Aboriginal Property Rights in Canada: A Contractarian Interpretation of R. v. Sparrow

Abstract

This paper attempts to sketch a coherent economic account of aboriginal property rights as implied in Sparrow. The qualitative characteristics of such rights are discussed and evaluated from the contractarian perspective of James Buchanan. Inalienability is examined in the context of an aboriginal right to fish. The public-good nature of cultural identity and the corresponding free-rider problem are seen to rationalise the proscription of a commercial aspect to this right. The paper legitimises the posited characteristics as the reasoned outcome of hypothetical bargaining, given the historical goals and threat values of the Crown and aboriginal peoples, and assuming "communicative rationality."

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