CanadaWhat is the constitutional basis for aboriginal title claims?
Aboriginal title in Canada is a constitutional right protected by section 35(1) of the Constitution Act, 1982, and was defined and affirmed by the Supreme Court in Delgamuukw v. British Columbia.
What the Law Says
The constitutional foundation for Aboriginal title claims in Canada is found in section 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights.
Section 35(1) is the cornerstone of Aboriginal rights law in Canada. It states that 'The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.' This provision gives constitutional protection to Aboriginal title — a unique, pre-sovereignty interest in land held by Indigenous peoples.
Aboriginal title is not created by statute or Crown grant; it arises from the prior occupation and sovereignty of Indigenous peoples before European colonization. It is a 'sui generis' (unique) legal interest — neither fully equivalent to common law property nor reducible to mere usage rights.
Statutory TextThe existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
— Constitution Act, 1982, s. 35(1) — Recognition and affirmation of existing aboriginal and treaty rights
What Courts Have Said
The Supreme Court of Canada’s landmark decision in Delgamuukw v. British Columbia provided the definitive legal framework for understanding Aboriginal title under section 35(1).
The Court held that Aboriginal title is a sui generis, constitutionally protected right arising from prior occupation and sovereignty; it confers exclusive rights to use and occupy the land for a variety of purposes, including traditional and modern economic activities, and cannot be transferred except to the Crown.
What to Do
Confirm that the Indigenous group asserting title has occupied the land continuously and exclusively since before sovereignty (pre-1871 in BC, pre-1867 elsewhere, unless later established).
Gather oral histories, archaeological evidence, linguistic data, and other proof of historic occupation and governance.
File a claim in court or pursue negotiated settlement (e.g., through the BC Treaty Process or federal comprehensive claims process).
Ensure any proposed Crown infringement meets the two-part test: valid legislative objective and fulfillment of the Crown’s fiduciary duty (consultation, accommodation, justification).
Sources
Not legal advice. This article is general information based on publicly available sources, written for educational purposes. Laws change and individual situations vary. Consult a licensed attorney in your jurisdiction before acting on anything you read here. Last reviewed: 2026-06-08.