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The scope of aboriginal title

The Court does say that aboriginal title is something less than fee simple ownership, but a careful reading of the judgment shows that, according to this Court, aboriginal title lands in many cases may only fall short of fee simple in that the lands must be held collectively and can be only sold to the Crown. In virtually all other respects, it seems to me, aboriginal title may amount to fee simple ownership, according to this Court.

The Court goes on to specify some of the uses to which lands covered by aboriginal title may be put, and makes some incredible findings. It says that the broad regime of land use which Indian bands are given under the Indian Act for the operation of their reserves is applicable as well to lands covered by aboriginal title. Currently, under the Indian Act, bands can use reserve lands "for any ... purpose for the general welfare of the band." That is fair enough for reserve lands. But the Court says that that power now applies to land covered by aboriginal title. It also says that because the Indian Oil and Gas Act of Canada gives to Indian bands mineral rights on their reserves, that likewise they have mineral rights under aboriginal title lands. To give content to the meaning of aboriginal title—a common law concept—by incorporating statutory provisions that apply to an entirely different statutory regime, namely Indian reserves, is to apply a sleight of hand that would make Houdini envious.

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Last Modified: August 23, 2000.