Locke, Hegel, and rights to property: examining the unstable ideological architecture of the Canadian law of aboriginal title.

• Author: Lavoie, Malcolm

1. INTRODUCTION II. COMPETING JUSTIFICATORY PRINCIPLES IN DELGAMUUKW i. The Hegelian Justification ii. The Lockean Justification iii. Reconciling the Two Justificatory Strains III. HEGELIAN EMBODIMENT OF THE WILL AS A UNIFIED JUSTIFICATORY STRATEGY i. The Egalitarian Proviso ii. Aboriginal Uniqueness IV. LOCKEAN PROPERTY RIGHTS AS A UNIFIED JUSTIFICATORY STRATEGY i. Labour Mixing ii. The Labour Theory of Value iii. Labour as a Marker of Intentions V. RULE UTILITARIANISM i. The Content of Property Rights ii. Allocation of Holdings iii. The Content of Utilitarian Aboriginal Title iv. Intuitive Moral Judgments v. Criticisms of Utilitarianism vi. Eurocentrism vii. Recommendations VI. CONCLUSION I. INTRODUCTION

   Aboriginal title in Canada is a sui generis right whose content was comprehensively expounded in Delgamuukw v British Columbia. (1) In that case the Supreme Court declined to base aboriginal title either exclusively in the common law or in aboriginal legal systems, preferring instead to set out an alternative framework. (2) It has since been noted that, because of the inter-societal nature of the questions raised by aboriginal title, there is a need for higher order principles that can mediate between the competing claims of different normative orders. (3) The doctrine of aboriginal title must, among other functions, be capable of assessing competing claims between two or more aboriginal groups, between aboriginal groups and the Crown, and between aboriginal groups and individual holders of Crown grants. (4) An understanding of the principles and interests that aboriginal title is meant to uphold should form the starting point for the consideration of these questions. The answer to the question "Why should we recognize past aboriginal occupation of land?" informs both the assessment of competing claims and the limits of what aboriginal title entails. This paper will attempt to demonstrate that the principles adopted by the Supreme Court in Delgamuukw are based on a mix of Lockean and Hegelian arguments justifying the acquisition of property rights. After examining and rejecting the Lockean-Hegelian hybrid used by the Court, I will attempt to show that neither the Lockean nor the Hegelian argument alone can ground a coherent and satisfying conception of aboriginal title. Instead, I will propose an alternative set of justificatory arguments for aboriginal title, based on utilitarian ideas. Among other things, such a framework better accords with our intuitions regarding the proper scope and content of aboriginal title.

   As noted, the second part of the paper will show that the doctrine of aboriginal title as developed by the Supreme Court in Delgamuukw is based both on Lockean and Hegelian justifications for grounding title in land. The Court seems on the one hand to place some emphasis on the Lockean idea of intensive productive use of land without waste, particularly in its apparent exclusion of nomadic societies from title claims over lands not regularly used. (5) On the other hand, the Hegelian framework based on the ongoing cultural attachment of aboriginal societies to their traditional lands justifies the privileged status of aboriginal title as well as the limits placed upon uses of the land and on alienation. (6) Under this second framework, societies may be said to gain title to the land through the embodiment of their will in it. (7) I will argue that these two frameworks do not sit well together in the Supreme Court's conception of aboriginal title, and do not appear to have been reconciled in any principled, conscientious way.

   The next two parts of the paper will examine the prospects for grounding aboriginal title either exclusively in Hegelian or in Lockean ideas. In the third part, I will attempt to show that even a modified Hegelian justification, based ultimately in the embodiment of the collective will of aboriginal societies in their land, is not resistant to the redistributive claims of others who do not have sufficient amounts of property in which to embody their wills. (8) So the Hegelian argument might justify the past redistribution of aboriginal land to property-less European settlers in the colonial period, and it might pose problems for the claims of small numbers of aboriginals to very large tracts of land. These problems can be resolved by recourse to the particularly strong connection aboriginal societies have with their land, which may justify greater protection of their property rights rather than the rights of those whose connection to the land is not as strong. (9) Yet, as I will attempt to show, this would make aboriginal title claims contingent on the continuation of traditional interactions with land, and would reinforce the intuitively problematic proviso that uses to which title land is put not be inconsistent with traditional uses of the land.

   In the fourth part, I will examine the possibility of relying on Lockean arguments alone in justifying aboriginal title. While not necessarily designed to dispossess aboriginals of their lands, (10) such arguments run into general problems with respect to the justice of original acquisition. The notion of labour mixing as granting title to land has long been seen as problematic. Further, Locke's labour theory of value is more adequately equipped to justify rights to specific uses in an object, rather than the open-ended rights that exist under aboriginal title. The moral value of useful labour that satisfies human needs may be posited, but such an argument likely rests on a false universalization of the consumption preferences and economic structures of a particular time and place in determining what sort of work is "useful" in this regard. (11) Finally, respect for the plans of people who have used an object to further their intentions might justify granting open-ended title based on productive use of land. (12) Yet this argument essentially collapses into the Hegelian justification based on embodiment of the will in an object, and imports the problems inherent in that justificatory strategy.

   So neither the Lockean or Hegelian argument alone is capable of justifying an intuitively adequate conception of aboriginal title. The final part of the paper will seek to provide an alternative set of justificatory arguments, based on rule utilitarianism, that are consistent with a broad and open-ended conception of aboriginal title. Past productive use of the land to satisfy human desires should still be the central idea, in order to provide an objective criterion for title that can at least partly transcend cultural context. This is important given the intersocietal nature of the law of aboriginal title. While the justificatory framework will remain rooted in productive use of the land, it will nevertheless differ from a traditional Lockean framework in its definition of productivity. Productive use of land is use that satisfies human needs and desires, yet the sphere of needs and desires ought to be expanded to include not just food and material comforts, but also others, such as spiritual needs.

   The adequacy of the theoretical approaches examined in this paper will be measured against strongly held moral intuitions relating to aboriginal land claims. This methodology is a familiar one in analytical political philosophy, though it is not uncontroversial. (13) The idea is to build upon strongly held moral judgments in a manner analogous to the way that scientific theories build upon empirical data. (14) If the theoretical framework does not accord with such considered moral judgments, it should normally be reconsidered. This approach may be criticized based on the non-empirical nature of testing against intuitive moral judgments, and the possible circularity in assessing an author's claims according to his intuitive judgments. But non-empirical tests are important in other systems of thought, including logic and mathematics. (15) This does not necessarily detract from their claim to truth. If there is truth in moral and political thought, it is likely to reside in our most firmly held convictions. (16) The circularity of arguments structured in this way becomes less problematic when viewed in this light. Working from what one is most certain about in order to make broader theoretical claims is, on its face, no more circular than arguing from axioms of logic, although the arguments proceed with less confidence. (17)

   The applicability of principles of justice derived in this way to legal, as opposed to purely political questions, will vary with the nature of the subject matter. It is not always appropriate to view the law as an instrument for achieving abstract political goals that can be derived from moral intuitions. A given legal institution may pursue a complex set of interrelated goals such that an assessment of its adequacy according to abstract principles of justice is destined to oversimplify matters. Furthermore, it may not be possible to articulate the ends of certain complex aspects of a legal tradition if they have evolved unconsciously over time rather than having been designed for a particular purpose. (18) These concerns are muted in the case of aboriginal title in Canada. The aboriginal title jurisprudence prior to Delgamuukw was not substantial, and the Court did not limit itself to building upon past case law. Instead, it designed a set of abstract legal principles without ruling on the facts of the case. (19) The task of concretizing these principles was left to future jurisprudence, and to negotiations. As a result of this high level of abstraction and the fact that the Court was itself building legal principles on the basis of moral judgments, considerations of complexity do not act as a barrier to assessing the Canadian law of aboriginal title in terms of our moral intuitions about the principles that govern it.

   One final note: In this paper, I use the terms "Lockean" and "Hegelian" quite loosely, to...