ARTICLE: PRIOR OCCUPATION AND SCHISMATIC PRINCIPLES: TOWARD A NORMATIVE THEORIZATION OF ABORIGINAL TITLE Skip over navigation
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Copyright (c) 2007 Alberta Law Review
Alberta Law Review

ARTICLE: PRIOR OCCUPATION AND SCHISMATIC PRINCIPLES: TOWARD A NORMATIVE THEORIZATION OF ABORIGINAL TITLE

June, 2007

44 Alberta L. Rev. 779

Author

DWIGHT G. NEWMAN*

Excerpt

I. INTRODUCTION

The Supreme Court of Canada's modern jurisprudence on Aboriginal title refers to two schismatic principles behind the concept's constitutional recognition. The case law refers both to a historically-oriented principle of Aboriginal title being determined by "prior occupation" 1 and a forward-looking principle of Aboriginal title being oriented to "reconciliation." 2 Those seeking a textual foundation for this schism in s. 35 of the Constitution Act, 1982 might find one in the section's recognition of "existing Aboriginal and treaty rights," 3 something resulting from a last-minute modification in the negotiation process. 4 However, I will argue in this article that the schism reflects, rather, a Supreme Court that has failed to carry out an adequate normative theorization of the principles of Aboriginal title and, thus, inadvertently incorporated two inconsistent elements. 5 Despite possible initial presumptions that Aboriginal title has been recognized primarily so as to respond to the historical fact that "they were here first," I will argue that the concept of "prior occupation" actually sits uneasily in a normatively theorized account of Aboriginal title. I will use that conclusion, in turn, to suggest several changes in the Court's approach to Aboriginal title so as to render this area of Aboriginal rights law more normatively coherent. 6

A full normative evaluation of Aboriginal rights jurisprudence generally, or of Aboriginal title jurisprudence specifically, would, of course, be an enormous task, one situated against a set of immensely complex social, political, cultural, and historical contexts ...
 
 
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