1E9Ct5D

The land interest cannot be sold,transferred or surrendered to anyoneother than the Crown and thirdparties can only acquire an interestin such lands from the federalgovernment with the consent of theAboriginal group in question.Once established, Aboriginal title confersthe exclusive right to the land itself to anAboriginal group, as well as the right to theeconomic benefit of the lands and resourcesand the right to decide how those lands willbe used.Aboriginal groups may use the land for anumber of modern-day uses provided thatthe activity is reconcilable with the group’shistorical attachment to the land.Establishing Aboriginal OccupancyTo successfully assert Aboriginal title, anAboriginal group must satisfy the “exclusiveoccupation test” established in the SupremeCourt of Canada decision of Delgamuukw v.British Columbia:The land must have been occupiedby the Aboriginal group prior toBritish sovereignty;If present occupation is relied uponas proof of pre-sovereigntyoccupation, there must be continuityin the possession between thepresent and the pre-sovereigntyoccupation; amdAt the time of sovereignty, theoccupation must have beenexclusive.Proof of occupancy must be grounded inboth common law and Aboriginalperspectives on the land, including anysystems of law respecting the land that anAboriginal society had in place at the time ofsovereignty.Factors such as the size of the Aboriginalgroup claiming entitlement, the group’smanner of life, material resources,technological abilities and the character ofthe lands claimed are each consideredwhen determining whether occupation issufficient to ground title. Typically, exclusiveoccupancy is established by showingregular occupancy by a group or use ofdefinite tracts of land for hunting, fishing orexploiting resources.While at least one Canadian court has ruledthat the existence of private interests onland cannot extinguish Aboriginal title, it isstill uncertain how Aboriginal title will bereconciled with the interests of private landowners, since the courts are only beginningto deal with these types of issues.Infringing on Aboriginal TitleThe test for determining whether legislationor an action interferes with an existingAboriginal or treaty right is comprised ofthree questions:1. Is the limitation on the right bylegislation or action reasonable?2. Does it impose undue hardship?3. Does it deny the rights of holderstheir preferred means of exercisingthe right?The burden of infringement is low and willbe established if any of these questions isanswered in the negative.Only the federal government has jurisdictionto extinguish Aboriginal title, but both thefederal and provincial governments haveAboriginal Law 148