Hello Reader, this time Tabir Hukum will discuss about aboriginal rights claims, including claims to aboriginal title.
Despite three centuries of treaty-making, much of Canada remains subject to aboriginal claims to land and resources. Cases concerning the extent of the aboriginal rights recognized and affirmed in section 35 of the Constitution Act, 1982 come to court in several ways. In Calder and in Delgamuukw v. B.C., [1997] S.C.J. No. 108 (QL), [1997] 3 S.C.R. 1010, the First Nations collectivities were plaintiffs, seeking a declaration recognizing their claims to aboriginal title. More often, as with the treaty rights at issue in Marshall, First Nations individuals are the defendants in a criminal or quasi-criminal proceeding in which they are charged with hunting, fishing or cutting wood without complying with federal, provincial or territorial regulations.
As with treaty rights, the person or collectivity claiming an aboriginal right has the responsibility of presenting the evidence necessary to establish the factual basis for the right. Thus, these cases may involve many days of expert testimony from historians, anthropologists, and other social scientists, as well as evidence from aboriginal elders of the collectivity's oral history concerning their traditional lands and customs. In Delgamuukw, the Supreme Court overturned the trial judge's rejection of the aboriginal claim, because the judge had failed to give sufficient weight to the oral history presented by the aboriginal elders. Because this failure may have led to erroneous findings on the factual question of whether the plaintiffs had occupied the land claimed in the way necessary to establish a claim to ownership or aboriginal title, the Supreme Court ordered a new trial, while expressing its hope that the parties would reach a negotiated solution.
To provide guidance for future negotiations and litigation, the Supreme Court in Delgamuukw reviewed the basic principles of aboriginal title. The court described aboriginal title as an aboriginal right that is more than the right to engage in specific activities, such as hunting, fishing, or gathering for sustenance, ceremonial or trading purpose. Aboriginal title, unlike other aboriginal rights, includes the right to exclusive use and occupation of the land, subject only to the limitation that the uses must not be irreconcilable with the nature of the aboriginal attachment to the land that forms the basis of the aboriginal title.
Aboriginal title thus shares some of the features of ownership of a fee simple estate in land. But it is sui generis, meaning in a class by itself, distinct from the fee simple estate. Aboriginal title arises from exclusive occupation of land by a First Nations collectivity at the time that European acquired sovereignty over the area. Because the title belongs to the collectivity as a whole, lands held in aboriginal title cannot be transferred, sold, or surrendered to First Nations individuals or non-aboriginals; the lands can be transferred only to the Crown.
Present occupation of the land can be evidence of occupation pre-sovereignty, if the claimants prove continuity between present and past occupation. This continuity need not be unbroken, as the requirement would deny aboriginal title to collectivities whose use and occupation of an area was disrupted by European incursions. The continuity, nontheless, must be substantially maintained. Continuity can be established even if the nature of the occupation has changed over time, so long as the land is still being used in ways that are not inconsistent with its continued use by future generations of aboriginal peoples. Where aboriginal collectivities can establish use or occupancy but not the exclusivity necessary for aboriginal title, the collectivity might establish other aboriginal rights, such as the right to hunt and fish in a specific area, or to have access to specific sites for ceremonial purposes.
European acquisition of sovereignty is the relevant date for establishing the occupation necessary to prove aboriginal title, rather than the time of first contact between Europeans and the First Nations people, because the concept of aboriginal title becomes necessary only when there are other claims to title. The acquisition of sovereignty according to the rules of international law gives the European state its claim to title to the land, subject to the claim to aboriginal title of those already in occupation of the land, which crystallizes wit the assertion of sovereignty. As well, because aboriginal title is a general right of use and occupation of land rather than its use for specific purposes distinctive to aboriginal society, there is no need to distinguish traditional uses from those that are the consequence of European contract.
As with treaty rights, aboriginal rights, including the rights that flow from aboriginal title, are not absolute; governments can infringe these rights to further some compelling and substantial legitimate legislative objective consistent. Generally, as with treaty rights, the Crown will have to introduce evidence showing that the government action will infringe the aboriginal rights as title as possible, that there has been consultation with, and, where necessary, the consent of, the affected aboriginal collectivity, and that there was fair compensation for the infringement.
The question of First Nations rights to lands and resources will not go away. Aboriginal law is a growing field, as more cases work their way up through the courts to the Supreme Court, and as more First Nations acquire recognition of their rights to land, natural resources, and self-government. Whatever the ruling in individual cases, First Nations across Canada are no longer willing to watch while others profit from resources that once were theirs. Until aboriginal people have received justice, other's rights to land and resources rest on a shaky foundation.
Umpteen posts of tabir hukum about aboriginal rights claims, including claims to aboriginal title, hopefully the writing of tabir hukum about aboriginal rights claims, including claims to aboriginal title can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : First Nations Rights in Land and Resources - Aboriginal Rights Claims, Including Claims To Aboriginal Title |
