The recognition of Aboriginal rights
In 1973, the Supreme Court of Canada recognised Aboriginal title in Calder v Attorney General of British Columbia (1973) 34 DLR (3d) 145, in similar terms as the recognition of native title in Mabo. Indigenous peoples were 'conceded to be the rightful occupants of the soil with a legal as well as just claim to retain possession of it and to use it according to their own discretion.' (201)
In Guerin v R (1984) 13 DLR (4th) 321, the Supreme Court of Canada found that the affect on the rights of Indigenous peoples occasioned by colonisation and the power of the government to further extinguish rights gave rise to a fiduciary duty, or a duty of trust, to exercise that power in the interests of the Indigenous people.
It was recognised in Guerin that Aboriginal title was unique, or sui generis in legal terms, and need not be characterised as either a proprietary or personal right. However, the reasoning of the courts in the Canadian cases is firmly based in occupation rather than traditional law and custom as in Australia. (Hamlet of Baker Lake v Minister for Indian Affairs and Northern Development (1979) 107 DLR (3d) 513)
In Guerin v R (1984) 13 DLR (4th) 321, the Supreme Court of Canada found that the affect on the rights of Indigenous peoples occasioned by colonisation and the power of the government to further extinguish rights gave rise to a fiduciary duty, or a duty of trust, to exercise that power in the interests of the Indigenous people.
It was recognised in Guerin that Aboriginal title was unique, or sui generis in legal terms, and need not be characterised as either a proprietary or personal right. However, the reasoning of the courts in the Canadian cases is firmly based in occupation rather than traditional law and custom as in Australia. (Hamlet of Baker Lake v Minister for Indian Affairs and Northern Development (1979) 107 DLR (3d) 513)
Keywords: Aboriginal Title, Calder v Attorney-General, 1973 , Canada, Canada, First Nations Canada, Guerin v The Queen, Hamlet of Baker Lake v Minister for Indian Affairs (1979), indigenous people, International Court Case, International law, Supreme Court of Canada, 1973-1984
Author: Strelein, Lisa