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Against Supersession

Published online by Cambridge University Press:  20 July 2015

Douglas Sanderson
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The availability of redress for historic wrongs committed against Indigenous people turns on a number of morally complex and politically charged issues. From the standpoint of moral theory, the problems of redress have been given articulate voice by Jeremy Waldron whose writings have come to take the shape of conventional wisdom. Waldron’s arguments are three-fold: 1) counterfactuals are impossible to verify, and so it is impossible to know how we are to put injured parties into the position they would have been had there been no injustice; 2) entitlements fade over time, and so whatever right to redress may have once existed, the basis for those entitlements is now eroded; and 3) injustices can be overtaken by circumstances, such that what was once unjust becomes just. In this article I argue that each of these objections to redressing of historic wrongs is mistaken, and they are mistaken in part because of Waldron’s failure to recognize that the injustices are not merely historic, the injustices are also contemporary and on-going wrongs committed against modern-day Indigenous people. There is no denying that circumstances have changed, but that does not eliminate the need to face up to the problems of injustice in the circumstances in which they occur: the present day, and we must face these challenges despite the fact that they present difficult choices and the probability of sacrifice.

Keywords

Historic InjusticeSupersessionIndigenous peopleWaldron
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 1 , January 2011 , pp. 155 - 182
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2011

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References

I am deeply indebted to the many, many people who have patiently reviewed and commented on this paper. In particular, I wish to thank Arthur Ripstein, John Borrows, Darlene Johnston, Bruce Chapman, Burke Hendrix, Adam Dodek, Melissa Williams, Rose Anne Cramer, Lisa Austin, Lorne Sossin, Tanya Murdoch, and Esther Sanderson for their invaluable guidance. Lauren Heuser and Anton Tchajkov provided editorial support in the final drafting, and Amanda Carling provided research assistance. Whatever errors or omissions remain are solely my own.

1. Waldron, Jeremy, “Superseding Historic Injustice” (1992) 103 Ethics 4 CrossRefGoogle Scholar [Waldron, “Superseding”].

2. Waldron, Jeremy, “Redressing Historic Injustice” (2002) 52 U.T.L.J. 135 CrossRefGoogle Scholar [Waldron, “Redressing”].

3. Throughout this paper I use the term Indigenous rather than First Nation or Aboriginal or Indian, save for where those terms are used in quotations, or in specific legislative Acts. I am myself an Indigenous person. I am a member of the Opaskwayak Cree Nation, and was brought up to think of myself as an ‘Indian,’ though these days I typically just say that I am Cree.

I must also clarify here that my use of the term Indigenous may come across as somehow pan-Aboriginal, that I am guilty of lumping together an enormous diversity of distinct nations under the rubric of one term. With this paper, I am attempting to address concerns about redressing historic injustices at the level of theory. It seems clear to me that one’s theory of redress must be general; it must be a theory that is equally applicable to the many and diverse Nations that make up Turtle Island or what is now termed North America. But this is not to say, and nowhere do I assert, that specific claims which apply the theory can be made at this same level of generalizations. Claims to redress, as opposed to one’s theory of redress, are nation specific, particularized, and highly dependent upon actual historic events.

4. The City of Quebec celebrated its 400th birthday on July 3, 2008. Port Royal in Nova Scotia is a little older, having been founded in 1605. Toronto and Edmonton are relative newcomers, being founded in 1793 and 1795 respectively. By comparison, the Indigenous cultures into which these young settlements arrived are at least several thousand years old. The Clovis culture is said to have spread and flourished in North America a little more than 10,000 years ago. Elsewhere in the Americas, there is evidence of human habitation from as long as 40,000 years ago. See González, Silvia et al., “Human footprints in Central Mexico older than 40,000 years” (2006) 25 Quaternary Science Reviews 201.CrossRefGoogle Scholar Indigenous people understand themselves, typically, to have been on the earth since time immemorial, and that they were placed there by the Creator.

5. “Timeline: Caledonia land claim” Canadian Broadcasting Corporation (1 November 2006)Google Scholar, online: CBC News http://www.cbc.ca/news/background/caledonia-landclaim.

6. See York, Geoffrey & Pindera, Loreen, People of the Pines (Toronto, ON: Little Brown, 1991).Google Scholar

7. The phrase ‘putting the parties in the position they would have been in had the injustice not occurred’ can be interpreted in many ways. Let me clarify my meaning. First, by ‘the parties’ I mean the injured parties. I am not advocating that everything should be put back the way it would have been had the injustice not occurred, that all persons who suffered losses should be made whole, and all persons who have been unjustly enriched should be stripped of their gains. I doubt that it is possible to do so. My focus is on the injured parties—Indigenous people. Second, by ‘the parties,’ I do not mean to refer to specific individuals. When I speak of putting the parties in the position they would have been in, I mean Indigenous groups rather than their individual members.

8. Waldron, “Superseding,” supra note 1 at 8. See also Simmons, A. John, “Historical Rights and Fair Shares” (1995) 14 L. & Phil. 149.CrossRefGoogle Scholar

9. This assertion is not an idle one. While I do not rest my argument on the capacity of an Indigenous group to say with absolute certainty ‘we would never sell our lands,’ I do believe that such an assertion is very likely true. What we do know of First Nations groups is that their attachment to land is absolutely non-commercial, and the concept of selling their land is inconceivable, and practically untranslatable from a strict linguistic point of view. See e.g. Daly, Richard, Our Box was Full: An Ethnography for the Delgamuukw Plaintiffs (Vancouver: University of British Columbia Press, 2005) at 264 Google Scholar, where he speaks of Indigenous people regarding themselves and their lands as being in a ‘mutual proprietary’ relationship where each is responsible for taking care of the other.

10. Waldron, “Superseding,” supra note 1 at 10.

11. See Fleming, John G., “Probabilistic Causation in Tort Law” (1989) 68:4 Can. Bar Rev. 661.Google Scholar

12. Or more precisely, this is the point of redressing historic injustices on a corrective justice model, a matter I turn to consider more directly in a future paper.

13. This view, of course, is predicated on an ability to hold fast the identity of the wronged. Individual members of group P come and go as the generations ebb and flow, but the group P, as a group, retains a legitimate identity for itself as group P. Posner suggests that this is simply a natural outflow from the makeup of corporate groups. See Posner, Eric A. & Vermeule, Adrian, “Reparations for slavery and other historical injustices” (2003) 103 Colum. L. Rev. 689.CrossRefGoogle Scholar Moreover, Waldron himself doubts there are serious issues with regard to holding fast to the identity of the group that has suffered injustice (“Superseding,” supra note 1 at 15). It is also the case that because Indigenous groups hold their lands, and thus much of their property, as communal interests, these interests are necessarily intergenerational. Thus, an injustice related to the theft of land that affects one generation has further effects that stretch beyond the generation predominantly alive at the time of the injustice.

14. Rosenber v. Seattle Art Museum, 70 F. Supp. 2d 1163 at 1165 (Wash, D.. 1999)Google Scholar, is a good example of this kind of conflict. There, the Seattle Art Museum came into possession of a Matisse (L’Odalisque) which had previously been part of Mr. Rosenberg’s collection in pre-war France.

15. It may be the case that a wrongdoer can say, and can say with certainty, that had A not stolen X from B, then X would have been destroyed in some manner. This then raises an interesting question: if B was going to be dispossessed of X in any event, and A’s actions thus preserve X, who has the better claim to X? Whatever the answer to this moral quandary, the problem is inapplicable to Indigenous-settler relations because lands are not typically destroyed, save for those destroyed by resource intensive activities such as strip mining, the full extent of which has been committed by non-Indigenous people.

16. Waldron, “Superseding,” supra note 1 at 16.

17. Nutshells are not the best way to encapsulate political philosophy. My summary of Locke is short and incomplete. For interpretations of Locke, see Waldron, Jeremy, God, Locke and Equality: Christian Foundations of Locke’s Political Thought (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Valcke, Catherine, “Locke on Property: A Deontological Interpretation” (1989) 12 Harv. J. Law & Pub. Pol. 941 Google Scholar; and MacPherson, C.B., The Political Theory of Possessive Individualism: Hobbes to Locke (London: Oxford University Press, 1962).Google Scholar

18. My view of Hegel, and my interpretation of his work, is heavily influenced by Margaret Radin, Jane, Reinterpreting Property (Chicago, IL: University of Chicago Press, 1993).Google Scholar There are many other competing views of what constitutes property, and in particular, what constitutes Hegel’s view of property. I prefer Radin’s interpretation because, in the end, I feel that her view most closely accords with a conception of property that is in sync with a material culture view of property. See also Miller, Daniel, Material Culture and Mass Consumption (Oxford: Oxford University Press, 1987)Google Scholar; McCracken, Grant, Culture and Consumption: New Approaches to the Symbolic Character of Consumer Goods and Activities (Bloomington: Indiana University Press, 1988)Google Scholar; Dant, Tim, Critical Social Theory: Culture, Society and Critique (Thousand Oaks, CA: Sage Publications, 2003).Google Scholar For competing views of Hegel, see Patten, Alan, Hegel’s Idea of Freedom (Oxford: Oxford University Press, 1999)Google Scholar; Herman, Barbara, ed., Rawls, John, Lectures on the History of Moral Philosophy (Cambridge, MA: Harvard University Press, 2000).Google Scholar See also Valcke, supra note 17; A. Simmons, John, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992).Google Scholar

19. See Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988) at 184—87.Google Scholar See also Carol Rose, M., “Possession as the Origin of Property” (1985) 52:1 U. Chicago L. Rev. 73 CrossRefGoogle Scholar

20. Friedrich, Georg Wilhelm, The Philosophy of Right, trans. by Knox, T.M. (New York: Oxford University Press, 1962) at s. 41.Google Scholar

21. Daly, supra note 9 at 264.

22. Mills, Antonia, Eagle Down is Our Law: Witsuwit’en Law, Feasts and Land Claims (Vancouver: UBC Press, 1994).Google Scholar Gitskan and Witsuwit’en are owners in the formal legal sense. They have precisely prescribed land bases, formal rules about trespass, and inter-clan arrangements for sharing resources, lands, and labour where and when it is necessary to do so in a system that is based on a kind of licensing.

23. It is worth noting here that Indigenous languages do not have a word for the environment. The ‘environment’ is a western construct that creates a linguistic and categorical distinction between human beings and the world they inhabit. Indigenous cultures do not understand the world to be constructed in such a dualistic sense. The closest conceptual idea of the environment would likely be, to Indigenous languages, the distinction between inside and outside, though even this is a categorical stretch since everything that is inside an Indigenous home or lodge is directly related to the outside: skins, timber, implements, and all amenities are derived from things that live and have been harvested from outside. On the systems view of Indigenous land holdings, see Trosper, Ronald L., “Resilience in Pre-Contact Pacific Northwest Social Ecological Systems” (2003) 7:3 Ecology & Society 6.Google Scholar

24. The notion of stewardship is not unfamiliar to western philosophy. The philosophy of Thomas Aquinas, for example, is enjoying a rebirth in the name of Christian environmental ethics. See Peterson, Anna, “In and of the World? Christian Theological Anthropology and Environmental Ethics” (2000) 12:3 J. Agricultural and Environmental Ethics 237.CrossRefGoogle Scholar See also Northcott, Michael S., The Environment and Christian Ethics (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar; Jenkins, Willis, Ecologies of Grace: Environmental Ethics and Christian Theology (Oxford: Oxford University Press, 2008).CrossRefGoogle Scholar Stewards are owners, but as stewards they think of ownership as attaching to, and being embedded with responsibility to the thing owned. Indigenous people invoke the term ‘reciprocal stewardship’ to make the claim that they not only owe duties to the earth, but the earth owes duties to humanity, and provided each lives up to his duties, the other will not renege. Because stewardship is ownership, it is not possible for someone to remove a steward from his or her land and claim, ‘Oh, you were just a steward.’ The aggrieved steward has no less a claim to the rightful return of his or her land as does a party who is removed from his land after fencing it off and farming the land. Indeed the farmer and steward’s claims for redress are identical.

25. This particular legend is retold in Ella Clark, Elizabeth, ed., Indian Legends of Canada (Toronto, ON: McClelland and Stewart, 1960) at 49.Google Scholar A nearly identical version of the story appears in Johnston, Basil, The Manitous: the spiritual world of the Ojibway, 1st ed. (Toronto, ON: Key Porter Books, 1995).Google Scholar

26. It should go without saying that my survey of justifications for private property, or for property more generally, is extremely thin in this account. I do not, for example, canvass any of the utilitarian or law and economics views advanced, for example, by Harold Demsetz and others.

27. Alan Brudner makes this point forcefully when he writes “By getting rid of the thing, I show conclusively that it belongs to me rather than I to it.” (The Unity of the Common Law: Studies in Hegelian Jurisprudence (Berkeley: University of California Press 1995) at 56)Google Scholar.

28. Waldron, “Redressing,” supra note 2 at 148. This view is also not so far off from that of Herb George (Satsan), President of the National Centre for First Nations Governance. His view is that everything is about governance. The same view is echoed in Gitksan and Witsuwit’en accounts of chiefly responsibilities, wherein the Chief is responsible for all aspects of his peoples’ well being, even to the point of the Chief allocating and supervising the division of labour during the summer months to ensure adequate food for the winter. See Mills, supra note 22 at 40 and 135.

29. Waldron, “Superseding,” supra note 1 at 19.

30. Does a people’s intimate relationship with a place erode to nothing simply because that place is divided into fee simple plots and owned by other people? I do not think that it does. See e.g. McLeod, Neal, Cree Narrative Memory: From Treaties to Contemporary Times (Saskatoon, SK: Purich Publishing, 2007).Google Scholar Waldron himself writes: “Religions and cultural traditions we know are very resilient, and the claim that the lost lands form the center of a present way of life—and remain sacred objects despite their loss—may be as credible a hundred years on as it was at the time of the dispossession.” (Ibid. at 19). See also Booth, W. James, Communities of Memory: On Witness, Identity, and Justice (Ithaca, NY: Cornell University Press, 2006)Google Scholar; Melissa Williams, S., Voice, Trust, and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton, NJ: Princeton University Press, 1998).Google Scholar

31. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193 Google Scholar [Delgamuukw]. Delgamuukw was the longest trial in Canadian history, involving 374 days of evidence and testimony and a decision that was more than 400 pages in length. The case was appealed all the way to the Supreme Court of Canada. The Court’s decision affirms rules for the evaluating of oral evidence in Aboriginal rights cases and lays a test for demonstrating Aboriginal title.

32. See Chacon, Richard J. & Mendoza, Rubén G., eds., North American Indigenous Warfare and Ritual Violence (Tucson: University of Arizona Press, 2007) at 4.Google Scholar Chacon and Mendoza found that “ … armed conflict and ritual violence are of considerable antiquity in North America. Warfare was ubiquitous; every major culture area of native North America reviewed herein has produced archaeological, ethnohistorical, osteological, or ethnographic evidence of armed conflict and ritual violence.”

33. Ibid. at 24. That is not to say that no technology was employed by the Indigenous warriors. Bows and arrows with a range of up to 150 meters, spears, clubs, knives and magic were used in battle to intimidate, wound and kill opposing tribe members.

34. DeMallie, Raymond J., Handbook of North American Indians, ed. by Sturtevant, William C. (Washington, DC: Smithsonian Institution, 2001) vol. 13 at 616, 796, and 805.Google Scholar For instance, the Blackfoot and Teton ‘counted coup on the enemy’—that is, they accrued honour by completing a brave act such as touching the enemy.

35. Hale, Horatio, ed., The Iroquois Book of Rites (Philadelphia, PA: Brinton, 1883).Google Scholar The famed nineteenth-century ethnologist Hale wrote extensively about the formation of the Iroquois Confederation, or what we now know as the Six Nations. According to Iroquois oral history, the League’s founder was Hiawatha, a high-ranking Onondaga chief who, distraught over the loss of life due to inter-tribal wars, traveled from council fire to council fire in order to convince the great nations of his area to bury the hatchet and create a type of permanent government to facilitate the abolishment of war. While the histories of the tribes vary as to the exact sequence of events, it is commonly held that the hatchets of each head of tribe were literally buried under the earth, and a tree was planted on top of the hole under which the hatchets were buried. To this day, the Great Tree of Peace remains the symbol of the Iroquois League.

36. Fenton, William N., “Structure, Continuity and Change in the Process of Iroquois Treaty Making” in Jennings, Francis et al., eds., The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and their League (Syracuse, NY: Syracuse University Press, 1985) 3 at 30Google Scholar [Fenton]. See also Molloy, Anne S.B., Wampum (New York: Hastings House, 1977).Google Scholar

37. The Condolence Council, according to oral tradition, originated at the founding of the Iroquois League before the Dutch arrived on Turtle Island. See Fenton, ibid. at 18, for a detailed account of the sixteen events that comprised the ceremony.

38. Take, for instance, the case of the Susquehannock. The once enemy of the Iroquois were adopted into the League of the Five Nations after the latter group claimed ownership of the Susquehanna valley. The valley was eventually purchased by Pennsylvania, but “[b]y 1730 the Susquehanna valley held a veritable united nations of Indians speaking Iroquoian, Algonquian, and Siouan languages. They were all tributary to the Five Nations, and some moved northward to live in Iroquoia after a short stay on the Susquehanna” ( Jennings, Francis, “Iroquois Alliances in American History” in Jennings, Francis et al., eds., The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and their League (Syracuse, NY: Syracuse University Press, 1985) 37 at 40-41).Google Scholar

39. Fenton, supra note 36 at 21. The captured people who were not killed were taken into families and clans and were often given the names of the dead relatives. In this way, the victorious tribe were able not only to replace those who had been lost in battle for the sake of maintaining a population, but also to fill the void of the lost loved ones.

40. Bohaker, Heidi, “Nindoodemag: The Significance of Algonquian Kinship Networks in the Eastern Great Lakes Region, 1600-1701” (2006) 63:1 Wm. & Mary Q. 23.CrossRefGoogle Scholar Bohaker’s article provides insight into the importance of clan groups among the Algonquian. The clan identity was, and remains to this day, equally important among Iroquoian people. See Fenton, supra note 36 at 7:

[The clan] group identifies with an eponymous animal—bird, mammal or reptile—that serves as its crest, was anciently displayed on the gable end of lodges, was tattooed on the chests of members, and, when predominant, became the name of the community … All persons of the same crest, in whatever nation, acted as if they were indeed siblings, and welcomed each other in their respective lodges. The same clan identity and hospitality holds today.

41. As evidenced by the Covenant Chain relationships that required regular maintenance in the form of ceremony, gift giving and dialogue, a commitment to peace made and sealed with wampum was not, in the Indigenous mind, something with a definitive expiry date.

42. Merrill, Thomas W., “Property Rules, Liability Rules, and Adverse Possession” (1985) 79 Nw. U. L. Rev. 1122 Google Scholar.

43. Jennings, supra note 38.

44. Jennings, Francis, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (New York: Norton, 1975) at 62—65.Google Scholar Jennings has dedicated volumes of ink to describing in considerable detail Iroquoian land use patterns. He writes, for example:

Their maize complex of crops and cultivation techniques was as productive at their own hands as it is today among the people to whom they taught it, and they grew a great variety of plants besides maize…. A Smithsonian scholar estimated in 1929 that ‘about four-sevenths of the agricultural production of the United States (farm values) are in economic plants domesticated by the American Indian and taken over by the white man.’ …. The basic difference between Indian and English subsistence economies was not farming but herding. So far as meat products were concerned, this difference was minor, but herding has other implications … the English kept herds of domesticated livestock…. In the eighteenth century an Oneida chief rationalized the difference between European and Indian management thus: ‘The Cattle you raise are your own; but those which are Wild are still ours.’

See also Greer, Allan, “John Locke’s Deer Hunt: The Clash of Commons and the Dispossession of Indigenous Peoples” (2009) [unpublished, archived at McGill University Department of History]Google Scholar. Greer’s manuscript talks about the notion of ‘overlapping commons’ as between Indigenous and settler communities in the seventeenth century.

45. Brody, Hugh, The Other Side of Eden: Hunters Farmers and the Shaping of the World (New York: North Point Press, 2000).Google Scholar See also Asch, Michael & Bell, Catherine, “Definition and Interpretation of Fact in Canadian Aboriginal Title Litigation: An Analysis of Delgamuukw” (1994) 19 Queen’s L.J. 503 at 511.Google Scholar Asch and Bell situate the notion of Indigenous mobility on their traditional lands in the context of culture, language and anthropology. In their article, the authors quote Felix Cohen’s analysis of cultural bias in descriptions of Aboriginal culture:

When, for example, a court begins an opinion in an Indian property case by referring to Indians moving from one place to another as roaming, wandering, or roving, we can be pretty sure that it will end up denying the claimed property rights of the Indians. For these words are words which are commonly applied to buffalo, wolves and other sub-human animals. They suggest that the relation of an Indian to the land is purely a physical relation and not a social one. They … describe movements which most of us, thinking of ourselves, would describe by means of such words as traveling, vacationing, commuting, words that we would not apply to animals, words distinctly human. These latter words connote purpose in movement. Only when we regard a person as strange or perhaps sub-human do we customarily impute aimless motion to him.

See also Borrows, John, “Physical Philosophy: Mobility and the Future of Indigenous Rights” in Richardson, Benjamin J., Imai, Shin & McNeil, Kent, eds., Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart, 2009) 403 Google Scholar [Borrows].

46. R. v Marshall; R. v. Bernard, 2005 SCC 43 Google ScholarPubMed, [2005] 2 S.C.R 220 [Bernard; Marshall].

47. Ibid. at para. 77.

48. Ibid. at para. 58. The Chief Justice might have helpfully quoted Locke’s, John Two Treatises of Government in support of this proposition: “Thus this Law of reason makes the Deer that Indian’s who hath killed it; ‘tis allowed to be his goods who hath bestowed his labour upon it, though before, it was the common right of every one” ((Cambridge: Cambridge University Press, 1960) at para. 30 at 307)Google Scholar, and, “As much Land, as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property. He by his Labour does, as it were, enclose it from the Common.” (Ibid. at para. 32 at 308). Thus in Bernard; Marshall, McLachlin C.J. affirms the Lockean view that where an Indian ‘kills a deer’ he or she garners an Aboriginal right to hunt deer, but because that same Indian did not till the field or enclose the land (a land I might add, unoccupied by anyone other than Mi’kmaq Indians for at least 2000 years prior to European arrival) no Aboriginal title can be recognized by Canadian law.

49. It may be argued that the Chief Justice’s descendents 200 years from now would be able to produce a paper deed to the land on which her cottage presently sits. That’s nice, as far as it goes. A paper deed is certainly something, but what it is at heart is a socially recognized, form of ownership. The law currently privileges this particular kind of socially recognized ownership, but this has by no means always been the case in Canada, nor is it likely to remain so. The Mi’kmaq have their own forms of demonstrating and maintaining title, and these too are socially recognized albeit currently only within Mi’kmaq societies. Nevertheless, what is at issue in Bernard; Marshall is whether or not the Mi’kmaq form of title, its social recognition within Mi’kmaq culture, is valid against the Crown’s claim of sovereignty over laws and claim to title in the lands at issue. Clearly, McLachlin C.J. thinks not, but there is ample room to wonder whether this is simply the law’s privileging of its own forms over those of a culture so different from its own. For a critique on possession and a requirement that ownership must ‘signal’ others, see Rose, Carol M., Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Boulder, CO: Westview Press, 1994).Google Scholar

50. Borrows, supra note 45.

51. It should be noted that Indigenous people in Canada cannot, as a matter of law, earn a constitutional right to outright title, or what we would term fee simple ownership. Aboriginal title is a sui generis kind of title that comes close to fee simple, with three caveats: first, Aboriginal title lands can only be alienated to the Crown and so cannot be sold on the free market; second, Aboriginal title lands cannot be used in a way that destroys the land itself, such as, say, strip mining the lands; third, Aboriginal possession of title lands can be infringed by the federal and provincial crowns for a wide variety of reasons, provided those reasons are sufficiently justified. It is worth noting that Aboriginal title rights are protected by section 35 of the Constitution Act, 1982, and so it is puzzling to think that the constitutionally protected rights of Indigenous people can be trenched to balance the non-Constitutional interests of non-Indigenous Canadians. For more on the test for and meaning of Aboriginal title, see Delgamuukw, supra note 31. For more on the test on whether infringements of Aboriginal title rights are justifiable, see R.v. Sparrow, [1990] 1 S.C.R. 1075, and also Delgamuukw, ibid. at para.160-69.

52. Indeed, McLachlin C.J. says that Indigenous systems must be cognizable to the common law (Bernard; Marshall, supra note 46 at para. 77).

53. Re: Southern Rhodesia (1919) AC 210 (PC) at 233.

54. Fisher, Robin, “Joseph Trutch and Indian Land Policy” (1972) 12 B.C. Studies 3 at 11Google Scholar.

55. Calder v. British Columbia (A.G.) [1973] S.C.R. 313, (1973), 34 D.L.R. (3rd) 145.Google Scholar

56. For a thorough critique of the ethnocentricity of law as applied to Aboriginal peoples, see Asch and Bell, supra note 45.

57. I think it is fair to say that, despite a multitude of cosmologies, Indigenous people all over the world regard their lands as being given to them by the Creator. Such lands were provided to the people in order that they might live in harmony with the spirits, plants and animals that also inhabit those lands. In this, Indigenous people see the land as being alive, and their relationship with that land is one of stewardship and mutual dependency. See Daly, supra note 9; Leroy Little Bear, “Aboriginal Paradigms: Implications for Relationships to Land and Treaty Making” in Wilkins, Kerry, ed., Advancing Aboriginal Claims: Visions Strategies Directions (Saskatoon, SK: Purich, 2004)Google Scholar; McLeod, supra note 30.

58. Waldron, “Superseding,” supra note 1 at 19.

59. This view is supported by reference to what property lawyers call finders law. When one finds something, the object or land is not regarded as being stripped of all other rights simply because no one is apparently using the land or object at the present time. Common law affirms a possessory title in the finder, and that title is good against the whole world except for a person with a prior title. In other words, finders law demonstrates that the common law understands legal title to hold fast even when someone with a prior title is not physically present. At common law, a finder, technically, becomes a form of bailiff, holding the found item in trust for the original owner. Simmons sums the situation up nicely when he says that the settler people’s title is forever “tainted” by the fact of prior possession and occupation by Indigenous groups, supra note 8 at 160. See also, Kant, Immanuel, The Metaphysics of Morals, trans. by Gregor, Mary (Cambridge: Cambridge University Press, 1996) at 6:353 CrossRefGoogle Scholar. Kant, who writes about justifications for the taking by force of foreign lands to benefit a mother country, says: “But all these supposedly good intentions cannot wash away the stain of injustice in the means used for them.”

60. Waldron, “Superseding,” supra note 1 at 20.

61. Nine, Cara, “Superseding Historic Injustice and Territorial Rights” (2008) 11:1 Critical Rev. Int’l Social & Political Philosophy 79 CrossRefGoogle Scholar. Nine argues that, at best, this kind of supersession gets you the right to reside in a territory. There is no reason to think, Nine argues, that this kind of occupation should provide anything like political authority over a people or place.

62. Arthur Ripstein provided me with this sensible and straightforward example.

63. To be fair to Waldron, his conclusion is reached only after he implores governments and citizens to exercise good faith efforts to resolve the conflicts with Indigenous people. But, with no framework for redress, it is impossible to comprehend what such ‘good faith’ efforts might entail, what their goals should be, and what process might constitute ‘efforts.’

64. Waldron writes: “[E]ntering into political society with those with whom you are otherwise likely to be in conflict is a matter of natural duty. Indeed, it is something that a person might legitimately be forced to do.” (“Redressing,” supra note 2 at 138).

65. Ibid. at 140.

66. Kant, supra note 59 at 6:353.

67. Ibid. at 6:264, Kant says: “provisional acquisition is true acquisition,” demonstrating that even if one regards Indigenous people as being in a state of nature, Indigenous possession of Indigenous lands is rightful—you cannot make the case that Indigenous people’s possession is somehow insufficient or that Indigenous prior possession does not count, or counts less, as against that of a subsequent trespasser.

68. Ibid. at 6:266.

69. Ibid. at 6:353.

70. Waldron, “Redressing,” supra note 2 at 159.

71. Kant, supra note 59 at 6:355.

72. It is worth considering, though I will not do so in great detail here, precisely what constitutes Waldron’s view of property. If entitlements can fade, and if counterfactual possibilities eviscerate the certainty of redress, and if changing circumstances can wipe clean the slate of past injustices, then what remains is a very thin, possession-oriented view of property. It is not clear how we are to mesh this view with Waldron’s much more robust account of private property in his excellent volume The Right to Private Property, supra note 19.

73. Delgamuukw, supra note 31 at para. 186.

74. Waldron, “Superseding,” supra note 1 at 26.

75. John Borrows, Why Are We Here?: The Metaphysics of Indian Treaties (2003 Public Lecture on Law and Diversity, University of Toronto, Faculty of Law: archived at http://www.law.utoronto.ca/search_content.asp?contentID=787).

76. You might also seize land in order to control resources, but to the extent that seizing the resource means having property interests in the resources—the right to do as you please with them—than this just amounts to another way of saying jurisdictional control.

77. For some thoughts on what might happen to a major urban centre in the absence of a population dedicated to maintaining its current state of development, see Weisman, Alan, The World Without Us (Toronto, ON: HarperCollins, 2007).Google Scholar Weisman suggests that without maintenance, urban structures would begin decaying very, very quickly, with massive decay occurring within a decade, but the landscape would never, could never, be the same as it was at the time of the original injustice. There is now too much cement, too much plastic, and too much asphalt for things to go back to their original condition.