The Uncertain Shape of Legally Recognised Indigenous Property Rights: Paths Forward in Law Reform?

This paper, situated primarily in the context of Canadian Aboriginal title doctrine but making some comparative reference to Australia, seeks to consider some issues related to how ongoing uncertainties on the shape of Indigenous property rights affect prospects for Indigenous economic growth. It also seeks to offer some perspectives on legal reform in this complex cross-cultural context. It stems in part from a current project on Aboriginal title, much of which is oriented to trying to sort through various doctrinal elements of what the law on Aboriginal title is today in Canada after the 2014 Tsilhqot’in decision.

Associated legal uncertainty issues apply not just in the context of actual Aboriginal title areas but also areas subject to asserted title claims, due to the application of Canada’s duty to consult doctrine. The paper seeks to show how several dimensions of uncertainty attaching to Indigenous property rights can be detrimental to economic growth generally but also specifically to Indigenous economic growth, the latter on account of uncertainties on how Indigenous or Indigenous-claimed lands may be used. The paper tries to highlight some options for law reform, suggesting that some of the most promising might actually be found in certain Indigenous-led initiatives.

Biography: Dwight Newman, B.A. in Economics (Regina), J.D. (Saskatchewan), B.C.L., M.Phil., D.Phil. in Legal Philosophy (Oxford), is a Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. He has been a recent visiting fellow at Princeton, Montréal, and Cambridge, and in early 2018 he visited at the University of Western Australia. He has published around a hundred articles or book chapters and a dozen books, with his books covering topics such as consultation with Indigenous peoples, business implications of Aboriginal law developments, and mining law; he currently has edited collections in progress on Indigenous-industry agreements and on the international law of Indigenous rights.

His writing has been cited by all levels of Canadian courts, including repeatedly by the Supreme Court of Canada, as well as in argument before the United States Supreme Court. Prior to entering a faculty role, Dr. Newman clerked at the Supreme Court of Canada, worked for human rights NGOs in South Africa and Hong Kong and for the Canadian Department of Justice, and completed his graduate studies at Oxford University, where he studied as a Rhodes Scholar. He is today a member of the Ontario and Saskatchewan bars and he does selective legal work for industry, government, and Indigenous communities focused mainly on understanding constitutional and Indigenous rights issues associated with resource development as well as consulting work on related issues for international investment entities.