Aboriginal Title and Private Property

This article explores the relationship between Aboriginal title and private property. In the case of Tsilhqot’in v. British Columbia the Supreme Court of Canada declared that Aboriginal title erased the Crown’s assumed beneficial interest in such lands. The Court was not asked to consider whether private ownership interests were similarly ousted by a declaration of Aboriginal title. This article explores Tsilhqot’in’s unexamined issue and concludes that Aboriginal title could, at times, affect private interests in land and be reconciled with Aboriginal title. This conclusion is based on the Supreme Court’s Constitutional framework which emphasizes proportionality, fairness, reasonableness and reconciliation. Thus, this article argues, in the face of Crown grants to third parties on unextinguished Aboriginal title lands, these lands might be protected by: Indigenous law and/or future treaties, through the core principles underlying Canada’s Constitution