Aboriginal Title and Self Government – Delgamuukw v. British Columbia

read Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Aboriginal [read INDIGENOUS] rights, including aboriginal title and the right to self-government triumph colonial dispossession ….)

Put another way: This decision of the Supreme Court of Canada is important because only Jews are aboriginal or indigenous to the Land of Israel (Eretz Yisrael) as recognized by the San Remo Resolution; have maintained a continuous presence in Eretz Yisrael and have continuously exercised self-government in Eretz YisraelFrom Time Immemorial” in spite of foreign (e.g. Roman, Byzantine, Turkish and Arab) conquest!

The Supreme Court of Canada has decided that, where a First Nation maintains demographic and cultural connections with the land, aboriginal title (including self-government rights) can survive both sovereignty changes and the influx of a new majority population, resulting from foreign conquest.

“Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.  The protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

Aboriginal title is sui generis, and so distinguished from other proprietary interests, and characterized by several dimensions. It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown.  Another dimension of aboriginal title is its sources:  its recognition by the Royal Proclamation, 1763 and the relationship between the common law which recognizes occupation as proof of possession and systems of aboriginal law pre‑existing assertion of British sovereignty.  Finally, aboriginal title is held communally.

The exclusive right to use the land is not restricted to the right to engage in activities which are aspects of aboriginal practices, customs and traditions integral to  the claimant group’s distinctive aboriginal culture.  Canadian jurisprudence on aboriginal title frames the “right to occupy and possess” in broad terms and, significantly, is not qualified by the restriction that use be tied to practice, custom or tradition. The nature of the Indian interest in reserve land which has been found to be the same as the interest in tribal lands is very broad and incorporates present‑day needs.  Finally, aboriginal title encompasses mineral rights and lands held pursuant to aboriginal title should be capable of exploitation.  Such a use is certainly not a traditional one.

The content of aboriginal title contains an inherent limit in that lands so held cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands.  This inherent limit arises because the relationship of an aboriginal community with its land should not be prevented from continuing into the future.  Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group.  If lands are so occupied, there will exist a special bond between the group and the land in question such that the land will be part of the definition of the group’s distinctive culture.  Land held by virtue of aboriginal title may not be alienated because the land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it.  The community cannot put the land to uses which would destroy that value.  Finally, the importance of the continuity of the relationship between an aboriginal community and its land, and the non‑economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration.  On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non‑title lands to do so.”

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