Graben and Morey, ‘The Public Power of Private Property in Canadian Jurisprudence on Aboriginal Title’

It is easy to see the decision of the Supreme Court of Canada in Tsilhqot’in as an attempt to confer the financial benefits of title without recognizing jurisdiction to territory. We question whether the Court has a grander agenda to empower First Nations in its formulation of property. The clarity of the court regarding the beneficial interest in land, the scope of territory to be included, the commonality of holding, and the right to decide on its uses are key themes that could indicate this intention. Taken together with its overall trend towards conceptualizing reconciliation through consultation that ensures compensation, these characteristics authorize titleholders to directly exclude non-consensual users and indirectly impose a cost on government infringement so high as to be prohibitive. While private property ownership certainly does not reflect the territorial nature of Aboriginal title, it is pertinent to ask if the decision aims to politically empower Indigenous peoples as collectives by recognizing their private control over vast tracts of lands?

Graben, Sari and Morey, Christian, The Public Power of Private Property in Canadian Jurisprudence on Aboriginal Title (December 16, 2019). An altered version of this article will appear as Sari Graben and Christian Morey, ‘Aboriginal Title in Tsilhqot’in: Exploring the Public Power of Private Property at the Supreme Court of Canada’ in Angela Cameron, Sari Graben, and Valerie Napoleon (eds), Creating Indigenous Property (in press UTP).

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