Reconciling rights to land

As a law student at the University of Toronto, Amitpal Singh heard this statement, or a slightly altered version of it, time and time again: 

"I (we) wish to acknowledge this land on which the University of Toronto operates. For thousands of years, it has been the traditional land of the Huron-Wendat, the Seneca, and the Mississaugas of the Credit. Today, this meeting place is still the home to many Indigenous people from across Turtle Island and we are grateful to have the opportunity to work on this land."

Land acknowledgments like this one will sound familiar to many, as they have become a customary feature of public gatherings, particularly within certain institutions. They aim to acknowledge the connection Indigenous people have with their traditional lands. But what do they say from a legal point of view?

For Singh, this year's recipient of the CBA Viscount Bennett Fellowship, it's an act of collective acknowledgment that brings more questions than clarity about the direction of Canadian legal doctrine when it comes to reconciling the sovereignty interests of Indigenous people.

"We're in this strange situation where we acknowledge that Aboriginal and Indigenous people in this country have powerful claims to the land that we're sitting on and using, but we're not quite sure of what to do about that," Singh says.

Singh's training in philosophy, in which he holds a master's, frames how he approaches legal questions as an academic and lawyer in commercial litigation and international arbitration. Similarly, he is applying philosophy and ethics to thinking through what he calls "the big problem."

As he completes the Master of Laws program at Yale University this year, Singh is trying to rethink how Canada should reconcile Indigenous title with the private land rights of those currently living in Canada.

"At the moment, the law doesn't have very much to say about this problem, and it can only do that if it has a broader philosophical perspective to bear," he explains. "This is not one of the areas of law where we can close our eyes to theory." 

Canadian courts have long dealt with the unique constitutional relationship between Indigenous people and the Crown concerning land rights. The constitutional recognition of Aboriginal Rights in 1982 marked a turning point, prompting courts to develop their own framework for handling Indigenous land claims.

But in the wake of the release of the Truth and Reconciliation Commission of Canada report in 2015, the courts have not yet tackled the matter regarding private land interests.

"The law is obviously reflecting some sort of political, moral, philosophical assumptions about who has the best entitlement to land," Singh explains, adding that such assumptions "are often undertheorized and may not ultimately be the right ones [...] The law is only going to take us so far, but [first] there has to be a national will that's informed by sophisticated theoretical and philosophical thinking about the direction of this country."

If Singh's academic career appears to be an effort to bridge the gap between two fields that often exist in tension with one another, it's because it is. As an adjunct professor at the University of Toronto's Department of Philosophy and the Lincoln Alexander School of Law, he's dedicated to research that blends the clear-cut with the deliberately ambiguous.

At a young age, Singh's family immigrated from Singapore to Oakville, Ontario. He was raised to think through big questions. His father, a chemist by training, grew up in a vastly different political and legal environment from Canada's. At the dinner table, Singh remembers hearing more about how and why the Canadian legal system is different than Singapore's than he did about chemistry from his father. He credits these conversations for the wide lens through which he examines problems today.

When he thinks about private and Indigenous law, he uses the term reconciliation very deliberately to challenge the construct of Canada's legal framework. Drawing from philosophical literature that he intends to apply to his research, Singh describes a world in which rights, often in conflict, talk past each other. But Singh believes they can be reconciled when placed in a common dialogue. Singh is hoping this application of theory can frame our thinking about land rights claims, specifically.

"In this context of Aboriginal and Indigenous Law, we're not setting out to find winners and losers," he says. "We're setting out to find reconciliation and partnership accommodation of each other's claims – both of which are legitimate."

Singh is not alone in believing that taking a step back to gain a different perspective is how we ought to determine the way forward for legal doctrine.

As a law student, Singh took a first-year class taught by professor and academic Douglas Sanderson, who inspired him to pursue his chosen research topic. Sanderson, who is Swampy Cree, Beaver clan, of the Opaskwayak Cree Nation, recognized Singh's ability to find new points of view in academia when they co-authored an article titled Why Is Aboriginal Title Property if It Looks Like Sovereignty?

According to Sanderson, one of Singh's greatest strengths is putting in the time to analyze what needs mending where most would sit back and point to flaws in the courts' reasoning. "He has a remarkable capacity to understand what he doesn't understand," says Sanderson. "And he's got a very calming yet forceful presence."

Another mentor of Singh's, David Dyzenhaus, who is a professor of law and philosophy, emphasizes the importance of academics with a philosophical mindset shedding light on legal matters, thereby enabling practitioners to reshape their perspectives.

"If Amit is as successful as I think he'll be, he'll be one of those scholars who manages to convince us to take a philosophical look at such issues like Indigenous law in Canada," says Dyzenhaus. "Not by saying why it might be useful but by showing why it is useful."

As Singh looks at the work that lies ahead of him, he's motivated to keep searching for answers by the fact that he could be setting the groundwork to solving an issue in which every Canadian has a stake. "I think theoretical questions are always just behind the law; it's just a question of whether we choose to examine them or not."