Aboriginal land claims are a declaration of use or title to a disputed piece of land. In Canada, this typically means an aboriginal group argues it is entitled to use, occupy or be financially compensated for territory that belongs to it.
What kinds of claims are there?
Generally, there are two types of aboriginal claims: specific and comprehensive.
Specific claims are not necessarily land-related. They arise from disputes and grievances over administration of treaties, the Indian Act, funding and land management.
Comprehensive claims deal with business not settled by treaties or other agreements.
How are claims resolved?
The government typically aims to resolve these claims through including Ottawa, the claimant and the relevant provincial government.
In 2008, the government established a specific claims tribunal that can hear disputes that the government has refused to negotiate or has not negotiated within a certain time period.
However, some cases also end up in litigation, occasionally going as far as the Supreme Court.
What is aboriginal title?
This is a legal concept that lies at the heart of land claims. A successful claim has to prove that a group has title to land. However, it’s a thorny legal concept and the courts have been reluctant to strictly define it.
Basically, it means indigenous peoples have claim to the land because they used and occupied the land before the Crown claimed it.
The question of aboriginal title first reached the Supreme Court of Canada in 1973 when the Nisga'a Nation Tribal Council claimed title to lands in British Columbia. In the decision for Calder et al. v. Attorney-General of British Columbia, justice Wilfred Judson wrote “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…”
The Nisga’a lost the case, but it was the first time the courts acknowledged that aboriginal title existed prior to colonization.
How does a group prove a claim?
It was another Supreme Court case -- Delgamuukw v. British Columbia in 1997 – that established a legal test for proving a claim. The party making the claim must prove:
- The aboriginal group is and was an organized society.
- The organized group has occupied that specific territory over which it asserts aboriginal title from time immemorial, and the traditional use and occupancy of the territory must have been sufficient to be an established fact at the time of assertion of sovereignty by European nations.
- The occupation of the territory by the aboriginal party was largely to the exclusion of other organized societies.
- The aboriginal group can demonstrate some continuing current use and occupancy of the land for traditional purposes.
- The group's aboriginal title and rights to resource use have not been dealt with by treaty.
- Aboriginal title has not been eliminated by other lawful means.
What happens if a claim is successful?
There’s no simple, standard resolution to a successful land claim. Some claims can date back centuries and the claimed land can’t just be handed over.
For example, in Canada's Métis won a 2013 Supreme Court decision (Manitoba Metis Federation Inc. v. Canada) that found the government reneged on land promises first made to the band in 1870. However, that land now includes part of the city of Winnipeg. The court decision didn’t provide specific awards for the tribe.
In many cases, financial compensation will substitute.
Resolving Aboriginal Claims
About the Specific Claims Tribunal