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Exclusive occupation and joint aboriginal title.


In Tsilhqot'in Nation v British Columbia, (1) the Supreme Court of Canada for the first time issued a declaration of Aboriginal title. The area to which the declaration applies is part of the traditional territory of the Tsilhqot'in Nation, amounting to the land within the claim area that they were able to prove, to the satisfaction of Justice Vickers at trial, had been in their exclusive occupation at the time of the Crowns assertion of sovereignty in 1846. (2)

The area claimed in the Tsilhqofin Nation case was not subject to competing claims by other Aboriginal peoples. (3) However, as is well known, overlapping claims by different Aboriginal groups are common in British Columbia, (4) raising the issue of whether any of the claimants can have title to those areas. The problem is that Aboriginal title, as conceived by the Supreme Court of Canada, depends on proof of exclusive occupation of land at the time of the assertion of Crown sovereignty. (5) How then, it may be asked, can any Aboriginal claimants have title to areas where claims overlap?

In some cases, this may be a matter of establishing appropriate boundaries based on the historical facts where there are competing claims. This is a common situation in both domestic property law and international law. When the parties agree on the location of the boundary, that usually resolves the matter, at least between the parties. (6) Otherwise, the matter can be determined by a court, which can also happen where a boundary agreement has to be interpreted or an agreed boundary has to be located on the ground. (7)

There is, however, another possibility where Aboriginal claimants are concerned, namely joint Aboriginal title. In Delgamuukw v British Columbia, (8) the Supreme Court envisaged this possibility, without much elaboration. My goal in this article is to develop the concept of joint Aboriginal title and suggest how it might apply to overlapping claims. I will start by discussing the requirement of exclusive occupation that the Supreme Court has applied to Aboriginal title and the Court's brief observations on joint title in Delgamuukw. I will then discuss how the common law has dealt with shared exclusivity in the context of real property rights apart from Aboriginal title. Next, I will examine American law on joint Aboriginal title. I will conclude by discussing how this concept of joint title might apply in Canada and be used to resolve at least some overlapping title claims.

In this article, I will not address the issue of how the Crown could acquire sovereignty over Aboriginal peoples and underlying title to their lands without their consent and without conquest. (9) Likewise, I will leave aside the question of how Aboriginal groups are to be defined and identified for the purpose of specifying the holders of Aboriginal title or other rights in relation to any particular lands. (10) When referring to the title or rights holders apart from specific cases, I will therefore use the broad (and I hope neutral) term "Aboriginal group", rather than terms like Aboriginal people, Aboriginal nation, Indigenous people, First Nation, etc., as use of any of these terms might beg the very question I wish to avoid at this time. (11)


In the Delgamuukw decision, the Supreme Court declined to issue a declaration of Aboriginal title because of the way the case had been pleaded and because the Court disapproved of the trial judge s treatment of the oral histories of the Gitksan and Wet suwet'en Nations. (12) Chief Justice Lamer nonetheless wrote a lengthy judgment on the sources, nature and content, proof, and constitutional protection of Aboriginal title. (13) As mentioned earlier, Aboriginal title can be established by proof of exclusive occupation of land at the time of the Crown's assertion of sovereignty. Regarding exclusivity, Lamer CJC elaborated as follows:
   Finally, at sovereignty, occupation must have been exclusive. The
   requirement for exclusivity flows from the definition of aboriginal
   title itself, because I have defined aboriginal tide in terms of
   the right to exclusive use and occupation of land. Exclusivity, as
   an aspect of aboriginal title, vests in the aboriginal community
   which holds the ability to exclude others from the lands held
   pursuant to that title. The proof of title must, in this respect,
   mirror the content of the right. Were it possible to prove title
   without demonstrating exclusive occupation, the result would be
   absurd, because it would be possible for more than one aboriginal
   nation to have aboriginal title over the same piece of land, and
   then for all of them to attempt to assert the right to exclusive
   use and occupation over it. (14)

Lamer CJC made these remarks in the context of his discussion of the requirements for proof of Aboriginal title by a single Aboriginal group. In that situation, the group's occupation of land at the time the Crown asserted sovereignty must have been exclusive because, by his definition of Aboriginal title, the title-holders have "the right to exclusive use and occupation of the land". (15) To me, this is not only logical but also in keeping with common law principles relating to possession and exclusivity, (16) discussed below. I think the Supreme Court's decision to define Aboriginal title as encompassing the right of exclusive use and occupation was a major victory for Aboriginal peoples. (17) The flip side of this, however, is that the right of exclusive occupation has to be based on the fact of exclusive occupation. As Lamer CJC pointed out, non-exclusive uses can give rise to more limited Aboriginal rights, (18) but the exclusivity of Aboriginal title requires proof of exclusive occupation.

So what does exclusive occupation mean in the context of Aboriginal title? While my focus here is on the exclusivity requirement, it is important to point out that assessment of occupation has to take account of the way of life and traditional land uses of the Aboriginal people in question, as "the common law concept of possession must be sensitive to the realities of aboriginal society". (19) Among other things, "one must take into account the groups size, manner of life, material resources, and technological abilities, and the character of the lands claimed". (20) This is consistent with the approach taken by the Privy Council in appeals from Commonwealth countries where occupation of land was an issue. For example, in Cadija Umma v S Don Manis Appu (an appeal from Ceylon, now Sri Lanka), the Privy Council said that special weight had to be attached to local judges' evaluation of the evidence of occupation because they were familiar "with the conditions of life and the habits and ideas of the people." (21) Taking local conditions into account is simply an aspect of the broader principle that occupation depends on all the circumstances, including the particular relationship the people concerned have with the land. (22)

In Tsilhqot'in Nation, the Supreme Count affirmed and applied Lamer CJC's approach to occupation in Delgamuukw, specifying that sufficiency of occupation "must be approached from both the common law perspective and the Aboriginal perspective". (23) Chief Justice McLachlin, who wrote the unanimous judgment, stated that "[t]he Aboriginal perspective focuses on laws, practices, customs and traditions of the group", (24) and so "[t]he intensity and frequency of the use [of the land] may vary with the characteristics of the Aboriginal group asserting title and the character of the land over which title is asserted." (25) She elaborated as follows:
   To sufficiently occupy the land for purposes of title, the
   Aboriginal group in question must show that it has historically
   acted in a way that would communicate to third parties that it held
   the land for its own purposes. This standard does not demand
   notorious or visible use akin to proving a claim for adverse
   possession, but neither can the occupation be purely subjective or
   internal. There must be evidence of a strong presence on or over
   the land claimed, manifesting itself in acts of occupation that
   could reasonably be interpreted as demonstrating that the land in
   question belonged to, was controlled by, or was under the exclusive
   stewardship of the claimant group. (26)

The last sentence in this passage is particularly important because it indicates that control and exercise of exclusive stewardship can be used to prove title. So while physical presence and use can also be relied upon, (27) acts of control, stewardship, and any other acts communicating an intention to hold the land for the Aboriginal group's own purposes are at least as relevant. This approach is also consistent with the common law approach to adverse possession, (28) though importantly and appropriately, the Court held that the standard for proving occupation sufficient for Aboriginal title is lower than that required for adverse possession, for the obvious reason that adverse possessors are known wrongdoers whereas Aboriginal groups are not. (29) Adopting the reasoning of Cromwell JA (as he then was) in his Nova Scotia Court of Appeal decision in R v Marshall, (30) McLachlin CJC agreed with his likening of
   the sufficiency of occupation required to establish Aboriginal
   title to the requirements for general occupancy at common law. A
   general occupant at common law is a person asserting possession of
   land over which no one else has a present interest or with respect
   to which title is uncertain. (31)

McLachlin CJC also explicitly rejected the site-specific approach to Aboriginal title taken by the Court of Appeal in the Tsilhqot'in Nation case, (32) deciding instead that title can be territorial by relying again on Cromwell JA's decision in R v Marshall, which she quoted with approval:
   Where, as here, we are dealing with a large expanse of territory
   which was not cultivated, acts such as continual, though changing,
   settlement and wide-ranging use for fishing, hunting and gathering
   should be given more weight than they would be if dealing with
   enclosed, cultivated land. Perhaps most significantly, ... it is
   impossible to confine the evidence to the very precise spot on
   which the cutting was done: Pollock and Wright [infra note 52] at
   p. 32. Instead, the question must be whether the acts of occupation
   in particular areas show that the whole area was occupied by the
   claimant. (33)

Regarding the exclusivity requirement, in Delgamuukw Chief Justice Lamer once again emphasized the necessity to take "the realities of aboriginal society" into account:
   As with the proof of occupation, proof of exclusivity must rely on
   both the perspective of the common law and the aboriginal
   perspective, placing equal weight on each. At common law, a premium
   is placed on the factual reality of occupation, as encountered by
   the Europeans. However, as the common law concept of possession
   must be sensitive to the realities of aboriginal society, so must
   the concept of exclusivity. Exclusivity is a common law principle
   derived from the notion of fee simple ownership and should be
   imported into the concept of aboriginal tide with caution. As such,
   the test required to establish exclusive occupation must take into
   account the context of the aboriginal society at the time of
   sovereignty. (34)

The Chief Justice seems to have regarded "the intention and capacity to retain exclusive control" as a key element. (35) If this is demonstrated, the presence of other Aboriginal groups on the land would not necessarily negate exclusivity because they could have been trespassers or have entered the land with the permission of the Aboriginal title claimants. (36) In this context, if the claimants had trespass laws or laws allowing for the granting of permissive entry, those laws would be further evidence of their exclusive control over the land. (37)

The Supreme Court revisited the issue of exclusivity of occupation in 2005 in R v Marshall; R v Bernard, (38) Delivering the majority judgment, Chief Justice McLachlin affirmed that "[exclusive occupation means 'the intention and capacity to retain exclusive control', and is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent." (39) Commenting on the meaning of exclusion, or what she referred to as "exclusive control", (40) she elaborated:
   The right to control the land and, if necessary, to exclude others
   from using it is basic to the notion of title at common law. In
   European-based systems, this right is assumed by dint of law.
   Determining whether it was present in a pre-sovereignty aboriginal
   society, however, can pose difficulties. Often, no right to exclude
   arises by convention or law. So one must look to evidence. But
   evidence may be hard to find. The area may have been sparsely
   populated, with the result that clashes and the need to exclude
   strangers seldom if ever occurred. Or the people may have been
   peaceful and have chosen to exercise their control by sharing
   rather than exclusion. It is therefore critical to view the
   question of exclusion from the aboriginal perspective. To insist on
   evidence of overt acts of exclusion in such circumstances may,
   depending on the circumstances, be unfair. (41)

In light of these difficulties, she concluded:
   It follows that evidence of acts of exclusion is not required to
   establish aboriginal tide. All that is required is demonstration of
   effective control of the land by the group, from which a reasonable
   inference can be drawn that it could have excluded others had it
   chosen to do so. The fact that history, insofar as it can be
   ascertained, discloses no adverse claimants may support this
   inference. This is what is meant by the requirement of aboriginal
   title that the lands have been occupied in an exclusive manner.

In Tsilhqot'in Nation, Chief Justice McLachlin repeated the observations on exclusivity made in Delgamuukw and Marshall/Bernard, affirming that "[exclusivity should be understood in the sense of intention and capacity to control the land." (43) She remarked that
   [w]hether a claimant group had the intention and capacity to
   control the land at the time of sovereignty is a question of fact
   for the trial judge and depends on various factors such as the
   characteristics of the claimant group, the nature of other groups
   in the area, and the characteristics of the land in question. (44)

She concluded:
   The trial judge found that the Tsilhqot'in, prior to the assertion
   of sovereignty, repelled other people from their land and demanded
   permission from outsiders who wished to pass over it. He concluded
   from this that the Tsilhqot'in treated the land as exclusively
   theirs. There is no basis upon which to disturb that finding. (45)

I think it is significant that the evidence McLachlin CJC seems to have regarded as more important in this context was evidence of control, not evidence of use. This is consistent with the common law, where expression of an intention to own and control, even where there is scant or no use of the land, can amount to occupation resulting in title. (46)

Turning our attention to the issue of shared exclusivity and joint Aboriginal title, Chief Justice Lamer's observations in Delgamuukw need to be quoted in full:
   In their submissions, the appellants pressed the point that
   requiring proof of exclusive occupation might preclude a finding of
   joint title, which is shared between two or more aboriginal
   nations. The possibility of joint title has been recognized by
   American courts: United States v. Santa Fe Pacific Railroad Co.,
   314 U.S. 339 (1941). I would suggest that the requirement of
   exclusive occupancy and the possibility of joint title could be
   reconciled by recognizing that joint tide could arise from shared
   exclusivity. The meaning of shared exclusivity is well-known to the
   common law. Exclusive possession is the right to exclude others.
   Shared exclusive possession is the right to exclude others except
   those with whom possession is shared. There clearly may be cases in
   which two aboriginal nations lived on a particular piece of land
   and recognized each other's entitlement to that land but nobody
   else's. However, since no claim to joint tide has been asserted
   here, I leave it to another day to work out all the complexities
   and implications of joint title, as well as any limits that another
   band's title may have on the way in which one band uses its tide
   lands. (47)

In his concurring judgment, Justice La Forest also acknowledged the possibility of joint title, stating even more briefly:
   ... I recognize the possibility that two or more aboriginal groups
   may have occupied the same territory and used the land communally
   as part of their traditional way of life. In cases where two or
   more groups have accommodated each other in this way, I would not
   preclude a finding of joint occupancy. (48)

In Marshall/Bernard, McLachlin CJC referred to the paragraph on joint title from Lamer CJC's judgment in Delgamuukw and affirmed without elaboration that "[s] hared exclusivity may result in joint title". (49) She did not mention joint title in Tsilhqot'in Nation, no doubt because shared exclusivity was not an issue in that case. (50) We therefore need to examine more closely the two sources of authority for shared exclusivity and joint title mentioned by Lamer CJC in Delgamuukw, namely the common law and American law.


In the common law, possession is exclusive in the sense that there can be only one possession of the same parcel of land at any given time. If two persons are in dispute over the possession of a parcel of land, they cannot both have possession. (51) In this situation, a court has to choose between them, draw a boundary, or decide that neither has possession. If each can point to current activities on the land as evidence of his or her possession, a court will generally award possession to the one who can show a better title. (52) If neither has a title (e.g., by grant, conveyance, testamentary disposition, or descent) and they both rely on their alleged possession, one of them will need to show possession to the exclusion of the other. If neither of them can do so, then possession cannot be accorded to either because it must be exclusive. (53) There can thus be no shared exclusivity by persons who dispute the possession with one another. Shared exclusivity can exist only in situations where the single possession is held by co-possessors whose claims are not in conflict with one another.

The common law concept of shared exclusivity therefore applies where two or more persons concurrently have possession of the same parcel of land. (54) It usually arises in situations where either a joint tenancy or tenancy in common is vested in possession. (55) In most cases, these forms of co-ownership of interests in land are created either by an inter vivos grant or conveyance, or by a testamentary devise or intestacy, to two or more persons of an interest in land. In the case of a joint tenancy, the tenants have "a unified interest in the whole" that they hold equally in every respect, whereas tenants in common have undivided fractional shares chat can be either equal or unequal. (56) In addition, joint tenants enjoy a right of survivorship, meaning that when one of them dies, the entire interest continues to be vested in the surviving joint tenant or tenants. (57) As tenants in common do not have a right of survivorship, their interests will be distributed by will or intestacy when they die. Most importantly for our purposes, however, joint tenancy and tenancy in common both entail "unity of possession", so that in both cases, all the tenants have "undivided rights to possession of the whole of the relevant property" as against everyone else. (58) With regard to possession, therefore, there is no distinction between the shared exclusivity enjoyed by joint tenants and tenants in common: in both common law forms of co-ownership, "each co-owner is as much entitled to possession of any part of the land as the others." (59)

While joint tenancies and tenancies in common are usually created by a grant, conveyance, will, or intestacy, they can also arise from occupancy (taking possession of unowned land), which is particularly relevant to our discussion because the common law test for sufficiency of occupation to acquire a title by occupancy is the test the Supreme Court found relevant for proof of Aboriginal title in Tsilhqot'in Nation. (60) Because the common law doctrine of tenure deemed all land in England to have been originally possessed and therefore owned by the King, acquisition of title by taking possession of unowned land was generally impossible, except in the anomalous situation where a pur autre vie estate (an estate for the life of another) became vacant as a result of the death of the life tenant before the death of the cestui que vie (the person whose life measured the estates duration). (61) Prior to statutory reform, the first person who took possession of the land after the death of the life tenant acquired the pur autre vie estate by occupancy for the rest of the cestui que vie's life. Where two or more persons acting together entered as occupants, they would have acquired the vacant life estate as co-owners (probably as joint tenants (62)) and shared the possession equally.

Similarly, adverse possessors who act in concert generally acquire an estate as joint tenants (63) (though the test for acquisition of adverse possession is more onerous than the test for occupancy, as the possession is initially wrongful (64)). However, in either situation, if the occupants or adverse possessors agreed among themselves that they should hold the estate as tenants in common, a court might decide that they hold the land in that way. (65) However, as mentioned above, this would not affect the shared exclusivity of their right of possession, as unity of possession applies equally to joint tenancies and tenancies in common. The important point is that two or more persons who acquire an interest in land by taking possession have shared exclusivity, the meaning of which Chief Justice Lamer said in Delgamuukw is "well-known to the common law" and which can be adapted to apply to joint Aboriginal title. (66)

We will consider the relevance of this body of common law to joint Aboriginal title in Part V of this article, but before doing so we need to discuss the law on joint title of Indian nations in the United States, as that is the second source of authority for joint title that Chief Justice Lamer referred to in Delgamuukw.


We will start with a brief outline of American law on Aboriginal or Indian title generally, (67) and then turn to joint title in order to assess the relevance of the American jurisprudence to Canada. (68) However, it is important to point out at the outset that, unlike the Canadian cases of Delgamuukw and Tsilhqot'in Nation, the cases dealing with joint Aboriginal title in the United States have generally involved claims for compensation for lands taken by the United States without fair payment, not applications for declarations of title. This is because most of these American cases originated in claims brought before the Indian Claims Commission (ICC), (69) a statutory body created in 1946 to provide compensation for past wrongs and unfair dealings by the United States. (70) As the only remedy the ICC could grant was a monetary award, neither declarations of title nor restoration of lands could be ordered. Nonetheless, the cases examined here, involving mainly appeals to the Court of Claims from ICC decisions, do provide insight into American law on exclusive occupation and joint title that could assist Canadian courts in resolving overlapping claims.

As in Canada, Aboriginal title in the United States is based on exclusive occupation of land. (71) However, while this occupation must have been "for a long time", (72) it need not have pre-dated European or even American assertion of sovereignty. (73) Also, Aboriginal title in the United States can be held either communally or individually. (74) It includes the natural resources on and under the land, (75) as does Aboriginal title in Canada. (76) However, unlike in Canada, for constitutional purposes it is non-proprietary until recognized by treaty or statute, and so is not protected by the Fifth Amendment to the US Constitution that, among other things, requires that just compensation be paid when private property is taken for public purposes. (77)

The occupation upon which Aboriginal title in the United States is based must be exclusive in the sense that the Aboriginal group claiming title must have been the only one who occupied the land. Accordingly, if the land in question was used by two or more tribes who were rivals or had no connection with one another, none of them would have Aboriginal title. In United States v Santa Fe Pacific Railroad (the only American case referred to by Lamer CJC in Delgamuukw in the context of proof of Aboriginal title), Douglas J stated:
   Occupancy necessary to establish aboriginal possession is a
   question of fact to be determined as any other question of fact. If
   it were established as a fact that the lands in question were, or
   were included in, the ancestral home of the Walapais in the sense
   that they constituted definable territory occupied exclusively by
   the Walapais (as distinguished from lands wandered over by many
   tribes), then the Walapais had "Indian title". (78)

In assessing whether Indian use of the land amounted to occupation, American courts have taken their manner of life into account. In an early decision, Baldwin J expressed the opinion of the Supreme Court that Indian occupation was to be "considered with reference to their habits and modes of life; their hunting-grounds were as much in their actual possession as the cleared fields of the whites". (79) Thus, as long as only one Indian tribe or nation was using the land, the manner in which they used it does not seem to matter. (80) So tribes that American courts described as "nomadic" have been held to have Aboriginal title to lands they used on a regular basis in accordance with their ways of life. (81) Moreover, this would include "seasonal or hunting areas over which the Indians had control even though those areas were only used intermittently." (82)

Disputes over the existence of Aboriginal title in the United States have related mainly to lands that are located between the uncontested lands of two or more Indian tribes or other groups. American courts have indicated that, depending on the facts, there are three ways of resolving these disputes. First, the lands can be divided between the groups, so that each receives the land where its use predominated. (83) Second, if the lands in question were visited, used, or fought over by two or more groups without one of them prevailing and establishing its exclusive occupation, then none of them would have Aboriginal title. (84) Finally, if two or more groups with some kind of connection used the same lands in an amicable--rather than an adversarial--fashion to the exclusion of other groups, they could have joint Aboriginal title. (85) While there is thus no doubt that joint Aboriginal title can exist in the United States, examination of the American case law reveals that the nature of the connection Aboriginal groups must have to enjoy joint title is not entirely clear.

In Confederated Tribes of the Warm Springs Reservation of Oregon v United States, Durfee J, delivering the opinion of the Court of Claims, stated that "[j]oint and amicable possession of the property by two or more tribes or groups will not defeat 'Indian title.'" (86) Later in his judgment, he clarified that he was not deciding a joint title case, as there was insufficient evidence that usage by a neighbouring group was on a "guest-host" basis. (87) He nonetheless criticized the ICC for apparently denying title to some land "because of its usage as a common subsistence area by more than one band of Indians" who belonged to the same cultural group. (88) For Durfee J, the issue therefore seems to have been the definition of the claimant group, rather than joint title. He stated:
   To prevent recovery for all the lands claimed to be used
   collectively by the Wayampam [the claimant group], there must be
   substantial evidence that the various Wayampam bands not only did
   not constitute a single political unit, but also that they were not
   an identifiable group or tribe in the ethnic or cultural sense.

In other words, Aboriginal title can vest in one ethnic or cultural group that collectively used lands, without imposing an additional requirement that they "constitute a single political unit". That Durfee J was concerned here with the identity of the title-holding group rather than with joint title is also demonstrated by his reliance upon the following quotation from Hualapai Tribe v United States:
   Assuming for the moment that the Hualapai were not a tribe in a
   political sense, we have a people who all ethnologists agree, spoke
   the same language, had a common culture, intermarried, made common
   use of the lands away from their settlements, shared their own
   territories, engaged in common economic activities and considered
   themselves one people. Such factors make the Hualapai an
   identifiable group and a land-owning entity.... (90)

Nonetheless, in Iowa Tribe of the Iowa Reservation v United States, the Court of Claims, in a per curiam judgment, said this in reference to the finding of the ICC in the case:
   The Commission was not wrong in refusing to find such joint
   acquisition here. The Iowas and the Sac and Fox did not consider
   themselves, and were not treated, as a single or closely integrated
   entity, but rather as separate political groups which were friends
   or allies (for the most part). Their use of the same lands may have
   been in common--like much of Indian use of the midwestern and
   western regions--but the Commission could properly decide that it
   was not proved to be truly joint, and therefore that each separate
   tribe's claim to Indian title would have to be tested on its own
   distinct basis. (91)

One can read this passage simply as a refusal by the Court to interfere with a factual finding of the Commission that was supported by substantial evidence. (92) However, it seems to me that the Court lacked a clear sense of the distinction drawn in Confederated Tribes between a situation of joint title (which apparently could be held by neighbouring groups that did not form a cultural unit) and a situation involving the identification of a group that displayed sufficient cultural cohesion (if not political unity) to be a single landholding entity.

In Turtle Mountain Band of Chippewa Indians v United States, the Court of Claims affirmed that two groups in "joint and amicable" occupation would have joint title if there was "extensive cooperation between them." (93) Significantly, the Court said that joint title could arise between an Indian band and a "mixed blood" (Metis) band. (94) On the facts, the Court found that the full and mixed blood Chippewas were both organized as bands, lived independently of "white social and political institutions", and often hunted together. (95) It nonetheless refused to interfere with the decision of the ICC that, "based on political, social and economic factors, these full and mixed bloods should be considered members of a larger Indian group". (96) In other words, as in Confederated Tribes, this was a case where title was vested in a larger entity that included these groups, rather than in the groups as joint title-holders. (97)
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Title Annotation:I. Introduction into IV. Joint Aboriginal Title in the United States, p. 821-846; Special Edition: Tsilhqot'in Nation v. British Columbia Decision
Author:McNeil, Kent
Publication:University of British Columbia Law Review
Date:Oct 1, 2015
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