Academic journal article
By Lavoie, Malcolm
University of Toronto Faculty of Law Review , Vol. 69, No. 1
I. INTRODUCTION II. COMPETING JUSTIFICATORY PRINCIPLES IN DELGAMUUKW i. The Hegelian Justification ii. The Lockean Justification iii. Reconciling the Two Justificatory Strains III. HEGELIAN EMBODIMENT OF THE WILL AS A UNIFIED JUSTIFICATORY STRATEGY i. The Egalitarian Proviso ii. Aboriginal Uniqueness IV. LOCKEAN PROPERTY RIGHTS AS A UNIFIED JUSTIFICATORY STRATEGY i. Labour Mixing ii. The Labour Theory of Value iii. Labour as a Marker of Intentions V. RULE UTILITARIANISM i. The Content of Property Rights ii. Allocation of Holdings iii. The Content of Utilitarian Aboriginal Title iv. Intuitive Moral Judgments v. Criticisms of Utilitarianism vi. Eurocentrism vii. Recommendations VI. CONCLUSION
Aboriginal title in Canada is a sui generis right whose content was comprehensively expounded in Delgamuukw v British Columbia. (1) In that case the Supreme Court declined to base aboriginal title either exclusively in the common law or in aboriginal legal systems, preferring instead to set out an alternative framework. (2) It has since been noted that, because of the inter-societal nature of the questions raised by aboriginal title, there is a need for higher order principles that can mediate between the competing claims of different normative orders. (3) The doctrine of aboriginal title must, among other functions, be capable of assessing competing claims between two or more aboriginal groups, between aboriginal groups and the Crown, and between aboriginal groups and individual holders of Crown grants. (4) An understanding of the principles and interests that aboriginal title is meant to uphold should form the starting point for the consideration of these questions. The answer to the question "Why should we recognize past aboriginal occupation of land?" informs both the assessment of competing claims and the limits of what aboriginal title entails. This paper will attempt to demonstrate that the principles adopted by the Supreme Court in Delgamuukw are based on a mix of Lockean and Hegelian arguments justifying the acquisition of property rights. After examining and rejecting the Lockean-Hegelian hybrid used by the Court, I will attempt to show that neither the Lockean nor the Hegelian argument alone can ground a coherent and satisfying conception of aboriginal title. Instead, I will propose an alternative set of justificatory arguments for aboriginal title, based on utilitarian ideas. Among other things, such a framework better accords with our intuitions regarding the proper scope and content of aboriginal title.
As noted, the second part of the paper will show that the doctrine of aboriginal title as developed by the Supreme Court in Delgamuukw is based both on Lockean and Hegelian justifications for grounding title in land. The Court seems on the one hand to place some emphasis on the Lockean idea of intensive productive use of land without waste, particularly in its apparent exclusion of nomadic societies from title claims over lands not regularly used. (5) On the other hand, the Hegelian framework based on the ongoing cultural attachment of aboriginal societies to their traditional lands justifies the privileged status of aboriginal title as well as the limits placed upon uses of the land and on alienation. (6) Under this second framework, societies may be said to gain title to the land through the embodiment of their will in it. (7) I will argue that these two frameworks do not sit well together in the Supreme Court's conception of aboriginal title, and do not appear to have been reconciled in any principled, conscientious way.
The next two parts of the paper will examine the prospects for grounding aboriginal title either exclusively in Hegelian or in Lockean ideas. In the third part, I will attempt to show that even a modified Hegelian justification, based ultimately in the embodiment of the collective will of aboriginal societies in their land, is not resistant to the redistributive claims of others who do not have sufficient amounts of property in which to embody their wills. …