I. Introduction
In Delgamuukw v. British Columbia, the Supreme Court of Canada set out the contours of an Aboriginal title right.Footnote 1 Aboriginal title, we were told, is a property right, giving the title holder the right to use title lands as the right holder saw fit, subject to some all-important restrictions. The court characterized Aboriginal title as a sui generis property right—an interest said to be of its own kind and therefore not the same as the common law property right known as ‘fee simple.’ In this paper, we argue that in characterizing Aboriginal title as a sui generis property right, the Court made a conceptual and theoretical error. We argue that instead of a property right, it makes more sense to understand Aboriginal title as a right more akin to sovereignty, which we define as governance of a territory by a public institution. In our conception then, the right protected by the doctrine of Aboriginal title is not merely the right to exclude others or the right to use the lands in the open-ended manner of a property right; instead, we make the case that Aboriginal title is better understood as a right to govern over a territory whose extent is comprised by the size of the Aboriginal title interest.
Antecedents of this view have existed for some time.Footnote 2 Yet, producing a wholly satisfying theory of Aboriginal title has proved difficult. In particular, the challenge has been to account for all the sui generis structural limits described by the Court in Delgamuukw (inalienability, restrictions on use, and the inherent limit), while also making sense of the law-making authority that everyone agrees forms some part of an Aboriginal title right. The account we offer here seeks to satisfy both of these desiderata. We seek to explain what many commentators have described as burdensome defects on a property right as constituent features of a sovereign right. Our account is thus conservative and transformative: we work within the confines of the existing doctrine, but call for a change in perspective prompted by theoretical analysis.
As sovereigns, Aboriginal title holders can make land use laws with respect to the territory that comprises the Aboriginal title lands. And, to be clear from the outset, the kind of sovereignty we are arguing for in this paper is of a limited form: the sovereignty interest consists of the right to make land use laws with respect to Aboriginal title lands and the exclusive right to call into question whether a proposed use of title lands violates the inherent limit. We do not argue that the form of sovereignty implicit in Aboriginal title confers the right to a seat at the United Nations, or even the exclusive right to make land use laws. We simply contend that Aboriginal title must be a different kind of right than an interest in property, because the Court’s limitations on the uses and alienability of Aboriginal title do not comport with the nature of property. If the Court is not describing a property interest, then it must be describing something, and we argue that the best label to put on Aboriginal title is sovereignty. Sovereignty is the correct label for Aboriginal title because it explains certain uncontroversial features of the right, including the right of Indigenous public officials to make good faith decisions about land use, but also explains its limits, including the restraint on alienation and the inherent limit.
As will quickly become apparent, we focus much of our attention on one feature of Aboriginal title in particular. The central characteristic of Aboriginal title articulated by Lamer CJC in Delgamuukw was the internal limit on the kinds of uses to which Aboriginal title lands can be put. Aboriginal title is held communally. The uses to which Aboriginal title lands can be put are constrained by the need to preserve an interest in the land in accordance with historical relationships with the land and for future generations.Footnote 3 The community of persons with an interest in Aboriginal title lands is thus not only the living, but persons yet to be. And note, because a lot will turn on this, the inherent limit in Aboriginal title is not an external constraint, like a regulatory law about how such lands can be used. The Court’s articulation of the inherent limit is an essential and constitutive feature of the right itself.
There is much criticism of the Court’s articulation and definition of Aboriginal title,Footnote 4 and in particular, the inherent limit.Footnote 5 Even after an apparent reformulation of the inherent limit in the 2014 case of Tshilqot’In Nation v. British Columbia, the range of economic activity to which lands can be put is still constrained when compared to the fee simple land of other landowners, and the extent of the limitation is beset by uncertainties.Footnote 6 Moreover, the current doctrine of Aboriginal title leaves unanswered at least four additional questions: 1) What laws govern Aboriginal title lands? More specifically, does the fact that Aboriginal title is proven in part by reference to Aboriginal systems of land tenure mean that Aboriginal land tenures govern Aboriginal title lands, instead of authorities derived from the Indian Act or other sources? 2) Who has standing to question whether any particular use of land is such that future generations may continue to ‘derive benefit’ from Aboriginal title lands? 3) What is the status of private land interests that overlap with a finding of Aboriginal title? and 4) What does an updated doctrine of Aboriginal title, one that recognizes a never-ceded Indigenous sovereignty, look like? We will make the case that our account resolves these issues, amongst others.
We join a number of Aboriginal law scholars who have noted that Aboriginal title has governmental, jurisdictional, territorial, or public law aspects.Footnote 7 Yet the position we present here is distinctive, in both method and result. Methodologically, our argument is primarily theoretical and not legal, because we argue that the way the concepts of property and sovereignty are understood in other legal settings, rather than precedents, means that the Court is mistaken in characterizing Aboriginal title as a property right. We are, of course, interested in the doctrinal developments concerning Aboriginal title, but our aim here is to bring theoretical insights to the doctrine. Our argument echoes, improves, and extends accounts already in the literature—such as those of John Borrows, Felix Hoehn, Malcolm Lavoie, Kent McNeil, Dwight Newman, Brian Slattery, and Jeremy Webber—but our account does so by declining to adopt the property lens. In many respects our account is in harmony with the views of these writers. But we break from these writers in contending that Aboriginal title is not just a property right with public law aspects,Footnote 8 but rather is a sovereign right through and through. Perhaps most significantly, we focus primarily on the inherent limit on Aboriginal title because the inherent limit best illuminates what Aboriginal title is. Other scholars who look to reveal the governmental aspects of Aboriginal title, such as McNeil and Slattery, train their gaze on the restraint on alienation. In doing so, they see the inherent limit as mysterious or inexplicable, and thus something to be explained away, criticized, or grudgingly tolerated. Our account theorizes and explains the inherent limit, and the restraint on alienation, amongst other things.Footnote 9 Our view of Aboriginal title is therefore unified and explanatory. We offer the same explanation for all of the sui generis aspects of Aboriginal title, namely, that Aboriginal title is a right of sovereignty rather than property.
We proceed as follows. In section II, we survey the limitations the Court has set out with respect to Aboriginal title. In section III, we situate our argument in relation to existing scholarship considering the nature of Aboriginal title. In section IV, we outline an account of the concepts of property and sovereignty and how to tell the difference. While the two concepts have some similarities, property and sovereignty each have distinctive structures: a property right has no internal justificatory norm, while legitimate sovereign action is always constrained by a duty to act in the interests of its people. In sections V-VII, we return to the various structural components of Aboriginal title—i.e. the inherent limit, law-making origin and authority, and inalienability. We argue that Aboriginal title looks much more like sovereignty than property precisely because it has an internal justificatory norm, i.e. the ‘inherent limit.’ This inherent limit, as the name itself suggests, is internal to the right, making the right what it is, and is not imposed upon the right for external purposes, as is the case for a regulated property right. This, and the restraint on alienation, point to the structure of a right that looks more like the public law right of imperium—the right to govern a territory—than a right of dominium—the private law right to make decisions about one’s property. Section VIII concludes with broader remarks that connect our argument to the growing literature on Indigenous sovereignty and Reconciliation.
II. Aboriginal Title’s Modus Operandi
Aboriginal title, and Aboriginal rights more broadly, arise from Aboriginal peoples occupying their land “as their forefathers had done for centuries.”Footnote 10 Aboriginal rights in Canada are protected under s 35(1) of the Constitution Act, 1982.Footnote 11 Constitutionalization did not create Aboriginal rights.Footnote 12 Rather, the Constitution Act, “recognized and affirmed” these rights.Footnote 13 The Court itself has been emphatic about this point, including in a very recent case, writing, “[w]e reiterate that the legal source of Aboriginal rights and title is not state recognition, but rather the realities of prior occupation, sovereignty and control.”Footnote 14 This distinction has special importance for Aboriginal title in particular. In the pages that follow, we will contend that the Court has set out a conception of Aboriginal title that cannot be coherently understood as property, contrary to the Court’s own insistence to that effect. As an Indigenous scholar, I (Amo Binashii) emphasize that meaningful sovereignty for Indigenous peoples must be wielded by—and comes from—Indigenous communities themselves. This is why we are not arguing that the Court should create an Indigenous sovereign right through Aboriginal title, but that the Court has good normative and conceptual reasons to recognize a form of Indigenous sovereignty in this doctrinal context.Footnote 15 Again, this is not to say that the Court should grant sovereignty to title holders, or that the Court should invent a right and confer that right on title holders.
Aboriginal title is a species of Aboriginal right.Footnote 16 According to the Court, Aboriginal rights lie on a continuum based on their degree of connection with the land. On one end of the spectrum are merely “site-specific” rights, and on the other end is Aboriginal title, the most robust Aboriginal right: a “right to the land itself.”Footnote 17 Aboriginal title is a sui generis property right,Footnote 18 meaning that Aboriginal title is unlike common law fee simple in three respects.Footnote 19 First, Aboriginal title cannot be alienated as can other property.Footnote 20 Aboriginal title lands may not be “transferred, sold or surrendered” to anyone other than the Crown and is inalienable to third parties.Footnote 21 Second, Aboriginal title traces its genealogy to Indigenous systems of law. Unlike other estates in land, such as fee simple, Aboriginal title has its source in historic occupation of lands “before the assertion of British sovereignty,” and in this way is the common law’s recognition of “pre-existing systems of [A]boriginal law.”Footnote 22 Finally, and perhaps most significantly, Aboriginal title is held communally, and inter-generationally, by an Indigenous community rather than by individual Aboriginal persons.Footnote 23 According to the Court, the key implication of this communal and intergenerational structure is the presence of an inherent limit on how Aboriginal title lands can be used:
[L]ands subject to [A]boriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to [A]boriginal title in the first place.Footnote 24
The actual doctrine emerging from Delgamuukw is uncertain. For example, the Court says that the uses to which Aboriginal title lands are put cannot alter the land so as to destroy the special relationship which founded the right of title itself:
[I]f occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot). Footnote 25
The inherent limit is also explicitly connected with the need to maintain the land into the future: “uses of the land that would threaten that future relationship, are, by their very nature, excluded from the content of Aboriginal title.”Footnote 26
In 2014, the Tshilqot’in Court glossed the inherent limit slightly differently, stressing the right’s collective nature,Footnote 27 all while maintaining the importance of future generations’ interests in the land:
Aboriginal title, however, comes with an important restriction—it is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes—even permanent changes—to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.Footnote 28
Later, in the next paragraph, McLachlin CJ suggests that “uses are not confined to the uses and customs of pre-sovereignty times; like other landowners, Aboriginal title holders of modern times can use their land in modern ways, if that is their choice.”Footnote 29 Commentators are divided on the importance of this apparent shift. Kent McNeil writes that Tshilqot’in is a “significant modification” that no longer focuses on traditional uses, and instead emphasizes “sustainability.”Footnote 30 But, as Dwight Newman observes, it is not clear whether the gloss of the inherent limit in Tshilqot’in works to replace, supplement, or simply exposit the Delgamuukw Court’s conception.Footnote 31 Nowhere has the Court indicated that the statement of the inherent limit in Delgamuukw no longer obtains.Footnote 32 Gordon Christie, for one, does not see McLachlin CJ’s formulation as meaningfully different than Delgamuukw, writing that an analysis of Tshilqot’in reveals that “minimal forms of meaningful control flow from holding Aboriginal title, and that the more essential forms are forthwith either going to very difficult to argue for, or are indeed foreclosed within Canadian law by this decision.”Footnote 33 Moreover, the Court has held, on separate occasions, that the evolution of an Aboriginal right has both “qualitative and quantitative” limitsFootnote 34 and that a pre-sovereignty practice “cannot be transformed into a different modern right.”Footnote 35 In articulating the inherent limit, the Court was aware of the line of jurisprudence cautioning against freezing Aboriginal rights in their historic forms,Footnote 36 and yet the Court did not mention this line of cases in connection with Aboriginal title.Footnote 37
Whatever Tshilqot’in’s effect, the case—and McLachlin CJ’s comments on the inherent limit in particular—has not been a cause for optimism amongst commentators. Malcolm Lavoie has noted that the inherent limit has no counterpart in other common law jurisdictions’ conceptions of Aboriginal title; the Court has thus injected confusion into the doctrine for no discernible reason.Footnote 38 As Lavoie puts the point, “[t]o be blunt, no one really knows what the inherent limit means.”Footnote 39 Newman has a similarly scathing indictment: “Many property rights are subject to some legal uncertainties or some degree of insecurity, but the present state of Aboriginal title doctrine seems to make uncertainty an all-pervasive characteristic.”Footnote 40 Slattery piles on, observing that the Tshilqot’in approach breeds uncertainty with respect to what title holders can do with their lands (in contrast to ordinary fee simple owners), inviting litigation and discouraging beneficial development.Footnote 41
Indeed, Newman has shown that a lack of clarity surrounding the scope of the right has painful economic consequences. There are perverse short-term incentives for title holders not to clarify the scope of their authority, unlike other property owners who are incentivized to do so with haste.Footnote 42 Moreover, increased transaction costs associated with dealing with title lands means that third parties are not interested in the partnerships that would make title lands economically viable.Footnote 43 Finally, Aboriginal title displays the defects of fragmented ownership, including anti-commons problems: “transaction costs make it impossible to unify the necessary property rights to carry out a particular project even though some project along those lines would be desirable from the standpoint of at least many of the various owners.”Footnote 44 The inherent limit is the chief perpetrator of these economic defects. Coupled with the restraint on alienating title lands, Aboriginal title holders appear to be saddled with a uniquely impotent property right.
III. The Prevailing Property Orthodoxy
Existing scholarship paints a schizophrenic image of Aboriginal title. Alongside the apparent property defects canvassed above, commentators have detected some sovereignty aspects of Aboriginal title. Importantly, however, these accounts cling to the property paradigm; their framing conceptual lens is property, even as they describe some aspects of Aboriginal title as sovereignty-like. For example, Lavoie has argued that the categories of sovereignty and property “tend to break down” when applied to Aboriginal title, which he argues reveals that the categories themselves lie on a spectrum rather than having any essential character.Footnote 45 Lavoie comes to this conclusion by observing, rightly, that unlike property, the authority conferred by Aboriginal title is constrained by “internal norms of justification and intelligibility,” unlike the ordinary property owner.Footnote 46 Yet he explicitly resists the possibility that these indicia of sovereignty show that Aboriginal title is simply a right of sovereignty. Lavoie cites the Court’s insistence that title holders may use, manage, possess, and enjoy the economic benefits of the land as evidence that the baseline concept behind Aboriginal title is property, even if it looks to have undergone a series of sovereignty-like modifications.Footnote 47
As we will go on to show, the Court’s assertion that Aboriginal title is a property interest is defied by nearly everything else the Court says about the content of Aboriginal title. Ordinarily, a baseline category explains the residual features of a right where there is a lack of doctrinal clarity.Footnote 48 The concept of property does no such work for Aboriginal title, which is plagued by uncertainty even with respect to basic, fee simple-like uses. The Court’s suggestion that title holders’ may use and manage their land should not distract us from the fact that the exercise of these rights is ex post facto reviewable, as we saw above. Ownership with an internal justificatory constraint is no longer coherently informed by a baseline notion of property, just as the residual characteristics of a now-married man are not coherently informed by the category of ‘bachelor.’ The fact that Aboriginal title defies categorization as property is not a reason to abandon the task of categorization itself, but a reason to re-assess, as we seek to do here, whether any meaningful indicia of property are present. The law is replete with hard cases, but every day, lawyers insist that the task of categorization goes on. Regarding Aboriginal title as property seems more like conceptual confusion rather than coherent conceptual engineering.
Categorization has profound normative consequences, too. Adherence to a label that does not sharpen the scope of the right in any useful way has allowed the settler legal order to avoid the difficult question—or more accurately the elephant in the room—of how Indigenous sovereignty fits within our constitutional system.Footnote 49 The property label is denying vital oxygen to this, and other, important questions. Property is doubtlessly important and duly protected in our legal systems. But property is a far cry from sovereignty.Footnote 50 Indeed, the fact that Aboriginal title is understood as a mere property right allows it to be understood apart from Aboriginal sovereignty.Footnote 51 The space between Aboriginal title doctrine and Aboriginal sovereignty must be shut now that the myths sustaining Indigenous subordination are being openly called into question.
On the occasions in which commentators come close to discarding the property lens, the resulting account is only partly satisfying. Brian Slattery, for example, sketches an analogy between Aboriginal title and provincial title. On one occasion, Slattery goes so far as to say that Aboriginal title is “not a concept of private law at all.”Footnote 52 But Slattery hastens to add that his account falls short of explaining the inherent limit, which he finds highly suspicious, just as Lavoie and Newman do.Footnote 53 After observing that Lamer CJC “appears to have created the inherent limit out of whole cloth,” Slattery writes that he is unconvinced by Lamer CJC’s insistence that the inherent limit has a conceptual affinity with the restraint on alienation.Footnote 54 Slattery argues that the requirement to preserve Aboriginal title lands for future generations is undermined by the possibility of surrender to the Crown.Footnote 55 For Slattery, these two features of the right are in tension with one another. In other words, Slattery sees the inherent limit as a contrived judicial imposition on the right rather than an essential feature of the right that is to be understood in tandem with the restraint on alienation.
Our account, by contrast, theorizes all of the sui generis elements of Aboriginal title as constituent features that together reveal a sovereign right. Lamer CJC was correct that there is a conceptual affinity between the restraint on alienation and the inherent limit. These are both incidents of a sovereign’s right over a territory. Lamer CJC erred not in identifying these features of Aboriginal title, but in failing to see that they are inconsistent with the nature of a property right. Aboriginal title is not a property right with some ‘sovereignty dimensions’; Aboriginal title is a sovereign right, simpliciter. Indeed, the very characteristics of Aboriginal title that seem to be crippling defects are transformed into features of the right once our perspective shifts from property to sovereignty. In part, what we offer here is an error theory. The confusion about the scope of Aboriginal title powers is a symptom of the orthodox assumption that the Court is devising a property right rather than characterizing a sovereignty right.
IV. How to Tell the Difference Between Property and Sovereignty
i. Property
In a 2017 article entitled “Property and Sovereignty: How to Tell the Difference” Arthur Ripstein offers an account of the essential differences between property and sovereignty.Footnote 56 Ripstein argues that the most important difference between property and sovereignty is that
sovereignty has an internal norm, which restricts the purposes for which it may be exercised, because the sovereign is supposed to rule on behalf of, and for the sake of the people; property, by contrast, has no internal norm. The owner of property can use it for any purpose whatsoever, subject only to external restrictions.Footnote 57
Sometimes, in common parlance, we think of these two kinds of rights as being one and the same. We might refer to a landowner as a sovereign with respect to his or her lands, and the lands within a state are sometimes loosely described as the property of the sovereign. However, Ripstein and other property theorists point out that property and sovereignty each have their own distinctive internal structure, and it is the difference between those internal structures that demonstrates the essential difference between property and sovereignty.
Property is mine to do with as I please.Footnote 58 If I own a book, I can give it away, or burn it, or sell it, or throw it off a cliff. I make the choices that I do without reference to anyone else,Footnote 59 and decide how others may relate to my property.Footnote 60 What’s mine is mine, and what is mine I may do with as I please.Footnote 61 This freedom to do with one’s property as one pleases includes the possibility of alienating the property at issue, thereby putting someone else in charge of what was once mine.Footnote 62 Of course, I can’t really do whatever I want with my property.Footnote 63 There are laws about these things. I can’t throw my hefty property law treatise at you while you pass by on your bicycle: I could seriously hurt you in what criminal law would call an assault. In terms of private law, an act such as knocking you off your bicycle with my book is likely to be tortious: to the extent I have a duty to look out for you, I clearly have the duty to not injure you with my book, whether I intentionally throw the book at you, or whether it slips out of my hands by accident. As a matter of positive law, there may even be contractual or statutory restrictions on whether I can sell my book or give the book to someone else, perhaps because the book is somehow of national importance and shouldn’t be sold to a foreign buyer.Footnote 64 But nothing about these features of property is a feature of what property is on its most fundamental level.
At that fundamental level, Ripstein explains, property has no “internal norm.”Footnote 65 To say that property is internally unfettered is just to make a point familiar to property lawyers about the kind of power that a property right confers. Christopher Newman writes, in Hohfeldian terms, that the “use-privilege” of an owner is “expressible by the phrase ‘If it’s mine, I can do what I want with it,’ as well as the corollary, ‘If I can’t do what I want with it, it’s not really mine.’”Footnote 66 Underlying this observation is the idea that a property owner need not make reference to anyone else’s interests when deciding how to use her property. An owner reflects on her choice-set without needing to determine how it will impact others because she does not make her decision on behalf of anyone.
Property is sometimes described as a bundle of rights, which is just to say that property is the right to do what I wish with the particular bundle I have, and each of the different rights to do something is a strand in that bundle of rights.Footnote 67 The bundle theory rightly counsels that property takes many forms in legal regimes: trusts, easements, fee simple, etc.Footnote 68 Property is a highly malleable legal form. Yet, as Jeremy Waldron points out, the bundle theory should not be seen as undermining the possibility of there being a general concept of property in law. Waldron writes that
we should not let the specific intricacies of the bundle theory blind us to the importance of private property as a general, intuitive idea, and that we should distinguish between the concept of private property and various conceptions of private property, with the conceptions being spelled out in terms of various configurations in the bundle.Footnote 69
In Waldron’s terms, we are here discussing the concept of property, rather than descending to the level of property’s particular conceptions as a matter of positive law in Canada or elsewhere.
The fact that property law’s doctrinal mosaic is so varied does not require us to eschew the use of a general notion of property. Far from it, we need to see that the law has a notion of ‘property’ in order to understand why property law’s doctrinal topography is so varied. Some of property’s ridges are the result of interaction with regulations from a variety of areas of law. Seeing that property has a meaningful conceptual structure of its own, prior to regulation, is part of seeing just how property is modified by interaction with other kinds of law. As Waldron points out, “property rights are entangled in public legislation.”Footnote 70 But property is not unique in this respect. One could give an account of the general concept of, say, family law, and draw relevant structural contrasts with contract law, without thereby claiming that family law must, in all its doctrinal content, remain aligned with the Platonic form of family law after contact with other areas of law.
Let us take this opportunity to offer a related clarification. There are indeed limitations on property rights. For example, owners of historically significant buildings have limits on how they can use their property.Footnote 71 What should we make of such cases? First, it should be borne in mind that these are unusual cases, rather than being a familiar marker of every case of ownership. The fact that such cases have been controversial is readily explained by the account we have offered here. After all, the owners’ complaint is that their right to do with their land as they please is interfered with by interests that are irrelevant to their property right, namely the interests of a class of persons that may want to visit or study a historically significant building, but who are not its owners. In this way, the owners are complaining that their property right is being eliminated by the intrusion of non-owner’s interests. Second, when in its particular doctrinal manifestations, property looks like something other than a right to do as the owner pleases, these limits are not features of property qua property. Rather, they have their source in some external regulation or law. These limitations may indeed be justified intrusions on an owner’s property rights. There may be compelling interests on the other side of the ledger—public safety, historical conservancy, zoning, and the like. There are often pressing public law reasons for the state to limit the property rights of, for example, the owners of historical homes. We do not deny any of this. Our method here is simply to rely on a formal account of what property is, as a legal concept with a distinctive structure,Footnote 72 without drawing any normative conclusions about those occasions on which property’s formal structure is departed from via regulation.Footnote 73 The interaction of public law with property is not automatically a problem, at least not based on anything we are suggesting here.Footnote 74 We will have more to say about the interface of public law with property in what follows, because it will be important for us to show that the sui generis features of Aboriginal title are not merely the result of the kind of ordinary public law modifications of property that we have discussed in these last few paragraphs.
To be sure, our argument does turn on a kind of formalism about property. That is, contrary to the legal realism that captured the legal academy for the better part of the 20th century, we do think that something distinctive and useful is being added when a right is described as a property right.Footnote 75 ‘Property’ is not just a stylized reference to a list of usufructuary rights that vary, for ad hoc reasons, from one legal context to the other. The commitments we have about the notion of property can thus be described as a modern essentialism about property. But this is not the full-throated, Blackstonian essentialism of yore.Footnote 76 As our remarks above should make clear, we do not see limits on property in its paradigmatic form—full liberal ownership—as moral turpitude perpetrated by the state, or something to be regretted. Our task here is in the vein of what has been dubbed the ‘New Private Law Theory,’Footnote 77 or more specifically, the ‘new essentialism’ about property law,Footnote 78 which takes seriously the idea that property is a definable legal concept with its own doctrinal structure. This structure differs from sovereignty, which we turn to next.
ii. Sovereignty
Sovereignty may seem like an unduly grand term here, conjuring images of border guards and embassies, armies and foreign policies.Footnote 79 Our conception is much more modest. Following Ripstein and many public lawyers, we think of sovereignty as characterized by the legitimate exercise of public office. The significant feature of sovereignty for our purposes is the distinction between acting for properly public purposes, and in failing to do so, thereby failing to act as a public authority at all. Ripstein and fiduciary theorists of sovereignty assert that sovereignty, in the form of the exercise of public office, is constrained by reference to a public purpose. People might disagree about the scope of properly public purposes, but the very presence of the distinction makes sovereignty fundamentally different from property. The difference is this: whereas the legitimacy of sovereign action requires reference to a public purpose, property is, at its fundamental level, not constrained in this way. As an office holder, I can only act legitimately if I am acting within my authority and for a legal (and not purely private) reason; whereas as a property owner, I can do what I want with my property without reference to any external (public) consideration.
As should be obvious, this is not an empirical account of the real world as it is, but is instead a normative account of sovereignty. The history of the world makes clear that sovereigns do not always regard themselves as bound by anything like public purposes. Kings, potentates, strong men, dictators, and the like, will and always have acted with impunity. In some definitions at international law, this is in fact the definition of sovereignty: the capacity to act without constraint.Footnote 80 Unconstrained by reference to any public or legal order, sovereignty looks like property. Dictators dictate, strong men press their will upon their people, corrupt officials fix elections, and they do so safe in the knowledge that while other nations may protest this behaviour, other sovereigns just have no legal right to intervene in the unconstrained will of a sovereign. And so in this way, sovereigns appear to exercise their authority as a sovereign in the same way that you and I exercise our will over our own private property. We do as we please, and the only constraints on our actions are our private, subjectively-generated constraints.
But that’s the real world, and it’s often a lousy world precisely because of the indifferent cruelty exercised by people unconstrained by morality, law, or good faith. The world in which we set our account is a normative one: it is a world in which the exercise of sovereignty is made legitimate (in part) when constrained by a consideration of the public over whom such authority is exercised.Footnote 81 The difference between a mere dictator and a legitimate sovereign is that the latter governs through the law and for the people. The exercise of coercive legal authority is disciplined accordingly.Footnote 82 Loosely put, the right to rule is accompanied by a moral obligation to act in the interest of those subject to one’s authority.Footnote 83
This normative perspective is a familiar one. It is the perspective we adopt when we complain that persons in positions of public authority are acting as if they were property owners, free of constraint, with respect to the powers conferred upon them. When state officials act on the basis of ‘private’ reasons that make no reference to the public interest, this is called corruption.Footnote 84 Take, for example, a public official like the Attorney General. The Attorney General has broad discretionary authority over a wide range of matters, including the power to authorize investigations. That is, the Attorney General may or may not authorize a particular investigation. Now imagine that our Attorney General is offered a bribe to make an investigation go away. And so the Attorney General is exercising her authority over a matter which is within the purview of her office: she may or may not authorize the investigation. So, not authorizing the investigation is something the Attorney General could legitimately have done, but what makes this action wrong is that taking the bribe is to be paid to act in a manner inconsistent with public office.Footnote 85 The decision is wrongful as an exercise of public authority because it is made in part on the basis of private reasons of financial self-interest. In a similar vein, Article II, Section 3 of the United States Constitution requires the President to “take Care that the Laws be faithfully executed.”Footnote 86 The same language is also used during the Presidential oath of office: “I do solemnly swear that I will faithfully execute the Office of President of the United States.”Footnote 87 The word faithfully is the key. To exercise an office faithfully is to exercise the powers of office not in any manner, but in the particular manner required of office holders.
A further example, dear to Canadian public lawyers, demonstrates this point. In Roncarelli v Duplessis, the plaintiff Frank Roncarelli owned a successful restaurant in Montreal.Footnote 88 Roncarelli was a member of the Jehovah’s Witnesses. At the time, there was a popular sentiment among Quebeckers that the Witnesses were undermining the majority Roman Catholic faith.Footnote 89 Mr. Roncarelli had posted surety bail for hundreds of Witnesses charged with by-law infractions for distributing pamphlets without a license. The bylaws prohibiting these activities were part of the City of Montreal’s attempt to stamp out the Witnesses’ proselytizing. A particularly controversial pamphlet condemning “Quebec’s Burning Hate for God and Christ and Freedom” eventually drew the attention of Quebec Premier Maurice Duplessis. The Premier was determined to end the proselytizing activities of the province’s Witnesses, so he recommended the Chairman of the Quebec Liquor Commission that Mr. Roncarelli’s liquor license be cancelled. The Chairman obliged.Footnote 90 A cancellation notice was served to Roncarelli’s restaurant, and a subsequent police raid seized thousands of dollars’ worth of liquor.Footnote 91 Roncarelli was forced to close his restaurant six months later.Footnote 92
Roncarelli sued the Premier for arbitrarily instigating the cancellation of his license. Roncarelli alleged, despite the fact that Premier Duplessis had the statutory authority to act in the manner that he did, that the Premier had exercised his statutory power for a non-public purpose. Remarkably, the Court found for Roncarelli despite the textually unfettered statutory discretion.Footnote 93 The Court’s reasoning is instructive for the account of public authority we have sketched here. Rand J found that Premier Duplessis’ action “was quite beyond the scope of any function or duty committed to [the Premier].”Footnote 94 In fact, Duplessis’ action was “one done exclusively in a private capacity.”Footnote 95 Despite the fact that he had ostensibly used the powers of his public office, the Court found that Duplessis had acted with an intention far removed from the purposes of the authorizing statute, and thus not in any public capacity at all. Put differently, all statutorily-granted discretions are accompanied by a duty to act in good faith, and Duplessis had failed to act in good faith.Footnote 96 The Court’s reasoning helpfully demonstrates that an action that is squarely within the purview of an official can nonetheless fail to be an official action when it is done unfaithfully, namely by reference to reasons which lack a public justification.
Similarly, the bribe taken by our hypothetical Attorney General is wrong, not because failing to investigate is beyond the purview of her office, but because failing to investigate because of a bribe is inconsistent with the duty to act faithfully while in office. An Attorney General may fail to authorize an investigation, not because they are bribed, but because in due consideration of the facts and with reference to the public, that’s the decision the Attorney General thinks is right. And it does not matter if the decision turns out to be wrong for political, or even legal reasons. People make mistakes. Now imagine that the right decision is to not investigate—maybe there’s not quite enough evidence, or the crime at issue isn’t worth the expenditure of resources to conduct the investigation—and the Attorney General is, at the same time, taking a bribe to not investigate. In such a scenario, the decision not to investigate is properly within the authority of the Attorney General, and the decision is the right decision in the good faith opinion of the Attorney General. Yet it cannot possibly make it right to take the bribe even though the result is the same.
As a growing cadre of public lawyers has observed, decision makers must act for the right reasons, not just any reason, even when they arrive at the right result.Footnote 97 Lawmakers and their delegate public authorities are fiduciaries in this way. And this set of constraints, this fiduciary obligation––or duty of good faith, or honour of the Crown, or public right, or whatever we want to call the constraint––is an essential feature of what it means to exercise legitimate authority as a sovereign, office holder, or public official. A failure to act with this internal constraint in mind, then, is a failure to act as a public authority.Footnote 98
To be clear, acting for selfish, private purposes is not the only way that the action of a public authority can be illegitimate.Footnote 99 Often, the action of a public authority is impugned because of irrationality, error of legal interpretation, or manifesting some irrelevant purpose. These are more specific instances of the general notion that a public authority can fail to act with legitimate authority. Our point is that the duty to act in accordance with the purpose for which public authority is conferred is what animates, and indeed legitimates, that public authority in the first place. This is an inescapable feature of the exercise of public authority, one that trickles down to officials who deploy that authority in narrower, modular ways, say as police officers, jurors, or justices of the peace.Footnote 100
These reflections on sovereignty as public authority should be familiar.Footnote 101 But one final clarification is in order. There is a venerable and lively debate about whether sovereignty has an ineliminable political aspect precisely because sovereignty is unconstrained by law (per Carl Schmitt) or whether sovereignty is an entirely legal, institutional office defined by positive law (as H.L.A. Hart maintained).Footnote 102 This is not a debate we have the space nor the need to take a position on here. For our purposes, we only observe that the exercise of law-making authority (including the power to delegate public power to officials) cannot be internally unconstrained if this authority is to be legitimate.Footnote 103
iii. Property and Sovereignty in the Legitimate Legal Order
We have seen that the duty to act faithfully binds sovereign authority and provides the outlines of what could constitute a legitimate public action. Indeed, even in the absence of a particular law banning a particular action, any action that violates this internal constraint is illegitimate. And so every action of a sovereign, office holder, or public official is subject to an overriding constraint without which the action itself is illegitimate. But note that this is exactly the opposite of a property right, wherein I am free to act as I wish with reference to anyone. Again, my action may be subject to legal constraint, but that constraint is not a built-in feature of what makes property, property. Sovereignty and sovereign action is in exactly the opposite position when compared to property: the right to act freely over my property in whatever way I choose is an essential feature of the structure of what property is; whereas for an office holder, every action, to be legitimate, is necessarily constrained by the duty to act in good faith. Indeed, when sovereigns act as property owners do, namely by acting on the basis of their own pleasure, their decisions are branded arbitrary or capricious.Footnote 104
It is true that property theorists have sometimes reflected on the ways in which property resembles sovereignty in certain respects.Footnote 105 But they have not done this to suggest that sovereignty and property are one and the same, although that was the claim of legal realists like Morris Cohen.Footnote 106 Rather, recent theorists have compared property and sovereignty because seeing the ways that some characteristics of property and sovereignty resemble each other is a useful analytical process to understand both these distinctive forms of normative authority. We can learn something about the differences between property and sovereignty by noting their similarities.Footnote 107 Larissa Katz, for example, has argued that ownership is an “office” of exclusive agenda-setting authority over a thing.Footnote 108 In her view, one way in which property and sovereignty resemble each other is that an owner is at the apex of a (notional) hierarchy vis-à-vis others with respect to a thing.Footnote 109 An owner has a supreme, exclusive agenda-setting authority in relation to a thing, and a sovereign has exclusive, supreme law-making authority within its jurisdiction or territory.Footnote 110 It is integral to both ownership and sovereignty that owners and sovereigns maintain a finality of decision-making authority.
Yet property is not (a form of) sovereignty, even on a view like Katz’s where ownership is an office.Footnote 111 Crucially, Katz observes that while each individual exercise of sovereignty must be justified to those upon whom sovereignty is exercised, an individual owner need not “defer to any other private person” in deciding how to set an agenda for their things, including those who might be made worse-off by their decision.Footnote 112 This is the great moral and economic achievement of property law: property carves out a domain, within a legal order, wherein an owner can allocate the use of resources the way they wish without needing to make direct reference to the interests of others. As Jeremy Waldron has put the point, this avoids the “moral exhaustion” that would result from having to determine whether each and every use of one’s property was justified.Footnote 113 Property thereby secures information cost savings with respect to resource allocation; that is, property rescues us from the impossible task of allocating use rights and determining what counts as an intrusion over things on a case-by-case basis.Footnote 114
All of this simply confirms a point we have made already. Each and every exercise of law-making authority—even when delegated to officials—is subject to an internal constraint that thereby justifies the legitimacy of the action. This is the tireless watch of the public lawyer. By contrast, the justification story for the power conferred to property owners does not consist in the law’s promising that each and every use of an owner’s property will be non-arbitrary or normatively upright. The law makes no such promise. The reason the power conferred by property is justified (assuming it is justified) is instead external to the exercise and structure of that authority.Footnote 115 On a view like Ripstein’s—and indeed many others—property is a key cog in the background legal order as a whole, and those ‘external’ conditions give property its legitimacy.Footnote 116 Sovereignty is a background assurance for property. One key part of the state’s mandate is the creation and maintenance of a private sphere in which individuals are in charge of scarce resources. Simply put, there can be no property without public authority. This dependence relationship shows that property and sovereignty are not the same thing.
With a number of important clarifications in mind, we are now in a position to see that property and sovereignty have a fundamentally different conceptual architecture, an architecture that many theorists have identified and articulated. In a word, the lesson of this section has been that sovereignty has an internal norm and property does not. With this in mind, let us now return to the Court’s conception of Aboriginal title.
V. Aboriginal Title’s Inherent Limit
A crucial feature of Aboriginal title is the inherent limit on the uses to which Aboriginal title lands can be put. This is not a feature of Aboriginal title that is referable to some other law—like the tort law duty to look out for others, or a statute saying “you must consider future generations and not use the land in a way that denies future generations the benefit of the land”—the inherent limit is, well, inherent. In explaining this feature of Aboriginal title, Lamer CJC does not describe these limits as imposed by the courts or the legislature.Footnote 117 The limit is definitional. He writes that uses of the lands that would threaten the aboriginal group’s future relationship to the land are “by their very nature, excluded from the content of [A]boriginal title.”Footnote 118 As this quotation makes clear, were a group holding Aboriginal title to act in a way that is contrary to this limit, they would not thereby incur liability for damages or regulatory penalties, as they would if the restraint on their right had some external source.Footnote 119 Rather, title holders simply lack the authority to act in a manner inconsistent with the internal limit in the first place.Footnote 120
As a baked in feature of what makes Aboriginal title Aboriginal title, the inherent limit is not a limit created by the ordinary regulatory limits that exist on private property. Those limits (e.g. zoning bylaws) can, in principle, be altered or undone.Footnote 121 In contrast, the inherent limit on the use to which Aboriginal title lands are put is a completely internal constraint. Aboriginal title without an inherent limit is not Aboriginal title. And if that’s the case, if the inherent limit is part of what makes the right what it is, then Aboriginal title cannot be a property right, because there are no such constraints on property. By definition I can do what I want with my property without reference to the public or to any other consideration. Aboriginal title, on the other hand, is always, and by definition, constrained in its use by reference to an existing and future community, and that is a feature not of property, but of sovereignty.
In the rest of this section, we elaborate this argument by distinguishing Aboriginal title from a trust or a heavily regulated property right. We also draw attention to Aboriginal title’s distinctive source to make our argument, namely its genealogy in Aboriginal legal systems and law-making. This will, in turn, form the basis for our argument in section VI, where we contend that Aboriginal title confers territorial authority. Seen in this light, the inherent limit and restriction on alienation are transformed from mysterious burdens to theoretically sound features of the right.
i. Aboriginal Title as Trust or Office
One might object to the idea that Aboriginal title is not a property right by arguing that law-making is also a feature of certain kinds of trusts.Footnote 122 That is, we might think of the inherent limit as a constraint on the exercise of a property right held in trust for future generations, akin to a trust in favour of one’s unborn children. Some trusts also require the appointment of officials to make bylaws in respect of the trust, and therefore, these instruments include not just the right, but also the duty to make bylaws. But, like the laws that stop me from throwing my book at you as you ride by on your bicycle, there is nothing about the basic structure of property in general, or a trust in particular, that requires such bylaws. Civility, safety, order, and the rule of law, these are the things that prevent me from knocking you off your bicycle. There is nothing about the basic structure of property that places these kinds of limits on the use of my property. Insofar as a trust comes to resemble Aboriginal title, this is not because of anything inherent to property, or the nature of a trust itself. Indeed such ‘law-making’ powers must come from the terms of the trust, and thus are the expression of the private will of the party creating the trust, rather than the trust structure per se.Footnote 123
Another difference between Aboriginal title and the typical trustee turns on what is asked of the trustee qua trustee. The officers of the University of Amsterdam are required to act in the best interest of the University. But, provided due diligence has been exercised, the University trustees might conclude that they need to sell significant holdings of land on which parts of the University now sit. In fact, the University of Amsterdam has relocated several times and is poised to do so again. The University is in the process of selling a number of its buildings on Prinsengracht—the longest of Amsterdam’s main canals—because they could buy more land and build better facilities from the proceeds of those now highly valuable buildings. A trustee of the university would be under a duty to vote in favour of these plans.Footnote 124 Analogously, it is conceivable that the trustees might decide that it is in the best interest of the University to simply destroy some property—say by particularly aggressive resource extraction—rather than sell it. Note, however, just how different this is from the case of Aboriginal title lands, where the inherent limit—or at least uncertainty surrounding its scope—constrains any action that diminishes the reach of future generations, even where current band members determine that rendering certain lands unusable (say for the purpose of mining) is in the best interest of the community now and in the future (for example, if they determine that resource extraction on some portion of the land would produce valuable economic output now). Moreover, Aboriginal title holders cannot, with the ease enjoyed by the trustees of the University of Amsterdam, alienate their lands. This is because title lands have a territorial dimension, which we explore further below. So while the trust model provides a somewhat helpful analogy, it is ultimately limited in its ability to capture the distinctive elements of Aboriginal title.
Moreover, at the doctrinal level, the possibility that Aboriginal title is held as a trust was decisively foreclosed in St Catherine’s Milling, Calder, and a spate of other cases.Footnote 125 More recently, in Delgamuukw, Dickson J cited Canadian Pacific Ltd. v. Paul Footnote 126 to reaffirm that the Aboriginal interest in title land is not a beneficial interest, and that the sui generis features of the right should not distract from this point.Footnote 127 Further, in Guerin, the Court held that Aboriginal title lands are not held in trust (pre or post surrender) by the Crown.Footnote 128
These conceptual differences and doctrinal points aside, there is something credible about the thought that Aboriginal title holders look like they are occupying a kind of office, with an accompanying job description. Aboriginal title holders are burdened with a duty to preserve the land for a community (and its future members).Footnote 129 Seen through the lens of property, these restriction approach something like pre-modern, or even feudal structures,Footnote 130 where being in charge of land was to be in charge of it for the sake of the land. Footnote 131 All of this furthers the suggestion that Aboriginal title lacks the internal structure of a right in property. Property owners do not have a pre-defined mandate. Where one is holding on to land for the sake of some broader set of stakeholders—such as an indefinitely large, amorphous future generation—we are at some distance from the notion of property (and indeed trusts in particularFootnote 132 ), with its ‘it is up to you’ or ‘do as you please’ structure.Footnote 133
Aboriginal title holders may be accurately described as ‘trustees’ of their lands—not in the proprietary sense concerning a trust, but rather in a way that is familiar from the rich literature on fiduciary theories of sovereignty. On these ‘sovereigns as trustees’ accounts, the discretionary power sovereigns enjoy cannot be used to unilaterally exploit those in their care or indeed for any purpose the sovereign wishes—on the contrary, this power must be exercised for the “other-regarding purposes for which fiduciary power is held.”Footnote 134 To be a trustee in this public law sense is to have an internal constraint binding one’s powers and therefore to have a non-proprietary power.
Indeed, the requirement that Aboriginal title holders preserve the interests of present and future title holders, as stewards of sorts,Footnote 135 approximates the relationship of a sovereign to Crown land.Footnote 136 In a policy statement, the Ontario Ministry of Natural Resources (MNR) explains that the “needs of both present and future generations must be provided for.”Footnote 137 The statement adds that “maintaining a healthy natural environment and ecosystem integrity are essential to sustainable development, and thus are to be regarded as ‘overriding priorities.’”Footnote 138 This too carries an important lesson. The MNR is not in charge of Crown land in the way that a private property owner is in charge of their house. Rather, the MNR is charged with the care of Crown land. These are two very different relationships to land.Footnote 139 The MNR must act as a public office holder in decisions about land use, just as title holders must when using Aboriginal title lands. Of course, the Court does suggest that Aboriginal title includes the right to “enjoy its economic fruits,” subject to the internal limit.Footnote 140 But this does not challenge our comparison with Crown land. After all, the avowed “mission” of the MNR in managing Crown land includes “economic development.”Footnote 141 In both the relationship of the sovereign Crown to its Crown lands, and title holders to Aboriginal title, the right to the economic benefits of the land is limited by a directive to preserve the future interests of those linked with the land.
ii. The Source of Aboriginal Title
Another important feature of Aboriginal title is the manner in which Aboriginal title is established. Claimants prove the existence of Aboriginal title by reference to the land laws, or system of tenure, of the group making the claim. When it comes to common law title to land, possession (even adverse possession), is all that is required to prove one’s right to the land. But Aboriginal title requires more, because Aboriginal title cannot be exactly the same as fee simple lands; Aboriginal title is sui generis. Proof of Aboriginal title requires not just proof that the land was held, but that land was held pursuant to a distinct set of Indigenous laws created by that “Aboriginal society.”Footnote 142 Aboriginal title has a genealogy in Aboriginal law-making—and indeed takes its content from Aboriginal lawFootnote 143 —and once again this suggests that Aboriginal title is not a property right.
McNeil has argued that this sui generis aspect of Aboriginal title does not gainsay its status as a property right.Footnote 144 To make this point, he uses the example of French settlers who came to (what is now) Canada during French control, and whose interests in land survived the ceding of New France to Great Britain. McNeil observes that these settler rights are unlike common law fee simple but are still property. However, McNeil’s comparison between the French settler interest and Aboriginal title breaks down in one crucial respect. While it is true that Aboriginal law explains the content of Aboriginal title, just as French law explains the content of French settler land rights, Aboriginal title also does more. Aboriginal title is, in form, a recognition of a legal system itself, rather than any particular idiosyncratic right which that legal system protects. The French settler interest is not a recognition of continuing French sovereignty—or indeed historical French law-making—in Canada. Rather the French settler right in common law Canada is the immigration of a particular property interest from a legal system that once existed. This is a version of the ordinary private international law case where a singular private right created in one legal system is recognized in another.
Aboriginal title is unlike this; Aboriginal title reflects a living system of law. Accordingly, Aboriginal title is a “generic right that does not vary from one Aboriginal nation to another in accordance with their diverse systems of law.”Footnote 145 The form of Aboriginal title stays the same whether we are talking about the Tshilqot’In Nation’s Aboriginal title or the title of some other First Nation, despite the fact that these nations undoubtedly have different laws. Only the content of Aboriginal title varies, i.e. the particular laws that the Aboriginal nation enacts vary. But Aboriginal title is always, in form, limited by an inherent and a restraint on alienation. If Aboriginal title was akin to the French settler interest, the structure of one Aboriginal nation’s title right would differ from the next, just as a uniquely Spanish property instrument held by a hypothetical Spanish settler in Canada would differ from its French counterpart. But Aboriginal title is not this way. The formal limits on the right of Aboriginal title are generic. They are generic because they are the generic limits that attach to any public authority.Footnote 146 Nowhere else does the common law recognize a society’s law-making authority via property. The best inference for this apparent idiosyncrasy is to see that the Court is inchoately recognizing that long-standing governance is best recognized by a right to govern.
The law-making origin of Aboriginal title is further confirmation that Aboriginal title cannot simply be a kind of trustee-like relationship involving the combination of a property and a fiduciary duty of some kind. The fiduciary duties that constrain trustees have their source in the intentions (express trusts) of testators or the wrongful conduct of private parties (constructive trusts), rather than being the product of a political unit’s historical, law-making relationships with land. For example, a conservancy trust might be created to preserve some land and thereby carry prohibitions against sale and destructive use. The conservancy trustees would be subject to fiduciary duties with respect to their land because of the peculiar subject matter of the trust. The formal limits on Aboriginal title are not subject-matter specific in this way.
iii. Aboriginal Title and Regulated Property Rights
As we have foreshadowed already, the way in which private property is sometimes constrained by regulation is also fundamentally different than the inherent limit on Aboriginal title.Footnote 147 Public regulatory constraints are a matter of antecedent political choice.Footnote 148 Regulation on property removes one or more particular ways in which the right can be exercised from a set of possible uses in the bundle.Footnote 149 Yet regulation leaves ownership intact, because the owner need not make reference to anyone else’s interests when deciding what to do with the remaining rights in the bundle.Footnote 150 This is ownership’s “private aspect.”Footnote 151 Where one lacks the authority to make exclusive and non-reviewable decisions about the rights remaining in the bundle, the concept of ownership has no traction. The inherent limit on Aboriginal title is not a list of prohibited uses that are stipulated ex ante. Rather, each individual use of land is reviewable at the time the title holders seek to use it in that way, i.e. ex post facto. In Tshilqot’in, the Court held that “[w]hether a particular use is irreconcilable with the ability of succeeding generations from the land is a matter to be determined when the issue arises.”Footnote 152 An owner does not have this kind of restraint. Her choice set is open to her in advance, and correspondingly, her authority is not determined on an ad hoc basis. Thus the internal limit on Aboriginal title is not merely an instance of regulation of a property right.
VI. Territorial Right and Inalienability
Recall that the Delgamuukw court provided three reasons for why Aboriginal title was a sui generis interest. Besides (1) being the common law manifestation of a legal system existing before the assertion of Crown title, and (2) containing an inherent internal limit, (3) Aboriginal title lands are inalienable to anyone except the Crown.Footnote 153 The third characteristic is our focus in this section. Whereas non-Aboriginal title lands (that is, lands held as fee simple) can be disposed of in whatever way one wishes (devised in a will, granted in gift, sold at an auction to the highest bidder), Aboriginal title lands can be surrendered only to the Crown (and perhaps other Aboriginal nations).Footnote 154 At common law, a limitation such as this is known as a restraint on alienation and is typically void as against public policy.Footnote 155 The very structure of a property right contains within itself the right to act freely upon one’s own property.Footnote 156 As such, to restrain the right of alienation is to violate public policy for doing violence to the very structure of property itself.
The idea that property is essentially alienable also has a well-established pedigree in theorizing about property.Footnote 157 As James Penner puts the point, property is only contingently associated with its (present) owner,Footnote 158 and relatedly, an owner must be distinct from her property.Footnote 159 This means that property must be alienable. Of course some property is burdened with restrictions on alienation, again, not for reasons that come from any notion of property itself. Health and safety regulations mean that prescription drugs, for example, are only alienable to manufacturers, wholesalers, and pharmacists.Footnote 160 But this is not because of what prescriptions drugs are, such that they can or cannot be property. In a world where people did not use prescription drugs for illicit purposes, such as giving them to those for whom they are not prescribed, such a regulation need not exist. But your prescription drugs would still be your property, and alienable as such (say to someone who liked the colours of your antibiotic pill and wanted to buy it for an art museum’s collection).Footnote 161 Other things are not property because they cannot be alienated, by their very nature. One’s right to one’s person, for example, is not one’s property because one’s person is inalienable, lest one become a slave. An essentially inalienable right is not a property right.
Aboriginal title has a restriction on alienation by its very nature, and this suggests that Aboriginal title is not property. Aboriginal title holders cannot alienate their interest in a manner that deprives future generations of the control and benefit of the land. Indeed, the community cannot separate itself from its title, albeit with one exception: alienation to the Crown.Footnote 162 But even this singular exception is mysterious from a property perspective. This exception runs afoul of Penner’s observation that a property right itself does not change as its owner changes. Penner puts this point, which he calls the ‘Separability Thesis,’ as follows:
Only those ‘things’ in the world which are contingently associated with any particular owner may be the objects of property; as a function of the nature of this contingency, in theory nothing of normative consequence beyond the fact that the ownership has changed occurs when an object is alienated to another. Footnote 163
Put simply, if I sell you my book, you gain all the same rights and privileges I had when I owned the book. It would be strange if I could read the book when I was the book’s owner but if you could not do the same when you become the book’s owner. The contours of ownership are not specified by reference to the identity of a particular owner.Footnote 164 In the case of Aboriginal title, the Court has made clear that previously unavailable usages suddenly become available when title lands are alienated to the Crown, holding that “[i]f [A]boriginal 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.”Footnote 165 The sui generis restriction on alienating Aboriginal title means that upon surrender to the Crown, authority over title lands changes, contrary to the emphasized portion of Penner’s Separability Thesis; depending on who owns Aboriginal title, the incidents of title ownership change. Penner’s insight is just that in instances where the content of authority changes depending on who wields that authority, this is indication of a non-property relationship.Footnote 166
Sovereigns, on the other hand, are constrained in their alienation, not of property (Crown lands can be bought and sold), but in their alienation of territory. The alienation of territory requires the negotiation of treaties at international law.Footnote 167 This is a public process which, at first instance, involves the act of the executive acting in their capacity as a sovereign by signing the international accord. But that process alone does nothing to affect the territory, for that is merely the will of the executive. To give effect to the treaty at international law, domestic legislation is required, which is to say, a process of public decision-making must be engaged in order to give effect to the raw will of the executive. Similarly, a Canadian province cannot simply agree to alienate its lands; severing provincial territory requires constitutional amendment.Footnote 168
Of course, sovereigns do alienate property. Selling Crown land is normal. But to sell Crown land is just to allow someone else to make decisions about the uses to which that property is put. Let us use the example of Sovereign A, who alienates a parcel of land to Sovereign B. Sovereign B acquires only an interest in property; and this interest remains subject to the laws of the Sovereign A. Through the purchase of A’s land, Sovereign B acquires mere interests in land, and this does not extend the reach of B’s own sovereignty; in this scenario, Sovereign B just owns property, as any private actor could, in the territory of Sovereign A. So if the Japanese government buys a tract of land that was Canadian federal land, this just means that the Japanese government gets to decide what happens on the land. But the land is still in Canada.Footnote 169 This is different from Sovereign A entering into a treaty with Sovereign B, whereby A agrees to cede and surrender all title and claim to the land, such that the territory alienated becomes not only the property of B, but also enlarges the reach of B’s sovereign authority coextensively with the size of the land transaction.
A sovereign’s primary relationship to land is territorial rather than proprietary. Territory differs from property in that individuals do not have territory. Correspondingly, individuals do not alienate territory.Footnote 170 At times, even the Supreme Court itself cannot help but describe Aboriginal title holders’ relationship to their land in sovereignty-based terms such as ‘territory.’ The Court not only describes the Tshilqot’in people as “a Nation,” but describes their lands as “territory” more than half a dozen times.Footnote 171 Notably, the court writes: “Regular use of the territory suffices to establish sufficiency; the concept is not confined to continuously occupied village sites.”Footnote 172 And, “[t]he territorial boundaries drawn by the trial judge and his conclusions as to Aboriginal title appear to be logical and fully supported by the evidence.”Footnote 173 Territory, used in these fashions, describes not the property of a community (like a town hall), but the extent of a government’s reach. And so, in this way, Aboriginal title lands represent the territorial interest of an Indigenous community, and that community can only alienate its territory to another sovereign, namely, the Crown (or perhaps another Aboriginal nation).
We saw that there is a fundamental contingency associated with who owns what property. As an owner, you might own Blackacre today, alienate it tomorrow, and come to own Pinkacre next week. You have no duty to remain in any particular ownership relationship. Throughout your lifetime of acquisition and alienation you remain the same person, distinct from the particular things you owned at a given moment. Sovereign control over a territory is not contingent in this way. A sovereign that loses its territory thereby has its identity as a sovereign altered. The loss of territory is existential, for it implies the loss of geographical authority and the legal subjects that populate the territory, and thus a loss of sovereignty itself. A sovereign that loses all its territory is not just temporarily territory-less; it ceases to exist.
The idea that sovereign territory is essentially inalienable—precisely because territory is held on behalf of the governed, thus requiring their consent to be alienated—is part of a long-standing philosophical tradition.Footnote 174 And notice that when Aboriginal title holders alienate territory to another sovereign, the inherent limit that once constrained their actions—what we have argued is the mark of sovereign right—is itself eliminated. The presence and absence of the internal limit tracks sovereignty over title land. The Court itself is clear that one reason for Aboriginal title’s inalienability is the need to preserve the relationship of occupation that grounds the right to Aboriginal title in the first place.Footnote 175 The restriction on alienation is thus a reflection of the existential need for a sovereign to have territory. Owners, as we have said, have no such obligation to preserve their relationship to their property.
Commentators working within the property paradigm have levelled a series of criticisms against the restraint on alienation of Aboriginal lands. The restriction is seen by many writers to instantiate the paternalistic notion that Aboriginal peoples are incapable of protecting their own land.Footnote 176 This restriction contributes to the economic flaws of Aboriginal title.Footnote 177 Nowadays, the traditional paternalistic justification for the restraint on alienation that many of these critics disparage has been abandoned. A new justification has emerged. As Lavoie observes, “today, the justifications most often given for restrictions on the alienation of Indigenous land are rooted in the desire to ensure the capacity of Indigenous communities to make collective decisions about their future, and to preserve their cultural identities by maintaining secure control over a land base.”Footnote 178
As this quotation suggests, these scholars seem to reach for the idea of sovereignty, but remain within the property paradigm.Footnote 179 Control over land is indeed crucial to self-determination and collective decision-making for political communities.Footnote 180 Aboriginal peoples need jurisdiction, public space, and public authority to function as political organizations, just as any political organization does. But the use of a property lens to frame these rights, rather than the very idea of sovereignty that the justification demands, means that the promise of self-determination remains unfulfilled. Unsurprisingly, property is ill-suited to securing collective self-determination.Footnote 181 We must understand the restraint on alienation in tandem with the inherent limit to fully realize the goal of recognizing Indigenous political authority over their land. That is, the restraint on alienation should be seen as yet another indicia of a sovereign, territorial right.
We wish to highlight two ways in which our discussion of alienability improves on existing literature. First, despite suggestions that Aboriginal title is a territorial right, there is no fully satisfying account of the interaction between the territorial aspects of Aboriginal title and its alleged status as a property right. For example, one vexing issue is whether Aboriginal title holders may create and enforce subordinate property interests—a key indicia of ownership authority—without running afoul of the restraint on alienation.Footnote 182 Once we see that the restraint on alienation applies to abdicating the sovereign, law-making authority that Aboriginal title confers, and not to the individual ownership entitlements of individual community members living under the community’s laws, the answer comes sharply into focus. If the laws of the Aboriginal group create ownership interests (as they invariably do),Footnote 183 transfers of subordinate property interests are entirely permissible by the lights of the restraint on territorial alienation. In fact, transfers of private property interests held in Aboriginal title lands are orthogonal to the restraint, just as your selling a strip of land in Toronto does not conflict with Canada’s territorial right over that same space. Viewed formally, Aboriginal title is structurally uniform because it has the same features wherever it exists: it is inalienable, subject to the inherent limit, and has a genealogy in law-making.Footnote 184 By contrast, in its content, Aboriginal title varies because the laws of particular Aboriginal groups vary. The restraint on alienation attaches to Aboriginal title’s formal, uniform character as a sovereign right. By contrast, the peculiar private law property laws enacted by a particular Aboriginal nation will determine what kinds of subordinate property interests can be created, regulated, and alienated in that territory.Footnote 185
Second, notice that the existing scholarly discussion of the restraint on alienation has been divorced from the discussion of the inherent limit. For example, Slattery’s evolving thinking about Aboriginal title seems to have settled, rightly, on the view that the territorial aspects of Aboriginal title are revealed by the restraint on alienation.Footnote 186 Slattery comes right to the cusp of contending that Aboriginal title is not property by analogizing Aboriginal title to provincial title, though he stops just short of a full-fledged pronouncement to that effect.
[T]he reason why Aboriginal title cannot be described in traditional property terms is that it is not a concept of private law at all. It is a concept of public law. It does not deal with the rights of private entities but with the rights and powers of constitutional entities that form part of the Canadian federation. If we cast about for analogies to Aboriginal title, we discover a close parallel in Provincial title—the rights held by the Provinces to lands within their boundaries.Footnote 187
Yet, by Slattery’s own admission, his analogy to provincial title does not satisfyingly explain the “puzzling” inherent limit.Footnote 188 Our account improves on Slattery’s by pushing it one step further, escaping the property paradigm entirely; we explain the inherent limit and the restraint on alienation by reference to the same theoretical insight, namely, that the features of Aboriginal title can only be explained where Aboriginal title is understood as a right of sovereignty, not property. The inalienability of territory is one expression of sovereignty, as is the duty to act in good faith for the interests of the governed, i.e. the inherent limit. These are not disjointed burdens on the right, but rather are its essential, constituent contours.
VII. From Burden on Property to Feature of Sovereignty
i. Constraints on Use
Recall from section II that the inherent limit on the exercise of Aboriginal title, post-Tsilhqot’in, may now include modern uses. However, these uses must not deny future generations the “benefit of the land.”Footnote 189 As a result of this limitation, Aboriginal title lands are capable of limited uses, and the scope of the right remains unclear at best.Footnote 190
By thinking about Aboriginal title as a sovereign right rather than a property interest we can resolve the lack of clarity. When we think about Aboriginal title lands as property, confusion constrains the use of Aboriginal title lands, because every part of the land (as a property interest) might be better preserved for the benefit of future generations. But, when we understand Aboriginal title lands as a sovereign interest over territory, then the inherent limit simply requires that future generations be able to enjoy the benefits of the territory as a whole, including whatever modern uses the community might determine are warranted for its current and future benefit. One could never advocate the complete destruction of one’s entire territory, rendering it uninhabitable by flooding or strip mining. Once the land is stripped bare, rendered uninhabitable, useless, or poisoned, future generations (and indeed the present one) are denied their rights to act as sovereigns over the now useless or uninhabitable land because, in part, that future generation could not use the land in a way that maintained the benefit of the land for future generations.Footnote 191 But we could easily imagine some portions of the territory being put to use in some resource extractive way, including forestry, provided that the benefits of that extraction flow exclusively (in terms of taxation and other governmental benefits) to the community for the community’s own use, now and in the future.Footnote 192
One could imagine First Nation citizens deciding in a public process that in order to build community infrastructure (schools, water filtration plants, or the like), some portion of the Nation’s Aboriginal title lands should be put to some modern use like resource extraction. The royalties earned from this industry would in turn pay for the infrastructure required to educate and keep healthy this current generation of citizens. By educating its citizens and tending to their health care, this generation is better placed to raise a healthy and educated subsequent generation. That future generation would, in turn, still be able to benefit from the land through carefully managed exploitation of the natural resources that constitute the wealth of Aboriginal title lands. These lands would have to be carefully managed, because management of that sort is the only kind of management consistent with public authority, which is nothing less than ensuring that future generations are able to benefit from the Nation’s territory.Footnote 193
VIII. Conclusion: Aboriginal Title, Indigenous Sovereignty, and Reconciliation
The Supreme Court’s articulation of Aboriginal title is set out as a property right. But, as we have demonstrated, the Court’s construction of Aboriginal title is not consistent with the internal structure of a property right. One is free to use property as one pleases and without reference to the interests of any other person, but Aboriginal title contains an inherent limit on the uses to which Aboriginal title can be put. Aboriginal title lands can only be used in ways that maintain the benefit of the lands for present and future generations, and this is inconsistent with the very nature of a property interest. Aboriginal title lands can only be alienated to the Crown, and this too is a limitation inconsistent with a right in property.
Aboriginal title is thus better understood as the right of a sovereign. Unlike property, the exercise of sovereignty is always constrained by the need to act on behalf of a political community, and in the case of Aboriginal title lands, this constraint finds expression in a limitation that requires the lands not be used in a way that denies present and future generations the benefit of the land. Similarly, Aboriginal title lands are better understood as constituting the territory of a sovereign because the alienation of Aboriginal title lands requires a public process, and the alienated lands can only be ceded to another sovereign.Footnote 194
There is much more to say about the significance of this, but not enough space here to do so. We offer a few programmatic remarks to conclude. Our argument is consonant with recent academic writing and jurisprudential developments about the urgent need to recognize the sovereignty of Aboriginal peoples in Canada’s constitutional order. This sovereign right has a deep constitutional pedigree rooted in Section 35 of the Constitution Act.Footnote 195 As a unanimous Court held in Mikisew Cree First Nation, the “fundamental objective of the modern law of [A]boriginal and treaty rights is the reconciliation of [A]boriginal peoples and non-[A]boriginal peoples and their respective claims, interests, and ambitions.”Footnote 196
Richard Stacey has forcefully shown that “[t]he Crown’s historical failure since contact to recognize Indigenous sovereignty in any politically meaningful way has perpetuated a sovereignty deficit in Canada.”Footnote 197 Reconciliation, then, requires “erasing this sovereignty deficit” using the framework of s 35.Footnote 198 Stacey has done the important work of showing that the duty to consult Aboriginal peoples, despite being a judicial innovation rather than an express constitutional rule, “is one way—but not the only way” to reduce Canada’s sovereignty deficit.Footnote 199 Aboriginal title, we submit, is another way to fill this deficit. In fact, it may be the keystone piece in so doing. After all, sovereign right over territory is the essence of Aboriginal title. The duty to consult and the panoply of individual, usufructuary Aboriginal rights protected by the s 35 guarantee are doubtlessly important. But Aboriginal title has added significance, because Aboriginal title is the doctrinal recognition of the flagship public law power that Aboriginal peoples deny ever ceding to the Crown.Footnote 200 The claimants in Delgamuukw made precisely this argument. They demanded recognition of their “jurisdiction” over their land, which includes the right to enforce existing Aboriginal law, as well as make and enforce new laws as necessary to govern their people and their land (just as any sovereign can and must).Footnote 201 In short, they asked for recognition of their sovereign right.Footnote 202
The Court’s evolving jurisprudence concerning Aboriginal peoples since Haida Nation Footnote 203 and Taku River Tlingit First Nation Footnote 204 contemplates at least some conception of sovereignty for Aboriginal peoples. These cases mint a new paradigm in which Crown sovereignty began to be described as a merely de facto assertion of authority, accompanied by the insistence that Aboriginal peoples were never conquered.Footnote 205 Coherently reconciling Indigenous sovereignty and the fact of Crown control has been a desiderata of the jurisprudence ever since Haida Nation. Footnote 206 There, McLachlin CJ explained the need to square the “pre-existing Aboriginal sovereignty with assumed Crown sovereignty.”Footnote 207 Recognizing Aboriginal title as a sovereign right is one way, and perhaps the central way, to reconcile these competing visions of Aboriginal people who were never conquered, but whose use of their lands is now constrained by a settler court’s conception of a special, sui generis, property right for Indigenous people. We hope that those who have approached the recent Aboriginal title jurisprudence with more skeptical eyes will also find something attractive about this account, because it allows for Indigenous sovereignty to emerge as the central focus from the often messy jurisprudence.Footnote 208 Understanding Aboriginal title as a right of sovereignty means that settler governments will have no choice but to think of their Indigenous partners as an order of government, and together we will have the opportunity to figure out what that means for our shared constitutional order.Footnote 209
One might be suspicious of the idea that we can have multiple sovereigns in our legal system.Footnote 210 But we need not balk at the suggestion that Aboriginal title recognizes sovereignty. Many have argued that recognition of Indigenous sovereignty can be cognized in Canadian courts, all without ‘unravelling Canada,’ as it were.Footnote 211 We contend that the sovereign right that First Nation communities hold over the territory of Aboriginal title lands is not necessarily the right of a sovereign at international law. After all, the provinces in Canada are not international sovereigns. Yet the fact that provinces are sovereign (in our narrow, law-making authority sense of the term) does not threaten the federal government’s status as an international sovereign. The reluctance to recognize multiple sovereigns,Footnote 212 in the sense we employ the term ‘sovereign,’ is, therefore, misplaced. Again, we are not suggesting that Aboriginal title lands constitute separate countries, distinct from Canada and the provinces, and that First Nations exercising authority over Aboriginal title lands are free to raise armies, engage in international treaties, or otherwise ignore federal and provincial law. The sovereign authority Indigenous people have over Aboriginal title lands is a sovereign authority that exists in relation to the land laws and system of tenure that go to the proving of Aboriginal title in the first place. That is, First Nations are sovereign over their territories to the extent that they can make laws, consistent with the right of future generations to benefit from the title lands, regarding the uses to which Aboriginal title lands are put. This is a narrow right of sovereignty: it is the right to determine how territory is used, and nothing more. There may be a host of reasons why First Nations should be able to make laws governing more than the use of their lands, but none of that law-making authority is, in our view, a necessary feature of Aboriginal title. The right to Indigenous self-governance is broader than the particular modality of sovereignty that Aboriginal title confers.Footnote 213 Aboriginal title is an instrument for Aboriginal peoples to exercise their pre-existing authority.Footnote 214 Other doctrines and institutions may serve as further expressions of Indigenous sovereignty and self-government. One result of recognizing this form of sovereignty is the need to address the place of Indigenous nations within the federal structure of constitutionalism—not as distinct national actors, but as sovereigns within a sovereign, just as provinces are sovereigns within the nation state we call Canada.Footnote 215
In the introduction to this paper, we posed four questions that the Court’s property based conception of title did not, or could not, answer. In closing, we want to make the case that our conception of Aboriginal title provides answers to those questions.
1) What laws (primarily) govern Aboriginal title lands?
Since Aboriginal title claims are proven, in part, by reference to Indigenous systems of land tenure and use, and reflect those legal systems, law-making authority is part of the basic structure of Aboriginal title.Footnote 216 As sovereigns over their own territories, Indigenous communities themselves are the appropriate makers of law governing Aboriginal title lands. Some of these uses may put the Indigenous community in conflict with federal or provincial laws. When this happens, we can turn, in part, to the existing set of rules and procedures that we use to resolve conflict of laws problems as between the federal and provincial governments. To be sure, there are important sui generis elements of the relationship between Indigenous peoples and the federal legal order that must receive their due consideration. Some of the relevant jurisprudential resources to address this relationship exist already. There are important historical precedents for the idea that the common law in Canada must grapple with legal rights and statuses governed by Indigenous legal traditions.Footnote 217 Our legal order must answer these questions of jurisdiction in order to recognize the existence of three equal sources of law in Canada. Working through the overlap of authorities in this way is Reconciliation.
2) Who has standing to challenge whether some particular use of Aboriginal title territory is consistent with the inherent limit?
At present, this is far from clear. Since the uses to which Aboriginal title lands are put are determined by the Aboriginal community itself, our account would require that only community members could challenge any particular use. And claimants would have to do so with reference to the laws of the Aboriginal nation itself.Footnote 218 The right to challenge lawmakers’ decisions is a crucial right enjoyed by members of the Aboriginal nation. Courts have a key role in upholding the rule of law.Footnote 219 The federal and provincial governments, and individual non-community citizens, have no authority to question the uses to which Aboriginal title lands are put, because private citizens and other governments lack authority not merely as property owners, but as sovereigns over Aboriginal title lands.
3) What is the status of private land interests that overlap with a finding of Aboriginal title?
This issue has perplexed the Court and academic commentators.Footnote 220 Borrows concludes that Tshilqot’in allows for a declaration of Aboriginal title “even in cases where private land interests are located in the claimed territory.”Footnote 221 The view we offer here vindicates and bolsters this insight. A finding of title does not conflict with private property rights precisely because territorial governance and property rights are different jural relationships that can (and must) co-exist over the same physical space. All property is held in a jurisdiction. This means title holders can avail themselves of a number of governance mechanisms, including taxation, municipal services, and land use planning, without creating a false conflict with private property interests.Footnote 222 There is no conflict because Aboriginal title is not property—and so no conflict over property rights arises as between the private land holder and the Aboriginal title lands in which that private property is located. Indeed, there is a complementarity: all private rights must be embedded in a public legal order. Here the legal order in question that of the Aboriginal nation holding title.
4) What does a rehabilitated doctrine of Aboriginal title look like? That is, how can the doctrine of Aboriginal title be updated in light of jurisprudential developments and academic commentary stressing that Indigenous sovereignty was never ceded?
Our account furnishes a theoretical basis to excise the malignant parts of Aboriginal title doctrine associated with myths such as terra nullius, the doctrine of discovery, and underlying Crown title.Footnote 223 These doctrines are an affront to Indigenous sovereignty. Commentators have long criticized the Court’s contention that Aboriginal title can be unilaterally extinguished. McNeil has argued that the Crown’s ability to extinguish title lands was never supported by precedent or principle, certainly since the advent of s 35, if not well before that.Footnote 224 Borrows is poignant in his indictment of extinguishment, writing that “for many Aboriginal peoples, extinguishment is genocide. This is not a morally legitimate framework to embed in our constitutional structure.”Footnote 225 The Crown’s ability to extinguish the rights of a people may look at least coherent if they merely hold property. The property characterization gives oxygen to extinguishment. But if Aboriginal title holders are sovereigns, the purported ability of one sovereign to unilaterally extinguish the legal system of another looks legally and morally suspect, even (and perhaps especially) in a federal order. Were the federal government to purport to extinguish provincial title, this would raise eyebrows. The same suspicion is warranted in the case of Aboriginal title.Footnote 226
Something similar can be said for the notion that the Crown may carry out justified infringements of Aboriginal title. Dwight Newman has argued that the Court created a role for justified infringements of title rights despite an absence of textual support for such a power.Footnote 227 Relatedly, Felix Hoehn astutely observes that “[i]f the Indigenous interest were recognized as sovereign and so equal to the quality of the Crown’s interest, the Crown would not have a unilateral power to negotiate and infringe.”Footnote 228 The idea that Aboriginal title right is merely a property right underwrites a hierarchy between the sovereign Crown and title holders, which in turn rubber stamps the Crown’s excursions on title lands. On our view, the restraint on alienation and inherent limit are theorized, coherent features of the sovereign right enjoyed by title holders, but the power of the Crown to extinguish and infringe are relics of subordination. Only a unified account of Aboriginal title as sovereign right allows us to identify the contours of the right while surgically removing the conceptual deadweight.Footnote 229
We have not claimed to answer—or indeed anticipated—all of the questions associated with recognizing Aboriginal title as a sovereign right. There remain important questions concerning how Aboriginal title, seen in this fresh and normatively attractive light, can slot into the legal order of which it is a part. But we hope to have invited a dialogue of private and public lawyers, Indigenous persons and scholars, and theorists and practitioners of Aboriginal law, to grapple with Aboriginal title anew. It has been nearly a quarter century since the Court has reminded us, “we are all here to stay.”Footnote 230 Recognizing Aboriginal title as a sovereign right to territory means that Indigenous people not only remain, but remain in place as citizens, and sovereigns, in a multicultural, pluralist federation.
