Prior Occupation and Schismatic Principles: Toward a Normative Theorization of Aboriginal Title

Abstract

There are two divergent principles underlying theconstitutional recognition of Aboriginal title in s. 35(1) of the Constitution Act, 1982 the historically-oriented principle of "prior occupation, " and the forward-looking principle of "reconciliation. " A closer look at the principle of "prior occupation " reveals several possible rationales behind its requirement in the test for Aboriginal title: to promote economic efficiency; to ground a natural right of ownership; and to function as a proxy for the protection of individual or group identity.  However, each of these rationales fails to adequately respond to both previous jurisprudence in the area and the need to achieve a just and legally sound system for determining future claims. If "prior occupation" is instead understood as a proxy for "community connections to land," then the primary interests at stake are more clearly revealed. It is then possible to develop a principled and more consistent way of dealing with Aboriginal title claims in a way that respects the interests of all involved.