Paulette et al. v. The Queen

Supreme Court of Canada – [1977] 2 S.C.R. 628

Northwest Territories Aboriginal title

The Supreme Court refuses to acknowledge that Indians can present their aboriginal right interest as a caveat against unpatented Crown lands. The Court does not close the door for all future land claims from the chiefs based on an Aboriginal right in the Northwest Territories, but states that the registering of a caveat is not the appropriate procedure to do so.


Can the Indians present a caveat on unpatented Crowns lands subject to the Land Titles Act in the Northwest Territories, claiming they have an interest in the land, by way of aboriginal right?


No, because there is no indication in the act that a caveat can be filed in respect of unpatented Crown land. A caveat is neither an instrument, nor an encumbrance (unanimous decision).


Between : Chief Paulette et Al.

And : the Queen


Before 1887, the system of land registration in place in the Northwest Territories (at the moment known as Rupert Lands) was a land registry which took into account all lands in the Northwest Territories that had been surveyed by the Crown. In 1880, only patented lands situated in the Northwest Territories were to be registered. The only recipient of the certificate of title was the new owner.

In 1887, the registry was replaced by a Torrens system, meaning that when the Crown granted any piece of land, a letter patent was issued to Registrar of the district in which it was situated, who then issued a certificate of title to himself and to the new owner. In 1970, the latest incarnation of the Torrens system, the Land Title Act was enacted, but contained no provision that all the Northwest Territories’ land shall fell under the scope of this legislation.

In 1973, sixteen Indian chiefs of the Northwest Territories representing the bands from the Western part of the Territories filed a notice of opposition with the Registrar of Titles. They claimed an interest, through Aboriginal rights, in about 400,000 square miles of lands in the Northwest Territories. The Registrar, facing the problems of the interest of those making the application as well as his duty to acknowledge the notice and record it in his day-book, called upon s. 154(1) of the Land Title Act and directed them to the Supreme Court of the Northwest Territories so it could decide on the legal validity of interest of the chiefs making the application.


The Crown: The sixteen band chiefs did not have the interest to file the notice of opposition accordingly to the Land Titles Act. One can only file a caveat when only the Registrar was not issued a certificate of title, only the owner was. The caveat does not create a title to the land, but merely makes a land claim known.

The band chiefs: The wording of the Land Titles Act gives them the right to use the notice of opposition to force the Registrar to record their land claims based on an Aboriginal right on unpatented Crown lands.

Decision of the lower courts

Northwest Territories Supreme Court (1973): The Indian chiefs had a sufficient interest to file the caveat, notice of opposition, against unpatented Crown lands because their prima facie interest, e.g. their Aboriginal title in the mentioned lands.

Northwest Territories Court of Appeal (1975): It was not necessary to make conclusions as to the character or extent of the claimed aboriginal rights, but only whether the Land Titles Act allowed the caveat to be filed when an interest in land was claimed hereunder. The appeal was allowed.

Reasons for Judgement


Laskin, Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz, de Grandpré


Taking into account the Land Titles Act’s historical development, it is not possible to file a caveat in opposition to unpatented lands on the grounds of aboriginal rights. The Act’s provisions that seem to grant such rights concern the lands for which a patent was put out before the establishment of the land titles system in the Northwest territories in 1887 and which had not been harmonized with the system yet.

Accordingly, section 54 contends with land patented before 1887 and allows the holder to request that his title be registered under the Act. Subsequently, the Registrar of Land Titles is to present the owner with a certificate for title if no “caveat” is encroached on the title that is logged in and if he is convinced of applicant’s title.

Section 134(2) provides for the entry of a notice of opposition “before registration of a title” under the Act. To the opposite, ss. 50 and 95 concern the registration of “instruments”, meaning mortgages and encumbrances, against unpatented land. Post-1887 Crown grants are included in the framework of “encumbrances or other instruments”, but nowhere in the concern legislation references to caveats are found.

The fact that the Alberta and Saskatchewan Acts, which flow from the federal legislation, do allow such caveats to be filed prior to a Crown grant backs the decision that the notice of opposition is impossible. The Court does not close the door for all future land claims from the chiefs based on an Aboriginal right in the Northwest Territories, but states that the registering of a caveat is not the appropriate procedure to do so.


Following Calder, the federal government adopted a new policy for the negotiation and the settlement of Aboriginal land claims. In 1973, Jean Chrétien, who was at the time Minister of Indian Affairs and Northern Development, established the Comprehensive Claims Policy to be applied to groups who had yet to enter in a treaty with the Crown. It was to be applied in British Columbia, Quebec, Northwest Territories and Yukon. It covered negotiations over Aboriginal title and ownership of natural resources. (Crane, Mainville and Mason, 2005: 48).

Since the Paulette decision, the Government of the Northwest Territories have reached a number of agreements with the First Nations on its territory concerning their comprehensive land claims. Their negotiations are complicated by the fact that numerous changes were made in the process throughout the years, and sometimes they regrouped joint First Nations and Métis’ claims. Also, parts of the Northwest Territories are governed by historic treaties : Treaty No. 8 and Treaty No. 11, concluded in 1899 and 1921 respectively (Olthuis, Kleer and Townshend, 2008: 113; AINC, 2009).

NWT Land Claims

In 1984, the Inuvialuit of the Western Arctic were the first aboriginal people to conclude a comprehensive land claim agreement in the Northwest Territories. The Inuvialuit Settlement Region covers an area of 225,460 square kilometres, encompassing the Mackenzie Delta, Beaufort Sea and Amundsen Gulf, and was given in exchange of extinguishing all aboriginal claims, rights and title in both the Northwest Territories and in Yukon. But, the harvesting rights of the Invuvialuit in this area are protected by the Final Agreement. They were also given participation in the management of natural resources and annuities amounted to $152 million (Crane, Mainville and Mason, 2005: 73-74.).

In 1992, the Gwich’in Tribal Council entered in a comprehensive land claim agreement in the Northwest Territories with its government and its federal counterpart. The Gwich’in Comprehensive Land Claim Agreement gave the Gwich’in a land title over 22,422 square kilometres, known as the Gwich’in Settlement Area (Her Majesty the Queen in Right of Canada et al., 1992: 81). On these lands, the nation collectively held a harvesting right on all wildlife species (Id.: 44) and the right of first refusal for the attribution of a commercial harvesting licence for non-members (Id.: 52). They also participate in the management of these resources (Id.: 56) and the regulation of land, water and environment (Id.: 109).

In 1993, another Comprehensive Land Claim agreement was concluded with the Shatu Dene and Métis, giving them title to 41,437 square kilometers of lands and annuities totaling more than $130 million to be distributed over the following fifteen years (Her Majesty in Right of Canada et al., 1993: 24 and 82). On the Sahtu Settlement Area, they have fishing, hunting and trapping rights to all wildlife species (Id.: 45). They also take part in the management of these natural resources through the Renewable Resources Board (Id.: 57-64) and forestry activities (Id.: 68-70) and the use of water (Id.: 88). In addition, every development proposals concerning the Mackenzie Valley has to be review by the Enviromental Impact Review Board on which the Shatu Dene and Métis participate (Id.: 110).

In 2003, a land claims and self-government agreement was reached between the Tlicho Nation and the governments of the Northwest Territories and of Canada. It gave to the Tlicho ownership of their traditional lands, Mowhì Gogha Dè Nutlèè, situated within the Northwest Territories, including subsurface resources and a share in mineral royalties (Tlicho et al., 2003: 1, 193-195 and 201). They now possessed harvesting rights on all wildlife species (Id.: 101-105) and powers relating to forest (Id.: 122-124) and plants management (Id.: 125-127) over a 39,000 square kilometres area, as well as the exclusive right to use the water flowing through their lands (Id.: 176-179). This agreement was the first to recognize the right to self-government to an Aboriginal nation in the Northwest Territories. The Tlicho Government, a regional governing body, gained jurisdiction over Tlicho citizens, Tlicho communities and Tlicho territory. It has the power to enact on matters pertaining to resources management and harvesting, culture and heritage, language, traditional knowledge, employment training, welfare, housing, child and family services, education, wills and estates, solemnization of marriages and administration of justice (Id.: 50-54). Community Government in each of the four Tlicho Communities, Behchoko, Whati, Gameti and Wkeweeti, were established to replace the municipal corporation and similar Indian Act’s entity (Id.: 65-70).

Related Cases

Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010


Aboriginal Affairs and Intergovernmenal Relations. 2010a. Current Negotiations – Gwich’in. Online. Retrieved on July 14th 2010.

Aboriginal Affairs and Intergovernmenal Relations. 2010b. Current Negotiations. Online. Retrieved on July 14th 2010.

Aboriginal Affairs and Intergovernmenal Relations. 2009a. Current Negotiations – Deline. Online. Retrieved on July 14th 2010.

Aboriginal Affairs and Intergovernmenal Relations. 2009b. Current Negotiations – Norman Wells. Retrieved on July 14th 2010.

Aboriginal Affairs and Intergovernmental Relations. 2009c. Current Negotiations – Tulita. Online. Retrieved on July 14th 2010.

Crane Brian A., Mainville Robert and Martin W. Mason. 2005. First Nations Governance Law. Markham : Lexis Nexis Butterworths.

Indian and Northern Affairs Canada. 2009. Historic Treaties – Timelines and Maps. Online. Retrieved on July 13th 2010.

Her Majesty the Queen in Right of Canada, the Government of the Northwest Territories and the Gwich’in. Gwich’in Comprehensive Land Claims Agreement. Signed on April 22nd, 1992 at Fort McPherson, Northwest Territories.

Her Majesty the Queen in Right of Canada, the Dene of Colville Lake, Decline, Fort Good Hope and Fort Norman and the Métis of Fort Good Hope, Fort Norman and Norman Wells. Sahtu Dene and Métis Comprehensive Land Claim Agreement. Signed on September 6th, 1993 at Fort Norman, Northwest Territories.

The Gwich’in, Her Majesty the Queen in Right of Canada and the Government of the Northwest Territories. Gwich’in Self-Government Negotiations: Process and Schedule Agreement. Signed on March 23rd, 2007 at Inuvik, Northwest Territories.

Olthuis John, Kleer Nancy and Roger Townshend. 2008. Aboriginal Law Handbook. Toronto : Carswell.

The Tlicho, the Government of the Northwest Territories and the Government of Canada. Land Claims and Self-Government Agreement. Signed on August 25th, 2003 at Behchoko, Northwest Territories.

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