The Crown’s underlying title to Aboriginal title lands

By Yves Faguy October 3, 20183 October 2018

The Crown’s underlying title to Aboriginal title lands

 

Kent McNeil has a fascinating piece, recently published in the Canadian Bar Review, that examines the source of the Crown’s underlying title in Canada, and compares it to other principal settler states colonized by Britain – namely Australia, New Zealand and the United States’ first 13 colonies.  As far as Canada is concerned, he notes that the sources of the Crown’s authority are somewhat murky, particularly outside of Quebec and Acadia, where it got sovereignty by “conquest and cession”:

Nonetheless, one cannot deny the reality that the Crown did eventually acquire de facto sovereignty over all of Canada, and probably obtained de jure sovereignty in domestic Canadian law as well as in international law. However, apart from French Canada, the source of the Crown’s de jure sovereignty has never been adequately explained by any branch of the Canadian government—judicial, executive, or legislative. Perhaps de facto sovereignty has resulted in gradual acquisition of de jure sovereignty domestically and internationally by prescription, but this does not explain how pre-existing Indigenous sovereignty could have been legally superseded by Crown sovereignty without conquest, cession, or Indigenous acquiescence. Crown sovereignty, even if legal in Euro-based juridical systems, therefore lacks legitimacy because it depends on the application of those legal systems to Indigenous peoples without their consent, and without taking account of their pre-existing sovereignty and laws. Indigenous peoples, in both treaty and non-treaty areas, continue to assert that they never gave up their sovereignty and that mutually respectful negotiations need to occur so that sovereignty can be shared.

And therefore, because the Crown’s underlying title is sourced in the doctrine of tenure, a feudal concept whereby no one has absolute ownership, it is very much like the title the Crown has under the common law to lands held in fee simple:

… this is a property interest that has been burdened from the outset by Aboriginal title—it has no present beneficial content and does not give the Crown any authority to extinguish or infringe Aboriginal title. The underlying title only amounts to a right to obtain the land if the Aboriginal title comes to an end, either by surrender of the title to the Crown or if the titleholders cease to exist, in much the same way as a fee simple estate can be surrendered back to the Crown or will revert to the Crown by escheat if the fee simple owner dies intestate without heirs.

Read the whole thing.

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