Libertarian First Possession Theory and Indigenous Land Rights

 

Although Robert Nozick commented explicitly on Indigenous land rights within his account of libertarianism, later libertarian property theory has generally not discussed the topic.  This is unfortunate.    Perhaps to the surprise of many Indigenous rights scholars, libertarian accounts of rights of first possession offer a potentially powerful argument for Indigenous land rights and a potentially sophisticated account of their limits.  Part of a larger project on how various strands of conservatism have more room for Indigenous rights than often realized, this paper demonstrates this proposition tangibly by focusing mainly on (1) Randy Barnett’s discussion of rights arising from first possession and (2) the Canadian doctrine of Aboriginal title.  Part II of the paper provides necessary background on Barnett’s theory and on the Canadian doctrine.  In Part III, the paper shows how Barnett’s account, though not referencing Indigenous rights, logically supports Aboriginal title but also supports limits on Aboriginal title that have some resemblance to limits the courts have developed.  Part IV shows that thinking through why the law recognizes rights arising from first possession also suggests that some limits within the Canadian Aboriginal title test have not been framed in the most optimal ways.  Part V considers whether the theory at issue ends up implying pressures against communal land ownership, arguing that there are actually complexities on this point.  Part VI argues that this discussion also has something to say back to Barnett’s theory, potentially adding some additional subtleties to libertarian theory on property.      

 

Dwight Newman is a 2015-16 Visiting Fellow in the James Madison Program at Princeton University.  He is Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.  He has published widely on constitutional law and Indigenous rights topics, and he is currently working on a project on political theory and Indigenous rights.  He completed his DPhil at Oxford in 2005, and he published a book based on his thesis in 2011 with Hart (Community and Collective Rights: A Theoretical Framework for Rights Held by Groups).  While at Oxford, he also co-convened the Jurisprudence Discussion Group from 2003 to 2005.--