Making Space for Property

Abstract

A modern day treaty process in British Columbia, Canada, involving First Nations and the federal and provincial governments, entails a struggle to carve out both metaphoric and material space for indigenous land and title. Despite considerable opposition, the state has insisted that First Nations will hold their treaty lands as a form of "fee simple", this being the way most private property owners hold property, granting broad rights to access, use, and alienate. This is said to generate what the state terms "certainty", a concept predicated on the idea of property as a priori, singular, and definite. I explore the resultant contest through a performative lens that treats property not as essence, but as effect. Tracing the complicated ways in which fee simple is performed in the treaty process reveals that fee simple is anything but. Multiple, competing, and overlapping fee simples are in circulation. The identification of this multiplicity offers valuable lessons for our understanding of the contemporary space of postcolonial reconciliation.

Keywords: Common Law, Critical Legal Geography, Performativity, Property, Reconciliation