University of Waterloo.
Property is of central importance to a libertarian or Austrian view of the world. As Murray Rothbard, for example, puts it: “every man has an absolute right to the control and ownership of his own body, and to unused land resources that he finds and transforms. He also has the right to give away such tangible property (though he cannot alienate control over his own person and will) and to exchange it for the similarly derived properties of others. Hence, all legitimate property-right derives from everyman’s property in his own person, as well as the “homesteading” principle of unowned property rightly belonging to the first possessor (Rothbard 2002. 60).” As Richard Epstein points out, such a doctrine has been long in coming, beginning with the first clear formulation in Roman law, through to Locke and Blackstone ( Epstein 2008. 16).
What then of ownership by those who inhabited this continent prior to the arrival of the first European settlers? It has become fashionable of late in legal circles to speak of “aboriginal title”, about which, the main question still seems to me to be whether there is any such thing. On the other hand the Royal Proclamation issued during Blackstone’s lifetime referred to “lands of the Indians”, and recent judgments of the Supreme Court of Canada have assumed that some such possessions survived the transition to British sovereignty. Indeed in the case of Tsilhqot’in Nation v. British Columbia, the high court decided in June of this year that such title extended to a specific territory in northern B.C.. While Flanagan and Bains thought that this was in one way a welcome decision, it labored under some serious qualifications ( Flanagan and Bains. 2014), which separates it from the sort of liberal position people like Rothbard and Epstein would favour.
Before taking a closer look at some of these illiberal features of the most recent judgment, let us briefly review some of Kent McNeil’s arguments in “The Meaning of Aboriginal Title”, an article cited by Lamer CJ writing for the majority in Delgamuukw v. British Columbia, which served as the springboard for the 2014 decision 17 years later. In his article McNeil attempts to clarify a couple of questions he considers pertinent to an account of aboriginal title, namely its origin and content. As for the first, the question as to how it originates, while agreeing that any such title would not derive from the Proclamation of 1763 or the legal system which accompanied it, some held that it was based in the occupation of traditional lands prior to British or French settlement and others that it derived from the rules under which tribal society was organized. In the case of the latter, McNeil admits that the courts “did not explicitly require proof of Aboriginal law to establish title.” In the case of the former, grounding title in occupation, according to McNeil, creates a logical problem for the sui generis doctrine, that the right existed prior to European settlement. To establish that, we would need the proof of Aboriginal law which the courts have apparently not asked for (McNeil 1997).
With respect to the sort of proof available in such cases, Delgamuukw made it clear that a much more relaxed standard would have to be applied particularly with respect to the admission of oral history. Indeed, in the words of the judgement: “[expecting evidence] to provide definitive and precise evidence of pre-contact aboriginal activities on the territory in question…will be an almost impossible burden to meet ( Delgamuukw v. BC 1997. 42)”. Despite directly acknowledging McNeil’s article ( Delgamuukw v. BC 1997. 45-46), the majority opinion does not seem particularly troubled by the logical difficulty McNeil raised, namely that positing a right prior and independent of the common law requires equally independent evidence that there was any such right at aboriginal law. No doubt because the court contended, as they put it: “ that the ordinary rules of evidence must be approached and adapted in the light of the evidentiary difficulties inherent in adjudicating aboriginal claims (Delgamuukw v. BC 1997. 43)”, they seem to have taken refuge in the sui generis doctrine, namely that according to aboriginal tradition, title in some form or other existed prior to colonization.
As for the content of aboriginal title, sui generis proves a convenient device for explaining that particular aspect of aboriginal title as well. While an earlier decision by the Privy Council appeared to confine aboriginal title to a “personal and usufructory right”, Delgamuukw held that what their Lordships were really getting at was the sui generis nature of aboriginal title. The judgment added that : “…it is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of property or to the rules of property found in aboriginal systems. As with other aboriginal rights, it must be understood by reference to both common law and aboriginal perspectives (Delgamuukw v. BC 1997. 45)”
The next paragraph goes on to add: “The idea that aboriginal title is sui generis is the underlying principle underlying the various dimensions of that title ( McNeil 1997. 142).” One such dimension is that despite being “personal” in some sense, it is inalienable, meaning it can’t be sold to third parties, but at disposal would revert to the Crown. For as Lord Watson wrote in the Privy Council decision: “there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished (quoted in McNeil 1997.142).” Even though the fact of its being sui generis is held to imply inalienability, the court hastens to affirm: “ that this does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests(Delgamuukw 1997. 450).”
Another feature of its sui generis character, is that although aboriginal title is personal, in that it permits exclusive personal use of the land in question by members of the title holding group, title is not held personally but only by the community. As the court writes: “It is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests (Delgamuukw 1997. 46).”
Interestingly though, the court also claims that the sui generis doctrine does not necessarily confine title holders to traditional uses of the land which gave rise to title in the first place. Given that various statutes such as the Indian Act and the Indian Oil and Gas Act have been held to permit much wider use of land resources on reserves consistent with the requirements of modern life, the court held that a similar latitude should apply to aboriginal title upheld beyond the reserve.
On the other hand traditional uses cannot be entirely overlooked. Apparently you cannot both claim title to a particular territory and plan to radically alter its use thereafter. In the words of the court: “ If occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g. by strip-mining it) . Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g. by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot).” Any group wishing to override such limitations could only do so by surrendering their title (Delgamuukw 1997. 49-51)
Having reviewed some of the main features of aboriginal title as decided in Delgamuukw, let us briefly return to the more recent Tsilhqot’in case, where an earlier judgment of the BC Court of Appeal was overturned and aboriginal title over the requested area granted. The court in this case set out 3 criteria which occupation of a territory must meet: sufficiency, continuity and exclusivity (Tsilhqot’in v. BC 2014. 15). With respect to the first criterion, sufficiency, evidence is required “that the land in question belonged to, or was controlled by, or was under the exclusive stewardship of the claimant group (Tsilhqot’in v. BC 2014.17).” As for the second, continuity, there must be evidence that present occupation can be traced to pre-sovereignty days. Finally, to demonstrate exclusivity is for there to be evidence that the claimant group intended a particular territory for the use and enjoyment of their own members.
Although the court held that the province had not adequately consulted the Tsilhqot’in in this case, aboriginal title does not rule out future government interventions, provided there is prior consultation, the intervention is clearly in the public interest, and that interest outweighs any disadvantages to the aboriginal group.
Where then does this leave aboriginal title and its supposed sui generis character. To critics like me, whose opinions, their lordships are wont to remind us, are not “determinative”(Delgamuukw v. BC 1997. 45), it seems that the more often you repeat a notion and throw in a bit of Latin the more readily one becomes convinced that, to paraphrase Russell, there is something which actually answers the description. Who could fail to be impressed by the Law Lord’s opinion that there has all along been vested in the Crown a substantial and paramount estate which upon surrender becomes a plenum dominium? Or in the less exalted phrasing of the court in Tsilhqot’in: “Aboriginal title is what it is- the unique product of the historic relationship between the Crown and the Aboriginal group in question (Tsilhqot’in v.BC 2014. 24).” So is there really any such thing, or is it one of those distinctions without a difference? Well some courts have thought so, and others have held that while there might be such a thing in principle, the Tsilhqot’in, for example, failed to make out a successful claim to it. This as we saw was recently rejected by the SCC, and since they have unique constitutional authority to develop law particularly with respect to aboriginals, legally of course the doctrine exists.
Aside from legal considerations, and there are enough potential claims to aboriginal title to keep an army of lawyers employed in saecula saeculorum, are there any broader questions we might raise about the doctrine? Flanagan and Bains observed in their recent article, for example, that the recent declaration of title: “ imposed three conditions that drastically reduce its value and demonstrate continuing paternalism toward First Nations in Canada (Flanagan and Bains 2014. 16).” In a similar vein Widdowson and Howard claim that the net effect of the vast aboriginal industry, of which lawyers are indeed a rather visible part, is that: “The atavistic programs and services they advocate as aiding “self-determination” actually maintain native dependency and dysfunction, thereby justifying demands for increases in government funding (Widdowson and Howard 2008.21).”
Finally, for liberals in the Mises/Rothbard tradition, I would contend that aboriginal title is unlikely to be a step in the right direction. Certainly paternalism is the order of the day when it comes to state actors. The court was at pains in the two judgments to which we have referred to distinguish aboriginal title from the fee simple doctrine at common law which characterizes most of our real property holdings (see Tsilhqot’in v.BC. 25). But as De Soto has argued, individual, as opposed to tribal property holding, is essential to capital formation. His remarks about developing nations have some relevance to our indigenous populations: “Many title systems in developing nations fail to produce capital because they do not acknowledge that property can go way beyond ownership. These systems function purely as an ownership inventory of deeds and maps standing in for assets, without allowing for the additional mechanisms required to create a network where assets can lead a parallel life as capital (De Soto 2000. 60).”
Of course Kent McNeil remains convinced that the grant of aboriginal title is the best way forward because “it accords with common law principles, avoids discrimination, and provides the Aboriginal peoples with the opportunity to develop their lands in ways that meet the contemporary needs of their communities. It is an approach which supports the self sufficiency and growth of those communities and the preservation of Aboriginal cultures. For these reasons , it should be adopted both by the courts and by governments in their negotiations of Aboriginal land claims (McNeil 1997.154).”
As to McNeil’s first claim that aboriginal title accords with common law principles, we noted above that the courts seem to have sidestepped any close examination of prior aboriginal law to see how well its principles accord with those of the common law. While some forms of property, for example, existed among pre-European inhabitants, as Flanagan writes: “ There cannot have been a single indigenous conception of property, for the ecological and cultural settings of Indians were quite varied (Flanagan 2008. 115).” Such settings ranged from plains and forest hunters to those who fished on the coast. Indeed, the way of life of the latter group was sufficiently sedentary for them to have possessed slaves, a practice which continued late into the 19th century (Flanagan 2005. 118).
Some recent commentators, however, also note that the variety of indigenous ways of life did not necessarily result in the strong prohibitions against theft characteristic of the common law: “Traditional aboriginal societies had no understanding of theft because the kinship relations and low productivity of hunting and gathering economies necessitated sharing for group survival (Widdowson and Howard 2008. 147).” Widdowson and Howard contend that while sharing is admirable it is only likely to reduce conflict if it is across kinship groups rather than restricted to them. In the case of the theft of a large sum of money from the post office, the fact that the money was paid back by the tribe of the aboriginal defendant according to the principles of kinship justice is not likely in their view to impress the Canadian taxpayers who actually bankrolled the restitution (Widdowson and Howard 2008. 150).
As for McNeil’s contention that the award of title avoids discrimination, one might reply that in fact it guarantees it, in the sense that those who continue to inhabit traditional lands are prevented from transforming them into personal capital unlike other Canadian proprietors who hold fee simple title at common law. One might therefore argue that in singling out aboriginals for special treatment, or what some have called reverse discrimination, far from being a remedy, the Constitution underwrites their continuing discrimination (see Gibson 2009.39).
Thus we see little evidence to support McNeil’s view that aboriginal title offers the best way to help aboriginals improve their standards of living. Indeed such an approach assumes the view “ that aboriginal problems were caused by the destruction of viable and “sovereign nations” during European conquest, and therefore restoring aboriginal traditions through land claims and self-government must be the answer to native dependency and social dysfunction.” Such a view apparently has more to do with the romantic pronouncements of the Baron de Lahontan’s Adario than anything else, since “the small bands of hunters and gatherers and horticulturalists that existed at the time of contact were much less economically and politically developed than European nation states making the transition to industrial capitalism (Widdowson and Howard 2008. 51).”
Delgamuukw v. British Columbia  3 SCR 1010
De Soto, Hernando. 2000. The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. New York: Basic Books.
Epstein, Richard A.. 2008. Supreme Neglect: How to Revive Constitutional Protection for Private Property. New York: Oxford Univ. Press.
Flanagan, Tom. 2005. First Nations? Second Thoughts. Montreal and Kingston: McGill-Queen’s Univ. Press.
Flanagan, Tom and Ravina Bains. 2014. “Aboriginal Title’s True Meaning: Billable Hours.” Fraser Institute Quarterly. Fall 2014: 15-16.
Gibson, Gordon. 2009. A New Look at Canadian Indian Policy: Respect the Collective. Promote the Individual. Vancouver: Fraser Institute.
McNeil, Kent. 1997. “The Meaning of Aboriginal Title.” In Aboriginal and Treaty Rights in Canada. ed. Michael Asch. 135-154. Vancouver: UBC Press.
Rothbard, Murray. 2002. The Ethics of Liberty. New York: NY Univ. Press.
Tsilhqot’in Nation v. British Columbia. 2014.SCC 44
Widdowson, Frances and Albert Howard. 2008. Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation. Montreal and Kingston: McGill-Queens Univ. Press.
 With particular respect to cases of murder or family abuse, these authors are concerned about the stonewalling of investigations by kinship-based justice.