What is Aboriginal Title?

Aboriginal Title exists on land that was historically used and possessed by Indigenous peoples. Indigenous communities have exclusive use and occupation of lands that has Aboriginal Title.

The Supreme Court of Canada legally defines Aboriginal Title as “the right to exclusive use and occupation of land. To prove Aboriginal Title, a group must establish that it exclusively occupied the land in question when the Crown asserted sovereignty over the land”.

The Supreme Court of Canada recognized Aboriginal Title in the 1997 Delgamuukw Decision.

Key Facts About Aboriginal Title

Only Federal and Provincial governments can infringe upon Aboriginal Title.

Aboriginal Title includes surface and sub-surface rights.

Aboriginal title cannot be extinguished without consultation and compensation.

Only the federal government has the power to legislate for First Nations and their lands.

Legislation, which purports to extinguish Aboriginal title, must evidence a clear and plain intention to do so.

Aboriginal title can be infringed by governments, but only if the infringement is justified. In examining whether the infringement is justified, the court will look at consultation with the Indigenous group, the degree of infringement, impacted community membership consent and whether compensation was paid.