Recent scholarship has argued that many of the distinctive features of Indigenous land tenure in common law countries can be explained by a single basic idea: under these regimes, property in land serves the unusual function of delineating the territorial authority of self-governing political communities. Among the recurring features that can be explained by this self-government function are special restraints on the alienation of land interests, distinctive co-ownership rules favouring collective governance, special group governance powers linked to land ownership, the relaxation of the numerus clausus principle, and special immunities from outside interference. This article attempts to assess the implications of this approach to understanding Indigenous land tenure. The author argues that there are important theoretical implications to this approach, both for understanding the relationship between property and sovereignty as legal concepts and for understanding the values reflected in a property system. In this area of law, property and sovereignty appear to operate as conceptual poles along a spectrum rather than as essentially distinct concepts. Moreover, the comparison with specialized systems of Indigenous land tenure can tell us something about the values reflected in the common law property systems that apply outside of Indigenous communities. Among other things, this approach shows the ways in which common law property systems normally work to discourage cultural enclaves. In addition to its theoretical implications, this approach to understanding Indigenous land tenure also has potential implications for land tenure reform. The theory helps bring into focus the unique trade-offs associated with institutional design in this area of law. It also allows for the identification of anomalous doctrinal features that cannot be explained by this theory. The article concludes with some insights relevant to statutory reform and the judicial development of the common law of Aboriginal title.
Malcolm Lavoie, The implications of property as self-government, University of Toronto Law Journal (Advance Online). DOI: 10.3138/utlj.2019-0095.