Australian Indigenous Law Reporter
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Introduction
In recent years there has been a growing interplay of Australian and Canadian jurisprudence, in regard to Aboriginal rights. Naturally our law has not developed in exactly the same manner as Canada's partly because of our different historical experiences; Canada having acknowledged the existence of First Nations people and having relied on treaties and doctrines relevant to ceded colonies while Australia relied on terra nullius and doctrines relevant to settled colonies, until the decision in 1992 of Mabo and others v The State Of Queensland. [1]
Yet despite these differences there are many shared experiences which have facilitated the exchange, and interplay of our jurisprudences.
The discourse of each has informed the other. For example, in Milirrpum [2] Blackburn J placed some reliance on Calder [3] in the British Columbia courts but, when Calder [4] reached the Supreme Court of Canada, Hall J described Blackburn J's judgement as wrong. Later Mabo (No. 2) [5] relied heavily on Canadian jurisprudence (together with that of the U.S.A., Nigeria and New Zealand) in its recognition of the rights of Aboriginal people in settled countries. Canadian cases such as St Catherine's Milling, Calder, Guerin, Baker Lake and Sparrow are referred to in Mabo (No. 2). [6] Conversely, Mabo (No. 2) [7] was also used as a basis for re-opening argument in Delgamuukw.8 Further, in Van der Peet [9] we observe that Mabo (No. 2) [10] is followed, particularly with regard to the issue of continuity of practices, customs and traditions, an issue on which Brennan J is quoted. He stated:
Native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory ... when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. [11]
In the latest exchange Van der Peet has been liberally cited in the Wik case. [12]
The Australian Position Post Mabo on what constitutes native title
When the High Court of Australia handed down its decision in Mabo (no 2) [13] on 3rd June, 1992 it recognised for the first time in Australian legal history that native title existed and indeed had the potential to survive the acquisition of British sovereignty.
It is now well documented that the High Court re-wrote Australian legal history by overturning the legal fiction of terra nullius and by finding that radical title rather than absolute beneficial ownership was a concomitant of sovereignty. [14]
The Court also held that the source of native title was Aboriginal people's occupancy of and/or connection with the land.15 What constituted native title was to be determined by Indigenous people, although potential claimants of native title needed to be able to demonstrate an on-going occupation, use or connection with the land and also needed to demonstrate that the society from which they were descendant had a set of traditional customs and laws. [16] Without these customs and laws there would be no basis for native title and no means of appreciating the nature of native title itself because native title is defined by reference to those very laws and customs. [17] Logically it followed that as laws and customs vary over time and among different Indigenous people it would be necessary to focus on the customs and laws of the various groups to decide what represented native title at any given time.
Deane and Gaudron JJ also stated that "the content of such a common law native title will, of course, vary according to the extent of the pre-existing interest of the relevant individual group or community".18
Brennan J, acknowledging Moynihan J's position (as the finder of fact in the proceedings) stated, "the nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs". [19] He also realistically observed that, "[T]he ascertainment may present a problem of considerable difficulty".20 He went on to say, "[B]ut once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was `desert uninhabited' in fact, it is necessary to ascertain by evidence the nature and incidents of native title".21
In considering the issue the Court did come to some general conclusions about native title. For example, it held that "unless there are pre-existing laws of a territory over which the Crown acquires sovereignty which provide for the alienation of interests in land to strangers, the rights and interests which can constitute a native title can be possessed only by the Indigenous inhabitants and their descendants". [22] Hence native title is inalienable outside the group and its descendants. In part this is because the outside alienee who receives under native title cannot rely on the machinery of the common law to enforce his/her rights; native title not being a creature `of' the common law but merely a title recognised `by' the common law. The Australian High Court also affirmed the Supreme Court of Canada's findings in Calder v Attorney General of British Columbia and R v Sparrow [23] regarding the rights to occupy lands and enjoy the fruits of the soil as well as the right to fish. Further, Deane and Gaudron JJ specifically approved the Privy Council's findings in St Catherine's Milling and Lumber Co v R which described native title as "personal and usufructuary" [24] but they did state that the preferable approach was to recognise the sui generis nature of native title. [25] Irrespective of whether or not a pre-existing category or label could be found to accommodate and describe the native title, the judgment made it clear that activities such as hunting, gathering and fishing could be recognised as native title interests.
In finding that native title was not `of' the common law, in the sense of being a common law tenure, the Court did not, however, preclude common law protection of the title. It held that the common law would protect it (ie. it would protect native title itself, as opposed to outsider alienees of native title) by "such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual"26 The particularity of what constituted native title and indeed any exercise of native title was left up to the Indigenous group itself to determine, with the interesting gloss that this freedom would be lost if the traditional laws and customs were repugnant to natural justice. [27]
Importantly, in his discussion of native title Brennan J asserted his willingness to accept that laws and customs will change over time as will the rights and interests of the members of the Indigenous group. He said: "it is immaterial that the law and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between Indigenous people and the land remains". [28]
Deane and Gaudron JJ also addressed the issue when they stated: "The traditional law or custom is not, however, frozen as at the moment of the establishment of a colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to the land". [29]
The key question here is how much change will be tolerated before it is said the activities are no longer sufficiently connected to native customs and laws to constitute native title.
How much development or variation will be acceptable before the activity will be deemed to be new, separate and independent of native title?
For example, can ochre, traditionally used in Indigenous ceremonies, be commercially exploited as a pigment, on the basis of a traditional custom or activity having undergone change? Can trees be felled and milled as a modern day interpretation of custom pertaining to the use of trees and sticks? Can fish be sold as a modification of a traditional fishing practice? [30]
The latter question is only partially and indeed, indirectly addressed in the
N.S.W. case, Mason v Tritton and in the Western Australian case,
Derschaw v Sutton.
[31] After some bemusing initial
uncertainty, Mason v
Tritton
[32] finally
found, on appeal, that "a right to fish based on traditional laws and customs
is a recognisable form of native title defended
by the common law of Australia;
a conclusion which it appeared had already been reached in Mabo (No.
2).
[33] In Mason v Tritton,
[34] the Court also
examined the evidentiary burden that needed to be satisfied, in order to
establish native title, in circumstances
where native title is raised as a
defence to a criminal charge. It set out a test which is stated below. It held
that evidence needed
to demonstrate that:
(1) Traditional laws and customs which included fishing rights were in existence in the Indigenous community immediately before Crown sovereignty;
(2) The Indigenous person concerned (ie the accused) is a biological descendant of the original Indigenous community;
(3) There is a continued and uninterrupted adherence to the traditional customs and laws and ;
(4) The accused's conduct was an exercise of those traditional laws and customs. [35]
However, on the key question of what, in particular, will constitute an exercise of native title the Court in Mason v Tritton [36] was hampered by the failure of the accused to give evidence that the fishing (for abalone), in which he had been engaged, was an exercise of native title. Without evidence on this point, the Court found there was "a fundamental failure of proof in the appellant's case." [37] Clearly the Court could not decide if the appellant acted within his native title right if the nature and boundaries of that right were never explored. If, however, the burden of establishing native title, which presently rests on those asserting it exists, were to be moved to those seeking to disprove its existence, the outcome of Mason v Tritton [38] might well have been different.
It is, however, worth noting that in this case Kirby J suggested a fairly narrow construction of native title and the degree of change in activities which will be tolerated. In a very cursory comment, when discussing the fact that the defendent, Mason, did not testify he said:
The only other inference available is that Mr Mason's evidence, if it had been called, could not have supported his claim that what he was doing at the time of his apprehension was in exercise of his native title rights as an Aboriginal Australian. For example, that it was for sale of the abalone to the general commercial fish market. [39]
Given that Mason v Tritton [40] followed Mabo (No. 2) [41] and that Mason v Tritton [42] held that fishing rights generally could constitute native title, one can deduce from Kirby J's words that a traditional right to fish does not have the capacity to evolve into an Aboriginal right to fish for general commercial purposes and simultaneously retain the status of native title. However, the case does not really explore this issue in any detail.
Derschaw v Sutton was a case which applied the four-pronged Mason v Tritton test. [43] In so doing the Court found that insufficient evidence had been adduced to satisfy each of the criteria in the Mason v Tritton 44 test, all of which had to be satisfied for native title to exist. For example, no evidence pertaining to Derschaw's pedigree was adduced to demonstrate his biological descendancy from an Indigenous community which had traditional fishing rights. Therefore, the claim failed. There are serious problems with a test which requires proof of biological descent by a people whose tradition is oral rather than written and there are problems with a test which requires proof by evidence adduced in an environment which does not allow claimants to freely articulate and express their laws and customs but such issues are beyond the scope of this paper.
The decision did, however, broach the issue of what, in practical terms, will constitute a native title right.
The facts of the case reveal that Mr Derschaw, who was the weekend manager of a small community called Drover's Rest about 18 kms out of Port Hedland, went fishing in order to help feed a group of three hundred people who had gathered "for a wake to mark the burial of a prominent Aboriginal man." [45]
Mr Derschaw caught 66 mullet contrary to s. 9(1) of the Fisheries Act 1905 (WA) under which the Minister had exercised a discretion prohibiting all people, except some professional fishermen, from taking fish in that area by means of nets other than those of a specified type. Mr Derschaw was charged on complaint with being in contravention of s. 12(1)(d) of the Act.
In considering the matter, Franklyn J repeating Heenan J's words said:
But the evidence does not show the extent of the right -- for example, whether it is a right to take sufficient fish for food for the individual, for the family or for the community. It does not show whether it is a right to be exercised by any person in the community or by only a chosen few. It does not show whether the right is restricted by season, time or frequency. It does not show how the right came to be established nor whether it is subject to some set of rules. [46]
On the question of whether or not Derschaw's fishing did constitute native title and therefore was not subject to the provisions of the Fisheries Act, Heenan J commented:
[T]he evidence does not show that the netting of mullet by the respondents on the afternoon in question was an exercise of traditional laws and customs bearing upon the right. The respondents were not fishing for, or as members of, any particular original Aboriginal community with ties to the Port Hedland area. They were fishing for a multitude of people many of whom did not live in the area. [47]
The finding was accepted by Franklyn J, who concluded that a widespread customary practice of Aboriginal people in the Port Hedland area of fishing did not amount to a native title right recognised by the common law. [48]
Unfortunately, a detailed analysis of the points raised here is again beyond the scope of this paper but it is worth observing that the latter finding demonstrates how a cultural monoculus has the capacity to limit the construction of Aboriginal rights. According to Heenan J's reasoning if the fish were not consumed by locals of Port Hedland and presumably more particularly, Six Mile Creek, where the fish were caught, Derschaw cannot be regarded as exercising an Aboriginal right (ie. a native title right). However, sociological and anthropological evidence suggests that reciprocity, sharing, and a sense of community underpins much of Aboriginal culture, custom and tradition. [49] Hence rather than acting to prevent Derschaw's activities from being characterised as native title, the sharing of food, particularly sharing with guests partaking in ceremonies, might with a different cultural perspective, contribute to a finding of the existence of native title.
The way Heenan and Franklyn JJ approached this issue also revealed their position in regard to the specificity/generality continuum of native title rights. Clearly their appoach was to favour a narrow definition of the rights; an approach which delineated with great specificity the particular tradition, custom and laws at hand.
The Canadian position on what constitutes an Aboriginal right
Until recently, Delgamuukw v Queen was the most recent and substantial Canadian case which raised the issue of what constituted an Aboriginal right. [50] This case took quite a restrictive approach; denying mining rights and commercial trapping (and presumably logging) on the basis that they are post annexation activities. Activities, according to Delagamuukw [51] may be modernised over time but new, post-annexation activities will not give rise to Aboriginal rights.
R v Sparrow, another key Canadian case in the area, detailed a three step test concerning the issue of infringement of Aboriginal rights; rights which since 1982 have been protected by the Canadian Constitution.52 The three step test involved: "(a) the assessment and definition of an existing Aboriginal right (including extinguishment); (b) the establishment of a prima facie infringement of such a right; and (c) the justification of the infringement."53 However, it was not seriously disputed in that case that the Musqueam people had an Aboriginal right to fish for food, hence the Court found it unnecessary to examine how Aboriginal rights were to be defined. The Court did hear submissions on the point that whilst no commercial fishing existed prior to the arrival of European settlers, the Musqueam practice of bartering in early society could be revived as a modern right to fish for commercial purposes. However, it preferred to decide the case on the basis of the validity of a net length restriction affecting a fishing licence, rather than on the basis of an Aboriginal right to fish for commercial/livelihood purposes.
In Guerin v The Queen, yet another important Canadian case, the main focus was not what would or would not constitute an Aboriginal right. [54] The case, instead, was primarily concerned with the nature and extent of the Crown's fiduciary obligation to Aboriginal people, but because the fiduciary relationship was rooted in the concept of Aboriginal title the Court did consider the actual existence of Aboriginal title. In its consideration of fiduciary obligations and Aboriginal rights the Court applied the Calder decision which had held that "Aboriginal title as a legal right derived from the Indians' historic occupation and possession of their tribal lands". [55]
In August 1996 the Supreme Court of Canada revisited and further explored a number of the issues in these cases. It handed down a tetralogy of unreported judgments on Aboriginal rights; this comprised a trilogy on fishing rights in British Columbia and a single Ontario judgment on self-government and whether or not high stakes Bingo games, on a reserve, could be construed as an exercise of a traditional gambling right. The cases known as Van der Peet, Smokehouse, Gladstone and Pamajewon squarely faced the issue of what constituted an Aboriginal right. [56] They have since been followed by two more cases R v Adams and R v Cote which involved fishing rights in Quebec. [57]
Van der Peet -- background and facts
Van der Peet, Smokehouse, and Gladstone [58] were handed down simultaneously on 21 August 1996. Pamajewon was decided in February, 1996 but the reason for the decisions were handed down on 22nd August, 1996. [59]
Of these cases the Van der Peet decision is the most relevant here because it set out the test for determining what Indigenous (or to use the Canadian term, `First Nations') rights are protected as an exercise of Aboriginal rights. [60] The test developed in Van der Peet was applied in the other cases and hence it is on this case that this article focusses. [61]
The facts of the Van der Peet [62] case are uncomplicated. Dorothy Van der Peet, the appellant, a member of the Sto: lo Band, part of the Coast Salish Nation, was charged with violating s. 27(5) of the British Columbia Fishery (General) Regulations, SOR/84-248, and thereby having committed an offence contrary to s. 61(1) of the Fisheries Act. The charges arose out of Mrs. Van der Peet's conduct in selling ten salmon which had been caught by her common law spouse and his brother, who were also members of the Sto: lo Band.
Section 27(5) of the British Columbia Fishery (General) Regulations provided that:
No person shall sell, barter or offer to sell or barter any fish caught under the authority of an Indian food fish licence".
The Crown claimed this regulation had been violated. Mrs. Van der Peet did not dispute that she had sold the fish contrary to the regulation, but she claimed the regulation sought to infringe her Aboriginal right which was protected, since 1982, under the Canadian Constitution, by virtue of s. 35(1). The Court, therefore, had to decide what constituted an existing Aboriginal right and whether s. 27(5) of the Regulations had no force or effect because adherence to it would infringe a constitutional right.
The Van der Peet test -- integral and distinctive
The evidence in Van der Peet [63] suggested that the Sto:lo had traded and exchanged salmon prior to contact with Europeans but that there was not an organised system of fish trading or a generally established market in salmon. Instead the practice was for the Sto:lo to simply exchange any surplus to dietary requirements in return for something else. Hence the Court had to consider whether the fish exchange pattern of the Sto:lo gave rise to an Aboriginal right which had now evolved into a right to exchange salmon for money (or other goods) in order to provide for sustenance and a moderate livelihood.
In deciding the issue, the majority consisting of Lamer CJ, La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ set in place the requirement that the activity seeking to be characterized as an Aboriginal right must be "integral to the distinctive culture of the aboriginal group claiming the right". [64] According to Chief Justice Lamer, to be "integral" the activity had to be of "central significance to the culture in question and had to be one of the things that truly made that society what it was". [65] The majority suggested that a practical way of thinking about the issue was to ask "whether without this practice, tradition or custom, the culture in question would be fundamentally altered or [be] other than what it is". [66] An activity, custom or practice which was merely incidental to the culture, was an aspect of, or took place in that society would not be sufficient to satisfy the "integral" component of the test.
In regard to the "distinctive culture" component the majority sought to distinguish between the words "distinct" and "distinctive" and in so doing did not require that the practices were unique. It did, however, require the practice be a characteristic of the culture in the sense that it was central to it.
The Van der Peet test -- pre-contact time period
The majority also emphasised the continuity aspect of the test by imposing a time period. Aboriginal rights had to be rooted in a distinctive culture but according to Sparrow existing Aboriginal rights "must be interpreted flexibly so as to permit their evolution over time". [67] Such a characterization was not dissimilar to the Mabo (No. 2) [68] characterization, but how did this translate in practical terms? How much `evolution' would be permitted?
The majority in Van der Peet [69] held that the concept of continuity did not require an unbroken chain of continuity between present day practices and those which existed prior to European contact but it did hold the current activity must have its roots in pre-contact activities. Why the majority decided that the time frame would be set as pre-contact is however, a little bewildering. It seems to encourage a `frozen rights' approach. It fails to recognise the significant momentum of Aboriginal people to preserve and develop their culture after European contact. It suggests Aboriginal culture of purity and integrity is only capable of existence before European contact. What might exist later is, on this analysis, a diluted form lacking perfection and completeness.
The Van der Peet test -- Aboriginal and non-Aboriginal perspectives
The majority in considering the relevant factors in the "integral to a distinctive culture test" made some very interesting observations about the balancing of Aboriginal and non-Aboriginal perspectives. It emphasised that in assessing any claim for the existence of an Aboriginal right, a court needed to take into account the perspective of those claiming the right. [70] Yet the willingness to take account of an Aboriginal perspective is indirectly down-played by the majority in favour of a weighting which preserves the political hegemony of non-Aboriginal people. Lamer CJ in delivering the majority decision said, "Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the aboriginal perspective, but they must also be aware that aboriginal rights exist within the general legal system of Canada". [71] He then affirmed Walters, a Canadian legal scholar, who claimed "a morally and politically defensible conception of aboriginal rights will incorporate both [Aboriginal and non-Aboriginal] legal perspectives." [72]
However, it is suggested that political, social and economic pressures could quite possibly result in the Court abandoning the goal of a simultaneous achievement of both a moral and politically defensible conception of Aboriginal rights. For example, in relation to some aspects of Mabo (No 2) commentators have suggested that a pragmatic compromise triumphed rather than an adherence to equality. [73] Reframed in the language of Walters, the Mabo (No. 2) [74] decision emphasised what could be defended politically (ie. what in practice might be acceptable; what would be approved of by the public; or what wouldn't be political suicide rather than what was moral, ie. equality).
Where there exists an alternative for conceiving of Aboriginal rights either in terms of morality or political defensibility, it is likely that the extent to which Aboriginal and non-Aboriginal perspectives will be included in the conception will vary accordingly. For example, where there exists a preference for the favouring of a moral conception of Aboriginal rights it is likely that such a preference will dictate the incorporation of a greater Aboriginal legal perspective than would a politically defensible/expedient conception which might seek to minimize the incorporation of an Aboriginal perspective. This might be so because such a conception ultimately sought to achieve either a preservation of the status quo or a curbing of Aboriginal power, influence, or prestige, in favour of the upholding of the dominant group's or groups' rights. In the Australian context, the Wik [75] decision poignantly highlighted the notion of balance and compromise. There, in the context of pastoral leases, the High Court embraced a compromise notion which recognised Aboriginal rights to the extent that they did not upset non Aboriginal rights.
Indeed one might well ask if Lamer CJ and Walters had erred in thinking that moral and politically defensible considerations were relevant to the process of judicial decision making at all. Whilst in the context of legislative enactment, it might be reasonable to see the inclusion of moral and political considerations, it can be argued that they have no place in the role that courts play in developing the common law. The common law is developed and framed by precedent. It relies on established legal principles. It may be that as a sociological matter, judges develop the law having absorbed and applied moral and political values, but that is not a reason for developing the law in one direction or another; if it were, the Wik case might not have been able to conclude what it did. [76]
If one does accept the Walters proposition, how and on what basis might this potential polarity between moral and political conceptions of Aboriginal rights and the consequent incorporation of Aboriginal and non-Aboriginal perspectives be solved? If it is necessary to favour one, which conception moral or politically defensible, should receive the greater weight? Which perspective, Aboriginal or non-Aboriginal, should be favoured?
In the Van der Peet context, it is arguable that a moral conception of Aboriginal rights, which possibly incorporated a weightier Aboriginal rather than non-Aboriginal perspective, should have been favoured because not to do so would be to ignore the authority in Sparrow's case which encouraged a "generous" and "liberal" interpretation of Aboriginal rights; [77] rights which are protected in Canada under s. 35(1) of the Constitution.
A purposive approach to s. 35(1) of the Constitution is technically followed in
Van der Peet,
[78] where
Lamer CJ in his discussion
of constitutional protection for Aboriginal rights asserts that the
pre-existence of Aboriginal rights
is relevant to the analysis of s. 35(1)
"because it indicates that Aboriginal rights have a status and existence prior
to constitutionalization of those rights".
[79] Presumably, to ignore
this status and prior existence would be wrong and even immoral. It would not
be acknowledging events as they
were. It would be participating in the
perpetuation of an "untruth". On this analysis, conversely, it is posited, that
acknowledgment
and upholding of Aboriginal rights would be right and moral.
Further it is arguable that not to favour a conception which gave prominence to an Aboriginal legal perspective over a non-Aboriginal legal perspective did not satisfactorily acknowledge and give due weight to the basis for the legal doctrine of Aboriginal rights in the first place, ie. that when Europeans arrived in Northern America, Aboriginal people were already there living on the land, in communities and participating in distinctive cultures. Indeed, any conception which did not emphasise an Aboriginal perspective would not satisfactorily acknowledge the "status" [80] that was inherent in Aboriginal rights.
Further still, it is arguable that where Aboriginal customs are modified, for example by contact with Europeans, as in the case of trade, those changes would presumably be the subject of mutual consent between Aboriginal and non-Aboriginal contracting parties. To that extent there exists precisely the moral and political consensus which Walters seems to require.
Yet it is the view of many of Canada's First Nations people (along with others) that the majority decision in Van der Peet [81] ultimately leaned in the direction of not favouring the Aboriginal perspective. [82] It is claimed to have favoured political expediency. [83] The decision has been construed as a politically crafted one which pandered to mainstream non-Aboriginal Canada by restricting Aboriginal rights. It has also been construed as a decision which de-emphasised the significance of an Aboriginal legal perspective. The result of this is presumably to conceive of Aboriginal rights in terms of what is politically acceptable and what can be politically and practically defended, rather than what is moral.
If this is, in fact, a correct interpretation of what occurred, how could it have happened? Perhaps a clue lies in the majority holding that the Aboriginal perspective and the non-Aboriginal perspective should be weighted equally, in order to affect true reconciliation. Surely such a proposition is unsatisfactory if (to use the discourse of industrial and feminist jurisprudence) both Aboriginal and non-Aboriginal people are not at an equal starting point on the ladder. If they are not, the inequity is perpetuated and the gap between them remains the same. They both merely move up the ladder a few rungs. How could such an approach then affect true reconciliation? Is it not more likely that the outcome would reflect a continuation of disparity and inequality, and that the result of giving equal weight to Aboriginal and non-Aboriginal perspectives would be a politically defensible rather than a moral conception of Aboriginal rights. Would not true reconciliation be by-passed by use of this approach which favoured what could be politically defended. Indeed would not true reconciliation be more likely to be achieved through mutual respect, discussion and negotiation rather than unilateral judicial pronouncements? [84]
Van der Peet -- dissenting judgments
Both L'Heureux-Dube and McLachlin JJ were in dissent. They proffered strong and detailed dissenting judgments. L'Heureux-Dube J rejected any characterisation of Aboriginal rights which focussed on the particular Aboriginal practice, custom or tradition. She rejected it because it was inclined to consider that what is common to both Aboriginal and non-Aboriginal cultures is non-Aboriginal culture and hence not protected by s. 35(1) of the Constitution. According to L'Heureux-Dube J such an approach misconstrued the words "distinctive culture" and misinterpreted them as meaning "distinct culture". Further, this approach, she claimed, has the effect of defining Aboriginal rights as mere residue, ie mere remaining relics after the features of non-Aboriginal culture have been removed.
L'Heureux-Dube J also alluded to the fact that prior to 1982 Aboriginal rights were founded on the common law and hence could be extinguished by treaty, conquest or legislation. Since 1982 constitutional protection has been provided. Hence what constitutes an Aboriginal right and receives the benefit of this protection has become most significant.
As an alternative to the former characterisation of Aboriginal rights L'Heureux-Dube J favoured a construction based on a high level of abstraction. She favoured focussing on the "distinctive culture" of Aboriginal people, seeing particular activities as manifestations of that culture. By employing this approach it was possible to move away from an understanding of Aboriginal rights as merely a catalogue of specific/individualised practices, customs or traditions. This latter interpretation also had the effect of allowing Aboriginal activities to be contextualised in terms of Aboriginal culture and to prevent them from existing as separate, stand-alone activities bearing little or no relation to the Aboriginal culture in which they had their genesis. L'Heureux-Dube J was quick to emphasise that these Aboriginal activities were not to be confused with practices or habits which were only incidental as opposed to integral to Aboriginal culture, however, her construction of Aboriginal rights still was much more broadly based than the majority. In her view all practices, customs and traditions which are sufficiently connected to the self-identity and self preservation of organised Aboriginal society are worthy of protection as Aboriginal rights and hence receive s. 35(1) protection. L'Heureux-Dube J also rejected the pre-contact time period favoured by the majority in Van der Peet. [85] She thought that the approach defining Aboriginal rights by reference to pre-contact practices "implie[d] that Aboriginal culture was crystallized in some sort of `Aboriginal time' prior to the arrival of Europeans." [86] In her view, to adhere to this view "overstates the impact of European influence on Aboriginal communities". [87] Indeed, it fails to recognise that approximately fifteen [88] millennia preceded European contact, and throughout those millennia, through crises, conflict and other kinds of contact, Aboriginal customs, traditions and practices continued to develop. Although Aboriginal societies were deeply affected by European contact the choice of the pre-contact period seems to over emphasise the importance of European contact. The choice of a pre-contact period resonates with a colonial arrogance which focusses too heavily on the significance of European society and fails to acknowledge that a rich and constantly developing culture could continue to exist after the British or French arrived in Canada. Further, how such a time period, ie. pre contact, is to be applied also raises issues of concern. Will it in practical terms mean any contact with Europeans? In Canada will it equate with a fleeting visit from Cabot, Verrazzano or Cartier. If so, as effects are often only observable cumulatively over time, how will significant contact be ascertained and dated?
By comparison, it should be noted that in Australia, Mason v Tritton set a "pre-sovereignty" time frame which might technically be easier to date than pre-contact but the time frame is still nevertheless plagued by an over emphasis on activities delineated in terms of European happenings. [89]
Another concern with the setting of a pre-contact cut-off date is that it imposes yet another burden on Aboriginal people. They must now prove not only the significance of the practice, custom or activity but also that it has been continually in existence since pre-contact time, albeit that interruptions to its application might have occurred. Notably such a burden is also borne by Australian Aboriginal people seeking to demonstrate native title.
Interestingly too, L'Heureux-Dube J raises yet another problem concerning the use of the pre-contact time period. She suggests that the Canadian constitution itself implies protection should not be limited to pre-contact practices customs and activities. Her conclusion is based on the reasoning that s. 35(2) of the Canadian Constitution (Constitutional Act, 1982) provides protection for "the Aboriginal peoples of Canada, including not only Indians and Inuit people but also Mtis people, who being the result of intermarriage between native and Europeans, clearly existed only after European contact". Hence the provision cannot have been intended to be limited in its application, to pre-contact Aboriginal rights. She concludes that Aboriginal rights can arise after British sovereignty (and presumably contact) so that Mtis people can benefit from the constitutional protection of s. 35(1).
Naturally, such an argument is not relevant in the Australian context where protection of Aboriginal rights/native title rights has not been enshrined in the Constitution. Nor did it gain favour with the majority in the Canadian Supreme Court and nor with the other dissenting judge, McLachlin J who offered different reasoning for her conclusion from that of L'Heureux-Dube. McLachlin J favoured defining Aboriginal rights through an empirical approach which drew upon history rather than attempted to describe Aboriginal rights through a process of deductive reasoning. Put concretely, she found that if Aboriginal people could demonstrate that they had traditionally sustained themselves from the river or sea, then prima facie, they had a right to continue doing so unless they exchanged that right under a treaty, for example. Like L'Heureux-Dube J, McLachlin J moved away from defining Aboriginal rights in narrow terms. In the circumstances of Van der Peet [90] the right, according to McLachlin J, should have been characterised not as a right to trade, but as a right to continue to use the resource in the traditional way to provide for traditional needs, albeit in their modern form. Clearly her reasoning accommodated quite a degree of change in the manifestation of the right. For example, if trade were the only way to use the resource, in order to provide a modern/present day equivalent of what Aboriginal people once took, then it followed that the Aboriginal people in question, should be permitted to trade in the resource to the extent necessary to provide a replacement. On this construction, trade is seen merely as a tool or mechanism by which the right of gaining sustenance from the resource is facilitated.
In comparing the two dissenting decisions we can observe that L'Heureux-Dube chose to characterize an Aboriginal right with a broad level of abstraction; to construe the sale of small amounts of fish as a non-commercial activity; and to set a 20-50 year time period for the pre-existence of a custom, practice as activity. Alternatively, McLachlin J chose to accept Van der Peet's activity as commercial but to re-caste the issue as one which involved trading in the resource, to the extent necessary "to maintain traditional levels of sustenance"; [91] to distinguish between rights and the exercise of rights (seeing rights themselves as broad and their exercise as potentially involving specific modern practices); to find a middle ground in regard to the time frame by rejecting both the Chief Justice's `traceable to pre-contact times and identifiable as an integral aspect', and L'Heureux-Dube J minimalization of historic origin which required practice of the activity for at least 20-50 years. However, both of the dissenting judgments led to conclusions which in their practical applications actually avoid Aboriginal rights being frozen in time. The minority in Van der Peet [92] seems to produce an interpretation of Aboriginal rights which bears some similarity to the position taken in Mabo No 2 by Brennan, Deane and Gaudron JJ concerning the changing form of a native title right. [93] In that case and in regard to the issue of physical connection with the land Brennan J found that there must be a "traditional connection with the land [that] has been substantially maintained [94] while Deane and Gaudron JJ spoke of native title being extinguished if the "connection with the land" were lost. [95] The words of these three judges suggest that, while once physical connection with land might have been part of custom and practice, that nowadays a more general connection was enough to continue the maintenance of native title and that this connection might or might not be physical. If this is so, surely it implies some serious modification of practice has been tolerated. It must also imply that Brennan, Deane and Gaudron JJ were anxious to avoid a `frozen rights' approach to Aboriginal rights.
The Effects of the Van der Peet test
Although First Nation people in Canada and many others naturally prefer the dissenting judgments, the present position is that Aboriginal rights are restricted to historical practices. The result is that if Aboriginal people choose to adapt to their colonization, by modifying their activities, the newly developed practices and activities will not be protected as Aboriginal rights. Hence it would seem that if for example, commercial fishing were not a pre-contact activity Aboriginal people who were to imitate their colonizers' paradigm and commercially exploit commodities such as fish or the earth, their activities would not have their rights protected as Aboriginal rights. The choice for Aboriginal people would appear to be (a) to commercialize their activities but in so doing, be forced to compete on the colonizers'/immigrants' terms or (b) alternatively remain trapped by old customs, laws and patterns which are not necessarily compatible with existence in the dominant world created by immigrant society.
In practice, such an approach has the effect of characterising Aboriginal rights as frozen rights, but as alluded to previously, this conclusion was strenuously resisted by the majority, which stressed that as long as there was continuity between past and present activities, the present activity would be protected. Interestingly, the transformation of traditional fishing activities which originally provided for self-sustenance alone but which were later altered to include surplus exchanges and later still the sale of fish to the Hudson's Bay Company, was too great to allow a present day sale of ten salmon to be characterized as the exercise of an Aboriginal right. It is obvious then that degree to which change can occur before the link with traditional customs, practices and activities is broken and becomes the creation of a new and different custom, practice or activity is somewhat limited despite the Court's assertion that links between past and present activities will afford protection of rights. The actual point at which an activity ceases to be a manifestation of a traditional practice and becomes the creation of a new practice appears in, practical terms, to be somewhat difficult to resolve, despite the fact that some general criteria are set out in the Van der Peet test. [96]
Gladstone's case [97] , which applied the test set out in Van der Peet , [98] came to a different conclusion from that in Van der Peet . [99] In Gladstone's case [100] , it was held that the Heiltsuk Nation had exchanged herring spawn on a commercial basis prior to European contact, therefore, their commercial fishing activity which was integral to their culture, was upheld as an Aboriginal right. That constitutionally protected Aboriginal right, however, was curiously still subject to infringement by Federal regulations, which might be introduced. Sparrow's case [101] is authority for this. There it was held that if the Federal Government could demonstrate a valid legislative objective for its law and could demonstrate that the law impacted on Aboriginal rights as little as possible, the law would be permitted to infringe those rights. [102] Gladstone's case [103] appears to have whittled away the constitutional protection of Aboriginal rights even further than Sparrow. [104] The majority in Gladstone [105] held that limitations could be placed on these constitutionally protected rights in favour of non-constitutionally protected rights of the non-Aboriginal community if the result would be to effect reconciliation between the Aboriginal societies and the broader community as a whole. In the words of the Court, "[b]ecause distinctive Aboriginal societies exist within, and are part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking account [of] the fact that Aboriginal societies are a part of that community), some limitation of those rights will be justifiable". [106]
The Court then suggested some particular objectives which could satisfy this standard. It referred to the pursuit "of economic and regional fairness, and the recognition of the historical reliance upon the participation in the fishery by non-Aboriginal groups". [107]
If this whittling away of Aboriginal rights can occur in a country where Aboriginal rights are constitutionally protected one is led to surmise that in Australia, where there is no constitutional protection of Aboriginal native title, the propensity to favour non-Indigenous rights (in a clash between Aboriginal, non-Aboriginal rights) would be heightened. This issue of the whittling away of rights was partially raised in the Wik case, when the extinguishment of native title by virtue of a pastoral lease was under consideration. [108]
The Smokehouse decision
NTC Smokehouse [109] also applied the Van der Peet [110] test in the context of fishing. NTC Smokehouse, the appellant, was a food processor who used fish caught by First Nation people pursuant to an Indian food fishing licence. The fish were then resold by the appellant in the commercial market. NTC Smokehouse was charged under s. 6(1) of the Fisheries Act with selling and purchasing fish caught not under the authority of a commercial licence, contrary to s. 4(5) of the British Columbia Fishery (General) Regulations, and with selling and purchasing fish caught under the authority of an Indian food fish licence, contrary to s. 27(5) of the same regulations.
At first instance NTC Smokehouse was convicted. The case went on appeal all the way to the Supreme Court. The Supreme Court was satisfied with the original findings of fact and hence relied on them. It then applied the Van der Peet [111] test to decide if the regulations were of no force or effect because an Aboriginal right was being exercised. Clearly the Aboriginal right was not being asserted by NTC Smokehouse itself, but NTC Smokehouse was entitled to raise the defence because the conviction was rooted in the Indian bands' sale of fish being illegal. Did the regulation regarding sale infringe the Aboriginal right?
The Court had to ask itself the same questions as it had asked in Van der Peet [112] and Gladstone.113 Could the activity be recognized as an Aboriginal right? Was the activity an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right prior to European contact.
In this case the matter was further complicated by there being an extensive sale of fish. Hence the majority (7:2) found that if fish were exchanged on an extensive scale ie. commercially, a more onerous burden fell on the appellant than if fish were exchanged merely for money or other goods. Here, the Indian bands needed to demonstrate not that a right to exchange fish for money or other goods was integral to traditional pre-contact culture but that a right to exchange on a commercial scale was integral to the distinctive pre-contact native culture.
When the right to be proved was so characterized the claim failed. The evidence did not support such a specific characterization of the right and hence the conviction remained. Had, however, the right been viewed in the context of the specific history and culture of the Indian bands in question, and had the right been viewed with regard to Indigenous perspectives on the meaning of these rights, the result might well have been different. [114]
The Pamajewon decision
The Pamajewon case also applied the Van der Peet [115] test but did so in the context of gambling. Pamajewon found that the Shawanaga First Nation did not have the right to run and regulate casinos.
Howard Pamajewon and Roger Jones (of the Shawanaga First Nation) were both charged with keeping a common gaming house contrary to s. 201(1) of the Criminal Code. Other appellants Arnold Gardner, Jack Pitchenese and Allen Gardner, who were members of the Eagle Lake First Nation, were charged with conducting a scheme for the purpose of determining the winners of property, contrary to s. 206(1)(d) of the Criminal Code. The charges related to high stakes bingo activities on the reserve. In deciding the case, the Court applied the Van der Peet [116] test in the same way as it had done in R v NTC Smokehouse [117] and in R v Gladstone. [118] It found that high stakes gambling was not an element of a pre-contact tradition, custom or practice integral to the distinctive culture of the Aboriginal group claiming the group Further the Court in Pamajewon [119] operated on the assumption that s. 35(1) of the Constitution included a right to self-government and that claims to self-government made under this provision were no different from other claims to enjoy Aboriginal rights. Hence the test set out in Van der Peet was applicable. [120]
Conclusion
The decisions in the Van der Peet tetralogy and following cases seem to represent quite a restrictive approach to the question of what, in practical terms, can be construed as an Aboriginal right. By focussing on the pre-contact expression of tradition and custom, the Supreme Court of Canada (although it asserts otherwise) seemed to favour a frozen rights approach, the result of which is to lock Indigenous people into the observance of practices and activities that are not always compatible with existence in a twentieth century world. To break out of the confines set by the decision is to lose the protection afforded to Aboriginal rights. The Court appears to be offering Aboriginal people a series of mixed signals. While the Court talks of "the reconciliation of Aboriginal societies with the broader political community of which they are part" it also seems to fail to appreciate fully that Indigenous people are actually part of that other broad community which, to various degrees, has caused them to alter their customs and practices to accommodate that very fact.
To reiterate, in the four cases, Van der Peet, [121] Gladstone, [122] Smokehouse [123] and Pamajewon, [124] we see the Supreme Court of Canada offer Aboriginal people a plurality of messages. Put in a rudimentary fashion the messages for Aboriginal people include, (1) "live without us" (ie. without the impact of mainstream non Aboriginal society) but at the same time (2) "live with us" (within the structures of mainstream non Aboriginal society). If Aboriginal people wish to have their rights protected as Aboriginal rights they are advised "to live without us" and not to be unduly influenced by non-Aboriginal society. They are advised not to respond to co-existence in the wider society by altering and modifying their customs, traditions and practices or else it might be said that those practices have lost connection with their pre-contact roots and are not deserving of protection.
However, simultaneously Canadian Aboriginal people are required to accept that their constitutionally protected rights can be limited because they live within the context of a broader community (ie. because they "live with us"). It is because of this very inter-relationship that the Court has seen is its role as one of affecting the accommodation of interests of both groups, which could, in turn, involve a diminution of protected Aboriginal rights.
This plurality or messages must indeed be confusing for many Aboriginal people as must be the practical application of the test used in the judgements considered here. For example, while the Court states that it is prepared to accommodate change and modification of customs, practices and activities, to some extent, (accepting "their evolution over time" [126] ) it draws a line and characterizes some activities as new and different and, therefore, not rooted in traditional pre-contact practice. As we have seen, the majority in Van der Peet [126] found itself unable to construe a present day small scale commercial fishing activity as having been rooted in a traditional right to use a resource (ie. fish) or even in a traditional right to fish for sustenance and exchange any surplus. Far from being seen as a modern day manifestation of a pre-contact Aboriginal right, the activity of small scale commercial fishing was seen as insufficiently linked to integral customs and practices of a pre-contact era.
Given that both the Australian High Court and the Canadian Supreme Court have generally supported the notion that native title and Aboriginal rights are capable of evolving over a period of time provided the "general nature" of the connection remains or there is "continuity" with earlier practices, it is somewhat disturbing to observe that in practical terms, Canadian jurisprudence in the form of the Van der Peet [127] judgment permitted the upholding of a rather restrictive interpretation of what will constitute an Aboriginal right.
It would appear that Van der Peet [128] has paved the way for the Australian Courts to interpret native title in a similarly restrictive manner, while at the same time and seemingly inconsistently, expressing a willingness to acknowledge the fluid and evolutionary nature of native title. Of course, it is true that Australian courts are not bound by Canadian authority but, given the growing exchange and interplay of Australian and Canadian jurisprudence in the field of native title and Aboriginal rights, it is likely that when the issue of what specificially will constitute native title (or an exercise of it) is litigated again the Australian courts will be guided by their Atlantic confreres.
* See Derschaw v Sutton reported at p. 53 of this issue of the AILR.
* The Canadian cases R v Van der Peet and R v Pamajewon will be
reported in the next issue, (1997)
2 (2) AILR. l
Footnotes
* LLB, MA Dip Ed (UNSW); Grad Dip (Prac Leg Stud) UTS; Solicitor of Supreme Court of NSW; Lecturer, Faculty of Law UNSW. The author would like to thank her colleagues, Professor Garth Nettheim and Mr Brendan Edegeworth for their assistance in the preparation of this paper.
[1] [1992] HCA 23; (1992) 175 CLR 1; R Bartlett, The Mabo Decision commentary and full text of the decision, Butterworths, 1993. The latter reference hereafter referred to as Mabo No. 2, Bartlett, supra.
[2] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
[3] Calder v AG of British Columbia (1973) 34 DLR (3rd) 145.
[4] Ibid.
[5] Mabo (No. 2), supra.
[6] St Catherine's Milling Cov R (1888) 14 App Cas 46; Calder v A G of British Columbia (1973) 34 DLR (3rd) 145; Guerin v R (1984) 13 DLR 4th 321; Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3rd) 513; R v Sparrow [1990] 1 SCR 1075.
[7] Mabo (No. 2) Bartlett, supra
[8] Delgamuukw v Queen [1993] 5 WWR 97.
[9] R v Van der Peet, Unreported [1996] SCJ No 77.
[10] Mabo (No. 2) Bartlett, supra.
[11] Mabo (No. 2) Bartlett, supra, p. 42.
[12] The Wik People v The State of Queensland & Ors 141 ALR 129.
[13] Mabo (No. 2) supra.
[14]
R Bartlett, `Mabo: Another Triumph for the Common Law', Sydney Law
Review (1993) vol. 15, No. 2, p 183;
G Simpson, "Mabo, International
Law, Terra Nullius and the Stories of Settlement: Unresolved Jurisprudence",
Melbourne University Law Review, 1993, pp. 19, 195 among many others.
[15] Mabo (No. 2), Bartlett, supra, p. 42.
[16] The issue of a set of customs and laws was raised in Milirrpum v Nabalco (1971) 17 FLR 141.
[17] Mabo (No. 2), Bartlett, supra, p. 65.
[18] Ibid.
[19] Ibid, 42.
[20] Ibid, 42.
[21] Ibid, my emphasis.
[22] Mabo (No. 2) Bartlett,supra, p. 42.
[23] [1973] SCR 313; [1990] 1 SCR 1075.
[24] (1988) 14 App Cas 46, 54.
[25] Mabo (No. 2) Bartlett, supra, p. 67.
[26] Ibid, 44.
[27] This gloss would presumably raise issues of concern for some cultural relativists who might argue that conceptions of `natural justice' are determined by cultural experience.
[28] Mabo (No. 2) Bartlett, supra, p. 51.
[29] Ibid, 83.
[30] McRae, Nettheim and Beacroft also raise this issue in chapter 6 of Indigenous Legal Issues, (2nd ed) 1997. In particular see p 244.
[31] Mason v Tritton (1994) 34 NSWLR 572; Derschaw v Sutton. This latter case was heard at first instance in the Court of Petty Sessions, Port Hedland. A decision from which the complainant appealed was handed down on 8 November 1994. This decision is here referred to as Sutton v Derschaw 1. The case was heard on appeal by Heenan J in the Supreme Court of Western Australia, and a decision was handed down on 15 August 1995. This is an unreported judgment referred to as Sutton v Derschaw Appeal No SJ A 1175-1177 of 1994. It is here referred to as Sutton v Derschaw 2. This decision was appealed against and the matter was heard by three judges of the WA Supreme Court. Their decision is referred to as: Derschaw v Sutton Unreported judgment of Supreme Court of Western Australia per Franklyn, Wallwork & Murray JJ, unreported Lib, No 9604496 referred to here as Derschaw v Sutton.
[32] Mason v Tritton, supra. NB. This test was affirmed and quoted in Sutton v Derschaw, supra, 7-8 and 21.
[33] Mabo (No. 2) supra, affirmed the view expressed in St Catherine's Milling and Lumber Co v R (1988) 14 App Cas 46 where an Aboriginal right was held to include "The fruits and produce of the lands and to hunt and fish thereon".
[34] Mason v Tritton, supra.
[35] Mason v Tritton, supra, 584. Note this tests is also restated in Sutton v Derschaw 2, supra, 13; and Derschaw v Sutton, supra, 8.
[36] Ibid.
[37] Ibid, see pp. 575, 590 and 604.
[38] Ibid.
[39] Mason v Tritton, supra, 590, my emphasis.
[40] Mason v Tritton, supra.
[41] Mabo (No. 2) Bartlett, supra.
[42] Mason v Tritton, supra.
[43] Derschaw v Sutton, op cit; Mason v Tritton, op cit -- see footnote 35.
[44] Mason v Tritton, supra.
[45] Sutton v Derschaw 2, supra, 4.
[46] Derschaw v Sutton, supra, 8.
[47] Sutton v Derschaw 2, supra, 14.
[48] Ibid, 17.
[49] B Richardson, People of Terra Nullius, Douglas and McIntyre, Vancouver, 1993; M Gumbert, Neither Justice nor Reason: a legal and anthropological analysis of Aboriginal land rights, QUP, St Lucia, Qld, 1984, p 15; K Maddock, Your Land is Our Land, Aboriginal Land Rights, Penguin, Ringwood, 1983. It should be noted that in R v Sparrow [1990] 3 CNLR 160 (1990); [1990] 1 SCR 1075, in referring to the Musqueam people's right to fish for salmon, the Court noted that the salmon fishery's role "involved not only consumption for subsistence purposes but also consumption of salmon on ceremonial and social occasions".
[50] Delgamuukw v Queen, supra, Delgamuukw has not, however, been considered by the Supreme Court.
[51] Ibid.
[53] Ibid; see dissenting judgment of L'Heureux Dube J at para 131 in R v Van der Peet [1996] SCJ No 77.
[55] Calder v Attorney-General of British Columbia [1973] SCR 313.
[56] R v Van der Peet, supra, (fishing); R. v NTC Smokehouse Ltd., [1996] SCJ No. 78 (fishing); R v Gladstone, [1996] SCJ No. 79 (fishing); R v Pamajewon, [1996] SCJ No. 20 (gambling).
[57] R v Adams [1996] SCJ No 87; R v Cote [1976] SCJ No 93.
[58] R v Van der Peet, supra, R v NTC Smokehouse, supra; R v Gladstone, supra; R V Pamajewon, supra.
[59] R V Pamajewon, supra.
[60] R v Van der Peet, supra.
[61] Ibid.
[62] Ibid.
[63] Ibid.
[64] Ibid, para 56. Note that the Canadian courts use the lower case `a' in the word Aboriginal.
[65] Ibid, para 55.
[66] Ibid, p 59.
[67] R v Sparrow, supra, 1039.
[68] Mabo (No. 2) Bartlett, supra.
[69] R v Van der Peet, supra, para 65.
[70] Ibid, para 49.
[71] Ibid.
72 M Walters, "British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia (1992) 17 Queen's Law Journal, p. 50 at 413.
[73]
See R Bartlett, "Native Title; From Pragmatism to Equality before the Law",
Melbourne Law Review, 20(2), 1995,
p 282, on the issue of
extinguishment see also K McNeil, "Racial Discrimination and Unilateral
Extinguishment of Native Title" (1996)
1 (2) AILR.
[74] Mabo (No. 2) Bartlett, supra.
[75] The Wik Peoples v The State of Queensland & Ors: The Thayorre people v The State of Queensland & Ors (1996) 141 ALR 129.
[76] Ibid.
[77] R v Sparrow, supra, p 1006.
[78] Van der Peet, supra.
[79] Ibid, para 29.
[80] Ibid, para 29.
[81] R v Van der Peet, supra.
[82] "Aboriginal and Treaty Rights in the Canadian Supreme Court", Constitutional Forum, Centre for Constitutional Studies, Edmonton, Alberta, Vol 8, No 2, Winter, 1997.
[83] This is a view prevalently expressed on Canadian radio and in Canadian newspapers by First Nation commentators from August-November 1996.
[84] For further discussion of formal and substantive equality see H McRae, G Nettheim, L Beacroft, Indigenous Legal Issues, LBC Sydney, 1997, pp. 317-320, 324-325.
[85] R v Van der Peet, supra.
[86] R v Van der Peet, supra, para 165.
[87] Ibid, para 166.
[88]
TD Dillehay, "The Great Debate on the First Americans" (1991) 7:4
Anthropology Today 12. Dillehay claims that the "great debate" over
this issue is still unresolved, though he concludes that "at present, little
solid
evidence exists to suggest that humans made it to the New World before
fifteen thousand years ago." By comparison First Nation people
claim to have
been in North America for much longer. The Report of the Royal Commission on
Aboriginal Peoples, vol.1, Looking Forward,
Looking Back Ottawa: Canada
Communication Group Publishing, 1996, p. 11 says "Aboriginal people often say
that they have been here
since time immemorial and, indeed, evidence of their
presence as Indigenous people is well documented. Estimates of the date of
human habitation in North America range up to 40,000 years ago, and Olive
Dickason reports that `By about 11,000 [years ago] humans
were inhabiting the
length and breadth of the Americas, with the population being along the Pacific
Coast of the two continents.'"
See
O P Dickason, Canada's First
Nations: A History of Founding Peoples from Earliest Times, Toronto,
McClelland
& Stewart Inc, 1992, pp. 25,34,28.
[89] Mason v Tritton, supra.
[90] R v Van der Peet, supra.
[91] Ibid, para 227.
[92] Van der Peet, supra.
[93] Mabo (No. 2) Bartlett, supra.
[94] Ibid, per Brennan J, 43.
[95] Ibid, per Deane and Gaudron JJ, 83.
[96] R v Van der Peet, supra.
[97] R v Gladstone, supra.
[98] R v Van der Peet, supra.
[99] Ibid.
[100] R v Gladstone, supra.
[101] See R v Sparrow, supra.
[102] Ibid.
[103] R v Gladstone, supra.
[104] R v Sparrow, supra.
[105] R v Gladstone, supra.
[106] Ibid, para 74.
[107] Ibid, p 75.
[108] Wik, supra, in that case the Court found by 4 to 3 that native title and pastoral leases could continue to co-exist.
[109] NTC Smokehouse, supra.
[110] R v Van der Peet, supra.
[111] Ibid.
[112] R v Van der Peet, supra.
[113] R v Gladstone, supra.
[114] R v NTC Smokehouse, op cit; L'Heureux-Dube J, in dissent, emphasises an interpretation of Aboriginal rights along these lines.
[115] Ibid.
[116] R v Van der Peet, supra.
[117] NTC v Smokehouse, supra.
[118] R v Gladstone, supra.
[119] R v Pamajewon, supra.
[120] R v Van der Peet, supra.
[121] Ibid.
[122] R v Gladstone, supra.
[123] R v Smokehouse, supra.
[124] R v Pamajewon, supra.
[125] R v Sparrow, supra.
[126] R v Van der Peet, supra.
[127] Ibid.
[128] Ibid.
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