The conflict-of-laws contribution to the interaction of Indigenous property and settler-state property laws

Wednesday, 6 June 2018
Jan Jakob Bornheim

In different jurisdictions, methodology from the conflict of laws can contribute to a successful interaction of settler-state property law systems and Indigenous legal traditions governing Indigenous land. Three areas in particular could benefit from a conflict-of-laws-based framework for the coordination of Indigenous legal traditions and settler-state property law: the issue of overlapping Indigenous title and third-party settler-state property rights; the rule against alienability of Indigenous land; and the issue of infringements of Indigenous title. Depending on the jurisdiction, the conflict-of-laws-based framework could either apply as part of the current law or be incorporated in a settlement treaty.

First, regarding overlapping title, the conflict-of-laws mechanism of “transposition” can strike a balance between the recognition of Indigenous governance rights and good-faith third-party rights.

Second, restrictions on alienability are often justified by reference to the autonomy arguments. A conflict-of-laws analysis can bridge settler-state economic property rights and the Indigenous community’s autonomy and jurisdiction over its land.
Third, regarding infringements of Indigenous lands, the conflict-of-laws rules on torts in relation to immovable land can provide a widely accepted mechanism for determining to which extent Common Law discretionary rules regarding tort claims in relation to land should be superseded by Indigenous land governance rules.