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Published online by Cambridge University Press: 27 July 2021
According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty?
We are grateful to John Borrows, David Dyzenhaus, Hamish Stewart, Kerry Wilkins, Andy Yu, anonymous reviewers, and an audience at the University of Toronto Faculty of Law for helpful comments and suggestions on previous drafts of this paper. Special thanks to Arthur Ripstein for multiple rounds of detailed comments.
1. [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw]. While Canadian courts have considered the existence of Aboriginal title in prior cases, such as The Hamlet of Baker Lake v Canada (Minister of Indian Affairs & Northern Development) [1979] FCJ No 184, Calder v British Columbia (Attorney-General) [1973] SCR 313, 34 DLR (3d) [Calder], and Guerin v The Queen [1984] 2 SCR 335 at 382, 13 DLR (4th) 321[Guerin], Delgamuukw was the first case to propound the content of Aboriginal title in comprehensive fashion in light of the affirmation and constitutional protection of Aboriginal rights by s 35 of the Constitution Act, 1982.
2. Indeed, the plaintiff Gitskan and Wit’su’wet’en Nations in the Delgamuukw case presented their claims as “ownership and jurisdiction,” and only at the Supreme Court were these claims converted to claims of “Aboriginal title and self-government.” See Delgamuukw, supra note 1 at 73.
3. Delgamuukw, supra note 1 at paras 125-26.
4. Richard H Bartlett, “The Content of Aboriginal Title and Equality before the Law” (1998) 61 Sask L Rev 377; Brian Donovan, “The Evolution and Present Status of Common Law Aboriginal Title: The Law’s Crooked Path and the Hollow Promise of Delgamuukw” (2001) 35 UBC L Rev 43; Malcolm Lavoie, “Why Restrain Alienation of Indigenous Lands?” (2016) 49:3 UBC L Rev 997; Bruce McIvor & Kate Gunn, “Stepping into Canada’s Shoes: Tshilqot’in, Grassy Narrows, and the Division of Powers” (2016) 67 UNBLJ 146; Matthew V W Moulton, “Framing Aboriginal Title as the (Mis)Recognition of Indigenous Law” (2016) 67 UNBLJ 336; Dwight Newman, “The Top Ten Uncertainties of Aboriginal Title after Tshilqot’in” Fraser Institute (2017), online at fraserinstitute.org/sites/default/files/top-ten-uncertainties-of-aboriginal-title-after-tsilhqotin.pdf [perma.cc/D74G-DHAZ].
5. See, for example, Brian Slattery, “The Constitutional Dimensions of Aboriginal Title” (2015) 71:1 SCLR 45 at 58-63; Dwight Newman, “The Economic Characteristics of Indigenous Property Rights: A Canadian Case Study” (2016) 95:2 Neb L Rev 432; Malcolm Lavoie, “Aboriginal Rights and the Rule of Law” (2019) 92:2 SCLR (2d) 159.
6. 2014 SCC 44 at para 74 [Tshilqot’in]. There are reasons to doubt that Tshilqot’in loosens or clarifies the inherent limit in any meaningful way, as commentators have observed. See, for example: Gordon Christie, “Who Makes Decisions over Aboriginal Title Lands?” (2015) 48:3 UBC L Rev 743 at 755.
Title holders must surrender title lands to the Crown in order to achieve the freedom that ordinary fee simple owners enjoy: “If aboriginal peoples wish to use their lands in a way that [A]boriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so.” See Delgamuukw, supra note 1 at 131. See further the discussion in section II, below. Given the vast disparity in economic well-being between Indigenous and settler people more broadly, a tight constraint on the economic uses to which Indigenous landowners can put their title lands, seems not only stingy, but practically oppressive. For more on these economic disparities, see Krishna Pendakur & Ravi Pendakur, “Aboriginal Income Disparity in Canada” (2011) 37:1 Can J Pub Pol’y 61; Daniel Wilson & David Macdonald, “The Income Gap Between Aboriginal Peoples and the Rest of Canada,” Canadian Centre for Policy Alternatives (2010), online at policyalternatives.ca/sites/default/files/uploads/publications/reports/docs/Aboriginal%20Income%20Gap.pdf [perma.cc/B93H-CVTX].
7. John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v British Columbia” (1999) 37:3 Osgoode Hall LJ 537 at 576-580 [Borrows, “Sovereignty’s Alchemy”]; John Borrows, “Aboriginal Title and Private Property” (2015) 71 SCLR 91 at 112 [Borrows, “Aboriginal Title”]; Felix Hoehn, “Back to the Future—Reconciliation and Indigenous Sovereignty after Tshilqot’in” (2016) 67 UNBLJ 109; Malcolm Lavoie, “The Implications of Property as Self-Government” (2020) 70:4 UTLJ 535; Kent McNeil, “Aboriginal Rights in Canada: From Title to Land to Territorial Sovereignty” (1998) 5:2 Tulsa J Comp & Intl L 253 [McNeil, “Territorial Sovereignty”]; Kent McNeil, “Self-Government and the Inalienability of Aboriginal Title” (2002) 47:3 McGill LJ 473 at 490-96 [McNeil, “Inalienability”]; Kent McNeil, “Aboriginal Title in Canada: Site-Specific or Territorial?” (2014) 91:3 Can Bar Rev 745 (arguing that Aboriginal title is territorial yet proprietary); Patrick Macklem, “The Form and Substance of Aboriginal Title: Assimilation, Recognition, Reconciliation” in Peter Oliver, Patrick Macklem, & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford University Press, 2017) ch 15; Newman, supra note 5 at 450 (arguing that Aboriginal title has a ‘public-style jurisdiction’); Slattery, supra note 5 at 46 (arguing that Aboriginal title has a ‘jurisdictional dimension’); Brian Slattery, “The Metamorphosis of Aboriginal Title” (2006) 85:2 Can Bar Rev 255 [Slattery, “Metamorphosis”]; Jeremy Webber, “The Public-Law Dimension of Indigenous Property Rights” in Nigel Bankes & Timo Koivurova, eds, The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights (Hart, 2013) ch 3 (arguing that Indigenous land rights presuppose the continuation of an indigenous legal order). See also the sources cited in Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58:3 UTLJ 275 at 286 n 38. The case law has echoes of this suggestion as well: Williamson J in Campbell v British Columbia (AG), 2000 BCSC 1123 at 37-38 held that Aboriginal title has “governmental dimensions” [Campbell].
8. See, for example, Lavoie, supra note 7 at 545-46, as well as section III below.
9. Our account also exposes malignant parts of Aboriginal title doctrine, such as the idea that the Crown may infringe or even extinguish Aboriginal title because it has underlying title to these lands. In our conclusion, we argue that those parts of the doctrine are theoretically unsubstantiated and propped up by problematic falsehoods.
10. R v Van der Peet [1996] 2 SCR 507 at paras 28-29 [Van der Peet], citing Guerin, supra note 1 at 376, in turn citing Calder, supra note 1 at 328.
11. Constitution Act, 1982, s 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act]. Aboriginal rights existed under common law long before their constitutionalization, and in turn, existed prior to the common law’s recognition of these rights: Delgamuukw, supra note 1 at para 133; Van der Peet, supra note 10 at paras 28-29.
12. For more on the constitutionalization of Aboriginal rights, see: Brian Slattery, “The Constitutional Guarantee of Aboriginal and Treaty Rights” (1982) 8:2 Queen’s LJ 232 at 237 and 254; Kent McNeil, “Aboriginal Title as a Constitutionally Protected Property Right” in Owen Lippert, ed, Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision (The Fraser Institute, 2000); Jeremy Webber, “Contending Sovereignties” in Peter Oliver, Patrick Macklem, & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford University Press, 2017) at 284-294.
13. Delgamuukw, supra note 1 at para 138.
14. Newfoundland and Labrador (Attorney General) v Lashaunda (Innu of Nashat and of Mani-Utenam) 2020 SCC 4 at para 49 [Innu] citing Delgamuukw, supra note 1 at para 114 [emphasis in original].
15. As Kent McNeil puts it, “when the Court issued a declaration of Aboriginal title for the Tsilhqot’in, it was not creating a title, but rather acknowledging the existence of a title that pre-dated European colonization.” See Kent McNeil, “Aboriginal Title and the Provinces after Tshilqot’in Nation” (2015) 71 SCLR 67 at 72.
16. Delgamuukw, supra note 1 at para 138. See also Brian Slattery, “A Taxonomy of Aboriginal Rights” in Hamar Foster, Heather Raven & Jeremy Webber, eds, Let Right be Done: Calder, Aboriginal Title and the Future of Indigenous Rights (UBC Press, 2007) at 112.
17. Delgamuukw, supra note 1 at paras 137-138 and 140. Aboriginal title also differs from other Aboriginal rights by virtue of being a ‘general’ right rather than a ‘specific’ one. Title does not vary from circumstance to circumstance and group to group in the way that other Aboriginal rights do. See Slattery, supra note 16 at 111-128.
18. While distanced from fee simple at times, the Court still uses the language of property rights to describe Aboriginal title. The Court explains that “Analogies to other forms of property ownership—for example, fee simple—may help us to understand aspects of Aboriginal title.” See Tshilqot’in, supra note 6 at para 74 [emphasis added]. See also Delgamuukw, supra note 1 at 112.
19. We do not elaborate other aspects of Aboriginal title here, such as the idea that the Crown may extinguish or justifiably infringe on Aboriginal title holder’s rights. In this section, we seek to explain the content of Aboriginal title. We do not discuss the Crown’s radical underlying title to Aboriginal title lands in this section for this reason. None of the doctrinal action concerned with the scope of Aboriginal title consists in this part of the Court’s jurisprudence. The Crown’s underlying title is not one of the features of Aboriginal title’s content, even according to the Court itself. See Tshilqot’in, supra note 6 at para 12; Delgamuukw, supra note 1 at paras 116-18. Kent McNeil has shown that close attention to the case law reveals that the Crown’s underlying title in Aboriginal title lands is neither a proprietary interest nor any kind of jurisdictional authority. The Crown’s radical underlying title is thus functionally identical to the title the Crown has in ordinary fee simple lands. See Kent McNeil “The Source, Nature, and Content of the Underlying Title to Aboriginal Title Lands” (2018) 96: 2 Can Bar Rev 273 at 279. As a result, analyzing underlying Crown title adds little to an account of Aboriginal title’s distinctive conceptual character. The idea that the Crown may justifiably infringe on or even extinguish Aboriginal title is unsubstantiated by the idea of underlying title. The view we offer here may helpfully expose those parts of the doctrine, an argument we make in our conclusion. A closely related myth is the doctrine of discovery, which has recently faced calls for abolishment by both scholars and the Truth and Reconciliation Commission. See further Hoehn, supra note 7. The very notion of the Crown’s underlying title is an especially confusing part of the jurisprudence and, to many, is normatively indefensible. See, for example, Douglas Sanderson, “The residue of imperium: Property and Sovereignty on Indigenous Lands” (2018) 68:3 UTLJ 319 (arguing that the idea of radical underlying title is a myth designed to efface the sovereignty of Indigenous peoples) and Lavoie, supra note 5 (arguing that an Aboriginal rights doctrine built on the back of the assertion of Crown sovereignty and underlying title is a rule of law problem).
20. Delgamuukw, supra note 1 at para 112.
21. Ibid. However, it may be the case that Aboriginal title can be alienated to another Aboriginal group. See infra note 154.
22. Delgamuukw, supra note 1 at paras 114 and 126 [emphasis in original]. See also Hoehn, supra note 7 at 118.
23. Delgamuukw, supra note 1 at para 115.
24. Ibid at para 128.
25. Ibid .
26. Ibid at para 127 [emphasis added].
27. Dwight Newman argues that McLachlin CJ’s shift to the phrase “collective title” is obfuscating, because it is not clear how the band’s own internal leadership structure interacts with the collective that holds title lands. See Newman, supra note 5 at 462. The Court uses the language of “collective title” once again in Innu, supra note 14 at paras 30 and 155.
28. Tshilqot’in, supra note 6 at para 74.
29. Ibid at para 75.
30. McNeil, supra note 15 at 68.
31. Newman, supra note 5 at 451-52.
32. In fact, in the recent Innu case, the Court cites the paragraphs from Delgamuukw (reproduced above) in the same sentence that the Court cites the Tshilqot’in version of the inherent limit. This may suggest that Delgamuukw’s seemingly more restrictive conception of the inherent limit has not been supplanted, and remains good law. See Innu, supra note 14 at para 155.
33. Christie, supra note 6 at 754 [emphasis in original removed].
34. Lax Kw’aalams Indian Band v Canada (Attorney General), 2011 SCC 56 at para 51.
35. R v Marshall; R v Bernard 2005 SCC 43 at para 50.
36. R v Sparrow [1990] 1 SCR 1075 at 1093, 1990 CanLii 104 SCC [Sparrow] and Mitchell v Minister of National Revenue, 2001 SCC 33 at paras 13, 95, and 132.
37. The language of frozen rights is not used in the Court’s ratio in Delgamuukw, but the Court does take note of this idea in the portion of the judgement where it summarizes Lambert JA’s dissenting opinion from the British Columbia Court of Appeal. See Delgamuukw, supra note 1 at para 49.
38. Lavoie, supra note 5 at 167 and 169, and Christie, supra note 6.
39. Lavoie, supra note 5 at 170.
40. Newman, supra note 5 at 460.
41. Slattery, supra note 5 at 62-63.
42. Newman, supra note 5 at 461 and 465.
43. Ibid .
44. Ibid at 462. See also Lee Anne Fennell, “Commons, Anticommons, Semicommons” in Kenneth Ayotte & Henry E Smith, eds, Research Handbook on the Economics of Property Law (Edward Elgar, 2011).
45. Lavoie, supra note 7 at 544 and 546-47. Lavoie takes this to be a defect in essentialist views of the distinction as put forth by Katz and Ripstein.
46. Ibid.
47. Ibid at 545-546. See also Tshilqot’in, supra note 6 at paras 73-74.
48. Lavoie, supra note 7 at 548.
49. As Joshua Nichols puts it, “it is the continued existence of Aboriginal sovereignty that the Canadian jurisprudence has effectively ignored.” See Joshua Nichols, “A Reconciliation without Recollection? Chief Mountain and the Sources of Sovereignty” (2015) 48:2 UBC L Rev 515 at 530 n 58.
50. As Webber puts it, Indigenous rights are “truncated” when pre-existing sovereignty is confined to private law as a property right. See Webber, supra note 7 at 80 and 100. One of the wrongs perpetrated by the settler regime on Indigenous people is the deprivation of political authority and governance structures. See Douglas Sanderson, “Redressing the Right Wrong: The Argument from Corrective Justice” (2012) 62:1 UTLJ 93 at 103. See also Hoehn, supra note 7 at 121.
51. Gordon Christie, “A Colonial Reading of Recent Jurisprudence” (2005) 23:1 Windsor Yb Access Just 17 at 40.
52. Slattery, supra note 5 at 47.
53. Ibid at 62.
54. Ibid at 60-61.
55. Ibid .
56. Arthur Ripstein, “Property and Sovereignty: How to Tell the Difference” (2017) 18:2 Theor Inq L 243 at 249.
57. Ibid at 244.
58. We offer an account of property in the common law, because common law fee simple is the contrast case the Court repeatedly frames Aboriginal title with respect to.
59. Larissa Katz, “Property’s Sovereignty” (2017) 18:2 Theor Inq L 299 at 305-06.
60. Christopher Essert, Yours and Mine (draft manuscript on file with author, January 2021 version) at 18.
61. See Christopher Newman, “Using Things, Defining Property” in James Penner & Michael Otsuka, eds, Property Theory: Legal and Political Perspectives (Cambridge University Press, 2018) at 79.
62. Essert, supra note 60 at 18.
63. This is as good a place as any for a few remarks about abuse of right in the common law. The famous case of Mayor of Bradford v Pickles, [1985] AC 587 has long been a touchstone for the proposition that the common law does not inquire into the motives of property owners in determining if some use of their property is authorized. In this vein, almost all writers on abuse of rights offer an ‘external’ account of abuse of right, in the sense that the moral considerations that motivate the law to restrict intentions to use one’s property in a way that harms another do not have their origin in property itself. See for example, Ernest Weinrib, “Private Law and Public Right” (2011) 61:2 UTLJ 191; Daniel B Kelly, “Strategic Spillovers” (2011) 111:8 Colum L Rev 1641. On this view, abuse of right occurs where an otherwise permissible use is rendered illegal because of certain external circumstances. A genuinely internal norm, by contrast, determines whether an action is legitimate in the first place, and that is what sovereignty is like. Abuse of right does not go to whether an owner lacked the authority to do with their property as they please. We adopt this orthodox position here. Larissa Katz has offered what she has called a contrastingly ‘internal’ account of abuse of right, one that argues that abuse of right tracks an owner’s authority itself. See Larissa Katz, “Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right” (2013) 122:6 Yale LJ 1444. Mitchell Berman has argued that Katz’s reasons for calling her account an ‘internal’ one are unpersuasive, and that rather, abuse of right is better understood as evidence of the law encapsulating a general moral prohibition not to harm others, one that is present across other legal domains including, but not limited to, property. See Mitchell N Berman, “Abuse of Property Right Without Political Foundations: A Response to Katz” (2014) 124 Yale LJ Forum 42 at 51-55. Perhaps most relevant for our purposes, Katz clearly does not see her claims about the absence of internal bounds of ownership authority––in the sense that an owner need not make reference to others in deciding how to use her land––as inconsistent with her ‘internal’ account of abuse of right. For more on Katz’s account of property in the legal order, see section II.iii below.
64. None of these limits mean that property does not survive in our legal systems in these specific instances or generally. Mosk J makes this point eloquently in his dissenting opinion in Moore v Regents of University of California, 51 Cal 3d 120 (Cal Sup Ct 1990) at 165-66.
65. Ripstein, supra note 56 at 244.
66. Newman, supra note 61 at 79. See further Simon Douglas & Ben McFarlane, “Defining Property Rights” in James Penner & Michael Otsuka, eds, Property Theory: Legal and Political Perspectives (Cambridge University Press, 2018) at 240.
67. See, for example, Hohfeld’s seminal article: Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23:1 Yale LJ 16. James Penner has argued at length that the bundle theory cannot explain the transmissibility of property rights, i.e. the idea that a property right can be someone else’s and that its content does not depend on who happens to be the owner at any given moment. See, in particular, James E Penner, Property Rights: A Re-Examination (Oxford University Press, 2020) ch 6. We will have more to say about this important feature of property rights in relation to Aboriginal title in section VII.
68. Katrina Wyman, “The New Essentialism in Property” (2017) 9:2 Journal of Legal Analysis 183 at 203-05.
69. Jeremy Waldron, The Rule of Law and The Measure of Property (Cambridge University Press, 2012), 68 [Waldron, The Rule of Law]. This idea has its original sources both in Jeremy Waldron, The Right to Private Property (Oxford University Press, 1990) at 47-53 [Waldron, Private Property] and Bruce Ackerman, Private Property and the Constitution (Yale University Press, 1977) 97-98.
70. Waldron, The Rule of Law, supra note 69 at 34.
71. See for example Save Am’s Clocks, Inc v City of New York, 124 NE 3d 189 (NY 2019), and Larissa Katz’s discussion of the case in Larissa Katz, “It’s Not Personal: Social Obligations in the Office of Ownership” (2020) 29:3 Cornell J L & Pub Pol 587 at 601-603. The case concerned a historical mechanical clock tower that was designated an interior landmark. It eventually came to be owned by a private developer. The clock tower had been subject to tours for many years, and the developer sought to convert it to a private residence and exclude the public. The litigation centered around the developer’s application to the Landmarks Preservation Commission for a certificate allowing it to alter the landmark, and the subsequent challenge to this successful application. Even on Katz’s view of property as an office, these burdens on ownership do not come from the nature of ownership itself, “but represent a kind of accession of a burden to the office.” For another example, see Victor Tadros, “Ownership and the Moral Significance of the Self” (2019) 36:2 Social Philosophy & Policy 51 at 57 (observing that owners of historically significant paintings do not have the right to destroy them, unlike a regular owner of any chattel).
72. As Christopher Essert explains, property is not, then, just whatever the law says it is, but nor is it “written in the book of the world.” Essert, supra note 60 at 36.
73. There is, of course, a line somewhere. Regulation will amount to elimination of a property right in some instances, and is in this sense on a continuum with a taking.
74. To observe that limits on property are external is just to say that their conceptual origin is not from property itself. Recall Waldron’s distinction between the concept of private property, and the various conceptions, or variations of the bundle of rights, that we actually call property in our legal systems. Waldron does not make this distinction in order to undermine the legitimacy of regulation, but simply to do clarifying conceptual work. Far from being an opponent of public law intrusions into private property, Waldron has spilled pages of ink defending the permissibility of such regulation. See Waldron, The Rule of Law, supra note 69 at 34. Wyman has also observed that the new essentialism is not ‘anti-regulation’ simply in virtue of rejecting the bundle theory. See Wyman, supra note 68 at 191-92.
75. Thomas W Merrill & Henry E Smith, “What Happened to Property in Law and Economics?” (2001) 111:2 Yale LJ 357 at 357-58; James E Penner, The Idea of Property in Law (Clarendon Press, 1997) at 1 [Penner, Idea of Property]; James E Penner, “The Bundle of Rights Picture of Property” (1996) 43:3 UCLA L Rev 711 at 714.
76. Yet even the image of the owner as an absolute ruler over their property that must be free of any external restriction is something of a caricature. There are reasons to doubt that even Blackstone held such a view. See Carol M Rose, “Canons of Property Talk, or, Blackstone’s Anxiety” (1998) 108:3 Yale LJ 10 601 at 604.
77. See generally the Harvard Law Review’s 2012 Symposium Issue on The New Private Law (2012) 125:7 Harv L Rev at 1640-1798. In particular see John C P Goldberg, “Introduction: Pragmatism and Private Law” (2012) 125:7 Harv L Rev 1640, as well as Andrew S Gold et al, eds, The Oxford Handbook of the New Private Law (Oxford University Press, 2020).
78. Wyman, supra note 68. To say that property is internally unfettered is, as we have explained above, a deliverance of Ripstein’s analytic jurisprudence, but is also a consensus opinion amongst other property theorists of the new essentialist variety, including Eric Claeys, Hanoch Dagan, Avihay Dorfman, Chris Essert, Larissa Katz, James Penner, Ben McFarlane, Thomas Merrill, Adam Mossoff, Christopher Newman, Arthur Ripstein, Henry Smith, and James Stern. There are, of course, differences between the views these writers have offered but they are not relevant for our purposes here.
79. We are grateful to Arthur Ripstein for suggesting this clarification.
80. The often-quoted formulation of Judge Anzilotti suggests that a state is sovereign if it “has over it no other authority than that of international law.” See Austro-German Customs Union Case, PCIJ, Ser. A/B No. 41 (1931) at 57.
81. Various accounts of public authority (Fullerian, Kantian, Razian) share this notion of public justification, which approximates what we have called the internal limit on the actions of a public authority. See the discussion in Katz, supra note 59 at 323-24.
82. David Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification” (2012) 17:1 Rev Const Stud 97 at 102 and 105-06.
83. Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford University Press, 2012), 55 [Fox-Decent, The State as Fiduciary].
84. Katz, supra note 59 at 325.
85. It may well be the case that a court would not impose criminal liability on the AG were the investigation to have been legitimately authorized for reasons in the public interest, even if the AG took the bribe to investigate. But the lack of criminal liability does not in any way mean that the AG hasn’t violated the public trust in a way that would require considering removal from office. This is precisely the same situation as that of the President of the United States asking the Ukrainian President to announce an investigation into the American President’s political enemies in exchange for military aid.
86. US Const art II, §3, cl 5. See further Andrew Kent, Ethan J Leib, & Jed Handelsman, “Faithful Execution and Article II” (2019) 132:8 Harv L Rev 2111.
87. US Const art II, §1, cl 8.
88. [1959] SCR 121, 16 DLR (2d) 689 [Roncarelli].
89. See, for further discussion, David Dyzenhaus, “The Deep Structure of Roncarelli v Duplessis” (2004) 53 UNBLJ 111 at 121.
90. Roncarelli, supra note 88 at paras 55–57.
91. Ibid .
92. Ibid.
93. Ibid at para 123.
94. Ibid.
95. Ibid.
96. Ibid.
97. See Evan J Criddle & Evan Fox-Decent, eds, Fiduciary Government (Cambridge University Press, 2018); Stephen Galoob & Ethan J Leib, “The Core of Fiduciary Political Theory” in D Gordon Smith & Andrew S Gold, eds, Research Handbook on Fiduciary Law (Edward Elgar, 2018); Andrew S Gold & Paul B Miller, eds, Philosophical Foundations of Fiduciary Law (Oxford University Press, 2014) (see Part V in particular); Ethan J Leib & Stephen R Galoob, “Fiduciary Political Theory: A Critique” (2016) 125:7 Yale LJ 1820 [Leib & Galoob, “Fiduciary Political Theory”]; David L Ponet, Ethan J Leib, & Michael Serota, “Translating Fiduciary Principles Into Public Law” (2013) 126 Harv L Rev Forum 91; Evan Fox-Decent, “The Fiduciary Nature of State Legal Authority” (2005) 31:1 Queen’s LJ 259 [Fox-Decent, “State Legal Authority”].
98. Ordinary citizens who come to act as public decision-makers must also act in a manner consistent with this internal norm. See further Ethan J Leib & Jeb Handelsman, “Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation” (2019) 17:2 Geo LJ 463 and the case of R v Guess, 2000 BCCA 547, in which the court ordered a re-trial because a juror was having sex with the accused during his murder trial. Fiduciary theorists of public law have identified juries as subject to duties of this kind. See Ethan J Leib, Michael Serota, & David L Ponet, “Fiduciary Principles and the Jury” (2014) 55:3 Wm & Mary L Rev 1109.
99. Thanks to Arthur Ripstein for suggesting this clarification.
100. See further Malcolm Thorburn, “Justification, Powers, and Authority” (2008) 117:6 Yale LJ 1070 at 1101-107.
101. As Leib and Galoob have observed, echoes of the view that the state is a fiduciary are present in the Federalist Papers, Locke, and even Cicero. See Leib & Galoob, “Fiduciary Political Theory”, supra note 97 at 1822.
102. For helpful overviews of this debate see David Dyzenhaus, “The Legal Idea of Sovereignty” in Richard Bellamy & Jeff King, eds, The Cambridge Handbook of Constitutional Theory (Cambridge University Press) [forthcoming in 2021]; Eyal Benvenisti, “The Paradoxes of Sovereigns as Trustees of Humanity: Concluding Remarks” (2015) 16:2 Theor Inq Law 535 at 535-42; Lars Vinx, “Carl Schmitt’s Defence of Sovereignty” in David Dyzenhaus &Thomas Poole, eds, Law, Liberty, and State: Oakeshott, Hayek, and Schmitt on the Rule of Law (Cambridge University Press 2015).
103. There are some connections between the account we have sketched here and this debate. For example, even those who believe that sovereignty has an irreducibly political aspect apart from law, such as Martin Loughlin, believe that legitimate action as a sovereign is constrained when it passes through the prism of law. To paraphrase Loughlin, the public power “entrusted” by the people must be wielded for public purposes only. See Martin Loughlin, The Idea of Public Law (Oxford University Press, 2012) at 85.
104. Gerald Postema, “Fidelity in Law’s Commonwealth” in Lisa Austin & Denis Klimchuk, eds, Private Law and the Rule of Law (Oxford University Press, 2014) at 18.
105. Katz, supra note 7 at 293-97.
106. See Morris R Cohen, “Property and Sovereignty” (1927) 13:1 Cornell L Rev 8. In his now famous article, Cohen sought to expose the problems with the pre-realist, formalist understanding of property, which he thought allowed property to confer a power on private persons that only sovereigns should enjoy. Cohen argued that our political systems should dispense with such protection for property. This is not the strategy of the new essentialism about property. See further Katz, supra note 7 at 290.
107. Studying peripheral cases, rather than core cases, can be a rich source of insight into a category. For further discussion of this methodological insight, see Christopher Essert, “Property in Licenses and the Law of Things” (2014) 59:3 McGill LJ 561 at 566-67.
108. Katz, supra note 7 at 278. For another office-based account of property, see Christopher Essert, “The Office of Ownership” (2013) 63:3 UTLJ 418.
109. Katz, supra note 7 at 278. See also Ripstein, supra note 56 at 244.
110. As Williamson J held in Campbell, supra note 7 at para 137, Aboriginal title includes “the right to have a political structure” for making decisions on behalf of a community on how to use land.
111. Katz, supra note 7 at 295 (writing ‘“while ownership is like sovereignty, it is not actually a form of sovereignty.” [emphasis in original]).
112. Katz, supra note 59 at 300. Katz offers an account of the role of property in a legal order as a whole, one that ultimately furnishes a justificatory account of this kind of private authority. See Katz, supra note 63 at 1472-82.
113. Waldron, Private Property, supra note 69 at 295.
114. See generally Henry E Smith, “Property as the Law of Things” (2012) 125:7 Harv L Rev 1691. Smith has developed this claim about the structure of property in a number of other articles alongside Thomas Merrill. See, for example, Merrill & Smith, supra note 75; Thomas W Merrill & Henry E Smith, “The Property/Contract Interface” (2001) 101 Colum L Rev 773 [Merrill & Smith, “Property/Contract”].
115. This is one of the main challenges for a justification of property. Those adversely affected by particular exercises of property rights must be given adequate reasons to respect the institution of property.
116. As Ripstein puts it, an account of enforceable, determinate property rights “presupposes a complete account of the nature of public, political authority.” See Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press, 2011) at 90.
117. Delgamuukw, supra note 1 at para 117.
118. Ibid at para 127 [emphasis added].
119. Katz, supra note 7 at 288-89.
120. Ibid at 289.
121. As we have seen, historical significance may warrant placing limits on an owner’s permissible uses of land or chattel. Aboriginal title too has a historical dimension, in the sense that it is the legal manifestation of a long-standing law-making power that Aboriginal peoples have exercised over their lands. This is a fundamentally different kind of historical dimension than the private owner who has happened to come into ownership of a building that has been designated to be of historical interest.
122. See Webber, supra note 7 at 94-97. Webber helpfully sketches some similarities between the trust and Indigenous land interests, though he does not contend that Aboriginal title is a trust.
123. In fact, restrictions on the trustee’s ability to act that come from the terms of the trust itself are questionable, in that they may not be consistent with ownership authority. See Katz, supra note 7 at 309.
124. Thanks to Arthur Ripstein for this very helpful example.
125. Kent McNeil, “Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion” (2002) 33:2 Ottawa L Rev 301 at 337 and 339; St Catherine’s Milling and Lumber Company v The Queen (1889) 14 Aps Cas 46 (PC) at 48 [St Catherine’s Milling]; Calder, supra note 1 at paras 425-26.
126. 1988 2 SCR 564.
127. See Delgamuukw, supra note 1 at 32 and 112-13.
128. See McNeil, supra note 125 citing Dickson J in Guerin, supra note 1 at 386.
129. Tshilqot’in, supra note 6 at para 74.
130. Thanks to Hamish Stewart for this helpful characterization of the point.
131. Ripstein, supra note 56 at 254.
132. The class of trust beneficiaries must be ascertainable with sufficient certainty. The class cannot be expansive and amorphous. For more on the certainty of beneficiaries requirement, see Donovan Waters, Lionel Smith, & Mark Gillen, eds, Waters’ Law of Trusts in Canada, 4th ed (Carswell, 2018), 5.IV.
133. Ripstein, supra note 56 at 254.
134. See Fox-Decent, “State Legal Authority”, supra note 97 at 268 n 83; Fox-Decent, The State as Fiduciary, supra note 83; Benvenisti, supra note 102.
135. Slattery, supra note 5 at 62.
136. Slattery has suggested that Aboriginal title should be regarded as a “close cousin” of provincial title. See ibid at 66.
137. Strategic directions for management of Ontario Crown land policy, s 2.7, online at ontario.ca/page/strategic-directions-management-ontario-crown-land-policy [perma.cc/R7Q3-5UEL].
138. Ibid [emphasis added].
139. Ripstein, supra note 56 at 254-55.
140. Delgamuukw, supra note 1 at para 166.
141. Strategic directions for management of Ontario Crown land policy, s 2.4, online at ontario.ca/page/strategic-directions-management-ontario-crown-land-policy [perma.cc/R7Q3-5UEL].
142. Delgamuukw, supra note 1 at para 148.
143. John Borrows, Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, 2002) at 5-12.
144. McNeil, supra note 12 at 59.
145. Ibid. See also Slattery, supra note 16 at 112-13. The possibility of there being many different kinds of Aboriginal title––one for every group holding title––was known to the Supreme Court of Canada, as that was the holding of the High Court of Australia in Mabo v Queensland [1992] HCA 23, 107 ALR 1 (HC Aus) at 42 [Mabo]. For more on this conception of Aboriginal title, see Slattery, “Metamorphosis”, supra note 7 at 263-67.
146. See also Slattery, supra note 16 at 112-13. As should be apparent, this does not mean that the content of the particular laws that Aboriginal nations devise must be uniform. A legitimate Japanese government and a legitimate Mexican government are both bound to exercise their authority in faithful reference to the interests of their political communities––i.e. in accordance with the inherent limit; but the Japanese and Mexican governments may devise different laws based on what they deem appropriate for their peoples. Aboriginal communities are no different. See Slattery, “Metamorphosis”, supra note 7 at 270. McNeil and Slattery describe the inherent limit and restraint on alienation as ‘external’ features of the right, and describe the laws devised by the Aboriginal nation holding title as ‘internal’ to it. We have tried to avoid this language because we have described the inherent limit as an internal feature of the right, because the limit defines the right, unlike external constraints on rights. We thus prefer the term ‘form’ to describe the features of the right that are generic and attach to Aboriginal title qua Aboriginal title. The ‘content’ of the right is the particular laws the Aboriginal nation enacts, including about the governance of property.
147. These restrictions, such as zoning, nuisance law, and taxation, could, of course, be severe. Our claim is that they nonetheless differ in kind from the internal limit on Aboriginal title.
148. Katz, supra note 59 at 302.
149. Ibid at 327-28.
150. As we have suggested already, this is not to deny that regulation can cross a threshold where regulation becomes expropriation. This would terminate one’s relationship with property.
151. Katz, supra note 59 at 328.
152. Tshilqot’in, supra note 6 at para 74 [emphasis added].
153. For further discussion of the historical rationales for such alienation rules, including the paternalistic idea that Aboriginal peoples must be protected from sharp dealing, see Lavoie, supra note 4 at 999-1000.
154. Justice La Forest’s concurring judgement in Delgamuukw contemplated the possibility that an Aboriginal group could also alienate title lands to another Aboriginal group. See: Delgamuukw, supra note 1 at para 198; McNeil, supra note 19 at 287; Brian Slattery, “Understanding Aboriginal Rights” (1987) 66:4 Can Bar Rev 727 at 750.
155. Bruce Ziff, Principles of Property Law, 7th ed (Thomson Reuters, 2018) at 303-04. There are other ways to limit the use of property that are not themselves matters of public policy. For example, a restrictive covenant can require that one owner not use their land in a particular way, say not cutting down certain trees. But this restriction on land use is unlikely to run between successors in title except in very limited circumstances.
156. As Baroness Hale has observed, “[t]he essential feature of property is that it has an existence independent of a particular person: it can be bought and sold, given and received, bequeathed and inherited, pledged or seized to secure debt.” See OBG v Allan 2007 UKHL 21, [2008] 1 AC 1, 2 WLR 290 at 311.
157. See for example JW Harris, Property and Justice (Oxford University Press, 2003) at 30. Even bundle theorists of property have argued that restrictions on alienation are in need of justification, and in doing so, have argued that the ability to alienate is a basic incident of ownership. See, for example, Richard A Epstein, “Why Restrain Alienation” (1985) 85:5 Colum L Rev 970.
158. Penner, Idea of Property, supra note 75 at 111.
159. Ibid at 124.
160. Essert, supra note 107 at 570. See Food and Drug Regulations, CRC, c 870, C.01.043(1) (2013).
161. The artist Damien Hirst is well-known for a series of pills sculptures. See online at guyhepner.com/artist/damien-hirst-prints/pills-sculptures/ [perma.cc/73FN-LJGY].
162. Tshilqot’in, supra note 6 at para 15; McNeil, supra note 125 at 305.
163. Penner, Idea of Property, supra note 75 at 111 [emphasis added].
164. If ownership authority took cues from who owned a given thing, the information costs associated with placing non-owners under legal duties would be prohibitive. This ‘impersonal’ character of ownership is one implication of its in rem character. Regardless of who owns Blackacre today or who buys it tomorrow, I know I will have to keep off the land (unless I buy it). See Merrill & Smith, “Property/Contract”, supra note 114 at 787; Penner, Idea of Property, supra note 75 at 30; James Y Stern, “Property, Exclusivity, and Jurisdiction” (2014) 100 Va L Rev 111 at 133.
165. Delgamuukw, supra note 1 at para 131.
166. For example, there is a credible argument that a freely alienable taxi license is property, but that a medical license is not, because the latter has no meaningful separation from the identity of the license’s holder, whose personal skill and training the license recognizes. See Essert, supra note 107 at 570; Penner, Idea of Property, supra note 75 at 114; Wyman, supra note 68 at 231.
167. In fact, the foundational common law case on Aboriginal title from the United States, Johnson v M’Intosh, 21 US 98 Wheat 543 at 574, 5 L Ed 681 (1823), seems to make a version of this point in discussing the restraint on alienation. The court held that Indigenous societies were sovereigns (albeit with punctured rights), and thus that they could only alienate their land to the discovering European nation. Divorced from the paternalistic (and mythological) notion that Aboriginal peoples were conquered, the court seemed to be making the point that the alienability in question is a feature of the sovereignty of the title holders, rather than a burden on property. For further discussion of the international law dimensions of alienating territory, see McNeil, “Inalienability”, supra note 7 at 490-96.
168. Slattery, supra note 5 at 54-55.
169. Historically, colonial powers sometimes bought land and then (illicitly) imposed their laws upon that land, as was the case for Belgium in Congo.
170. Individuals cannot acquire territory either. Kent McNeil has also linked the inalienability of Aboriginal title to its territorial aspects based on an analysis of New Zealand courts’ judgements on the law of Maori title. See McNeil, “Inalienability”, supra note 7 at 483-84.
171. Tshilqot’in, supra note 6.
172. Ibid at para 54.
173. Ibid at para 62.
174. McNeil, “Inalienability”, supra note 7 at 488-95.
175. Delgamuukw, supra note 1 at para 129.
176. Lavoie, supra note 4 at 1002; McNeil, “Inalienability”, supra note 7 at 477-481.
177. Lavoie, supra note 4 at 1002 and 1031-1033; Malcolm Lavoie, “Property Law and Collective Self-Government” (2018) 64:2 McGill LJ 255 at 271 [Lavoie, “Property Law”]. See also section II, above.
178. Lavoie, supra note 4 at 1030.
179. McNeil, for example, has also identified the inalienability of Aboriginal title as a feature of its territorial nature; he nonetheless regards Aboriginal title as a property right. See McNeil, “Inalienability”, supra note 7 at 507 (arguing that Aboriginal title is “both proprietary and jurisdictional”).
180. See Gordon Christie, supra note 51 at 26, arguing that the “appropriate definition of Aboriginal sovereignty, then, must aspire to capture the essential notion of linkages between political (i.e. decision-making) communities and discrete tracts of land.”
181. See Lavoie, “Property Law”, supra note 177 at 267. Lavoie argues that there some modest benefits associated with using property as a governance structure, including protecting minority Indigenous groups and exercising control over land in accordance with the cultural values of a group. Yet even if this is true, it pales in comparison to the loss of economic advantages associated with ordinary fee simple and indeed is a poor proxy for sovereignty itself. Even Lavoie’s optimistic read of these doctrines is accompanied by a disclaimer that they may not be justified in the end. See also Lavoie, supra note 7 at 556.
182. See Lavoie, supra note 7 at 569; McNeil, “Inalienability”, supra note 7 at 507-08; Newman, supra note 5 at 631.
183. As John Borrows puts it, “Indigenous peoples’ own laws can accommodate a wide variety of [property] interests.” See Borrows, “Aboriginal Title”, supra note 7 at 112. Moreover, understanding title this way allows us to preserve the obvious sense in which Indigenous landholders fiercely protect their property from others, just as non-Indigenous landowners do, contrary to the fiction that Indigenous groups only have collective forms of ownership. See Webber, supra note 7 at 85.
184. Slattery, “Metamorphosis”, supra note 7 at 267 and 270.
185. The restraint on alienation has been taken to mean that title lands cannot be used as collateral to secure debt either, another important acid test for a property interest. See Lavoie, supra note 4 at 1033. In our view, this too is conceivable assuming that the Aboriginal group’s laws create assets capable of being securities for a debt.
186. Slattery once described the view that the inalienability of Aboriginal title prevents it from being truly proprietary as “overly rigid.” See Slattery, supra note 154 at 750. He also seems to accept the proprietary view of Aboriginal title in Brian Slattery, “The Nature of Aboriginal Title” in Owen Lippert, ed, Beyond the Ness Valley: National Implications of the Supreme Court’s Delgamuukw Decision (Fraser Institute, 2000) at 22-36. However, Slattery’s view has evolved in recent years, as he has begun to describe Aboriginal title in public law terms. See Slattery, supra note 5 at 47-48.
187. Slattery, supra note 5 at 47.
188. Ibid at 62.
189. Tshilqot’in, supra note 6 at paras 15, 74 and 85-86. See further section II, above.
190. See section III.iv, above.
191. There is a line, somewhere, where some particular destruction of the land is too much. But the Court has not made this clear.
192. By contrast, a property owner may destroy her property without concern for the interests of others. See section III.i, above, and Lior Jacob Strahilevitz, “The Right to Destroy” (2006) 114:4 Yale LJ 781.
193. Interestingly, Slattery seems to think that the provinces are not subject to an inherent limit, writing “the fact that Provincial title is inherently collective and held for the benefit of present and future generations has never been thought to import an inherent limit that restricts the Province’s ability to make decisions about managing its lands or that subjects those decisions to judicial scrutiny.” See Slattery, supra note 5 at 62.
194. As noted above, Aboriginal title is arguably alienable to another Aboriginal group as well. See the text accompanying note 154.
195. Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [s 35].
196. Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69 at para 1.
197. Richard Stacey, “Honour in sovereignty: Can Crown consultation with Indigenous peoples erase Canada’s sovereignty deficit?” (2018) 68:3 UTLJ 405 at 407. Similarly, Christie has condemned the Court’s continuing “colonial mentality.” See Christie, supra note 51 at 35.
198. Stacey, supra note 197.
199. Ibid. Notably, Stacey agrees, albeit in passing, that the notion of Aboriginal title at work in the Court’s leading judgements on this topic “is not a private law notion of property, but rather, a public law concept that is inextricably tied to Indigenous nation’s public decision-making and land-management responsibilities.” Stacey adds that Aboriginal title is much more akin to the notion of “political sovereignty.” Stacey does not develop this claim at length, because his primary interest in his article is the duty to consult, rather than Aboriginal title itself. See ibid at 425.
200. For more on the fact that Aboriginal peoples have never surrendered de jure sovereignty to the Crown, see Evan Fox-Decent, “Fashioning Legal Authority from Power: The Crown-Native Fiduciary Relationship” (2006) 4:1 New Zealand J of Public & Intl L 91 at 101-07. For a classic discussion linking Aboriginal governmental powers to Aboriginal title (but again, one that still sees title as a property right), see McNeil, “Territorial Sovereignty”, supra note 7 at 255 and 285-291. Nichols, for one, is pessimistic that self-government could be secured by Aboriginal title because he finds the doctrine mired in confusion: Nichols, supra note 49 at 531-32.
201. Delgamuukw, supra note 1 at paras 7, 16, and 20.
202. See further Webber, supra note 12 at 293-294 and 289, observing that Indigenous peoples “are not arguing for an ultimate and unconstrained decision-making power. They seek, as [The Royal Commission on Aboriginal Peoples’ Report] said, the right ‘to define, sustain and perpetuate their identities as individuals, communities and nations.’”
203. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation].
204. Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74.
205. Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 29:1 SCLR 433 at 437–38; Sparrow, supra note 36 at para 1103. Contrast this with the older case of R v Pamajewon [1996] 2 SCR 821, in which the idea of Indigenous sovereignty received short shrift. See also, Kent McNeil, “Aboriginal Title and Aboriginal Rights: What’s The Connection” (1997) 36:1 Alta L Rev 117 at 118; Mark D Walters, “The Morality of Aboriginal Law” (2006) 31:2 Queen’s LJ 470 at 502. Nichols has suggested that precedents such as Campbell, supra note 7, should be updated in light of Taku River and Haida Nation. See Nichols, supra note 49 at 535.
206. A more recent pronouncement to this effect is in Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 at para 67.
207. Haida Nation, supra note 203 at para 20 [emphasis added]. For a recent statement to this effect, see Innu, supra note 14 at para 49.
208. Christie, for example, has argued that Tshilqot’in and Delgamuukw have averted attention from the “only important question—whether Indigenous power and authority re-emerges on the Canadian landscape with findings of Aboriginal title.” See Christie, supra note 6 at 785. It should also be emphasized that the jurisprudence of Aboriginal title has developed without consultation of Indigenous peoples themselves. That is a deeply regrettable legacy of the jurisprudence. See further, Christie, supra note 6 at 783-84 and 787-92.
209. This task is already underway. See, for example, Webber, supra note 12; Macklem, supra note 7 at 340-43.
210. Thanks to Arthur Ripstein and Kerry Wilkins for pressing us to clarify our response to this concern.
211. See Kent McNeil, “Indigenous and Crown Sovereignty in Canada” in Michael Asch, John Borrows, & James Tully, eds, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (University of Toronto Press, 2018) at 303 (arguing that challenges to the challenges to Crown sovereignty required in recognizing Indigenous sovereignty are justiciable); Webber, supra note 7 at 101; James Tully “A Just Relationship between Aboriginal Peoples and Canadians” in Curtis Cook & Juan Lindau, eds, Aboriginal Rights and Self Government: The Canadian and Mexican Experience (McGill-Queens University Press, 2000) at 39-71 (arguing that there should be a distribution of sovereign power across Canada); Fox-Decent, supra note 200 at 105; Mark D Walters, “Looking For a Knot in the Bulrush: Reflections on Law, Sovereignty, and Aboriginal Rights” in Patrick Macklem & Douglas Sanderson, eds, From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2015) at 55-59 (writing that “it is unclear how recognition of a territorial conception of Aboriginal title would threaten the existence of the Canadian state” and “there is nothing illogical about the idea that the domestic constitutional law of one sovereign nation might recognize the existence of another sovereign nation, or about the idea that a member of that other nation might raise this point of constitutional law in the courts of the first nation.”).
212. For example, the High Court of Australia in Mabo, supra note 145 suggested that it could only recognize settler sovereignty, and not the sovereignty of the Indigenous claimants, in part because it drew its own authority from settler sovereignty.
213. Slattery, supra note 16 at 120-21.
214. Christie, supra note 6 at 787-89. Christie offers this as an optimistic vision of “substantive legal pluralism.”
215. See Webber, supra note 7 at 100-01; Borrows, “Sovereignty’s Alchemy”, supra note 7 at 590-91; Macklem, supra note 7 at 340-341 (arguing that the doctrine of sovereign immunity could be used to carve out a space for Indigenous legal orders within the Canadian federation); Slattery, supra note 5 (arguing that there is an analogy between Aboriginal title and provincial title).
216. Here our conclusion is consonant with Slattery’s. See Slattery, supra note 5 at 64.
217. Connolly v Woolrich and Johnson (1867), 1 CNLC 70 (Que Sup Ct), [1867] QJ No 1 (QL), affirmed in Johnstone v Connolly (1869), 1 RL 253, [1869] JQ No 1 (QL) (Que CA). For a rich discussion of the Connolly v Woolrich case, including its historical treatment from a conflict of laws perspective and its broader role in Reconciliation, see Mark D Walters, “The Judicial Recognition of Indigenous Legal Traditions: Connolly v Woolrich at 150” (2017) 22:3 Rev Const Stud 347. Also relevant are the raft of Aboriginal rights cases that provide Indigenous people with rights outside the bounds of regular common law rights.
218. Hoehn, supra note 7 at 125.
219. Borrows, “Sovereignty’s Alchemy”, supra note 7 at 537 at 576-80.
220. Borrows, “Aboriginal Title”, supra note 7 at 125. See also Innu, supra note 14 at para 393, observing that “[t]he interaction between Aboriginal title claims and third parties’ property rights remains unsettled.”
221. Borrows, supra note 7 at 125.
222. Ibid at 116-17.
223. The idea that Aboriginal title–– a recognition of pre-existing systems of law––was reduced to a property interest gets its traction from the myth of underlying title, which in turn is substantiated by the doctrine of discovery and terra nullius. See Hoehn, supra note 7 at 120-21.
224. McNeil, supra note 125.
225. Borrows, “Sovereignty’s Alchemy”, supra note 7 at 592 and 589-96.
226. This is not say that any office or political entity with an internal norm governing its conduct cannot have its authority extinguished. For example, a municipality created by the government of Ontario is under duties to govern with the interests of its present and future stakeholders in mind. But municipalities may still be extinguished unilaterally, as the City of Scarborough was by Ontario Premier Mike Harris. Harris amalgamated Scarborough with its neighbouring municipalities to form the City of Toronto. What we are claiming is that the sui generis relationship between never-conquered Aboriginal peoples and the Crown, and the fact that title holders do not hold mere property, together foreclose any legitimate possibility of unilateral extinguishment.
227. Dwight Newman, “The Limitation of Rights: A Comparative Evolution and Ideology of the Oakes and Sparrow Tests” (1999) 62:1 Sask L Rev 543. See also Christie, supra note 6 at 778-83; Macklem, supra note 7 at 343-46.
228. Hoehn, supra note 7 at 121.
229. Hoehn, too, argues that the restraint on alienation and inherent limit should be discarded. See ibid at 125.
230. Delgamuukw, supra note 1 at para 186.