Part 2: Aboriginal Title vs. Fee Simple Ownership
In Part 1 of the “Land Question” in BC series, an important distinction between Aboriginal title and fee simple ownership is discussed. Here in part 2 let’s unpack it further.
Fee simple ownership is the most common form of private land ownership recognized in Canadian law. It generally gives the owner the right to possess, use, and transfer land. However, these rights are not absolute. Even fee simple owners must comply with laws and regulations that govern how land can be used. For example, a property owner may need a permit to remove a protected tree, alter a heritage building, develop an environmentally sensitive area, or construct new structures as permission is not always guaranteed. These restrictions reflect that land ownership rights are not absolute but exist within a broader (contextual and at times overlapping) systems of laws and protections.
Aboriginal title is distinct from fee simple ownership. It is a subset of Aboriginal rights that recognizes the collective interest of Indigenous Nation(s) towards the land itself. In Tŝilhqot’in Nation v. British Columbia (2014), the Supreme Court of Canada described Aboriginal title as including:
“the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to proactively use and manage the land.”
Aboriginal title therefore recognizes a constitutionally protected relationship between Indigenous Nations and their lands. This recognition includes decision-making authority over how those lands are used and managed. If an Indigenous Nation has the constitutional right to decide how its lands are used and managed, then the conversation inevitably turns to a deeper question:
What does it mean to recognize Aboriginal title yet not fully recognize Indigenous jurisdiction and governance?
Stay tuned for part 3 in this series.
References: https://www.justice.gc.ca/eng/csj-sjc/ijr-dja/35pedia-wiki35/p6.html
