Private Law Theory

ABSTRACT
Equity has a long tradition of protecting the bona fide purchaser for value without notice (‘BFPVN’). A BFPVN takes perfect title to purchased land regardless of who may have come before them. The law’s protection of a BFPVN is so robust that a BFPVN is known as ‘equity’s darling’. This paper confronts the question of how the powerful equitable rights of BFPVNs interact with Indigenous land rights. In Canadian law, Aboriginal property rights are constitutional rights. Ordinarily, a constitutional right is only effective ‘vertically’, ie as against the state. The interaction of these rights two rights thus creates a conceptual problem: it is not clear how the most potent feature of Aboriginal title, its constitutional pedigree, offers any meaningful shield from extinguishment at the hands of equity’s darling, which has a ‘horizontal’, erga omnes ability to vanquish competing interests. In this paper, I canvass several accounts aimed at rendering the constitutional pedigree of Aboriginal title commensurable with the equitable rights of BFPVNs. I argue that the only conceptually and normatively satisfying account of the interaction of BFPVN rights and Aboriginal title is the pure public law conception of Aboriginal title. On this view, Aboriginal title is not a property right at all, but is instead a right of law-making over a territory.

Singh, Amitpal C, Aboriginal Title and Equity’s Darling (January 31, 2024) in Malcolm Lavoie, Gerard Kennedy and Kristopher Kinsinger (eds), Private Rights and the Rule of Law (SCLR 2024), Forthcoming.