the article overall is correct, but this is a misunderstanding of existing british law:

" That Elsipogtog still owns, in fact, what SNW Resources now covets. And that the injunction order by a provincial judge is a convenient legal fiction, backed only by the power of brute police force."

i point this out only to correct bad assumptions in various resistance movements. i do all this all the time. it's not to uphold the crown claims as morally correct, but simply to explain them so that they can be better fought against. if natives or other friends of the earth create court cases based on a bad understanding of the law, they will lose those cases. i've seen this more than once, and it's unfortunate. maybe we could have a discussion about modernism, about interpreting things differently than the court, etc...fine...but the judges have to rely on existing statute and case law, as well as imperial decree - which is still legally binding.

the way that the natives own their land and resources - legally, under british law, not ideally under native claims or morally, whatever that means - is in a title relationship. yes, aboriginal title. and, yes, aboriginal title stems from ancient usage. what that means is that aboriginals can only claim land they used before the english arrived. it's a restriction, not a trump. it doesn't mean it supersedes crown ownership due to some kind "here first" rule. legally, under british law, the crown still owns the land, it's just been granted for use under aboriginal title. that's logically a little difficult, but the logic of imperialism is power. the article gets *that* point right.

so, legally, the crown can do the same things to land held under aboriginal title that it can do to land held under other title, like fee simple. it can seize the land. it's supposed to consult about seizure, but that's not meant to provide for sovereignty either, it's just meant to give the crown a fiduciary duty to ensure it takes responsibility for things like resettlement, and that it takes the path of least disruption. so, it means running roads in places that are least problematic. in practice, the duty to consult is, in truth, a sort of cruel joke.

so, the claim is wrong - relative to british law. there's nothing allodial or radical about the state's acknowledgement of aboriginal title. activists at whatever level *have* to understand that if they're to launch legal challenges.

but it ultimately merely points out the necessity of extra-legal resistance. there's no legal path to victory, here, other than producing modern treaties, which the state has no prerogative to actually do.

http://www.theguardian.com/environment/2013/oct/21/new-brunswick-fracking-protests

legally speaking, the way to reverse crown ownership of native lands is to reverse the 1763 declaration, which has built up a ridiculous mythology around it. i don't even know if canada *can* reverse that...

i guess the queen could produce a new proclamation. but i somehow doubt the government here in canada would acknowledge the validity of such a thing. it would be more likely to lead to an exit of the commonwealth than legitimately give the land back.