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A new view on aboriginal title

The Court then addressed two aspects of aboriginal title: What does it amount to, and how is it established?

In answering these questions, the Court struck out on its own once again, largely ignoring the case law so painstakingly reviewed in this case both by the trial judge and the Court of Appeal. It found aboriginal title not to be a user right over land to be shared with others, but "the right to the exclusive use and occupation of land," including "the right to choose to what use lands can be put" (as distinct from a non-exclusive user right for traditional purposes which has been the law on the subject up to now). The Court went on to boldly state: "What aboriginal title confers is the right to the land itself."

When one bears in mind that, in the land claim process, virtually the whole of British Columbia is claimed to be subject to aboriginal title, one appreciates the staggering implications of this pronouncement to British Columbia, not only with respect to Crown land, but private tenures as well. One commentator has noted that "in one fell swoop the Delgamuukw decision flipped our entire land title system on its head, by dint of its findings on aboriginal title."⁷ Do we, as owners of fee simple lands, now have a "safe-holding and marketable title" if aboriginal title exists in the whole of the province?

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Last Modified: August 23, 2000.