Locke, Hegel, and Rights to Property: Examining the Unstable Ideological Architecture of the Canadian Law of Aboriginal Title

31 Pages Posted: 15 Aug 2015

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: April 30, 2012


In Delgamuukw v. British Columbia the Supreme Court claimed to have grounded the Canadian law of aboriginal title neither exclusively in the common law nor exclusively in aboriginal legal systems. It has since been pointed out that, because of the inter-societal nature of the questions posed by the law of aboriginal title, it should be based in “higher order” principles of justice. This paper argues that the law as set out in Delgamuukw and the cases that have followed it is based on a hybrid of Lockean and Hegelian arguments justifying aboriginal title to the lands these groups have occupied. This mix of arguments based on labour desert and embodiment of cultural will in turn explains the content and limits of aboriginal title, including the apparent exclusion of nomadic peoples from title claims, the restriction of uses to which title lands can be put, and the limits on the alienation of title lands. Yet the Lockean and Hegelian frameworks contradict each other at a number of points, and I argue that these contradictions have been the source of much of the criticism of the Delgamuukw decision. In the next two parts of the paper, I examine the possibility of rooting the law of aboriginal title either exclusively in Lockean or Hegelian justificatory frameworks. Each in turn is rejected on the basis of internal contradictions and intuitively problematic results. In the final section of the paper, I then sketch out an alternative set of justificatory arguments for the law of aboriginal title which is based on utilitarian ideas. Under this model, fully alienable title without paternalistic limits on use could be justified in a coherent manner for all aboriginal peoples, including traditionally nomadic groups.

Keywords: aboriginal law, aboriginal title, property law, property theory, political theory

Suggested Citation

Lavoie, Malcolm, Locke, Hegel, and Rights to Property: Examining the Unstable Ideological Architecture of the Canadian Law of Aboriginal Title (April 30, 2012). University of Toronto Faculty of Law Review, Vol. 69, No. 1, 2012, Available at SSRN: https://ssrn.com/abstract=2643705

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5

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