Aboriginal Title Research Papers

In 2018, the Art Gallery of Ontario retitled a painting by Emily Carr which contained an offensive word. Controversy ensued, with some arguing that unsanctioned changes to a work's title infringe upon artists' moral and free speech... more

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- by Michel-Antoine Xhignesse
- •
- 3
  Titles, Aboriginal Title, Cultural appropriation

Beginning in the 1970s, as the federal government began to negotiate comprehensive land claims based on extant Aboriginal title, historical understandings of Indigenous land use and occupancy gained new significance as a means of... more

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- by Glenn Iceton
- •
- 20
  Ethnohistory, Historical Geography, Polar Studies, Ethnography

Contemporary postcolonial scholarship often argues that common law Aboriginal title and the rights of indigenous peoples are regulated by colonial legal regimes that determine the limits of recognition and subjects indigenous peoples to... more

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- by Daniel Huizenga
- •
- 5
  Neoliberalism, Customary Law, Indigenous Peoples Rights, Land Rights

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- by Elsa Steyn
- •
- 11
  Sociology, American Indian Law, Legal Personality, Indigenous Peoples

The Supreme Court of Canada began to recognize aboriginal rights on land in 1973. According to landmark decisions taken in 1990 and 1997, occupancy by indigenous peoples prior to British discovery should be regarded as an autonomous title... more

The question of land rights of Aboriginal groups and the proof of Aboriginal title are hotly debated issues in Canada, mainly because they have an immediate impact on lives of Aboriginal peoples and sometimes are the matter of life or... more

The question of land rights of Aboriginal groups and the proof of Aboriginal title are hotly debated issues in Canada, mainly because they have an immediate impact on lives of Aboriginal peoples and sometimes are the matter of life or death. The Supreme Court of Canada (SCC) has in Delgamuukw v British Columbia (1997) jurisprudence decision laid down 3 criteria for the proof of Aboriginal title. However, these criteria have been proven not as helpful as one would wish, and as a result, many Aboriginal peoples have suffered legal consequences.
Margaret Radin has explained that judges should recognize the Hegelian ‘property for personhood’ perspective – one which considers certain properties as indispensible for a proper personal development – to strengthen the protection of minority groups in property rights issues. However, Malcolm Lavoie has noticed that the Hegelian property theory is in fact present at the Delgamuukw decision. Yet, Robert Hudson stresses the massive failure of this legal document. How can something prospectively successful completely fail? In this paper I investigate whether Delgamuukw decision indeed contains Hegelian property rights theory and whether it has been properly applied in order to find whether Hegelian property theory avails or hampers the success in Aboriginal property rights protection.
At the beginning of this essay, I start with the explanation of Radin`s notion ‘property for personhood’ (1) and dive into its legal importance. (2) Then I explain Radin`s deliberation that the property for personhood theory is a descendent of the Hegelian theory of personal development via the embodiment of the will. (3) The strain of reasoning is followed by Lavoie`s argument that Aboriginal test criteria are in their nature Hegelian, but that the aspect of ‘Hegelianism’ is probably the reason of certain court limitations, (4) before I march on the defense of the efficacy of Hegelian property theory in legal processes. (5) Lastly, I propose my own view for why the Delgamuukw Aboriginal title test has failed. (6)

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In 1925, the BC government passed an order-in-council requiring the registration of all traplines, a geographically bounded territory in which an individual or group has exclusive trapping rights. This order-in-council produced the first... more

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- by Glenn Iceton
- •
- 14
  History, Historical Geography, Polar Studies, Canadian History

The 2014 Tsilhqot’in Decision in the Supreme Court of Canada reaffirms the relevance of archaeological research in the adjudication of Indigenous land and title claims. The evidentiary standards adopted by the Court, that occupation must... more

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- by Erin A Hogg and +1
  John R. Welch
- •
- 6
  Archaeology, Indigenous Archaeololgy, Pacific Northwest Coast archaeology, Aboriginal Rights

The Supreme Court of Canada locates the content of Aboriginal rights and title in traditional Aboriginal practices. The Supreme Court of Canada locates the content of Aboriginal rights and title in traditional Aboriginal practices. This... more

The Supreme Court of Canada locates the content of Aboriginal rights and title in traditional
Aboriginal practices. The Supreme Court of Canada locates the content of Aboriginal rights and title in traditional Aboriginal practices. This approach has faced sustained criticism since its inception. Generally speaking, the scholarship characterizes the Court’s approach as threatening to the continued survival of Aboriginal cultures. As an alternative, many critics have encouraged the adoption of an approach that permits those traditions to adapt to changing social circumstances. Such an approach, they argue, is promising to future survival of Aboriginal communities and cultures. This paper seeks to contribute to that line of scholarship by presenting a new perspective on tradition as it relates to the jurisprudence on Aboriginal rights and title in Canada. Drawing on the work of philosopher Jacques Derrida, this paper attempts to retrieve an understanding that is latent in the text and jurisprudence of s. 35(1) specifically, and the structure of inheritance and judicial decision-making more generally. The author argues that the existing jurisprudence is not simply negative or threatening. Similarly, the proposed alternatives are not simply positive or promising. Rather, it is argued that all legal approaches rooted in tradition necessarily involve a productive, performative or constitutive aspect that is at once promising and threatening. This paper demonstrates, that, while this paradox is unavoidable, it need not be paralyzing. Instead, it is contended that, recognizing the paradoxical structure underlying tradition can allow us to strategically accentuate its promising aspect.. This approach has faced sustained criticism since its inception. Generally
speaking, the scholarship characterizes the Court’s approach as threatening to the continued
survival of Aboriginal cultures. As an alternative, many critics have encouraged the adoption of
an approach that permits those traditions to adapt to changing social circumstances. Such an
approach, they argue, is promising to future survival of Aboriginal communities and cultures.
This paper seeks to contribute to that line of scholarship by presenting a new perspective on
tradition as it relates to the jurisprudence on Aboriginal rights and title in Canada. Drawing on
the work of philosopher Jacques Derrida, this paper attempts to retrieve an understanding that is
latent in the text and jurisprudence of s. 35(1) specifically, and the structure of inheritance and
judicial decision-making more generally. The author argues that the existing jurisprudence is not
simply negative or threatening. Similarly, the proposed alternatives are not simply positive or
promising. Rather, it is argued that all legal approaches rooted in tradition necessarily involve a
productive, performative or constitutive aspect that is at once promising and threatening. This
paper demonstrates, that, while this paradox is unavoidable, it need not be paralyzing. Instead, it
is contended that, recognizing the paradoxical structure underlying tradition can allow us to
strategically accentuate its promising aspect.

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- by Elizabeth Steyn
- •
- 11
  Sociology, American Indian Law, Legal Personality, Indigenous Peoples

This thesis makes an original contribution to knowledge by evaluating Malaysian laws on Orang Asli (OA) land and resource rights and suggesting an alternative legal framework for better recognition and protection of these rights: (1) by... more

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- by Yogeswaran Subramaniam
- •
- 20
  Consultation, Customary Law, Native Title, Land reform

Aboriginal Title

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