Justifying Infringement of Aboriginal Title

Canadian Public Law
LAW 505
Section:	002
Instructor:	Robert Danay
Email:	rdanay@mail.ubc.ca
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Aboriginal Title

Aboriginal title is a species of aboriginal right that differs from aboriginal rights to engage in particular activities. It confers a Sui Generis interest in the land, that is, a right to the land itself. It confers a right to exclusive use, occupation and possession to use the land for general welfare and present day needs of the Aboriginal community. Aboriginal title also includes a proprietary type of right to choose what uses aboriginal title holders can make of their lands, which is subject to an inherent limit defined by the nature of the attachment to the land.

Test for Aboriginal Title

1. Pre-sovereignty occupation: The land must have been occupied prior to sovereignty. “Any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants.”

2. Continuity: This only becomes an aspect of the test where an aboriginal claimant relies on present occupation to raise an inference of pre-sovereignty occupation. If the present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre sovereignty occupation

3.Exclusivity: At sovereignty, the occupation must have been exclusive. Exclusive occupation may be demonstrated to exclude others, including the intention and capacity to retain exclusive control of the lands.

Test of Justification

The aboriginal rights recognized and affirmed by 3.35(1), including aboriginal title are not absolute. Both federal and provincial governments may infringe these rights. However, s.35 (1) requires that those infringements satisfy the test of justification. The general principles government the justification test are laid down in Sparrow, and embellished in Gladstone.

The first step: If prima facie infringement exists, the infringement is in furtherance of a legislative objective that is compelling & substantial? In Gladstone decision, the range of legislation objectives is fairly broad, but might be helpful in identifying the legislative objective. For example: The general economic development of Vancouver, protection of the environment or endangered species, the building of infrastructure for educational and cultural purposes and the settlement of non-aboriginal population to support those aims. These are some of the kinds of objectives that are consistent with purpose and, in principle, can justify the infringement of Aboriginal title.

If a valid legislative objective is found, the analysis proceeds to the second part of the justification test, which is if the government has satisfied the honor of the crown in dealings with Musqueum People. The special trust relationship and the responsibility of the government vis-à-vis aboriginal people must be the first consideration for a legislation to be justified. The justificatory standard to be met may place a heavy burden on the Crown.

These are the kind of questions that would be raised, whether in a situation of expropriation, fair compensation is available, whether the aboriginal group in question has been consulted with respect to the conservation?, whether there was voluntary surrender of the lands to the Crown (most likely by treaty negotiations)?, etc,"

In this case, we are assuming that the Court has find infringement of aboriginal title as protected by s. 35(1). In order to reach this analysis, the Court must have considered: if the limitation is unreasonable. If the regulation imposes undue hardship, if the regulations deny to the holder the preferred means of exercising that right, all of this in order to came to the conclusion of the existing of infringement of Aboriginal Title.

The onus of proving the prima facie infringement of Aboriginal title of the Musqueum Reserve lands is on the party challenging the legislation (Musqueum Reserve).