In Canada, aboriginal title is considered a sui genereisinterest in land in the sense that its characteristics cannot be completely explained by reference either to only the common lawrules of real property, or to only the rules of property found in aboriginal legal systems. The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title. Like other aboriginal rights, aboriginal title must be understood by reference to both common law and aboriginal perspectives. Aboriginal title is properly characterized as neither a personal right nor a real right nor a combination of the two even though it may appear to have characteristics of both real and personal rights. Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachement.
Aboriginal title to land can be described by two main characteristics. First, aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes. This exclusive use and occupation of land does not need to be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. In other words, aboriginal title to land is not limited in any way to the historic and traditional uses of land by aboriginal people. Instead, aboriginal title encompass a wide variety of uses that includes natural ressources on and under the ground. Aboriginal title confers the right to decide how the land will be used, enjoyed, occupied, possessed, pro-actively use and managed, and the right to the economic benefits of the land. In other words, "hat aboriginal title confers is the right to the land itself". But, there is an inherent limit to these uses which can be described by the second main characteristic of aboriginal title. Lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to aboriginal title. In other words, the exclusive protected use of land by indigenous people must not be irreconcilable with the nature of the group’s attachment to that land.
Proof of Aboriginal Title
In Delgamuukw v. British Columbia, the Supreme Court stated that in order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy three main criteria. First, the asserted land must have been occupied by the aboriginal group prior to sovereignty. Second, if present occupation of the asserted land is relied on by the aboriginal group as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation. And finally, at sovereignty, the occupation of the asserted land must have been exclusive.
