Aboriginal Title and Mining Legislation in the Northwest Territories

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

The Native Law Centre at the University of Saskatchewan has recently been responsible for the publication of a number of pamphlets on various aspects of Canadian aboriginal claims. While, especially since such claims have been expressly recognized in the 1982 Constitution and Canadian Charter of Rights, publications in this field are of extreme importance to the aboriginal population and their legal advisers, they are of equal significance for the general public, the majority of whom are completely unaware of — and unfortunately uninterested in — the nature of such claims or of their legal status. In view of this, it is perhaps regrettable that the pamphlets issued by the Centre are excessively legal in character and will not reach the general public, which perhaps needs convincing far more than does any group of lawyers. It might be helpful if the Centre could persuade its writers to issue a non-technical summary of each of their specialist publications. This is true of Ms. Thompson’s Aboriginal Title and Mining Legislation in the Northwest Territories.

The author states that her study is based on the assumption that aboriginal title existed in the Ten-nitory prior to 1870, but holds that consideration of the source of such title is outside hen scope. In view of this, it is perhaps unfortunate that she does not pay sufficient attention to the differences in United States and Canadian approaches to this problem while seeking to give expression to their similarities. In her view, “aboriginal title is similar to a fee simple, subject to the limitation on alienation and the power of the Crown to extinguish” — but could anything be less like a fee simple? She also argues, and this is at present an issue of major contention, that aboriginal title includes mineral resources. Whether this be true or not, it is doubtful whether any legal consequence arises, other than one based on executive discretion and a concept of morality, from the fact that “aboriginal title in the Arctic islands and the eastern mainland of the Northwest Territories has not been ceded by the Inuit under any treaty with the Crown.” From the point of view of the English common law — and for that matter the same is true in every modern state — the land belongs to the ruler, regardless of any arrangement that may have been made between the “original owners” and the individual who successfully asserts sovereignty over them. Whether the title enjoyed by the aboriginal population has been extinguished or not may depend upon clear evidence of extinction, but the absence of a cessionary treaty has in strict law absolutely nothing to do with the existence of such a title or its extinction.

The author’s contention with regard to mining regulations and aboriginal land claims is equally questionable: “As things stand after the decision in the Baker Lake case, the Territorial Lands Act and mining regulations do apply to aboriginal lands. Mining legislation has been held to diminish aboriginal rights in the Northwest Territories, but not to extinguish them .... A consideration of the nature of aboriginal title, and of the mining legislation in the Northwest Territories, reveals that there is room to hold that this legislation does not apply to lands and minerals held under aboriginal title.”