MOAI NEW ZEALAND AND CANADA NATIVE LAND TITLE ABSOLUTE! Aboriginal Title As noted in Chapter 1, §1.05, un extinguished Aboriginal title presents a potential challenge to the validity of third party interests in land granted by the Crown. However, Aboriginal title, or caveats based on asserted but not yet proven claims of Aboriginal title, will not be found in the land title registry. In Delgamuukw (Uukw) v. British Columbia (1987), 16 B.C.L.R. (2d) 145 (B.C.C.A.) the Court of Appeal held that aboriginal title itself is not registrable under the Land Title Act because the fact that it is inalienable except to the Crown means that it lacks the marketability needed to establish a “good safe holding and marketable title” as required under the Land Title Act. As a result, a certificate of pending litigation based on that non-registrable interest was similarly not registrable The effect of Aboriginal title on both Crown land and privately held land remains uncertain after the decision in Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, 65 R.P.R. (4th) 1, [2008] 1 C.N.L.R. 112 (B.C.S.C.). Due to a technical problem with the pleadings, the Court refused to grant aboriginal title in the specific area of land claimed by the plaintiff. The Court explained in obiter dicta that it refused the claim because half of the area was not sufficiently used and occupied pre-contact to find such title. However, the Court said that had the pleadings allowed it, Aboriginal title could have been found outside the area where title was claimed. Furthermore, the Court cited Delgamuukw (Uukw) for the rule that where Aboriginal title is found, a province cannot extinguish it by granting fee simple to a private entity since the jurisdiction to extinguish Aboriginal title is held exclusively by the federal government. The Court’s obiter in Tsilhqot’in, despite being non-binding, introduces an element of uncertainty about rights to privately owned lands subject to claims of Aboriginal title throughout British Columbia. lawsociety.bc.ca/docs/becoming/material/Conveyancing.pdf
Posted on: Sun, 03 Nov 2013 20:18:46 +0000
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