Entre affirmations française et britannique de souveraineté, le titre ancestral autochtone en jeu

Abstract

Much of Canada was colonized by France long before the arrival of the British in the mid-eighteenth century. This article examines how France’s assertion of sovereignty impacts the regime of Aboriginal title recognized under Canadian law of British origin. In the first section, the author highlights a jurisprudential trend that assesses Indigenous territorial control at the time of British sovereignty’s assertion, rather than during French occupation, when applying the criterion of exclusive control—a key factor in recognizing Aboriginal title. They then illustrate how this approach risks undermining claims to ancestral title by Indigenous peoples whose ancestors lost exclusive control of their territory under the French colonial regime.

In the second section, the author aims to demonstrate that Canadian law of British origin does not require proof of exclusive control by Indigenous peoples following the assertion of French sovereignty. They argue that current case law is based on a misunderstanding of the legal articulation of the successive colonial titles of France and Great Britain in Canada. Indeed, the title asserted by the French Crown forms the legal foundation of the rights Great Britain acquired through state succession under the Franco-British treaties of 1713 and 1763. However, to demand proof of exclusive Indigenous control—despite the assertion of French sovereignty—is incompatible with the recognition of the title asserted by Versailles. Thus, in addition to depriving French-colonized Indigenous peoples of their territorial rights, this impasse on French sovereignty runs counter to the postulates of British colonial law, which enshrines the derivative nature of the Crown's sovereignty over the Canadian territories originally claimed by France. The author concludes that when the time comes, the Supreme Court of Canada should decide that, in what was New France, it is Indigenous territorial control prior to the assertion of French sovereignty that should form the basis for ancestral title.