Oral Arguments: Professor Kent McNeil — ‘Aboriginal Title And The Tsilhqot’in Nation Case’

Osgoode Professor Kent McNeil, author of Common Law Aboriginal Title and Canada’s leading Aboriginal Title scholar, overviews William v BC, a major Aboriginal Title case scheduled to be heard by the Supreme Court of Canada on November 7, 2013.

Professor McNeil outlines the facts, issues at stake and problems with how the courts have recently approached the Aboriginal Title Doctrine. McNeil examines Delgamuukw v British Columbia [1997] 3 SCR 1010, the court’s major pronouncement on Aboriginal Title, and compares it with R v Marshall; R v Bernard 2005 SCC 43, a case that clarified the principles in Delgamuukw, and how the latter deviates significantly from the former. The B.C. Court of Appeal’s decision in William v BC 2012 BCCA 285, which is on appeal at the Supreme Court of Canada, applied the approach to Aboriginal Title outlined in Marshall; Bernard.

Professor McNeil argues that the court’s approach to Aboriginal Title is problematic in two respects: the level of occupancy required to establish Aboriginal Title and the role of Aboriginal perspectives in satisfying this requirement. Professor McNeil also provides commentary on other aspects of the case, including the Aboriginal Rights claim and the jurisdictional authority of provincial laws to Aboriginal Title lands. Professor McNeil concludes by answering audience questions.

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