How the Right to Self-Government is an Inherent Part of Aboriginal Title

I consider Professor Kent McNeil, Professor of Law at Osgoode Hall Law School, to be the leading thinker on Aboriginal Title in Canada. Professor McNeil provided the theoretical foundation for Aboriginal Title in common law jurisdictions with his 1989 landmark text, Common Law Aboriginal Title. In Delgamuukw v British Columbia, the Supreme Court of Canada would adopt Professor McNeil’s thesis to establish the basis for Aboriginal Title in Canadian law. Professor McNeil has also produced other important writings in the field, which are far too many to recount here, and is consistently cited in Aboriginal Title decisions concerning the nature and scope of the right (to understand Professor McNeil’s influence, just review the Aboriginal Title Trilogy — Delgamuukw, Marshall / Bernard, Tsilhqot'in — and make note of what sources the Supreme Court relies on and where they are cited).

I was fortunate enough to be a student of Professor McNeil’s at Osgoode, where his teaching further instilled and developed my passion and understanding of Aboriginal Title. In the lead up to Tsilhqot’in, I was able to work with Professor McNeil on a special podcast for TheCourt.ca profiling the case. A recent conversation with a colleague in Vancouver led me to revisit the lecture, particularly in relation to the comments Professor McNeil makes (and has made in his writings and other lectures) on the inherent right to self-government that is part and parcel to the grant of Aboriginal Title.

Aboriginal Title provides Aboriginal groups the right to exclusive use and occupation of lands they hold title over, subject to Crown infringements that must be justified. Aboriginal Title is granted to the Aboriginal group as a whole and is communally held, reflecting Indigenous understandings of land ownership in Canada.

Title lands are communally held, but to fully realize and exercise the right, Aboriginal groups need to engage in some sort of internal regulation: how should particular parcels be used (zoning), which plots will be provided to which members, where will public works projects be located (roads, sewers, etc), what types of activities will be permitted and when (hunting, fishing, trapping, etc), etc. However, the Aboriginal group that holds title has sole discretion over how to regulate these land rights among members, without any Crown interference. This is due to the nature of Aboriginal Title, which again is the right to exclusive use and occupation of title lands. Internally, an Aboriginal group’s own laws and customs (Indigenous laws and customs), govern the regulation of land rights among members over title lands.

Therefore, Aboriginal Title not only bestows land rights to Aboriginal groups, but also the implicit right to determine for itself how to use and occupy title lands. In other words, in addition to land rights, it provides Aboriginal groups the right exercise jurisdiction, sovereignty, or self-governance over title lands. To reiterate, Aboriginal Title grants Aboriginal groups both ownership and jurisdiction over title held lands.

Revolutionary, certainly, but not to the degree that detractors would have you believe. As Campbell et al v. AG BC/AG Cda & Nisga'a Nation et al, notes, jurisdictional rights over title lands, as well as the survival of Indigenous laws and customs has long been acknowledged by the Canadian constitution and common law. These rights have been diminished after the assertion of Crown sovereignty, but never extinguished, and continue to survive, and thanks to s. 35 of the Constitution, are constitutionally entrenched.

From my perspective, this understanding carves out a unique jurisdictional space or level of government in Canada for Aboriginal groups. In addition to federal and provincial governments, with their respective spheres of control (and to some extent, municipalities can be lumped in here, though just those that have Charters and been granted exclusive jurisdictional authority and powers), Aboriginal groups have emerged as another political level. While their jurisdiction is relegated in scope to areas they have control over, which in the Aboriginal Title context relates to land rights, it can extend further, as evident in certain modern treaties.

For Aboriginal clients who have never surrendered title rights or that have existing Aboriginal Title claims, I tend to advise that they continue to strongly assert jurisdiction over their lands. First, they have the right to, as title has not been extinguished, and they are asserting their right to exclusive use and occupation of the said lands, subject to Crown infringement. Second, it can also help establish Aboriginal Title claims, as evidence of Indigenous laws and customs can be used to establish control and occupancy, which is a relevant, though not fully realized, method to prove title.

The law around Aboriginal Title rights is still being developed, and it is exciting times for rights holders and legal practioners. Please contact me if I can be of any assistance if dealing with an Aboriginal Title issue.