Dr. Carole Blackburn recent publication in the Canadian Journal of Law & Society looks at anthropological evidence used in The Nuchatlaht v British Columbia and how this evidence was interpreted, argued over, and ultimately understood by the court in a way that did not support a finding of Aboriginal title.
Canadian courts have said that Aboriginal title is a unique legal concept that blends the common law and Aboriginal perspectives. The Nuchatlaht made a territorial argument. A territorial approach to Aboriginal title is based on the recognition of Indigenous jurisdiction over a territory. I argue that Canadian courts’ continuing emphasis on a site-specific use and occupancy approach shows that the test for Aboriginal title reflects common law concepts of property more than it reflects Indigenous law.
