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

AuthorCraig Empson
PositionCompleted a JD at the Peter A Allard School of Law in 2017
Craig Empson *
CITED: (2019) 24 Appeal 101
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.
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.
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].

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