RCAP: Aboriginal property rights should be recognized as full ownership rights in Canadian law and entrenched, not extinguished, through land-claims agreements.
Aboriginals do not accept property rights since they are proto-socialists and natural environmentalists. According to French and English legal theory of the 16th century, the king, as political sovereign, held the underlying title to all land in the realm, and all landowners. The Royal Proclamation organized the British New World colonies after the 7 Years War and prescribed land west of the Appalachians as “Hunting Grounds” for “the several Nations or Tribes of Indians”. The Proclamation failed to create a huge land reserve for Aboriginals. Native property rights are communal, Indians are subject to British sovereignty and Indian property rights were to be ‘henceforth’ surrendered voluntarily. Governor James Douglas of BC in the 1850s tried to assimilate the Aboriginals while judicial doctrine has debated, but overall, protected a minimalist characterization of Aboriginal property rights. Lamer Doctrine under Calder (1973) said that aboriginal title was not extinguished. The SCC split 3-3-1 on this issue. The Delgamuukw (1997) decision gave Nisga’a ownership of 22,000 square miles of traditional territory. This occurred because legal team was weakened, according to Flanagan, by the new NDP mandate on subsequent legal appeals by the Nisga’a. Lamer makes a distinction between aboriginal rights and aboriginal title. The Lamer Doctrine states that Aboriginal title is communal (despite conflicting examples), it is inalienable except to the Crown, there is an ‘inherent limit’ to aboriginal title. Governments, both federal and provincial, may infringe aboriginal title, though compensation may be required. Lamer envisioned broad grounds for such infringement. Flanagan feels that land-claims litigation is very profitable for government lawyers. It costs money to negotiate entitlement: tax-payers money. Flanagan argues that the market economy cannot work in a reserve setting. Delgamuukw has caused legal uncertainty due to its vague theoretical foundation. Canadians should feel guilty that Aboriginals have been kept out of the world of individual property rather than encouraged to step inside it.
The Flanagan Factor: Contemporary judicial attempts to redefine aboriginal rights produce uncertainty not clarity. Recent Supreme Court of Canada judgements say that aboriginal title will make its use impractical in modern Canada.