Historical Infringements of Aboriginal Rights: Sui Generis as a Tool to Ignore the Past

• Author: Craig Empson
• Position: Completed a JD at the Peter A Allard School of Law in 2017
• Pages: 98-111

APPEAL VOLUME 24

n

101

ARTICLE

HISTORICAL INFRINGEMENTS OF

ABORIGINAL TITLE: SUI GENERIS AS A TOOL

TO IGNORE THE PAST

Craig Empson *

CITED: (2019) 24 Appeal 101

ABSTRACT

esui generisconception of Aboriginal rights prov ides tremendous opportunity for those

rights to be dened by Abori ginal perspectives. Unfortunat ely, recent decisions from the

Supreme Court of Canada e xemplify a prejudicial use of this concept. InTsilhqot’ in,the

Court seemed to sugg est that the unique nature of Aborigi nal title meant a declaration of

title does not operate retroactively. is sug gestion disregards the notion that A boriginal

title has always e xisted and that rights are not created by cour t declaration. In other

decisions, however, the Court ignores thesui generisconcept and sug gests that statutory

limitation periods apply to past i nfringements of Aboriginal right s. e result is a severe

restriction on the abilit y of Aboriginal peoples to seek remedies for past in fringements

of their lands, even a fter they have obtai ned a declaration of title. Moreover, the Court

has failed to incorporate Aborigina l perspectives, including historical and ongoing

discriminat ion, the devastating impacts as sociated with the loss of land, and the potentia l

for Indigenous law to inform the concept of justice in these circu mstances. R eliance

on thesui generisconcept in t his manner deva lues Aborigina l rights and undermine s

reconciliation as well a s Aboriginal peoples’ faith in the Ca nadian legal system.

INTRODUCTION

e sui generis conception of Aborigina l rights has been received with c autious optimism

by legal scholars. W hile they praise the notion of empowerin g Aboriginal understa ndings,

many are concerned about Abori ginal rights being dened a nd shaped by colonial law.

1

In

Tsilhqot’in, the Supreme Cour t of Canada took an important step for ward by recognizing

and armin g an Aboriginal group’s title to its traditional terr itory. e Court also granted

titleholders the meaning ful ability to enforce their land rig hts within Ca nadian law.2

Unfortunately, the Court seemed to rely on the sui generis nature of Aboriginal title to

limit the impact of its decision. It implied th at a declaration of Aboriginal title is not

retroactive and therefore t he interest associated with that title is d istinguishable pre- and

post-declaration. It resembles an e quitable interest in the pre-declaration period but a leg al

* Craig completed a JD at the Peter A Alla rd School of Law in 2017. The views expressed in this

paper are his own. He would like to th ank Katie Duke for her thoughtful co mments and the sta

at Appeal for helping to prepare this pu blication.

1 John Borrows and Leonard I Rotman, “Th e Sui Generis Nature of Aboriginal Right s: Does it Make a

Dierence?” (1997) 36:1 Alta L Rev 9 [Borrows and Rotman].

2 Tsilhqot’in Nation v British Colu mbia, 2014 SCC 44, 2 SCR 257 [Tsilhqot’in].