Aboriginal Title in Recent Supreme Court of Canada Jurisprudence: What Remains of Radical Crown Title?

Abstract

Three elements in the Supreme Court of Canada's current doctrine of Aboriginal title raise the question whether there is any meaningful content left to the notion of underlying, or radical, Crown title. The first element is the sui generis legal foundation of Aboriginal title in the Aboriginal use and occupation of land prior to the Crown's assertion of sovereignty. The second is the constitutional protection of Aboriginal title, including the potential requirement of full Aboriginal consent to certain Crown proposals. The final element is the Court's stated focus on reconciliation as the overarching goal of modern Aboriginal law, and on negotiation as the preferred means of achieving it. I argue that the first two elements have already in principle largely whittled down the doctrinal content of radical Crown title, while in practice its continued recognition creates the kind of imbalance at the negotiating table that undermines reconciliation. I suggest the Court should therefore consider alternatives to upholding radical Crown title to Aboriginal land.