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would get to such a statement in that case, however,
was to say that “there is no doubt that Aboriginal
title is fundamentally concerned with land” (para
35). The minority, on the other hand, made much
more definitive characterizations of Aboriginal title
as being a real right (i.e., an interest in land) (paras
140–55).
6. Delgamuukw v British Columbia, 1997 3 SCR
1010 at paras 117, 166 Delgamuukw; Tsilhqot’in
Nation v British Columbia, 2014 SCC 44 at paras
67, 73–76 Tsilhqot’in.
7. Felix S Cohen, “Dialogue on Private Property”
(1954) 9:2 Rutgers L Rev 357 at 374. Bentham is to
similar effect: “‘Let no one, Rusticus excepted’, (so we
will call the proprietor) ‘and those whom he allows
meddle with such or such a field.’”: Jeremy Bentham,
Of Laws in General (London: Athlone Press, 1970) at
177. See also Michael C Blumm, “Why Aboriginal
Title Is a Fee Simple Absolute” (2011) 15:4 Lewis &
Clark L Rev 975. See also Kevin Gray, “Property in
Thin Air” (1991) 50:2 Cambridge LJ 252 at 294
(“the criterion of ‘excludability’ gets us much closer to
the core of ‘property’ than does the conventional
legal emphasis on the assignability or enforceability
of benefits”).
8. Delgamuukw, supra note 6 at paras 128–29.
9. The date of the assertion of Crown sovereignty over
what is now British Columbia has been identified by
the Supreme Court of British Columbia in Tsilhqot’in
as 1846 (Tsilhqot’in Nation v British Columbia, 2007
BCSC 1700 at paras 585–602), though that same
court in Delgamuukw held that 1846 was the date at
which sovereignty was conclusively established (Delgamuukw
v British Columbia (1991), 79 DLR (4th)
185 at 309 (BCSC)). No determination has been
made by the Supreme Court of Canada.
10. Hereditary Chiefs Tony Hunt et al v Attorney General
of Canada, 2006 BCSC 1368 at para 26.
11. Tsilhqot’in, supra note 6.
12. Ibid.
13. There were, admittedly, rare exceptions. See e.g.
MacMillan Bloedel Ltd v Mullin, 1985 3 WWR 577
(BCCA).
14. Haida, supra note 1; Taku, supra note 1.
15. Supra note 1.
16. Supra note 1.
17. Regarding the honour of the Crown, see Mikisew
Cree First Nation v Canada (Minister of Canadian
Heritage), 2005 SCC 69 at paras 51–58.
18. Supra note 6.
19. Ibid at para 186.