Personal and proprietary interests 179

5.3.6.3. The Canadian view

The process of recognition of aboriginal land rights began earlier in Canada and developed along different lines, as can be seen from Delgamuukw v. British Columbia [1997] 3 SCR 1010, extracted at www.cambridge.org/propertylaw/. In particular, the legislative background is different, and, as the Supreme Court of Canada decision in Delgamuukw demonstrates, Canadian law is happier with the notion of aboriginal title and aboriginal rights being regarded as proprietary, although again it is not viewed as a determinative factor. Once it is accepted that these are rights that are enforceable against the state and against all others, it makes little sense to argue whether they can in any other sense be called proprietary. However, it is notable that Canadian jurisprudence demonstrates a more sophisticated approach in distinguishing aboriginal title (the right to the land itself) from other aboriginal rights, and recognising that the rights the law recognises – essentially as proprietary – ‘fall along a spectrum with regard to their degree of connection with the land’ (see paragraph 138), all of which receive constitutional protection.

Notes and Questions 5.2

1Read Delgamuukw v. British Columbia [1997] 3 SCR 1010, either in full or as extracted at www.cambridge.org/propertylaw/.

2According to Lamer CJ in Delgamuukw, what is ‘aboriginal title’? (See paragraphs 111–32 of his judgment.) How does it differ from Honore´’s conception of ownership? How does it differ from ‘native title’ as defined in section 223(1) and (2) of the Australian Native Title Act 1993, read in the light of section 225(a) and (b) of that Act (see Chapter 4 above)?

3What does Lamer CJ mean when he says that ‘lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place’ (paragraph 128)? Give examples. What reasons does he give for these restrictions? Compare these reasons with the reasons given by Brennan J in Mabo (No. 2) for concluding that the uses to which land held by native title may be put must be restricted. Are the Australian restrictions the same as the Canadian ones? Is there any significance in the differences?

4According to Lamer CJ, what are ‘aboriginal rights’? How do aboriginal rights differ from ‘aboriginal title’? (See paragraphs 137–41 of his judgment.) What does he mean by a ‘site-specific right to engage in a particular activity’? Give examples.