Aboriginal Title and Indigenous Governance: Identifying the Holders of Rights and Authority

Aboriginal rights, including Aboriginal title to land, are communal rights that are vested in Indigenous collectivities that are connected to the specific Indigenous groups that occupied and used land prior to European colonization of Canada. Identifying the present-day collectivities that hold these rights is therefore essential. This research paper examines the jurisprudence on this matter in relation to three categories of court decisions: Aboriginal title cases, Aboriginal rights cases apart from title, and duty to consult cases. Analysis of the case law reveals that identification of current rights holders is treated as a matter of fact that depends in part on the laws of the Indigenous people concerned. Although the courts have generally avoided considering the implications of this for self-government, the author contends that Aboriginal rights necessarily entail governance authority that must likewise be vested in rights-holding collectivities