‘Translating Sui Generis Aboriginal Rights in the Civilian Imagination’
in: Les intraduisibles en droit civil, (Montreal: Thémis, 2014) (pp.1-36)
36 Pages Posted: 24 Sep 2018
Date Written: October 15, 2014
Common law jurisprudence considers Aboriginal rights to be sui generis, reminding us that they represent unique interests in land for which existing terminology drawn from the general law of property is always “somewhat inappropriate.” Nevertheless, a vocabulary has been developed for describing these unique interests in land that are said to arise out of “inter-sociatal norms". Is it particular to the common law, or can it be translated into civilian terms? More to the point, perhaps, why would you ever want to do so? For jurisdictional and historical reasons, it seems the civil law is silent on the question of Aboriginal rights. There is and has been simply no need to “fit them in” and so Aboriginal rights are not even sui generis in the civil law, but completely other. This paper aims to bring some nuance to this situation of non-translation. It will canvass a slim set of examples, both historical and contemporary, where Aboriginal rights find a distinctly civilian expression. Further, it will argue that as an exercise in legal imagination, it is both possible and beneficial to engage in exercises of translation between the languages of Aboriginal rights and those of the civil law. This extends both to Aboriginal rights as a distinct doctrine of the common law, and to a more ethnographic conception that would engage with Indigenous ways of relating to the land, taking the trapline system of the James Bay Cree as an example.
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