Property Law and Collective Self-Government

53 Pages Posted: 18 Oct 2017 Last revised: 29 Jan 2021

See all articles by Malcolm Lavoie

Malcolm Lavoie

University of Alberta Faculty of Law

Date Written: August 25, 2017

Abstract

The property interests of Indigenous communities exhibit distinctive patterns that recur across different countries and in relation to widely differing Indigenous cultures, including in the United States, Canada, Australia, and New Zealand. The principal recurring patterns include: alienation restraints, group governance powers as an incident of land tenure, distinctive rules of co-ownership favouring collective governance, and unique collective and individual estates in land. This paper argues that these distinctive doctrinal features can be explained in part by the functional challenges associated with using property interests in land as a basis for collective self-government. One of the central challenges relates to differences in the optimal scale of various uses that may be pursued on a land base. While uses like housing or farming might best be pursued using individual land titles over relatively small parcels, the collective interest of a group in self-government could require an extensive, contiguous land base occupied by a critical mass of members. The use of land as a locus for a distinctive, self-governing culture is thus an activity that is optimally pursued on a larger scale than would be optimal for most other uses which may be pursued simultaneously. The tension this creates, emerging out of the attempt to manage what the author calls a “cultural semicommons”, is mediated by a distinctive set of institutions. Understanding this functional basis for Indigenous land tenure in common law countries is an important starting point in considering proposals for reform.

Keywords: Aboriginal Law, Property Law, Indigenous, Alienation Restraints

Suggested Citation

Lavoie, Malcolm, Property Law and Collective Self-Government (August 25, 2017). (2018) 64:2 McGill LJ 255, Available at SSRN: https://ssrn.com/abstract=3054686 or http://dx.doi.org/10.2139/ssrn.3054686

Malcolm Lavoie (Contact Author)

University of Alberta Faculty of Law ( email )

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

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