The upcoming Supreme Court of Canada case on Aboriginal Title

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The Supreme Court of Canada decided yesterday to hear the appeal from the decision of the British Columbia Court of Appeal in the case of William v British Columbia

Why is this an important case for Aboriginal title in Canada?  The substance of this appeal is likely to focus on a big question with a big impact on Aboriginal/non-Aboriginal relations: will Canadian law recognize Aboriginal title as substantial territories, or will it subscribe to the “postage-stamp theory” only recognize land rights over small, isolated patches of land?

Here’s a bit of background to explain this debate, and why it’s important.

What is Aboriginal Title?

Aboriginal title, or “Indian title” in older terminology, is a concept in common law that recognizes the land rights of the indigenous peoples of Canada.  As the Supreme Court said in the landmark case of Calder v British Columbia, “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.  This is what Indian title means . . . .”

Aboriginal title is an old concept whose legal application dates back to early British colonialism in Canada.  The Royal Proclamation of 1763 promised that the right of Aboriginal people to live on and use their lands would be respected, and that no lands would be settled by colonists except where those lands had been sold to the Crown, at a public meeting of the Aboriginal community.  These agreements for Aboriginal communities to share their lands with the Crown are known as treaties.

Most land in Canada is covered by treaties, whether historic or modern.

By Senwung Luk