Self-Government and the Inalienability of Aboriginal Title

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McGill Law Journal/Revue de Droit de McGill. Volume 47, Number 3 (2002), p. 473-510.

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McNeil, Kent
Aboriginal; crown; exploitation; inalienability; land; sui generis; title; Aboriginal; crown; exploitation; inalienability; land; sui generis; title; Indian and Aboriginal Law
article description
Aboriginal title to land, as defined by the courts, has a number of sui generis aspects. Prominent among these is its inalienability, other than by surrender to the Crown. Two explanations are usually given for this: the need to protect Aboriginal peoples from exploitation by unscrupulous European settlers, and the incapacity of the settlers to obtain title to land otherwise than by Crown grant. While acknowledging that the need for protection of Aboriginal lands was important historically, this article argues that it is paternalistic to rely on this explanation for inalienability today. The incapacity of settlers is a more satisfactory rationale for inalienability, both theoretically and doctrinally. However, instead of basing that incapacity on the legally and historically flawed view that settlers can only acquire lands from the Crown, this article presents an explanation that is based on the nature of Aboriginal title itself.