Minding the gaps: Property, geography, and Indigenous peoples in Canada

Abstract

Indigenous peoples’ property rights are hotly debated in legal, policy, and academic circles across Canada. This article explores three such debates in which Indigenous peoples and lands are centrally implicated: debates over implementing fee simple ownership on Indigenous lands, over securing land rights through modern treaty making, and over matrimonial real property rights on Indian reserves. Each of these debates, we argue, revolves around a perceived “property gap”, a term we use to denote conflicting understandings of what property is (or should be), what it should accomplish, and a perceived absence or failure in property law. While such gaps are commonly identified as sites where Indigenous and Western ideas about property come into conflict, creating absences or discontinuities that need mending, they can also be understood as openings where taken-for-granted conceptions of property are “up for grabs”. The property debates examined here reflect ongoing struggles over geography, highlighting contention over who can legitimately claim “ownership” over certain spaces and who can control how lands are used and governed. More broadly, they reflect efforts to “locate” Indigenous peoples vis-á-vis the modern settler state of Canada. Rather than working to “fix” these property gaps through imposition of dominant Western property ideas and structures, we stress the need to explore a broader range of property options at these sites, including those shaped by Indigenous understandings of property and geography.