Can common law property be applied to aboriginal rights?
British Columbia, Canada
The following excerpt is from Delgamuukw v. British Columbia, 1993 CanLII 4516 (BC CA):
It has now become trite to say that common law property concepts cannot properly be applied to aboriginal rights which are, as was said in Guerin, sui generis. High authority has warned against the unwise adherence to Western law concepts in grappling with aboriginal title: see Amodu Tijani v. Southern Nigeria (Secretary), [1921] 2 A.C. 399 (P.C.). This, however, does not make each and every reference to familiar legal concepts dangerous and invidious. One must not be asked to drop all Western legal thought at the door in identifying aboriginal rights and characterizing their content and implications. They are unique. That does not mean that useful comparison and analogy is impossible. After all, these rights receive their recognition and protection through the common law and the Constitution which are, broadly speaking, Western in origin.
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