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The recognition of aboriginal title and its relationship with settler state land titles systems.

V. RECOGNITION BY AGREEMENT

In the fourth model, the agreement between the indigenous community and the settler state expressly recognizes and continues the indigenous interest in at least some of the community's traditional lands. Agreements that adopt this model have the following characteristics: (1) a more limited form of surrender; (2) a description of the legal quality of the indigenous title land (although the agreement may, expressly or implicitly, leave these matters to be resolved by the internal norms of the community); and (3) a description of the relationship between indigenous lands and the land title system of the settler state (although the agreement may leave this to be dealt with in a subsequent agreement between the parties).

The Umbrella Final Agreement in Yukon and the subsequent individual First Nation Final Agreements best exemplify this model and, in the discussion that follows, reference will be made to the provisions of the Umbrella Final Agreement. (123) It is important to note that each of the Yukon Final Agreements is also accompanied by a self-government agreement. (124) The self-government agreements make it quite clear that a Yukon First Nation has the power to make a law establishing a land titles or registry system for its settlement lands. (125) There is thus the possibility of a parallel registry system within this fourth model, and indeed the Final Agreements themselves recognize this possibility. (126)

A. LIMITED SURRENDER

Implicit in the act of recognition of indigenous property interests in this model is the idea that a pre-existing title continues after the conclusion of the agreement, at least in relation to some of the lands within traditional territory. In the Yukon Final Agreements this is achieved through a surrender or certainty clause which distinguishes between settlement land and non-settlement land and which provides that the surrender of "aboriginal claims, rights, titles, and interests" applies only to non-settlement land, the mines and minerals within settlement land, and to a small category of lands referred to as "Fee Simple Settlement Land". (127) Implicitly therefore title continues in relation to other lands, i.e., settlement lands.

B. DESCRIPTION OF THE LEGAL QUALITY OF THE INDIGENOUS LANDS

In addition to excluding certain lands from the ambit of any surrender clause, the parties may also describe the legal quality of the Aboriginal title lands. There may be several reasons for doing so. One may simply be to provide a degree of assurance as to the size of the bundle of sticks that is being recognized by the agreement. Litigation on both the recognition and content of Aboriginal title may lead to uncertain outcomes and some judicial descriptions of Aboriginal title in the past have used language suggestive of a smaller rather than a larger bundle of sticks. (128) This is perhaps the most likely explanation for the description of the content of the title to settlement lands in Yukon to the effect that "[a] Yukon First Nation shall have by virtue of this chapter" for each of the two main types of settlement land (Category A (with minerals) and Category B (without minerals)), "the rights, obligations and liabilities equivalent to fee simple". (129) Another reason may simply be to avoid argument in the future as to whether the First Nation could actually prove its aboriginal title in relation to those lands. Absent agreement between the parties the exclusion of lands from the scope of a surrender clause does not itself establish that the lands were held under an Aboriginal title. There are therefore pragmatic and precautionary reasons for wanting to say something about the legal quality of these retained lands.

C. RELATIONSHIP TO THE SETTLER STATE LAND TITLES SYSTEM

It is perhaps inevitable that land claim agreements will need to address the relationship between indigenous lands and the title system of the settler state if for no other reason than to ensure which system of rules applies to which lands. The Yukon Final Agreements address this problem but they also describe the implications of bringing settlement lands, characterized by the continuation of Aboriginal title, within the land titles system. Much as with the Nunavut Agreement in the first model, the Yukon Final Agreements contemplate the preparation of maps and plans of survey, although in the case of the Yukon all the lands will be surveyed. (130) Such plans are then to be deposited in both the Land Titles Office and in any internal registry established by the First Nation. (131) The agreement is careful to state that the deposition of the plan "shall not be construed to affect any aboriginal right, title or interest of a Yukon First Nation". (132)

The Yukon Final Agreements contemplate two circumstances in which interests in settlement lands may come to be registered in the Land Titles Office. The first instance relates to the registration of an interest "less than the entire interest", (133) and the second deals with the registration of a fee simple interest. (134)

As to the first circumstance--the registration of a lesser interest--the relevant subsection is part of a clause dealing with four situations in which a competing interest in settlement land trumps any indigenous property interest in the land. The other situations involve the expropriation of any interest in land under the terms of the agreement, the granting of any interest to a person not enrolled under that Final Agreement, and the declaration of a "reservation" by the government as contemplated by the agreement. (135) While the Yukon Final Agreements do not provide any advice as to how such a lesser interest comes to be registered in the Land Titles Office, (136) they do describe one of the implications of registration which is that such a registered interest prevails over any continuing Aboriginal interest. (137) These provisions are interesting at a conceptual level because they identify the problem that needs to be addressed as a priority problem which arises as the result of a possible clash between two normative orders, the one based on a continuation of the indigenous title and the other based upon the normative rules of the Land Titles Act. The Final Agreements resolve this potential conflict firmly in favour of the Land Titles Act by stipulating that the registered interest shall have priority over any Aboriginal title or interest. (138) Thus in the category of cases covered by section 5.9.1--registration, expropriation, grant, and reservation--the indigenous interest is not extinguished but its priority is diminished to the extent of any conflict.

The Final Agreements adopt a different solution in those circumstances in which the First Nation elects to create an estate in fee simple. In such a case the First Nation shall be deemed to have been granted an estate in fee simple from the Crown, (139) and there shall be a deemed surrender of any aboriginal claim, right, title, or interest. (140) The result in this second category of cases therefore is to ensure that the norms of the Land Titles Act prevail over the indigenous normative order, not by establishing a priority rule (as is the case with interests less than the entire estate in fee simple), but by extinguishing the indigenous interest.

In conclusion what we see is that in the first case the Final Agreements provide an incomplete account of how First Nations might be able to take advantage of the land titles system of the settler state. They do not tell us how a lesser interest comes to be registered in the land titles office; nor do they have anything to say about the effect of registration beyond addressing the issue of priority. In the second case, the account is complete and unambiguous, but the price to be paid for taking advantage of the settler state land titles system is the loss of any indigenous property interest.

D. REGISTRATION OF LESSER INTERESTS

As noted in the previous part, the Yukon Final Agreements contemplate registration of an interest "less than the entire interest". (141) A First Nation is perhaps most likely to create an interest "less than the entire interest" as part of the development of settlement lands and it is most likely to do that through something that looks like a leasehold estate of long duration. (142) Long-term leasehold-like interests might be mortgaged and, if default occurred, the acquisition of the interest by the mortgagee or its sale to a third party will not affect the Aboriginal title out of which the leasehold estate was carved. (143)

However, the Yukon land titles legislation currently does not provide for the registration of a lesser interest, such as a 99-year lease, if there is no certificate of title issued for the larger estate, i.e., the fee simple estate, out of which leaseholds typically are carved in the settler society's property system. (144) Unless the settlement land from which the lesser interest is derived has been brought into the system (at which point any underlying Aboriginal interest would be extinguished), (145) the holder of the lesser interest, whether a lessee or the mortgagee of the lessee's interest, would be unable to register their interest. This follows, in the case of leasehold interests, from section 45 of the Yukon Land Titles Act, which provides that it is possible to obtain a leasehold certificate of title only when "the grant from the Crown has been registered". (146) In the case of settlement lands there is no grant from the Crown and therefore no leasehold certificate of title for a parcel of settlement lands can be created. Similarly, subsection 82(1) of the Yukon Land Titles Act, which inferentially deals with the registration of leases, commences with the words "[w]hen any land for which a certificate of title has been granted". (147) It precludes the registration of a lease of settlement land unless the First Nation has already registered a fee simple interest in the land at which point its Aboriginal estate will have been extinguished because there can be no fee simple or leasehold certificate of title. Subsection 88(1) similarly precludes the registration of a mortgage by commencing with the words "[w]henever any land, for which a certificate of title has been granted". (148) As there can be no certificate of title for the relevant lands, a mortgagee of a lease will be unable to register its mortgage.

In sum, the Yukon Land Titles Act does not authorize the registration of the types of interests we might expect to see when a Yukon First Nation seeks to develop its lands with outside capital. Leases, mortgages of leasehold interests, and other lesser interests currently cannot be registered without pre-existing certificates of title. And a pre-existing certificate of title will only be available where the First Nation has elected to register a fee simple estate, but in doing so it will have worked an extinguishment. The promise of recognition inherent in the Yukon Agreements therefore remains unfulfilled. There is, as yet, no reconciliation between the Aboriginal title and the settler state land registration system.

VI. RECOGNITION BY JUDICIAL DECLARATION

Canadian courts recognize that it is possible for an indigenous community to obtain a declaration of Aboriginal title. (149) In the Delgamuukw decision, (150) Chief Justice Lamer offered an extensive commentary on the source, nature, and content of an Aboriginal title. The Court largely confirmed this commentary in Tsilhqot'in. (151)

This section is organized under the following headings: (1) the nature of a common law Aboriginal title, (2) the content of Aboriginal title, and (3) an assessment of the case law dealing with the relationship between Aboriginal title and provincial land titles systems.

A. THE NATURE OF A COMMON LAW ABORIGINAL TITLE

In Delgamuukw, Chief Justice Lamer suggested that an Aboriginal title had three different dimensions, each reflecting the idea that Aboriginal title is sui generis. (152) The first important dimension is that the title is inalienable to anyone other than the Crown. However, an Aboriginal title is not a mere personal interest; (153) it is a proprietary interest that can compete on an equal footing with other proprietary interests. (154)

The second identifying characteristic of an Aboriginal title lies in its source. (155) An Aboriginal title is based on prior occupation, i.e., prior to the acquisition of sovereignty by the Crown. Prior occupation is important because it is evidence of possession, and evidence of possession is evidence of title. (156) But a claim of Aboriginal title may also draw on the prior social organization and the distinctive cultures of Aboriginal peoples on that land. (157)

The third dimension of an Aboriginal title is that it is held communally, (158) although internally within the community individuals may have particular or exclusive rights to specific tracts of lands.

B. THE CONTENT OF ABORIGINAL TITLE

In Delgamuukw, Chief Justice Lamer observed that neither the Supreme Court of Canada nor the Privy Council had ever offered "a definitive statement ... on the content of aboriginal title." (159) He went on to say that
   the content of aboriginal title can be summarized by two
   propositions: first, that aboriginal title encompasses the right to
   exclusive use and occupation of the land held pursuant to that
   title for a variety of purposes, which need not be aspects of those
   aboriginal practices, customs and traditions which are integral to
   distinctive aboriginal cultures; and second, that those protected
   uses must not be irreconcilable with the nature of the groups
   attachment to that land. (160)


The content of an Aboriginal title is potentially therefore very broad and may include a mineral title. (161) The idea of inherent limits to the content of Aboriginal title purports to recognize that "lands held pursuant to [Aboriginal] title cannot be used in a manner that is irreconcilable with the nature of the claimants' attachment to those lands." (162) Accordingly, title lands valued for hunting purposes cannot be used for strip mining since that would destroy the value of those lands for hunting purposes. (163) Similarly, lands claimed as title lands on the basis of their cultural or ceremonial significance may not be used for the purposes of development as a parking lot. (164) The idea of inherent limits seems fraught with difficulty. For example, Chief Justice Lamer failed to specify the source of such limits. Do they find their origins in an indigenous legal system or in the common law? If the former, what is the evidentiary basis for the limits in this particular case? Notwithstanding these challenges, the Court in Tsilhqot'in reaffirmed the idea of inherent limits and indeed expanded upon it emphasising that, as a collective title, an Aboriginal title is "held not only for the present generation but for all succeeding generations" with the implication that the lands cannot be developed or misused in a way that would substantially deprive future generations of the benefit of the land. (165) That said, the lands can be put to modern and different uses. (166)

C. THE RELATIONSHIP BETWEEN ABORIGINAL TITLE AND THE SETTLER'S LAND TITLES SYSTEMS

Canadian courts have commented on the relationship between Aboriginal title and the land titles system of the settler state on a number of occasions. The issue has generally arisen when a party claiming an interest by way of an Aboriginal title seeks to file a caveat, caution, or certificate of lis pendens in a provincial or territorial land titles office. (167) While Aboriginal plaintiffs have had some very limited success at first instance, appellate courts have universally rejected all such claims. The courts have given several reasons for concluding that an Aboriginal individual or community cannot make use of a land titles system to claim title. This section of the paper examines those decisions and then considers whether the decision in Tsilhqot'in might cause a reassessment of this body of case law.

In the first such case, Paulette v The Queen, (168) the Supreme Court of Canada ultimately ruled that the petitioners could not file a caveat claiming an interest in some 400,000 square miles of land in the Northwest Territories. The Court did so largely on the basis that the provisions of the Land Titles Act, (169) which did seem to contemplate the filing of a caveat before a certificate of title had been issued, were designed to deal with certain special historical circumstances--not the situation that was before the Court. But other reasons were offered in the Court of Appeal. For example, Justice McDermid suggested that "if it had been the intention of Parliament to allow caveats to be filed against the allodial title of the Crown it would have used more appropriate and exact wording." (170) Justice Clement relied on the ejusdem generis rule of statutory interpretation to conclude that an Aboriginal interest was not the type of interest in land for which a caveat could be filed. (171) Justice Moir in dissent, like Justice Morrow at first instance, would have maintained the caveat pending a trial on the merits.

Some ten years later, in Bear Island, Justice Steele rejected the claimants' right to file cautions under Ontario's Land Titles Act (172) apparently on the basis that it did not give rise to an interest in land. (173) This is clearly not a convincing ground now and has not been since Delgamuukw. (174) In the course of the Delgamuukw litigation the plaintiffs (recognizing the different role of the caveat in the BC land titles system (175)) took a slightly different tack and sought to file a certificate of Us pendens against unalienated Crown land within the area affected by their statement of claim. The registrar refused, taking the view that the certificate was not registrable because the plaintiffs were "not claiming an estate or interest in land that is recognized by the Land Title Act." (176) Other reasons were also adduced, the principal one being that absent a certificate of title for the lands, there was no "register" in which to file anything. Justice Finch (as he then was) heard the statutory appeal and did not find either of these arguments persuasive. For Justice Finch, the first argument was premature. The precise nature of the interest claimed might have to be resolved as part of the merits of the action but it was not a matter that had to be resolved before the certificate could be filed. (177) The second argument was not persuasive because the evidence clearly showed that the registrar maintained a card index of parcels of property and the certificate could be noted on the relevant index cards. (178)

The Court of Appeal disagreed. Justice Macdonald took the view that a certificate of lis pendens--and a caveat for that matter--can only be registered against title if the interest to be secured through litigation would itself be registrable, (179) and the petitioners' interest was not registrable for two reasons. First, if the plaintiffs were completely successful in their claims a number of provincial statutes, including the Land Title Act, would become constitutionally inapplicable. (180) More broadly, however, Justice Macdonald concluded that a title that is inalienable except to the federal Crown, as is Aboriginal title, is not registrable because it is by definition not marketable and the registrar is only obliged to register an application of an indefeasible title if the applicant can show that it has "a good safe holding and marketable title." (181)

Other courts have seized upon Justice Macdonald's constitutional inapplicability argument. For example, in Lac La Ronge Indian Band v Beckman, (182) a case involving a claim of an unfulfilled reserve entitlement under Treaty 6, Justice Sherstobitoff concluded that the plaintiffs should not be able to file a caveat because, if they were correct in their assertions the lands were reserve lands before 1930, they were still reserve lands and thus provincial legislation must be inapplicable. On that basis the band "has no need of the caveats to protect its interest in the lands because similarly, any future dealings with the land cannot affect its claim." (183) This conclusion seems problematic. It assumes a level of success in the litigation that may not be attainable. If the plaintiffs were not completely successful then a caveat might still have some value. Furthermore it is not clear that it is up to the court to determine whether or not a party's interests are or are not best served by filing a caveat.

One later case, James Smith Indian Band v Saskatchewan (Master of Titles), (184) suggests hesitation, at least on Justice Sherstibitoff's part, in extending this reasoning. In that case the band had tried to file caveats that referred generically to a collective and individual assertion of "a beneficial and real interest ... and a profit a prendre" arising out of custom and usage, Treaty 6 and the terms of the Natural Resources Transfer Agreement. (185) Justice Wakeling, for the majority, had suggested that it was possible to extract a very broad principle from Justice Sherstobitoff's judgment in Lac La Ronge:
   I take the principle to be drawn from this decision is that where
   the land claim relates to aboriginal rights, the Act has no
   application and a caveat alleging such an interest is not
   appropriately filed. I also take that principle somewhat further to
   conclude that there is no acceptable rationale which would support
   the concept that some aboriginal land claims are subject to the Act
   and others are not. How one would devise a rational basis for the
   differentiation between such interests is not apparent to me. It is
   sufficient, as I perceive it, that the claim is to some form of
   interest in land which is based on aboriginal rights. In such a
   circumstance the Act cannot be said to have eliminated such an
   interest. (186)


But that went too far for Justice Sherstobitoff. He noted that "[w]hile there was comment in the judgment as to the application of Torrens system legislation to Crown land held for Indians it ... did not purport to lay down any general principle." (187) As a result, he cautioned that "[o]ne cannot and should not exclude the possibility that there may be interests in land which derive from aboriginal title which are compatible with a land registration system and may therefore be registrable under the Act." (188) In the end Justice Sherstobitoff preferred to decide the case, as had Justice Gunn at trial, on the basis that the caveat "did not on its face disclose a registrable interest in land". (189)

The issue of filing certificates of lis pendens and caveats in the British Columbia land titles system came back before the courts in Skeetchestn, (190) this time involving land registered in fee simple to a third party. The registrar had once again refused to accept both a certificate and a caveat for filing, (191) and the Band took a statutory appeal arguing that Uukw had been impliedly overruled by the ultimate decision in Delgamuukw. Neither Justice Lamperson nor the Court of Appeal agreed. While the majority of the Court of Appeal confined themselves to following Uukw, (192) both Justice Southin and Justice Lamperson offered more expansive reasons for their conclusion that the band's interest was not registrable. Justice Lamperson summarized his reasons as follows:
   The Torrens system is designed to register interests in land that
   have a clear identity recognized by the rules of real property law.
   It is a real property regime based on fee simple grants by the
   Crown. A fee simple interest can be fragmented into smaller units.
   Other registrable interests in the land result from the fee simple
   interest. However, aboriginal title is not derived from fee simple.
   It is sui generis and does not lend itself to categorization. It is
   not alienable; it can only be surrendered to the Crown. Aboriginal
   title does not fit within the scheme of current real property law
   in that it is not an interest in land contemplated by the Land
   Title Act which only accommodates traditional common law or
   equitable interests in the land. Aboriginal title has no "identity
   recognized by the ordinary rules of the common law." Furthermore,
   under the Torrens system priorities are based on the date of
   registration rather than the date when the right is acquired and
   therefore cannot accommodate aboriginal title which has its source
   in the occupancy and use of lands prior to the assertion of
   sovereignty by the Crown. For those reasons, aboriginal title is
   not registrable under the Land Title Act. (193)


Justice Southin's reasons were less cogent but she did offer two additional reasons for upholding the registrars decision. The first reason, articulated briefly, echoes part of what Justice Lamperson had to say, namely, that "[t]he claim of the appellant is upstream of the certificate of indefeasible title [whereas the] Registrars duties are downstream of the certificate." (194) Her second point, supported by some very discursive references, was largely a statutory interpretation point to the effect that a claim of Aboriginal title was not a claim in respect of "an estate or interest in land" within the meaning of section 215 of the Land Title Act. (195)

While counsel in Skeetchestn seems to have been content to accept that the same principles applied to caveats as to certificates of lis pendens, (196) this may not be the case in other land titles jurisdictions because different considerations may be relevant to a certificate that may not be relevant to the filing of a caveat. The point is touched on in Justice Sherstobitoff's judgment in Lac La Ronge where he noted that the statutory authority for the two filings is very different, but it emerges much more obviously in Chippewas of Kettle & Stony Point v Canada. (197) In that case the plaintiffs had commenced an action contesting the validity of a surrender of reserve lands dating back to the 1920s. The plaintiffs brought an application for an order for issuance of a certificate of pending litigation which would be filed against the lands affected, including lands now owned by private cottagers. In assessing that application the Court took the view that it could consider the same grounds that it would consider when considering an application from a party for the discharge of a certificate against particular lands. Section 103 of the Ontario Courts of Justice Act provided that a certificate might be discharged on a number of specified grounds as well as "on any other ground this is considered just". (198) This is a very broad power and Justice Killeen referred to earlier authorities which justified a broad inquiry into the respective equities as between the parties, holding "the governing test is that the Judge must exercise his discretion in equity and look at all of the relevant matters between the parties in determining whether or not the certificate should be vacated." (199)

Applying that test in this case led Justice Killeen to conclude that the equities were strongly against granting the certificate. Relevant factors included the long delay in bringing the action and the fact that the cottagers were ostensibly bona fide purchasers for value without notice. (200) These grounds might be relevant in the case of a certificate of lis pendens but in many lands titles jurisdictions they will not be relevant to a decision as to whether or not a party claiming an interest in land can maintain a caveat. However, Justice Killeen also went on to adduce additional grounds for refusing to issue the certificate which more closely resemble the grounds given by other courts for refusing to allow a caveat to be filed. In particular, he noted that a certificate could hardly improve the plaintiff's position given that it was based on the claim that all transactions post the surrender were void. As a result, Justice Killeen went on to say:
   [I]t is, logically considered, pointless and unnecessary to permit
   a certificate to issue because, if any cottage-owner defendant
   chooses to alienate or encumber her property, such alienating act
   would put the transferee in no higher position, vis-a-vis the
   plaintiff, than that already enjoyed by the present owners.

   In other words, at the end of the day, the plaintiff is in an
   all-or-nothing position with respect to its property claims. If it
   wins with the voiding argument, it wins back its interest in the
   land against the world ... and it matters not a whit, whether
   later titles or encumbrances have been created before this action
   had started or after its start. (201)


Reading these cases together, it is apparent that interests based on indigenous property systems have been excluded from the protections offered by land titles systems. The courts have given a number of reasons for their conclusions. They have at various times said that an Aboriginal interest is not an interest in land and therefore cannot support a caveat; an Aboriginal interest does not require protection because, if valid, it will trump settler granted interests; an Aboriginal interest cannot be registered because it is not marketable and only marketable interests can be registered; an Aboriginal interest cannot be caveated because land titles systems were developed to protect interests derived from a grant from the Crown; and an Aboriginal interest cannot be caveated because the provisions that permit caveats to be filed against unpatented Crown land were designed to deal with interests other than an Aboriginal interest. While some of these arguments might be more persuasive in the context of some statutory schemes rather than others, the general tenor of the arguments is clear. Aboriginal interests are not welcome in the land title systems of the settler state. There is the occasional dissenting voice--Justice Morrow in Paulette, Justice Finch in Uukw--and the occasional doubt--Justice Sherstobitoff in James Smith--but the overall message up to this point in time has been clear.

D. THE IMPLICATIONS OF THE DECISION IN TSILHQOT'IN

It remains to consider whether the decision in Tsilhqot'in has changed any of these conclusions, both with respect to the issue of interlocutory protection but also with respect to the potential recognition of the judicial declaration within a provincial land titles act. It is relevant to both issues to acknowledge that the Tsilhqot'in decision effectively abolishes the doctrine of interjurisdictional immunity with respect to Aboriginal title lands. (202) As a result, provincial laws of general application, such as a land titles act, may now apply to Aboriginal title lands, (203) subject to two considerations.

The first consideration is that the Court must assess the statute to see if the legislature intended that it apply to Aboriginal title lands. (204) The case law recited above would still seem to have some relevance here and would tend to support the view that provincial legislatures did not intend that such laws would apply to Aboriginal titles lands. Thus, unless such laws are amended they would continue to be inapplicable but by virtue of an exercise of statutory interpretation rather than as a result of the doctrine of interjurisdictional immunity. While the Court seems to think that a provincial legislature may be able to amend its laws to make them applicable (205) the legislature will still need to avoid the charge that it is legislating in relation to "lands reserved" within the meaning of subsection 91 (24). (206) Thus, for example, an amendment to a land titles act to recognize a new form of registrable interest known as an Aboriginal title would likely still be ultra vires.

The second consideration is that, even if such a law is intended to apply, it may be necessary to justify the application of such a law in the event that it interferes, infringes, or abridges any of the rights flowing from an Aboriginal title. (207) In order to assess such a question the Court in Tsilhqot'in suggests that one must ask if the provincial legislation in question "results in a meaningful diminution" of any of the three key characteristics of an Aboriginal title. (208) The Court distinguishes between "general regulatory legislation" (such as pest or fire management legislation in the context of forests) and "legislation that assigns Aboriginal property rights to third parties" and suggests that general regulatory legislation will not likely result in an infringement because it will likely meet the Sparrow justification tests. (209) By contrast, legislation that transfers Aboriginal property rights to a third person "will plainly be a meaningful diminution". (210) This binary division hardly seems to address the facilitative functions of a land titles statute but it may be relevant if a province or third party seeks to rely upon the indefeasibility provisions of a land titles act to argue that issuance of a certificate of title worked an extinguishment of an Aboriginal title. (211) If there is an infringement then such an infringement will need to be justified:
   [T]he Crown must demonstrate that: (1) it complied with its
   procedural duty to consult with the rights holder and accommodate
   the right to an appropriate extent at the stage when infringement
   was contemplated; (2) the infringement is backed by a compelling
   and substantial legislative objective in the public interest; and
   (3) the benefit to the public is proportionate to any adverse
   effect on the Aboriginal interest. This framework permits a
   principled reconciliation of Aboriginal rights with the interests
   of all Canadians. (212)


Finally, it is important to reflect on the nature of the judicial declaration that will issue in Tsilhqot'in once the judgement roll is settled. As things stand, the Supreme Court of Canada has simply indicated that it will "grant a declaration of Aboriginal title over the area at issue". (213) That area is the land designated by justice Vickers in the British Columbia Supreme Court as the area over which he would have been prepared to grant a declaration had the pleadings reflected this specific geography (minus certain private lands and submerged lands that were withdrawn by the plaintiffs from their claim). (214) Justice Vickers had relatively little to say about the content of the title that he was prepared to recognize. (215) Thus it appears that all that will be delineated in the declaration is the geographical area over which Aboriginal title has been established. The content and qualities of the title within that area must be informed by what the Supreme Court of Canada has said about the content of an Aboriginal title--principally in Delgamuukw and in the Tsilhqot'in decision itself.

VII. CONCLUSION

We have examined how the settler state has recognized Aboriginal title to date, focusing on the terms of modern land claim agreements and how those agreements and their related legislation deal with the relationship between recognized Aboriginal title and the states land titles systems. We have proposed a typology of five different forms of recognition based on their interaction with land titles systems: first, recognition through inclusion in settler land titles systems; second, recognition through inclusion in settler land titles systems with modifications; third, recognition through parallel land titles systems; fourth, recognition by agreement; and fifth, recognition by judicial declaration. We identified the key characteristics of each type of recognition and interaction and provided an illustration.

The diversity of methods of recognition and interaction between Aboriginal title and provincial land titles systems is the most obvious lesson to be learned from our typological efforts. Even within one of our five forms of recognition, the variations are significant. This is most clearly illustrated by our consideration of the two parallel registries set up under the Metis Settlements Act and by the Nisga'a nation. (216) There is also significant complexity within each model, as demonstrated by the examples. Recognizing Aboriginal title and providing for its interaction with the settler state land titles system raises conceptual, definitional, technical, and implementation problems and the issues are not easy ones. In addition, each of the models in our typology demonstrates the inextricable nature of the relationship between land and self-government for indigenous peoples.

The diversity, complexity, and linkage with self-government that we have identified create major challenges in addressing the two larger questions that interest us, namely, whether it is possible to create space for Aboriginal title within settler state land titles systems, and whether it is possible to preserve the integrity of Aboriginal conceptions of property within those land titles systems.

We can offer some tentative conclusions about how much space appears to have been created for Aboriginal title within settler state land titles systems by each of the models we have examined. The first model, on its face, appears to allow no space at all for indigenous property interests and, indeed, no space seems to be required because Aboriginal property interests are surrendered or extinguished and descriptions of the new Aboriginal land interests use the settler states property categories. However, it is possible to conceive of internal norms and community rules that could be recognized by way of caveats (if available in the particular jurisdiction) if those norms and rules give rise to interests in land. Behind the curtain of the states certificate of title, the priority accorded to those lesser interests may bind those who subsequently deal with the title.

The second model appears to open up some space because it continues Aboriginal property interests, modifies the descriptions of Aboriginal ownership interests that use the property categories of the settler state, and provides for modified effects following the registration of those ownership interests in the settler state land titles system. A good example of this creation of space is seen in the decision to make inapplicable Part 24.1 of British Columbia's Land Title Act in order to recognize Nisga'a Lands and Categories A and B Lands. (217) Once again internal norms may give rise to lesser interests that can be protected by caveating. Indeed, the creation of certificates of title within the settler state land titles system facilitates the filing of such caveats. As we have seen, one of the traditional obstacles to protecting an Aboriginal interest on title has been the absence of a certificate of title.

The third model, recognition through parallel land titles systems, describes the Aboriginal ownership interests in terms that may not fit within the property system of the settler state, describes the type of interests that may be registered or recorded in the parallel register, and provides for guarantees for registered interests. There is no need in this model for the settler state land titles system to create space for Aboriginal ownership interests because that is what the parallel registry is created to do.

Recognition by agreement--the fourth model--features a more limited form of surrender, a description of the legal quality of the Aboriginal land, and a description of the relationship between that land and the land title system of the settler state. In theory, it allows for registration of lesser interests carved out of Aboriginal title in the settler state land titles system. However, none of the examples of this model have worked through how to actually do so. Without certificates of title for Aboriginal title, there is currently no vehicle to facilitate the registration or filing of lesser interests. Although this model, on its face, seems to allow more space for Aboriginal title, additional implementation measures may be required to make this happen.

Finally, recognition by judicial declaration specifies the nature of Aboriginal title and its content, including the recognition that Aboriginal title is an interest in land, but says nothing about the relationship between Aboriginal title and settler state land titles systems. Against the background of existing precedents that stress the incompatibility of Aboriginal title and settler state land titles systems, the Supreme Court's Tsilhqot'in decision on the division of powers issues presents a conundrum. According to Tsilhqot'in, provincial and territorial legislatures could have made their land titles statutes applicable to Aboriginal title and lesser interests. Whether or no they did so is a matter of legislative intent or statutory interpretation. If they did intend to do so (which seems most likely) they can only be made applicable by way of amendment. But anything specifically allowing the registration of Aboriginal title and lesser interests is likely ultra vires; a more general the mode of recognition offered by provincial legislation (e.g., allowing a caveat to protect all interests in land including an Aboriginal title or other Aboriginal interests) might avoid this charge.

The settler state land titles systems are not without their own diversity and complexity. Even the systems of Alberta and Saskatchewan, which started out exactly the same in 1906 when they both became provinces, (218) are now very different from each other due to reforms in both jurisdictions. (219) An examination of the different land titles systems in Canada will therefore be the next step in our research. In order to determine whether it is possible to create space for Aboriginal title within these systems, it will be necessary to examine the details of indefeasible title and compensation in each. Our goal in our next paper will be to identify precisely what the settler state is liable for when it allows registration within its land titles system in order to determine just how incompatible settler state land titles systems actually are with Aboriginal title.

(1) James Smith Indian Band v Saskatchewan (Master of Titles) (1995), 123 DLR (4th) 280, 11995] 6 WWR 158 (Sask CA) [James Smith cited to DLR]; Uukw et al v The Queen in Right of British Columbia et al, 28 DLR (4th) 504, [1986] 4 CNLR 111 (BCSC) [Uukw BCSC cited to DLR], revd Re Uukw et al and the Queen in Right of British Columbia et al (1987), 37 DLR (4th) 408, [1988] 1 CNLR 173 (BCCA) [Uukw BCCA cited to DLR]; leave to appeal to SCC refused (1987), 12 BCLR (2d) xxxvi. Neither can a caveat be filed against unpatented Crown land: Re Paulette et al and Registrar of Titles (No 2) (1973), 42 DLR (3d) 8, [1973] 6 WWR 97 (NWT SC), rev'd Re Paulette et al and the Registrar of Land Titles (1976), 63 DLR (3d) 1, [1976] 2 WWR 193 (NWT CA) [Paulette NWTCA], rev'd Paulette et al v The Queen, [1977] 2 SCR 628, [1977] 1 WWR 321 [Paulette SCC]. See the discussion of these cases in Part VI.C.

(2) See e.g. Sechelt Indian Band v British Columbia (Manufactured Homes Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262,45 BCLR (5th) 263 [Sechelt], This case involved lands of the Sechelt First Nation which are governed by the terms of the Sechelt Indian Band Self Government Act, SC 1986, c 27 [SIBSGA], While the First Nation lands continue to be "lands reserved for Indians" within the meaning of s 91(24) of the Constitution Act, 1867 under s 31 of the SIBSGA, s 23(1) effects a statutory conveyance of the title to the reserve lands to the First Nation in fee simple. In the course of his judgment for a unanimous Court of Appeal, Justice Hall expressed the view at para 31 that:
   The endowment of the lands with fee simple status was to facilitate
   registration of the lands and to enhance Band capacity to make
   economic use of the lands. A longstanding historical problem with
   reserve lands has been the limited ability to raise financing on
   the security of such lands. If financing can be effected and lands
   become subject to execution, potential creditors will be more
   willing to advance funds on the security of the lands. This should
   enhance development opportunities for such lands.


(3) See e.g. Kent McNeil, Common Law Aboriginal Title (New York: Clarendon Press, 1989); Nicholas Blomley, "The Ties that Blind: Making Fee Simple in the British Columbia Treaty Process" Transactions of the Institute of British Geographers [forthcoming],

(4) See generally Antonia Mills, Eagle Down is Our Law: Witsuwit'en Law, Feasts, and Land Claims (Vancouver: UBC Press, 1994); James (Sakej) Youngblood Henderson, Marjorie L Benson & Isobel M Findlay, Aboriginal Tenure in the Constitution of Canada (Scarborough, ON: Carswell, 2000); John Borrows (Kegedonce), Drawing Out Law: A Spirit's Guide (Toronto: University of Toronto Press, 2010). A number of First Nations have proposed alternative approaches to treaty making and to the resolution of questions about land and resource ownership and access: see e.g. Brian Egan, "Sharing the Colonial Burden: Treaty-making and Reconciliation in Hul'qumi'num Territory" (2012) 56:4 The Canadian Geographer 398; Brian J Olding, Jessica Rogers & Brian Thom, A Call to Action: Shared Decision Making, A New Model of Reconciliation of First Nations Natural Resource Jurisdiction (Ladysmith, BC: Hul'qumi'num Treaty Group, 2008); Chief Elmer Derrick, "The Gitxsan People: Reconciling Pre-existence with Crown Title" in Victoria Tauli-Corpuz & Joji Carino, eds, Reclaiming Balance: Indigenous Peoples, Conflict Resolution and Sustainable Development (Baguio City, Philippines: Tebtebba Foundation, 2004) 507; Ian Gill, All That We Say is Ours: Guujaaw and the Reawakening of the Haida Nation (Vancouver: Douglas & McIntyre, 2009).

(5) The decision in Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw cited to SCR] offers important commentary on the content of Aboriginal title and the approach to proving the existence of an Aboriginal but at the end of the day the case was sent back to trial on two different grounds. Similarly in Tsilhqot'in v British Columbia, 2007 BCSC 1700, [2008] 1 CNLR 112 [Tsilhqot'in BCSC], Justice Vickers dismissed the application of the Tsilhqot'in people for a declaration of Aboriginal title throughout the claimed tract although he did indicate that had the case been pled differently he would have been prepared to find that the plaintiffs had established Aboriginal title to at least part of the lands. On appeal the Court of Appeal agreed with the result (i.e., no declaration of Aboriginal title) but also indicated that that Court could not accept the idea that "title can be proven based on a limited presence in a broad territory": William v British Columbia, 2012 BCCA 285 at para 230, [2012] 3 CNLR 333. The Court of Appeal's decision was reversed by the Supreme Court of Canada on 26 June 2014.

(6) Tsilhqot'in Nation v British Columbia, 2014 SCC 44, [2014] SCJ No 44 (QL) [Tsilhqot'in SCC].

(7) See generally Victor Di Castri, Registration of Title to Land, vol 1, loose- leaf (consulted on 10 June 2013), (Toronto: Carswell, 1987) ch 1; Thomas W Mapp, Torrens' Elusive Title: Basic Legal Principles of an Efficient Torrens' System (Edmonton: Alberta Institute for Law Research, 1978) 1-2. The state plays no role as guarantor in a deeds registry. The registry simply allows a party to register whatever interest that party has; registration does not confer title or perfect an imperfect title.

(8) Although the expression "indefeasibility of title" is not used in Torrens statutes, it was described by the Privy Council in Frazer v Walker (1966), [1967] 1 AC 569 at 580, [1967] 1 All ER 649, as being "a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which [the registered proprietor] is registered, which a registered proprietor enjoys. This conception is central to the system of registration."

(9) Although many Torrens jurisdictions began with formal and separate assurance funds in which money raised by fees charged for transactions accumulated, those separate assurance funds have been abolished in most provinces. Most successful claims are now paid by the state out of general revenue funds, with the states liability capped at an amount equivalent to the collected land titles fees and the surplus of such fees that had accumulated prior to the changeover. See e.g. Land Titles Act, RSA 2000, c L-4, s 175 (AB Land Titles Act). See generally Greg Taylor, Law of the Land: The Advent of the Torrens System in Canada (Toronto: University of Toronto Press, 2008).

(10) Almost as soon as it was invented in 1858, the Torrens system was introduced to the then colony of Vancouver Island (1861), and a little later became the land titles system for British Columbia (1866). In the late 1880s the Torrens system was introduced to what is now western Canada and the Territories and to Ontario: ibid at 95-154.

(11) British Columbia has been characterized as a "system peculiar to itself" (James Edward Hogg, Registration of Title to Land throughout the Empire: A Treatise on the Law Relating to Warranty of Title to Land by Registration and Transactions with Registered Land in Australia, New Zealand, Canada, England, Ireland, West Indies, Malaya, &c. (Toronto: Carswell, 1920) at 14) and "a statutory offshoot of the Torrens system" (Di Castri, supra note 7, ch 1 at 18). See also Taylor, supra note 9 at 57-67.

(12) Di Castri, supra note 7, ch 1 at 24.

(13) New Brunswick's new system was implemented in 2001 and Nova Scotia's in 2005 but conversion from the old to the new is still ongoing: Private Title Insurance: A Joint Project between Manitoba Law Reform Commission and Law Reform Commission of Saskatchewan, Report No 114 (December 2006) at 12 [Private Title Insurance]; Taylor, supra note 9 at 155-66.

(14) Private Title Insurance, supra note 13 at 12-13. There is one notable exception to this statement insofar as the Nunatsiavut Government has enacted the Labrador Inuit Land Titles Act being Part 8 of the Labrador Inuit Lands Act, IL-2005-14. The Act creates a Torrens title system for Labrador Inuit Lands.

(15) We have elected to use the term "recognition" for each of the five models that we have identified although we acknowledge the concept of "recognition" in this context is a controversial one. Nevertheless, "recognition" has provided a ready theoretical framework within liberal democratic states with which to discuss how to achieve reconciliation between the settler state and indigenous peoples: see generally Charles Taylor, "The Politics of Recognition" in Amy Gutmann, ed, Multiculturalism: Examining the Politics of Recognition (Princeton, NJ: Princeton University Press, 1994) 25; Nancy Fraser, "From Redistribution to Recognition? Dilemmas of Justice in a 'Post-Socialist' Age" in Cynthia Willett, ed, Theorizing Multiculturalism: A Guide to the Current Debate (Malden, Mass: Blackwell, 1998) 19. Recognition is controversial among many indigenous legal scholars because it has traditionally been a hegemonic act, with colonizers deciding whether or not to recognize the existing indigenous legal order. A number of scholars contend that recognition primarily legitimates the current distribution of power and resources. See e.g. Glen S Coulthard, "Subjects of Empire: Indigenous Peoples and the 'Politics of Recognition' in Canada" (2007) 6 Contemporary Political Theory 437; James Tully, "The Practice of Law-making and the Problem of Difference: One View of the Field" in Omid A Payrow Shabani, ed, Multiculturalism and the Law: A Critical Debate (Cardiff: University of Wales Press, 2007) 286; James Tully, "Reconciling Struggles over the Recognition of Minorities: Towards a Dialogical Approach" in Avigail Eisenberg, ed, Diversity and Equality: The Changing Framework of Freedom in Canada (Vancouver, UBC Press, 2006) 15; Paul LAH Chartrand, "The 'Race' for Recognition: Toward a Policy of Recognition of Aboriginal Peoples in Canada" in Louis A Knafla & Haijo Westra, eds, Aboriginal Title and Indigenous People: Canada, Australia and New Zealand (Vancouver: UBC Press, 2010) 125.

(16) For critiques of extinguishment and surrender clauses and discussions of their evolution, see e.g. Michael Ashe & Norman Zlotkin, "Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations," in Michael Ashe, ed, Aboriginal and Treaty Rights in Canada (Vancouver: UBC Press, 1997) 208; Carole Blackburn, "Searching for Guarantees in the Midst of Uncertainty: Negotiating Aboriginal Rights and Title in British Columbia" (2005) 107:4 American Anthropologist 586; Christopher Alcantara, "Old Wine in New Bottles? Instrumental Policy Learning and the Evolution of the Certainty Provision in Comprehensive Land Claims Agreements" (2009) 35:3 Can Pub Pol'y 325.

(17) All of these agreements are available from Aboriginal Affairs and Northern Development Canada ("AANDC"): see AANDC, "Final Agreements and Related Implementation Matters", online: <http://www.aadnc-aandc.gc.ca>.

(18) In some cases the federal government will be joined as a party to the agreement by a territorial or provincial government. However, the agreements are largely structured as bilateral Crown/indigenous people agreements. The involvement of provincial and territorial governments is significant in this context because it is that level of government that will typically have legislative jurisdiction in relation to land titles within that particular geographical space.

(19) Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty The Queen in Right of Canada (signed by the Inuit of the Nunavut Settlement Area and Canada on 25 May 1993, and as enacted by the Nunavut Land Claims Agreement Act, SC 1993, c 29) [Nunavut Final Agreement]. Clause 3 of the Preamble provides "AND WHEREAS the Parties agree on the desirability of negotiating a land claims agreement through which Inuit shall receive defined rights and benefits in exchange for surrender of any claims, rights, title and interests based on their assertion of an aboriginal title".

(20) Ibid, s 2.7.1.

(21) For two recent explorations of the role of property categories in efforts to resolve Aboriginal land claims in British Columbia, see Brian Egan, "Towards Shared Ownership: Property, Geography, and Treaty Making in British Columbia" (2013) 95:1 Geografiska Annaler: Series B, Human Geography 33 (focusing on how the British Columbia treaty-making process works to entrench dominant Western forms of property); Blomley, supra note 3.

(22) See e.g. Nunavut Final Agreement, supra note 19, s 5.7.21 (surface leases), art 21 (easements).

(23) For critiques of these particular settler property categories, see e.g. Dawn Hoogeveen, "Sub-surface Property, Free-entry Mineral Staking and Settler Colonialism in Canada" Antipode [forthcoming] (examining mineral rights and claim staking in northern Canada, with a focus on how liberal understandings of property are embedded in the legal geography of the right to explore for minerals); Emilie Cameron, "Copper Stories: Imaginative Geographies and Material Orderings of the Central Canadian Arctic" in Andrew Baldwin, Laura Cameron & Audrey Kobayashi, eds, Rethinking the Great White North: Race, Nature, and the Historical Geographies of Whiteness in Canada (Vancouver: UBC Press, 2011) 169 (analyzing how dominant social positions come with the power to narrate the land and shape its management, use, development and protection by foregrounding the significance of settler colonialism in maintaining mineral property laws).

(24) Borys v Canadian Pacific Railway, [1953] AC 217, [1953] 1 All ER 451 (PC). Many jurisdictions have elected to amend the common law rule so as to provide that the surface owner is entitled to compensation when surface lands are required for mineral operations but these jurisdictions still preserve the mineral owners right to use the surface authorized if necessary by a right of entry order. See e.g., Surface Rights Act, RSA 2000, c S-24. The Nunavut Final Agreement follows this amended approach.

(25) Nunavut Final Agreement, supra note 19, s 19.2.1.

(26) Ibid, ss 21.8.3(g)-(h).

(27) The term "DIO" or "Designated Inuit Organization" is a defined term which allows the main representative Inuit organization, now Nunavut Tunngavik Inc, to specify a particular organization or entity that shall exercise a particular power or entitlement under the terms of the agreement. See ibid, s 1.1.1.

(28) Ibid, s 19.3.4.

(29) Ibid, s 19.8.1. Ibid, s 19.8.8 recognizes that not all Inuit Owned Lands will need to be surveyed to determine boundaries and that descriptive map plans may suffice.

(30) Ibid, s 19.8.5.

(31) Land Titles Act, RSNWT (Nu) 1988, c 8 (Supp), as duplicated for Nunavut by s 29 of the Nunavut Act, SC 1993, c 28 [Nu Land Titles Act]. The instruction to the registrar by way of the agreement is accorded the force of law by the federal ratification statute for the Nunavut Final Agreement, Nunavut Land Claims Agreement Act, supra note 19, s 4:

(1) The Agreement is hereby ratified, given effect and declared valid.

(2) For greater certainty, the Agreement is binding on all persons and bodies that are not partiesbto the Agreement.

(3) For greater certainty, any person or body on which the Agreement confers a right, privilege, benefit or power or imposes a duty or liability may exercise the right, privilege, benefit or power, shall perform the duty or is subject to the liability, to the extent provided for by the Agreement.

(32) Nunavut Final Agreement, supra note 19, s 19.7.1.

(33) Ibid, s 19.7.3.

(34) See Nu Land Titles Act, supra note 31, because the Northwest Territories version of the Land Titles Act was continued in force by s 29 of the Nunavut Act, supra note 31. While the Nu Land Titles Act has been amended by the Nunavut legislature since 1993 the amendments are not significant. A measure of the extent to which that Act is simply a law of general application and makes no special provision for Inuit owned lands is revealed by the fact that a search of the Act for the word "Inuit" comes back with zero results.

(35) The reason for this is that the Nu Land, Titles Act, supra note 31, is a territorial statute. Insofar as the indefeasibility provisions of the Act might seem to confer an indefeasible title on the transferee (or at the very least a purchaser from that transferee who also registers) such a result conflicts with the result ordained by the terms of the Nunavut Final Agreement which, as noted above, has the force of federal law, and in the event of a conflict the terms of the Agreement and the federal statute, the terms of the Agreement and the federal statute will prevail over the terms of the territorial statute. See Nunavut Land Claims Agreement Act, supra note 19, s 6; Nunavut Act, supra note 31, s 23(1). See also Prudential Trust Company Ltd v The Registrar, The Land Titles Office, Humboldt Land Registration District, [1957] SCR 658, 9 DLR (2d) 561, and in particular the discussion of the state of title before the federal Crowns mineral interest was transferred to the Crown in right of the province of Manitoba under the terms of the Natural Resources Transfer Agreement in 1930.

(36) All of these agreements are available from the BC Treaty Commission, " Treaties and Agreements in Principle", online: <http://www.bctreaty.net>

(37) For a description of the BC Treaty Process, see ibid. For critical accounts, see e.g. Taiaiake Alfred, "Deconstructing the British Columbia Treaty Process" (2001) 3 Balayi: Culture, Law and Colonialism 37; Richard JF Day & Tonio Sadik, "The BC Land Question, Liberal Multiculturalism, and the Spectre of Aboriginal Nationhood" (2002) 134 BC Studies 5; Ravi de Costa, "Treaties in British Columbia: The Search for a New Relationship" (2003) 27 International Journal of Canadian Studies 173; Andrew Woolford, Between Justice and Certainty: Treaty Making in British Columbia (Vancouver: UBC Press, 2005); Richard T Price, "The British Columbia Treaty Process: An Evolving Institution" (2009) 18:1 Native Studies Review 139; Christopher McKee, Treaty Talks in British Columbia: Building a New Relationship, 3d ed (Vancouver: UBC Press, 2009); John Curry, Han Donker & Richard Krehbiel, "Land Claim and Treaty Negotiations in British Columbia, Canada: Implications for First Nations Land and Self-governance" The Canadian Geographer [forthcoming].

(38) Nisga'a Final Agreement (signed by British Columbia and the Nisga'a Nation on 27 April 1999, and by Canada on 4 May 1999, and as enacted by the Nisga'a Final Agreement Act, SBC 1999, c 2, and the Nisga'a Final Agreement Act, SC 2000, c7), Preamble.

(39) See the discussion of certainty in the context of the Nisga'a Final Agreement: AANDC, "Certainty', online: <http://www.aadnc-aandc.gc.ca/eng/11001000313 07/1100100031308>. For a discussion of certainty in the context of the Tsawwassen First Nation Final Agreement, see Government of British Columbia, Tsawwassen First Nation: Certainty, online: <http://www2.gov.bc.ca/gov/DownloadAsset?assetld=20 A93FD034984A9FAAE8ACD04DA22379>.

(40) Tom Molloy with Donald Ward, The World is our Witness: The Historic Journey of the Nisga'a into Canada (Calgary: Fifth House, 2000) at 124. Tom Molloy was the Federal Chief Negotiator on the Nisga'a Final Agreement. See also Thomas Isaac & Anthony Knox, "Canadian Aboriginal Law: Creating Certainty in Resource Development" (2005) 23:4 Journal of Energy and Natural Resource Law 427 (arguing that the honour of the Crown and reconciliation have moved Canadian Aboriginal law towards certainty in the Crown's management of natural resources).

(41) Nisga'a Final Agreement, supra note 38, ch 2, para 27.

(42) Ibid, ch 2, para 23.

(43) Ibid, ch 2, para 20.

(44) AANDC, "Certainty", supra note 39. Andrew Beynon argues that this release provision will only be used if the parties are unable to reach agreement on the modification and continuation of rights as contemplated in the Agreement: Andrew Beynon, "The Nisga'a Land Question" (2004) 11 International Journal on Minority and Group Rights 259 at 271-72.

(45) Nisga'a Final Agreement, supra note 38, ch 2, para 26. While other agreements within this model also contain releases, they vary in form and content. See e.g. Lheidli T'enneh Final Agreement (signed by the Lheidli T'enneh, British Columbia, and Canada on 29 October 2006, unratified), ch 2, para 10; Tsawwassen First Nation Final Agreement (signed by the Tsawassen First Nation, British Columbia, and Canada on 6 December 2007, and as enacted by the Tsawwassen First Nation Final Agreement Act, SBC 2007, c 39, and the Tsawwassen First Nation Agreement Act, SC 2008 c 32), ch 2, cl 16.

(46) Paul Rynard has suggested that the clauses in chapter 2 of the Nisga'a Final Agreement "accomplish all the goals of the old policy": Paul Rynard, "'Welcome In, But Check Your Rights at the Door': The James Bay and Nisga'a Agreements in Canada" (2000) 33:2 Canadian Journal of Political Science 211 at 219. It is noteworthy that in the context of the Nisga'a, the release applies to approximately 15,000 km in the Nass Wildlife Area, the traditional territories of the Nisga'a Nation: Paul Rynard, "The Nisga'a Treaty: Are We on the Right Track?" (2004) 11:3 International Journal on Minority and Group Rights 289 at 293.

(47) Nisga'a Final Agreement, supra note 38, ch 2, para 24.

(48) See e.g. Lheidli T'enneh Final Agreement, supra note 45, ch 2, para 40; Tsawwassen First Nation Final Agreement, supra note 45, ch 2, cl 13. The Tsawwassen First Nation Final Agreement states that the purpose of modification is to ensure: that the Tsawwassen First Nation can exercise the s 35 rights set out in the Agreement; that Canada, British Columbia, and all other Persons can exercise their rights and authorities in accordance with the Agreement; and that Canada, British Columbia, and all other Persons do not have any obligations in respect of any aboriginal rights, including aboriginal tide, that might in any way be different from those set out in the Agreement: ibid, ch 2, cl 15.

(49) Lisa Dufraimont, "Continuity and Modification of Aboriginal Rights in the Nisga'a Treaty" (2002) 35:2 UBC L Rev 455 at 459,482. See also Beynon, supra note 44.

(50) Molloy, supra note 40 at 123.

(51) Dufraimont, supra note 49 at 459,483-84.

(52) Nisga'a Final Agreement, supra note 38, ch 2, para 25, states: "For greater certainty, the aboriginal title of the Nisga'a Nation anywhere that it existed in Canada before the effective date of the Nisga'a Final Agreement is modified and continues as the estates in fee simple to those areas identified in that Agreement as Nisga'a Lands or Nisga'a Fee Simple Lands." This same language is repeated in the Nisga'a Final Agreement Act, SC 2000, c 7, s 7. Whether characterizing this modified aboriginal title with the language of the settler state defines the relationship or means that the "Nisga'a conduct will be judged largely by non-Nisga'a laws" is a matter of discussion in the literature. See Dufraimont, supra note 49 at 490-91; John Burrows, "Re-Living the Present: Title, Treaties and the Trickster in British Columbia" (1998) 120 BC Studies 99 at 106.

(53) See e.g. Nisga'a Final Agreement, supra note 38, ch 2, para 13 (which provides that federal and provincial laws apply to Nisga'a Lands and Nisga'a Fee Simple Lands but in the event of an inconsistency with settlement legislation, the settlement legislation prevails), ch 11 (Nisga'a Government); Tsawwassen First Nation Final Agreement, supra note 45, ch 2, cl 19 (which provides that Federal Law, Provincial Law, and Tsawwassen Law applies Tsawwassen Lands), ch 16 (Governance).

(54) Nisga'a lands comprise an area of approximately 1,992 square kilometres of land in the lower Nass Valley (Nisga'a Final Agreement, supra note 38, ch 3, para 2) and the Nisga'a Nation has the jurisdiction to make laws over these lands.

(55) Nisga'a Fee Simple Lands are those described in the Nisga'a Final Agreement as Category A and B lands {ibid, ch 3, para 45) and the Nisga'a Nation does not have jurisdiction to make laws over these lands.

(56) Ibid, ch 3, paras 3,48, 62.

(57) Ibid, ch 3, para 3.

(58) Ibid, ch 3, paras 48, 62. Nisga'a Fee Simple Lands are made up of Category A and B lands. Category A and B lands are parcels of land outside the Nisga'a Lands identified in Appendix D of the Agreement: ibid, ch 3, paras 46, 61.

(59) The Aboriginal title recognized by the common law is inalienable to a third party except by surrender to the Crown and conversion into "non-title lands": Delgamuukw, supra note 5 at para 131, Lamer CJC.

(60) Nisga'a Final Agreement, supra, note 38, ch 3, para 4. Note that the Nisga'a Final Agreement requires the Nisga'a Nation to have a Nisga'a Constitution, consistent with the Agreement, which, inter alia, provides "conditions upon which Nisga'a Nation or a Nisga'a Village may (i) dispose of its whole estate or interest in any parcel of Nsiga'a Lands or Nisga'a Fee Simple Lands, and (ii) from the whole of its estate or interest, create or dispose of any lesser estate or interest in any parcel of Nisga'a Lands or Nisga'a Fee Simple Lands": ibid, ch 11, para 9(n). The Nisga'a Final Agreement also provides the Nisga'a Lisims Government with the power to make laws relating to the disposition of an estate or interest of the Nisga'a Nation, a Nisga'a Village, or a Nisga'a Corporation in relation to any parcel of Nisga'a Land and the conditions or restrictions which will apply: ibid, ch 11, paras 44(c)-(d).

(61) Ibid, ch 3, para 5. If Nisga'a Fee Simple Lands are disposed of to a third party, those lands cease to be Nisga'a Fee Simple Lands.

(62) Ibid, ch 3, para 7.

(63) Ibid, ch 3, para 87, Tsawwassen First Nation Final Agreement, supra note 45, ch 4, cl 102.

(64) Ibid, ch 5, cl 1.

(65) Land Title Act, RSBC 1996, c 250 [BC Land Title Act],

(66) Nisga'a Final Agreement, supra note 38, ch 4, para 5.

(67) Ibid, ch 4, para 2.

(68) Ibid, ch 4, para 7.

(69) This is a requirement for the registration of all interests under the BC Land Title Act, supra note 65, s 169(1)(b).

(70) Nisga'a Final Agreement, supra note 38, ch 4, para 9.

(71) Ibid, ch 4, para 10. See also Lheidli T'enneh Final Agreement, supra note 45, ch 6, paras 9-11 (containing the provisions to the same effect).

(72) Nisga'a Final Agreement, supra note 38, ch 4, para 9. See also Lheidli T'enneh Final Agreement, supra note 45, ch 6, para 9(f). A similar provision is made in the BC Land Title Act, supra note 65, s 373.11 and Schedule 1, s 3, when indefeasible title is issued for other treaty lands in accordance with the provisions of the final agreement.

(73) See e.g. Nisga'a Final Agreement, supra note 38, ch 4, para 11; Lheidli T'enneh Final Agreement, supra note 45, ch 6, para 9.

(74) BC Land Title Act, supra note 65, s 303(g), with s 294.6(g) providing the same exception in relation to the 19.1 Land Title and Survey Authority Assurance Fund.

(75) Ibid, s 373.82(4).

(76) Nisga'a Final Agreement, supra note 38, ch 4, paras 13-15. The registrar may only grant the application if the title is held by the Nisga'a Nation, Village, or Corporation and if the land is free and clear of all charges. See also Tsawwassen First Nation Final Agreement, supra note 45, ch 5, paras 4-6; Lheidli T'enneh Final Agreement, supra note 45, ch 6, paras 12-14.

(77) Te Kooti Whenua/Maori Land Court, Maori Land Online, online: <http://www.maorilandonline.govt.nz>. See generally Chief Judge Joe Williams, "The Maori Land Court--A Separate Legal System?" (Lecture delivered at the Faculty of Law and the New Zealand Centre for Public Law, Victoria University of Wellington, 10 July 2001), online: New Zealand Centre for Public Law <http://www. victoria.ac.nz/law/centres/nzcpl>; David V Williams, "Te Kooti Tango Wbenua": The Native Land Court 1864-1909 (Wellington: Huia Publishers, 1999); Bryan D Gilling, "The Maori Land Court in New Zealand: An Historical Overview" (1993) 13:1 Canadian Journal of Nacive Studies 17.

(78) AANDC administers three land registries: (1) the Indian Land Registry System (ILRS) is used for documents relating to interests in reserve lands administered under the Indian Act, RSC 1985, c 1-5; (2) the First Nations Land Registry System is used for documents relating to interests in reserve lands of First Nations that have put a Land Code in place pursuant to the First Nations Land Management Act, SC 1999, c 24; and, (3) the Self-Governing First Nations Land Register is used for documents that grant an interest in self-governed First Nations lands under the terms of self-government agreements relating to reserve land such as the Westbank First Nation Self-Government Agreement. For a discussion of the governance schemes under these various regimes, see Jamie Baxter & Michael Trebilcock, "'Formalizing' Land Tenure in First Nations: Evaluating the Case for Reserve Tenure Reform" (2009) 7:2 Indigenous LJ 45.

(79) Metis Settlements Act, RSA 2000, c M-14; Metis Settlements Land Registry Regulation, Alta Reg 361/1991.

(80) Joint Metis-Government Committee to Review the Metis Betterment Act and Regulations, Foundations for the Future of Alberta's Metis Settlements: Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations to the Flonourable JGJ Koziak Minister of Municipal Affairs (Edmonton: Alberta Municipal Affairs, 1984).

(81) Metis Settlements Act, supra note 79, s 102.

(82) AC McEwen, "The Metis Settlements Land Registry in Alberta" (1995) 33:256 Survey Review 77 at 82.

(83) Catherine E Bell, Alberta's Metis Settlements Legislation: An Overview of Ownership and Management of Settlement Lands (Regina: Canadian Plains Research Center, 1994) at 29.

(84) The fee simple interest is created by way of letters patent granting patented land from the Crown to the Council: see the Metis Settlements Land. Protection Act, RSA 2000 cM-16,s 2.

(85) Ibid, ss 4-5.

(86) Metis Settlements Act, supra, note 79, s 99.

(87) Metis Settlements General Council Land Policy, s 2.5, online: Metis Settlements General Council <http://cms.msgc.ca/Resources/MSGC+Library/Policies/Default. ksi>. Provisional Metis title confers a right of exclusive use and occupation to a settlement member for a fixed term of five years, subject to renewal for another five years. It may be converted to Metis title: ibid.

(88) An allotment in settlement lands can only be granted to operate a farm, ranch, or business: ibid, s 2.6.

(89) Bell, supra note 83 at 36.

(90) Metis title gives the holder the exclusive right to use and occupy the land, to make improvements on the land, to transfer the Metis title, to grant lesser interest as set out in the Policy and to determine who receives the Metis title on the holder's death: Metis Settlements General Council Land Policy, supra note 87, s 2.4.

(91) Bell, supra note 83 at 38.

(92) Ibid. In addition, Alberta's Wills and Succession Act, SA 2010, c W-12.2, and presumably Alberta's Unclaimed Personal Property and Vested Property Act, SA 2007, c U-1.5 (formerly the Ultimate Heir Act, RSA 2000, c U-l) do not apply to Metis title: ibid.

(93) Nisga'a Lisims Government, Nisga'a Nation Entitlement Act, NLGSR 2000/12 (an "eligible recipient" in respect of a Nisga'a Nation entitlement means "(a) a Nisga'a citizen, (b) the Nisga'a Nation, (c) a Nisga'a settlement trust established by the Nisga'a Nation, or (d) a Nisga'a housing services provider" at s 1).

(94) Ibid ("Nisga'a Nation entitlement" is "a right to possession of a particular parcel of Nisga'a Village Lands evidenced by a certificate in the prescribed form, and includes any interest of a tenant in common or joint tenant in that right" at s 1).

(95) Nisga'a Lisims Government, Nisga'a Village Entitlement Act, NLGSR 2000/13, s 1: an "eligible recipient" is

(a) a person who

(i) is a Nisga'a citizen, and

(ii) immediately before the effective date, was a member of the Indian band to which the particular Nisga'a Village is a successor under... the Nisga'a Treaty,

(b) the Nisga'a Nation,

(c) a Nisga'a settlement trust established by the Nisga'a Nation, or

(d) a Nisga'a housing services provider.

(96) Ibid ("Nisga'a Village entitlement" is "a right to possession of a particular parcel of Nisga'a Village Lands evidenced by a certificate in the prescribed form" at s 1).

(97) Ibid, ss 3(1)-(2); Nisga'a Nation Entitlement Act, supra note 93, ss 3(1)- (2).

(98) Nisga'a Lisims Government, Nisga'a Landholding Transition Act, NLGSR 2009/02, ss 2-5.

(99) Metis Settlements Land Protection Act, supra note 84, s 4.

(100) There are three registers within the Metis settlements land registry system. Fee simple registers are established for all patented land and must issue in the name of the General Council, which holds title on behalf of the settlement members: Metis Settlements Land Registry Regulation, supra note 79, s 7. Metis title registers are established for each unit of land held by Metis title: ibid, s 8. Finally, interest registers were created for land held by way of provisional Metis title or allotment: ibid, s 10.

The Regulations also allow for the registration of many type of interests known to settler state, such as life estates, leaseholds, a security interest, an interest of a purchaser under an agreement to purchase an interest in the land, and so on, but only if authorized by General Council Policy.

(101) Metis Settlements General Council Land Policy, supra note 87, ss 2.8,2.10.

(102) Ibid.

(103) Metis Settlement Land Protection Act, supra note 84, s 5.

(104) Metis Settlements General Council Land Policy, supra note 87, s 2.12.

(105) Diane Cragg, Nisga'a Land Title System Considerations and Challenges (17 January 2007) at 1, online: Nisga'a Lisims Government Executive <http://nnkn.ca/files/ Nisga_a_Land_Title_System_Considerations_and_Challenges_Jan_07.pdf>.

(106) Ibid at 2. Mortgages of entitlements, therefor, had to be guaranteed by the Nisga'a Nation.

(107) A description of this transition through the Nisga'a Individual Landholding Project can be found at Nisga'a Land Title Office, Nisga'a Landholding Transition Act, online: <http://nisgaalandtitle.ca/Landholding-Transition-Act>.

(108) Nisga'a Lisims Government, Nisga'a Land Title Act, NLGSR 2010/06, s 4(b).

(109) Ibid, s 4(a) ("Indefeasible title" is defined to mean "information contained in the register respecting the title to the estate in fee simple . . . together with all conditions, provisos, restrictions, exceptions, reservations and charges to which that title is subject" at s 1).

(110) Ibid, s 1 "charge", Part 9, Part 11.

(111) This system is said to be based, with the necessary modification to accommodate the unique interests, on model land title legislation proposed for all Canadian jurisdictions by the Joint Land Titles Committee, Renovating the Foundation: Proposals for a Model Land Recording and Registration Act for the Provinces and Territories of Canada (Edmonton: Alberta Law Reform Institute, 1990); McEwen, supra note 82 at 82; Bell, supra note 83 at 29.

(112) Metis Settlements Land Registry Regulation, supra note 79, s 16. In order for a later interest that is recorded to gain priority over an earlier conflicting interest, the later interest must be obtained for value and without fraud on the part of the owner of the later interest: ibid, s 16(2), Rule 2.

(113) Ibid, s 26(4).

(114) Ibid, s 26(1).

(115) Ibid, s 28(1).

(116) Ibid, s 33(4).

(117) Ibid, s 30(1).

(118) Ibid.

(119) Ibid, ss 34-44.

(120) See supra note 11. For a discussion of the application of the indefeasibility and assurance provisions in the British Columbia Land Title Act to mortgages and other charges, see Douglas C Harris & Karin Mickelson, "Finding Nemo Dat in the Land Title Act: A Comment on Gill v Bucholtz" (2012) 45:1 UBC L Rev 205. See also Nisga'a Land Title Act, supra note 108, ss 20-22.

(121) Ibid, s 17(1).

(122) Ibid, s 193(1) [emphasis added], A claimant must first proceed against the person by whose fraud or wrongful act the claimant has been deprived of their land.

(123) Umbrella Final Agreement (signed by the Council for Yukon Indians, the Government of the Yukon, and Canada on 29 May 1993, with subsequent individual First Nation Final Agreements enacted by An Act Approving Yukon Land Claim Final Agreements, RSY 2002, c 240 and the Yukon First Nations Land Claims Settlement Act, SC 1994, c 34). The Umbrella Final Agreement and the individual First Nation Final Agreements are available at the AANDC, Yukon, online: <http://www. aadnc-aandc.gc.ca/eng/1100100030607/1100100030608>. The following Yukon First Nations have reached a Final Agreement: Carcross Tagish, Champagne and Aishihik, Kluane, Kwanlin Dun, Little Salmon/Carmacks, Nacho Nyak Dun, Selkirk, Ta'an Kwach'an, Teslin Tlingit, Trondek Flwech'in, and Vuntut Gwitchin. The Kaska First Nations (comprising the Liard First Nation and the Ross River Dena First Nation) have yet to reach agreement and are currently pursuing comprehensive Aboriginal title and constitutional litigation against Canada: see Ross River Dena Council v Canada (.Attorney General), 2012 YKSC 4, [2012] 2 CNLR 276 (litigation based on the Rupert's Land and North-Western Territory Order (UK), 23 June 1870, reprinted in RSC 1985, App II, No 9). The Umbrella Final Agreement does not itself create rights and obligations for the parties: White River First Nation v Yukon Government, 2013 YKSC 66 at para 9,79 CELR (3d) 276.

(124) See e.g. The Kwanlin Dun First Nation Self-Government Agreement (signed by The Kwanlin Dun First Nation, the Government of the Yukon, and Canada on 19 February 2005, and as enacted by An Act Approving Yukon Land Claim Final Agreements, RSY 2002, c 240 and the Yukon First Nations Land Claims Settlement Act, SC 1994, c 34). The self-government agreements all follow a standard model and are available online, see AANDC, Yukon, supra note 123. For a discussion, see Peter W Hogg & Mary Ellen Turpel, "Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues" (1995) 74:2 Can Bar Rev 187.

(125) See ss 13.3.1, 13.3.3 of the self-government agreements.

(126) Umbrella Final Agreement, supra note 123, s 5.5.1.4 recognizes that each First Nation may "establish a system to record interests in its Settlement Land".

(127) Ibid, s 2.5.1. Fee Simple Settlement Land, as defined in the Umbrella Final Agreement, Chapter 1 and also the land schedules to the various Final Agreements, are the specific lands that are identified, declared or designated as such under the terms of the individual agreements. They are invariably small parcels that were likely already titled as fee simple lands before the date of the individual final agreement.

(128) See e.g. St Catherine's Milling and Lumber Company v The Queen (1888), [1888] UKPC 70, 14 App Cas 46 (JCPC) [St Catherine's Milling] indicating that "the Indian inhabitants" of the Treaty 3 area were not the owners of a fee simple estate in the land and could not convey such an estate to the (federal) Crown by the terms of Treaty 3. Rather, the Indian interest was "a personal and usufructuary right" which constituted a "mere burden" on the Crown's "present proprietary estate": ibid at 54-58. Later in Delgamuukw v British Columbia, supra note 5 at para 112, Lamer CJC commented that the "subsequent jurisprudence" which had "to grapple with this definition ... has in the process demonstrated that the Privy Council's choice of terminology is not particularly helpful to explain the various dimensions of aboriginal title."

(129) Umbrella Final Agreement, supra note 123, s 5.4.1. The mineral title itself is described as a fee simple title together with the right to work the minerals; but recall that the surrender clause extended to minerals.

(130) Ibid, s 15.2.1.

(131) Ibid, s 5.3.4

(132) Ibid, s.5.3.5.

(133) Ibid, s 5.9.1.

(134) Ibid, s 5.10.1.

(135) Ibid, s 5.9.1.

(136) See Part V.D.

(137) Umbrella Final Agreement, supra note 123, s 5.9.1.

(138) The same trumping rule favours the other "events" referred to in s 5.9.1, such as expropriation of less than the entire interest.

(139) Ibid, s 5.10.2.1.

(140) Ibid, s 5.10.1.

(141) Ibid, s 5.9.1. Interests converted to fee simple estates deemed to have been granted by the Crown can also be registered, but this exception does not concern us here.

(142) See e.g. the structure of the commercial arrangement for the development of the Redwood Meadows residential housing project on the Sarcee Reserve west of Calgary and discussed in Western Industrial Contractors Ltd v Sarcee Developments Ltd (1979), 98 DLR (3d) 424, [1979] 3 WWR 631 (Alta SC (AD)) [Sarcee Developments cited to DLR]. The lands were surrendered by the First Nation and then leased by the Crown on a 75-year lease to Sarcee Developments described as "a wholly Band contracted enterprise": ibid at 430. Sarcee Developments mortgaged its leasehold estate to the Bank of Nova Scotia. There was no certificate of title to the lands in the provincial land titles office. The issue in the case was whether Western could file a provincial builders lien against Sarcee Developments leasehold interest. The Indian lands registry in Ottawa had declined to accept the lien. In this case the majority of the Court of Appeal ordered that the lien could be registered. In the absence of a certificate of title for the lands the majority relied on what was then section 26(4) of the Builders' Lien Act, RSA 1970, c 35, which provided the following default scheme: "The Registrar shall, in accordance with The Land Titles Act, register the lien as an encumbrance against the estate or interest in the land affected, or if the land affected has not been registered under The Land Titles Act ... he shall make a record of the lien in a book or such other manner as he considers advisable." The case does not discuss the legal effect of filing the lien in this manner. Justice Prowse in dissent would have found the entire lien scheme inapplicable to these "lands reserved" (i.e., the doctrine of interjurisdictional immunity). His observations now need to be read in light of Tsilhqot'in SCC, supra note 6.

(143) Sarcee Developments, supra 142.

(144) It does provide for the filing of a caveat before registration of a title: Land Titles Act, RSY 2002, c 130, s 128(2) [YT Land Titles Act], But the Yukon Final Agreements state that lesser instruments may be "registered in the Land Titles Office" and the Yukon Land Titles Act maintains a bright line distinction between actual registration and caveating, a distinction that is entirely consistent with the general approach of Torrens statutes. The Yukon Final Agreements, in referring to "registration in the Land Titles Office" of interests less than the entire interest, must be referring to actual registration rather than just caveating.

(145) If the Aboriginal title has been brought within the system, then Umbrella Final Agreement, supra note 123, s 5.10.0 would apply and the Aboriginal interest is treated as surrendered to the Crown.

(146) YT Land Titles Act, supra note 144, s 45.

(147) Ibid, s 82(1).

(148) Ibid, s 88(1).

(149) Delgamuukw, supra note 5; Tsilhqot'in, supra note 6. See generally Kent McNeil, "The Vost-Delgamuukw Nature and Content of Aboriginal Title" in Kent McNeil, ed, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon: Native Law Centre, 2001) 102.

(150) Delgamuukw, supra note 5 at paras 109-32.

(151) Tsilhqot'in, supra note 6.

(152) Delgamuukw, supra note 5 at para 113.

(153) Ibid.. Lamer CJC makes these comments in response to the dicta of Lord Watson in the Privy Council in St Catherine's Milling, supra note 128, where the Privy Council suggests that an Aboriginal title is a personal and usufructuary interest.

(154) Delgamuukw, supra note 5 at para 113.

(155) Ibid at para 114.

(156) Ibid.

(157) Ibid at paras 114,141. See also Tsilhqot'in SCC, supra note 6 at paras 42- 43, 54.

(158) Delgamuukw, supra note 5 at para 117. See also Tsilhqot'in SCC, supra note 6 at para 74.

(159) Delgamuukw, supra note 5 at para 116 [emphasis in original].

(160) Ibid at para 117. See also Tsilhqot'in SCC, supra note 6 at para 67.

(161) Delgamuukw, supra note 5 at paras 120-24.

(162) Ibid at para 125. See also ibid at para 127-28.

(163) Ibid at para 128.

(164) Ibid.

(165) Tsilhqot'in SCC, supra note 6 at para 74.

(166) Ibid at paras 74-75.

(167) See Kathleen A Waters, "A Primer on Aboriginal Title: Understanding Chippewas of Sarnia." (2001) 41 RPR (3d) 94. See e.g. Paulette SCC, supra note 1; Attorney- General for Ontario v Bear Island Foundation et al; Potts et al v Attorney-General for Ontario, 49 OR (2d) 253, 15 DLR (4th) 321 (H Ct J) [Bear Island H Ct J], aff'd Ontario (Attorney-General) v Bear Island Foundation, 68 OR (2d) 384, 58 DLR (4th) 117 (CA), aff'd Ontario (Attorney General) v Bear Island Foundation, [1991] 2 SCR 570, 4 OR (3d) 133; application to lift the caution granted in Bear Island Foundation v Ontario, [1996] 1 CNLR 16, 38 CPC (3d) 215 (Ont Gen Div), aff'd (1999), 126 OAC 385, [2000] 2 CNLR 13; Uukw BCSC, supra note 1; Chippewas of Kettle & Stony Point v Canada (1994), 17 OR (3d) 831, [1994] 4 CNLR 34 (Gen Div) [Chippewas]; James Smith, supra note 1; and Skeetchestn et al v Registrar of Land Titles Act, 2000 BCSC 118, [2000] 2 CNLR 330 [Skeetchestn BCSC], aff'd Skeetchestn Indian Band and Secwepemc Aboriginal Nation v Registrar of Land Titles, Kamloops, 2000 BCCA 525, [2001] 1 CNLR 310 [Skeetchestn BCCA].

(168) Paulette SCC, supra note 1.

(169) Land Titles Act, RSNWT 1988, c 8 (Supp).

(170) Paulette NWTCA, supra note 1 at 9. See also ibid at 36, Clement JA.

(171) Ibid at 37-40.

(172) Land Titles Act, RSO 1990, c L.5.

(173) Bear Island H Ct J, supra note 167 at 479-80.

(174) Delgamuukw, supra note 5 at para 113.

(175) Under the BC Land Title Act, supra note 65, s 293(1), a caveat "lapses and ceases to affect the title of the land after the expiration of 2 months from the date it is lodged ... unless within that period the caveator commences an action to establish the caveator's title to the estate or interest claimed and registers a certificate of pending litigation."

(176) Uukw BCSC, supra note 1 at 510.

(177) Ibid at 531-33.

(178) Ibid at 533-40. Justice Finch supported his conclusion at 537 by referring to Laskin CJC in Paulette SCC, supra note 1 at 638, where he observed that the absence of a certificate should not pose unsurmountable difficulty: "The record shows that it is within ordinary ingenuity to set up an indexing system that would identify the unpatented land to which a caveat was directed."

(179) Justice Macdonald based that conclusion on a particular provision of the BC Land Title Act, supra note 65, s 373.8, requiring marketable title. Even if correct as a matter of British Columbia land titles law, it is clearly not an accurate statement with respect to other provincial land titles statutes. A caveat can protect any interest in land in most land titles system even though such interest may never be registrable. See e.g. Imperial Elevator v Olive (1914), 19 DLR 248, 6 WWR 1562 (Sask SC) (a lease or mortgage that is not in registrable form); Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7, [2002] 1 SCR 146 (a royalty interest).

(180) Uukw BCCA, supra note 1 at 417. This is an interjurisdictional immunity argument. It does find some support in Lamer CJC's judgment in Delgamuukw, supra note 5 at paras 177 et seq. Subsequent cases narrowed the availability of interjurisdictional immunity arguments generally: see British Columbia (Attorney General) v Lafarge Canada Inc, 2007 SCC 23, [2007] 2 SCR 86; Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3. But see Tsilhqot'in SCC, supra note 6 at para 140, where the Court ruled that the doctrine was inapplicable to Aboriginal title lands.

(181) Uukw BCCA, supra note 1 at 418 and referring to what was s 166(1) of the BC Land Title Act. This conclusion suggests a narrow vision of a land titles system. Most land titles system permit the creation of a certificate of title for any estate known to the common law, even a life estate even though such an estate can hardly be said to be a marketable interest. See e.g. AB Land Titles Act, supra note 9, s 32; Re Chupryk (1980), 110 DLR (3d) 108, [1980] 4 WWR 534 (Man CA).

(182) (1990), 70 DLR (4th) 193, [1990] 4 WWR 211 (Sask CA) [Lac La Ronge cited to DLR],

(183) Ibid at 200. The Court noted that this was all without prejudice to plaintiffs' right to file a certificate of lis pendens against the lands affected by the litigation: ibid at 201. The Court was evidently unpersuaded by the decision in Uukw BCCA, supra note 1, no doubt on the basis that the provincial statutory arrangements differed. The lis pendens regime was also not covered by the mote general constitutional point since the right to file a lis pendens arose from the Supreme Court Act, RSBC 1996, c 443, rather than the BC Land Title Act, supra note 65.

(184) James Smith, supra note 1. See the critique of this decision in Paul Babie, "James Smith Indian Band v Saskatchewan (Master of Titles)-. Is Native Title Capable of Supporting a Torrens Caveat?" (1995) 20:2 Melb U L Rev 588 (noting that Torrens legislation may recognize interests which are not founded on Torrens registration, such as equitable interests).

(185) Ibid at 281-82; Natural Resources Transfer Agreement, SS 1930, c 87 (confirmed by the Constitution Act, 1930, 20 & 21 Geo 5, c 26 (UK), reprinted in RSC 1970, App II, No 25).

(186) James Smith, supra note 1 at 283-84.

(187) Ibid at 288.

(188) Ibid at 287.

(189) Ibid at 288.

(190) Skeetchestn BCSC, supra note 167.

(191) The Registrar's full reasons are reproduced injustice Southin's judgment in Skeetchestn BCCA, supra note 167 at para 14.

(192) Ibid at para 83: "On the narrow issue properly before us for disposition, registration simpliciter, I think we are bound by the decision of this court in Uukw and I would dismiss the appeal on that ground." Both Courts also declined to allow the statutory appeal to be used to assess whether the refusal to register a caveat or certificate was inconsistent with section 15 of the Charter: see ibid at para 76; Skeetchestn BCSC, supra note 167 at paras 40-42.

(193) Ibid at para 43.

(194) Skeetchestn BCCA, supra note 167 at para 4 (acknowledging that this way of putting the matter came from Justice Mackenzie's encapsulation of the registrar's argument).

(195) Ibid at paras 33-64, especially at paras 43, 44, 63.

(196) Ibid at para 1, Southin J.

(197) Chippewas, supra note 167.

(198) RSO 1990, c C.43, s 103(6)(c).

(199) Chippewas, supra note 167 at 837, quoting Clock Investments Ltd v Hardwood Estates Ltd (1977), 16 OR (2d) 671 at 674, 79 DLR (3d) 129 (Div Ct).

(200) Ibid at 840.

(201) Ibid.

(202) See text accompanying note 180.

(203) Tsilhqot'in SCC, supra note 6 at para 101 etseq.

(204) Ibid at para 107.

(205) Ibid at para 117.

(206) See e.g. The Queen v Sutherland et al, [1980] 2 SCR 451, 113 DLR (3d) 374.

(207) Tsilhqot'in SCC, supra note 6 at paras 103 (infringe or abridge), 120 (interferes).

(208) Ibid at para 121. The three characteristics are said to be:

(1) the right to exclusive use and occupation of the land; (2) the right to determine the uses to which the land is put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples; and (3) the right to enjoy the economic fruits of the land.

(209) Ibid at paras 123-24.

(210) Ibid at para 124.

(211) In Tsilhqot'in SCC, supra note 6 at para 9, the Court acknowledges that the Tsilhqot'in Nation no longer sought a declaration of title to any privately owned lands.

(212) Ibid at para 125.

(213) Ibid at para 153.

(214) Ibid at para 9.

(215) See Tsilhqot'in BCSC, supra note 5 at paras 946--62 for Justice Vickers' summative assessment of the title claim, and paras 473-541 for his comments on the nature of Aboriginal title (which say little about the content of the title).

(216) See Part IV.

(217) BC Land Title Act, supra note 65, ss 373.2-373.91.

(218) See Land Titles Act, SA 1906, c 24; Land Titles Act, SS 1906, c 24.

(219) Saskatchewan's land titles legislation received a major overhaul when the paper-based title system was transformed to a computer-based system: see The Land Titles Act, 2000, SS 2000, c L-5.1. Indefeasibility under Alberta's land titles legislation was made conditional in 2008: see AB Land Titles Act, supra note 9.

NIGEL BANKES, Professor, Faculty of Law, University of Calgary and Adjunct Professor, J.G. Jebsen Centre, University of Tromso.

SHARON MASCHER, Professor, Faculty of Law, University of Calgary and Honorary Fellow, Faculty of Law, University of Western Australia.

JONNETTE WATSON HAMILTON, Professor, Faculty of Law, University of Calgary.
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Title Annotation:V. Recognition by Agreement through VII. Conclusion, with footnotes, p. 862-888; Canada; Law on the Edge
Author:Bankes, Nigel; Mascher, Sharon; Hamilton, Jonnette Watson
Publication:University of British Columbia Law Review
Date:Oct 1, 2014
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