In much of Canada, Aboriginal rights – including land rights – were never extinguished by treaty, and presumptively continue to exist. Jurisprudence has established that in Aboriginal groups' traditional territories, they will have Aboriginal title – the right to exclusive use and occupation - in those areas where they can demonstrate both occupation and exclusivity at the date of the assertion of Crown sovereignty, and that they will have hunting and fishing rights in areas where they can demonstrate occupation but not exclusivity. This leaves open the question of what right they have in areas where they can demonstrate exclusivity but not occupation. This thesis argues for the existence in such areas of a right that has not previously been recognized in Canada, namely a right to prohibit resource use or extraction. This right – here termed “Aboriginal dominion” – is argued to be analogous to a negative easement in European property law systems. Even drawing such an analogy, however, requires a level of analysis that has been lacking with regard to Aboriginal property rights in Canada, since courts have insisted that such rights are sui generis, unique. This insistence is here called into question, and an approach that analyzes property rights as being responsive to the needs of human beings in particular times and places is urged instead. To the extent that such analysis results in the recognition of new Aboriginal rights, including Aboriginal dominion, it may help to bring Canada in line with international norms, as embodied in the United Nations Declaration on the Rights of Indigenous Peoples and other instruments, and may contribute to achievement of the ultimate goal of Canadian Aboriginal law: reconciliation.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:723251 |
| Date | January 2017 |
| Creators | Doherty, Michael P. |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=233439 |
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