Private Property and Aboriginal Title: What is the Role of Equity in Mediating Conflicting Claims?

Abstract

Following the Supreme Court of Canada's declaration of Aboriginal title in the Tsilhqot'in Nation decision, the frequency of conflicts between Aboriginal title and private property interests is likely to increase. This paper argues that the most significant treatment of the issue, the Chippewas of Sarnia Band v. Canada (Attorney General) decision, in which the Ontario Court of Appeal relied on equitable doctrines to bar an Aboriginal title claim which would have impacted private property, should not be taken as persuasive authority. The paper presents two arguments in support of this conclusion. First, it is argued that the case incorrectly applied principles of common law and equity, and therefore includes errors of law which should not be repeated. Second, it argues that in the event that the Chippewas decision was correctly decided, its applicability can be limited in two important respects. First, the case can likely be distinguished on the facts from most cases involving Aboriginal title lands. The Supreme Court's decision in Guerin provides one such example. Second, the 'constitutional exception' created in the Supreme Court's Manitoba Metis Federation decision, where the majority of the Court held that the policy rationales underpinning the recognition of s.35 Aboriginal rights can prevent the application of statutes of limitation and equitable doctrines, should operate to exclude the Chippewas of Sarnia reasoning in many circumstances. Thus, the paper concludes that, whether it was rightly or wrongly decided, Chippewas of the Sarnia should be understood as having limited precedential value in future litigation concerning conflicts between Aboriginal title and private property interests. The framework articulated in Manitoba Metis should instead be relied on to motivate the parties to negotiated solutions.