Case Brief Wiki


The appellants claimed title to a plot of land of more than 58,000 square kilometers on the basis of aboriginal title that was never extinguished. There were 71 individual plaintiffs claiming title. In the original trial the plaintiffs tried to obtain "ownership", however upon appeal this was changed to "aboriginal title and self government". The case was dismissed at trial and on appeal the claims of all of the houses were grouped together into one and their claims dismissed.


  1. What is the nature of the protection given to aboriginal title under s. 35(1) of the Constitution Act, 1982?
  2. Did the province have the authority to extinguish the title after confederation?


Appeal allowed in part, new trial ordered.


The final ruling is for a new trial as the grouping of the plaintiffs together was seen as unfair to the defendants. However, the Court goes on to make several important decisions about aboriginal title. They reaffirm that it definitely does exist and further that provincial governments never had the jurisdiction to extinguish it because it falls under federal jurisdiction under s. 91(24) of the Constitution Act, 1867.

The Court states clearly that aboriginal title is special for a few reasons. It is inalienable – it cannot be transferred to anyone other than the Crown. Its source is unique as it arises from occupancy before sovereignty. Finally, the aboriginals hold the title communally. The court states that aboriginal title is given full protection under s. 35(1). They also establish the test for determining if aboriginal title exists. For it to be present it must satisfy the following criteria:

  1. the land must have been occupied before sovereignty,
  2. there must be a continuity between pre-sovereignty and modern times (but not an unbroken chain)
  3. at the time of sovereignty, the occupancy must have been exclusive (but it could have been jointly exclusive by more than one party or tribe).

If these are established, then aboriginal title exists. If it partially fails, it is possible to establish a claim less than title.

They go on to say that this is not an absolutely protected title. It can be infringed upon if the infringement passes a two-part test:

  1. the infringement must be in furtherance of a legislative objective that is compelling and substantial,
  2. the infringement must be consistent with the special relationship between aboriginals and the Crown.

This relationship is special because both the ideas of the common law and the aboriginal traditions must be taken into consideration when making the decisions, as aboriginals are a unique case and must be given respect in terms of their traditions and laws.


  • Only the federal government can extinguish aboriginal title.
  • Aboriginal title is inalienable to anyone but the Crown, it arises before sovereignty, and it is held communally.
  • Lays out the test to establish aboriginal title.
  • Lays out the test for infringement of aboriginal title.


Normally the courts demand direct evidence, and do not accept hearsay. However, in aboriginal title claims they are talking about record from before the time they were written down. Therefore, in order to claim their title the courts have to accept the oral history from the members of the first nation. The Supreme Court holds that oral histories must be given weight.