The High Cost of Accepting Benefits from the Crown: A Comment on the Temagami Indian Land Case

On August 15, 1991, the Supreme Court of Canada handed down its decision in Bear Island Foundation v. The Queen:, ending a legal battle the Ontario government had been waging for nearly two decades against the Teme-Augama Anishnabai, an Algonkian First Nation inhabiting the Lake Temagami region of North-Eastern Ontario. The legal dispute began in 1973 when the Teme-Augama Anishnabai filed cautions in land titles offices in the region giving notice that they had Aboriginal title to lands which the province claimed as its own. Ontario commenced legal action to have the cautions removed, alleging that the Teme-Augama Anishnabai had no drum to Abongmal title, or if they did that their title had been extinguished by the Robinson-Huron Treaty of 1850. At trial, Mr. Justice Steele accepted Ontario\u27s contentions, deciding that even if the Teme-Augama Anishnabai had succeeded in proving their Aboringinal title (which he found they did not), the treaty extinguished it. Upholding Steele\u27s decision, the Ontario Court of Appeal avoided the issue of proof of Aboriginal title by assuming, without deciding, that the Teme-Augama Anishnabai had Aboriginal land rights before the Robinson-Huron treaty was signed

Possession and Title to Land in English Law

The common law relating to land relies heavily on possession as a source of title and proprietary rights. Even a trespasser who wrongfully takes possession of land acquires a title to it that is good against anyone who cannot prove he or she has a better title. This is due in part to the rule that title is presumed from possession, but in addition it relies upon the incapacity of an outside claimant to rely on a jus tertii. In other words, the claimant is barred from pointing to a third party’s title under which he or she does not claim, as the existence of that title cannot be the basis for the claimant to acquire the land from the person in possession, even if that person has no right beyond that which accompanies bare possession. This chapter examines the historical development of this body of law from the real actions to the action of ejectment, which is the forerunner of the modern action for the recovery of possession of land. It reveals that title to land in the common law is generally relative rather than absolute: in any given legal action, the question is not who is the owner, but rather who among the parties before the court has a better right to the land. The person in possession will always win against everyone else who cannot prove that they have a better title. In Common Law Aboriginal Title, the author argues that the common law should attribute title to Indigenous peoples who were in possession of lands in territories colonized by the British Crown because there is no basis in law for the Crown to have a title that is better than the title by possession that the Indigenous peoples would have. This was basically affirmed by the Supreme Court of Canada in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, decided eight years after Common Law Aboriginal Title was published

Indigenous Law and the Common Law

Indigenous law does not need to be incorporated into Canadian law by treaty, statute, or judicial pronouncement to be part of the domestic law of Canada. Indigenous law exists and is followed in Indigenous communities. It is living law that predated European colonization and has continued up to the present. However, Canadian judges generally are not familiar with it in the way they are with the common law and civil law. Consequently, when relied upon in court evidence of it has to be presented by the testimony of experts, such as Elders and Indigenous knowledge keepers. This is simply a practical requirement that does not diminish Indigenous law’s status as law