if not how the Crown can justifiably infringe it. In addition, the court ruled that Aboriginal title is not just a common land for use and occupation but also an Aboriginal jurisdictional authority on how the land is used (Wood & Rossiter, 2011). The court acknowledged that Aboriginal title is collective ownership of land that incorporates cultural ties to the land. Thus, the three legal steps provided were responsible for the formal recognition of Aboriginal title.


Wood, P. B., & Rossiter, D. A. (2011). Unstable properties: British Columbia, Aboriginal title, and the “new relationship.” The Canadian Geographer/Le GĂ©ographe Canadien, 55(4), 407-425.

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