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

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  • Kenneth L. Avio

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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  • Kenneth L. Avio, 1994. "Aboriginal Property Rights in Canada: A Contractarian Interpretation of R. v. Sparrow," Canadian Public Policy, University of Toronto Press, vol. 20(4), pages 415-429, December.
    • Handle: RePEc:cpp:issued:v:20:y:1994:i:4:p:415-429
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    References listed on IDEAS

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    1. Umbeck, John, 1981. "Might Makes Rights: A Theory of the Formation and Initial Distribution of Property Rights," Economic Inquiry, Western Economic Association International, vol. 19(1), pages 38-59, January.
    2. Viktor Vanberg & James M. Buchanan, 1989. "Interests and Theories in Constitutional Choice," Journal of Theoretical Politics, , vol. 1(1), pages 49-62, January.
    3. McChesney, Fred S, 1990. "Government as Definer of Property Rights: Indian Lands, Ethnic Externalities, and Bureaucratic Budgets," The Journal of Legal Studies, University of Chicago Press, vol. 19(2), pages 297-335, June.
    4. Gordon, Scott, 1976. "The New Contractarians," Journal of Political Economy, University of Chicago Press, vol. 84(3), pages 573-590, June.
    5. Carlson, Leonard A., 1981. "Land allotment and the decline of American Indian farming," Explorations in Economic History, Elsevier, vol. 18(2), pages 128-154, April.
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    Cited by:

    1. Ian Keay & Cherie Metcalf, 2004. "Aboriginal Rights, Customary Law and the Economics of Renewable Resource Exploitation," Canadian Public Policy, University of Toronto Press, vol. 30(1), pages 1-27, March.

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