Nettheim, Garth --- "Book Review - Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada" [1986] AboriginalLawB 9; (1986) 1(18) Aboriginal Law Bulletin 7

• Book Review-Aboriginal Peoples And The Law: Indian, Metis And Inuit Rights In Canada

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Book Review -

Aboriginal Peoples and the Law:
Indian, Metis and Inuit Rights in Canada

Edited by Bradford W Morse

Careleton University Press Inc, (1985)

Reviewed by Garth Nettheim

This book is designed primarily for those teaching and learning about native rights in Canada in law schools and in departments of legal studies and native studies; indeed it is designed to foster the further development of such courses. It is also intended to be of use to those working on native rights issues in native peoples' organisations and in government and elsewhere.

The book is a notable achievement in several ways. It is an exercise in collaborative scholarship by many of the leading academics in the field. In addition, it combines (in part) the functions of case book (a collection of primary legal materials and other writings) and textbook (scholarly comment on the various aspects of the subject area chosen for treatment). Australia has recently produced a comparable contributory textbook (Hanks & Keon-Cohen, editors, Aborigines And The Law, George Allen and Unwin, 1984) but a case book has yet to appear. And it would be difficult to compile a similar long list of teachers of "Aborigines and the Law" courses in this country because so few courses are being taught. Yet the need is great, and the academic and professional justifications are strong.

While much of the material in the book is primarily of Canadian relevance, much of it affirms the notion that those working on native law issues in both Canada and Australia have much to learn from each other. Chapters in the book on Aboriginal Title (David Elliott) and Aboriginal Rights in International Law (Maureen Davies) will be of direct interest to Australians. Some Australian references appear in the Canadian book - for example, Milirrpum v Nabalco (the Gove Land Rights case) is quoted in the chapter on Aboriginal Title, followed by the Canadian Supreme Court's very different decision in Calder v A-G of British Columbia; and the Northern Territory and Pitjantjatjara land rights acts are considered.

While the Constitutional position in the two countries differs considerably, Noel Lyons' chapter on Constitutional Issues in Native Law strikes a number of responsive chords in the Australian reader. Consider the following quotes: "Judicial decisions concerning the nature of aboriginal title or the status of Indian treaties may have been based on questionable assumptions or assertions. The full constitutional basis of native law has, therefore, yet to be established" (p408); "If we ask when and how Indians became subjects of the Queen, we are likely to encounter a mixture of questionable international law doctrines, self serving British colonial law, and dubious evidence of Indian people's submission to the authority of the British Crown:" (pp409-410).

Lyons goes on:

"Legal questions are seldom so well settled as to be closed to reconsideration. Great cases are great because they give expression to new knowledge and changed standards and perceptions. But more is needed than a rerun of old arguments and received truths; an alternative way of viewing a matter must be offered. Old conceptions of international law as rules for sharing the global spoils among European states, of constitutional law as the justification of state power, and of indigenous peoples as children who are in need of protection because they have no legal rights are all questionable by current standards. And the questions all go to the constitutional basis of distinctive laws that govern those people and their rights, which we loosely describe as 'native law'." (p410)

He sees the opportunity for judicial reconsideration of these matters in Canada in the 1982 Constitutional provisions under which the "existing aboriginal and treaty rights of the aboriginal peoples of Canada re ... recognized and affirmed" (s35). And he illustrates possible ways forward based on the Constitutional provisions. Australian Aboriginal people might well consider proposing a similar provision to our own Constitutional Commission established by the Attorney-General in December, 1985.

Brad Morse's chapter, The Resolution of Land Claims, has as its starting point a proposition which will be unfamiliar to Australian readers:

"English common law has recognised the validity of (indigenous ownership of Canada) for some three centuries, acknowledging that it gave rise to a legally recognized interest in the land possessed by the individual Indian nation or Inuit community. .. British recognition of aboriginal title resulted in the necessity for purchasing this interest ..."

He goes on to discuss the working out of the modern policy of settling such land claims by negotiation. Canadians see advantages in this process as against litigation or the sort of adjudication involved in the Northern Territory land claim process. Peter Cumming in his chapter on Canada's North and Native Rights voices a similar belief, "that the court is the least appropriate forum for dealing with aboriginal title". And yet Canada's experience bears out the proposition that an occasional court victory is usually necessary to compel governments to undertake serious negotiations.

The book, while substantial, is not comprehensive. The editor, in his introduction, notes that it was "not possible to include chapters on indigenous government and sovereignty, customary law, Indian government, specialised legal services and courts, the criminal justice system, sentencing law, some special facets of civil law, and unique aspects of the law relating to the Metis and the Inuit." Yet it does cover a wide range of other matters, and is a valuable resource to anyone wishing to come to grips with Canadian native rights law.