Aboriginal Law Bulletin
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by Richard Bartlett
The Canadian Courts continue to affirm the strength of aboriginal rights at common law. The relevance of Canadian decisions in this area to Australian law has been acknowledged by the High Court on several occasions. The recent decisions in Delgamuukw and Others v The Queen (1991) 3 W. W.R 97 and Bear Island Foundation (Temagami Band of Indians) v Attorney-General for Ontario Et al., 15 August, 1991, should accordingly provide further support for aboriginal rights at common law in Australia. The significance of Delgamuukw should not, however, be overstated.
A true portrayal of Delgamuukw is that it is a run-of-the-mill lower court decision regarding aboriginal title at common law. It does involve a major aboriginal land claim issue - namely, the continued existence of aboriginal title at common law in British Columbia (B.C.) - but it is a decision that accepts most of the premises and concepts regarding aboriginal title established by the Supreme Court of Canada. Chief Justice McEachern's application of some of those premises may well be questioned and is likely to be overturned on appeal. [See [1991] AboriginalLB 57; 2(52)pg26 ]. But the premises have yet to be accepted in Australia and it represents a dramatic change in position by the B.C. Supreme Court, the lowest court in the superior court structure, from the last time it looked at the question in Calder v Attorney-General of British Columbia (1969) 8 DLR (3d).
What then was the reasoning and decision in Delgamuukw? The Plaintiffs sought to establish aboriginal title, ownership and jurisdiction to their traditional territory, 58 000 sq.kms in north-central B.C. They admitted that underlying title to the land was held by the Crown.
Chief Justice McEachern examined the jurisprudence from Canada, the United States and Australia and decisions of the Privy Council. He concluded that aboriginal title at common law arises "out of occupation or use of specific land for aboriginal purposes for an indefinite or long, long time before the assertion of sovereignty" (p.365), and held that the plaintiffs had established such title to most of the area claimed (pp.115-116, pp.457460). He adopted the requirements for establishing title set forth in Baker Lake v Minister for Indian Affairs [1980] 1FC 518, namely:
The Chief justice added an additional requirement that the aboriginal rights have been carried on for an 'indefinite or long, long time.' In assessing whether or not the requirements had been met he did not demand strict satisfaction and cited the dictum of the Privy Council in Re Southern Rhodesia [1919] A.C. 211 as to the need to exercise great care in considering legal conceptions and institutions in other societies.
The Chief Justice adopted a narrow understanding of the ambit of rights conferred by aboriginal title. He cited the similar understanding of Steele J. in Bear Island in the Ontario High Court, and declared:
"In my view, the aboriginal rights of the plaintiffs' ancestors included all those sustenance practices and the gathering of all those products of the land and waters of the territory I shall define which they practised and used before exposure to European civilisation (or sovereignty) for subsistence or survival, including wood, food and clothing, and for their culture or ornamentation - in short, what their ancestors obtained from the land and waters for their aboriginal life." (at p.391)
Following the Supreme Court of Canada decision in Bear Island there seems to be little authority left in the remarks of Steele J., and perhaps equally so, in these remarks of McEachern CJ. The Supreme Court of Canada in Sparrow v The Queen [1990] 4 W WR 335 suggested that a flexible interpretation of aboriginal rights should be adopted 'so as to permit their evolution over time.'
The real issue in the case, as it may be in Australia after Mabo v Queensland and the Commonwealth, was whether or not the aboriginal title of the plaintiffs had been extinguished or otherwise terminated. The Chief justice reviewed the decisions of the Supreme Courts of the United States and Canada and accepted the test - derived from United States v. Santo Fe Pacific Ry. Co., (1941) 314 339 (USSC) - phrased by the Supreme Court of Canada in Sparrow as follows:
"The test of extinguishment to be adopted, in our opinion, is that the sovereign's intention must be clear and plain if it is to extinguish an aboriginal right."
He rejected the requirement that express language is necessary for extinguishment. In Mabo [(1988) 63 ALJR 84] the judgement of Brennan, Toohey and Gaudron JJ. adopts a similarly phrased test and conclusion. [See [1989] AboriginalLB 11; 2(36)pg17].
There is no express language purporting to extinguish aboriginal title in B.C. Accordingly, the Chief justice sought to explain what could constitute evidence of a 'clear and plain intention' to extinguish. He declared (at p.404):
"...the question is not did the Crown through its officers specifically intend to extinguish aboriginal rights apart from their general intention, but rather did they plainly and clearly demonstrate an intention to create a legal regime from which it is necessary to infer that aboriginal interests were in fact extinguished."
The Chief justice concluded that the general land settlement enactments;
"construed in their historic setting exhibit a clear and plain intention to extinguish aboriginal interests in order to give an unburdened title to settlers, and the Crown did extinguish such rights to all the lands of the colony."(p.113)
The curious feature of the Chief Justice's reasoning at this point is his jettisoning of regard for the authorities he had previously relied upon. He does not consider the extensive jurisprudence in the United States or Canada which suggests that general land legislation does not extinguish aboriginal title (see R. Bartlett, "Resource Development and the Extinguishment of Aboriginal Title in Canada and Australia" [1990] 20 UWALR 453). Rather he prefers to "agree with the views of the seven judges who recited the same conclusion in Calder." The problem with this reliance is that he is not, of course, referring to the seven justices of the Supreme Court of Canada in Calder where the decision on this identical question was a 3-3 split. Rather he is relying on the one judge of the B.C. Supreme Court, the three judges of the B.C. Court of Appeal and the three judges of the Supreme Court of Canada who favoured his view - a curious approach to judicial precedent! The analysis and conclusion of the Chief justice on the question of extinguishment appears to be contrary to the established authorities. The requirement of a "clear and plain intention" to extinguish suggests the need for a substantial degree of manifestation of that intention. The established authorities indicate that general land legislation does not, of itself, manifest that intention to a sufficient degree.
The Crown argued in defence that many of the areas claimed had been abandoned by long-term aboriginal use. This is undoubtedly a defence which would be emphasised by the states in Australia. The Chief justice rejected the Crown's argument. He stressed that the onus of showing abandonment was on the Crown, and in considering if that onus had been met, regard must be had to the honour of the Crown - the "Court cannot permit the Crown to pounce too quickly." (p.462) He refused to consider that any particular length of time would be sufficient, but rather emphasised the need to look at all the circumstances - the "Court must look objectively at what may be a subjective state of mind." The evidence on abandonment before the Court was that of Indians leaving the land and migrating to villages for over 90 years, although many still hunted, fished and picked berries on the land. The Chief Justice concluded (p.473):
"I do not think that I can safely conclude that the intention to use these lands for aboriginal purposes has been abandoned even though many Indians have not used them for many years..."
The Plaintiffs also sought a declaration that their right to jurisdiction included the right to govern the territory and themselves under their own law. Reliance was placed on evidence of practices of government before British sovereignty was established. The Chief Justice rejected the claim asserting that British sovereignty wholly displaced any claims to jurisdiction, government or sovereignty on the part of the Plaintiffs. At no point did he consider the jurisprudence establishing inherent aboriginal sovereignty in the United States.
The Plaintiffs did not seek any declaration with respect to the fiduciary obligation of the Crown. The Chief Justice, however, considered the circumstances could sustain such an obligation. He found that the Crown, upon the extinguishment of aboriginal title, had promised to protect the Plaintiffs in their use of unoccupied lands, subject to the general law. Upon the authority of Guerin v The Queen [1984] SCR 335 (SCC) and Sparrow - decisions of the Supreme Court of Canada holding that the Crown may owe a fiduciary obligation to aboriginal people - he concluded that the promise gave rise to a fiduciary obligation:
"to permit aboriginal people, subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose." (p.417)
The obligation so declared is of little substance: it is subject to the ability of the Crown to dedicate the land to another purpose and to deny use of the land to aboriginal people by legislation. It appears to be merely an attempt to make more palatable, and acceptable, the conclusion of the Court on extinguishment of aboriginal title.
In the result the B.C. Supreme Court dismissed the claims of the Plaintiffs as ` to aboriginal title, ownership and jurisdiction as to their traditional lands, but granted a declaration as to a Crown obligation of little worth. But the Court did accept:
The principal loss by the Plaintiffs was on the question of extinguishment, where the Court failed to have regard to established authorities.
The Courts in B.C. have been forced by the Supreme Court of Canada to concede much ground to aboriginal claims in the last twenty years and this case is another instance. But it will probably still require the Supreme Court of Canada to force the final concession on the Province of B.C. and establish that aboriginal title has not been extinguished. One may wonder how the commentator can so confidently predict the likely decision of the Supreme Court of Canada. The answer is, of course, from an analysis of recent decisions of the Court - in 1990, R v Sioui (1990) 70 DLR (4th) 427, Sparrow, Mitchell v Peguis Indian Band [19901 5WWR 97 and the 1991 decision of the Court in Bear Island.
Bear Island addresses some of the complex problems that can arise in 'treaty' making. The case concerned the Temagami Band of Indians, whose traditional lands lay to the north of Lake Huron in Northern Ontario. In 1850, the Robinson-Huron Treaty was entered into between representatives of the Indians of the entire region and the Crown, providing for the settlement of aboriginal title in return for certain promises, including reserves, and annuities. The Temagami Band were not represented by a member of the Band at the signing of the Treaty. Treaty annuities were not paid to the band from at least 1856 to 1882. By 1880 the Department of Indian Affairs had concluded that the band was not a party to the Treaty. In 1883, treaty annuities were paid following requests from the Band. They were paid until 1979, when they were rejected because the Band took the position that it had never been a party to the Treaty and has sought a settlement; of its aboriginal title to its traditional lands The band filed cautions (caveats) in the Land Titles Office asserting its claim with respect to 4000 sq miles. The Province of Ontario brought an application for a declaration that the Band had no right, title or interest in the lands.
In a highly controversial decision in 1984, the Ontario High Court granted the declaration. The controversy attached to the reasoning of the judge Steele J., more than to the result. Steele J., held:
The Band must show that it had aboriginal title to the lands in 1763, the date of the Royal Proclamation, or the coming of settlement. Accordingly it must prove that it was an organised band society at that time and had exclusive occupation of the lands. It must also show that it continued to exclusively occupy and make aboriginal use of the lands up till the date the action was commenced.
Steele J., concluded that the Band had failed to prove its case. He considered that the Band's membership did not become clearly established until 1850. Moreover the Band did not continue to make exclusive aboriginal use of the lands and had abandoned the lands because the Band members had moved to the small reserve or the white settlement of Temagami.
The ambit of rights conferred by aboriginal title is limited to only that manner of use of the land practised in 1763.
General public lands legislation and surveys and the issuance of dispositions had "fostered settlement and development", "development which has severely interfered with the hunting and fishing rights of the Indians" and had thereby extinguished aboriginal title.
The Temagami Band was ,a party to the Robinson-Huron Treaty and accordingly had surrendered its aboriginal title:
{i) The,Band was represented at the signing of the Treaty by a member of another Band; in the alternative
(ii) The Band adhered to the Treaty by its actions after 1850.
In any event the treaty had the effect of extinguishing the aborigina title of the Band Whether or not the Band was a party.
Time began to run against the Band when it first made its claims at the latest in 1883 accordingly, the claim is statute barred. Steele J., also concluded that the claim was barred by laches, estoppel and acquiescence.
"The Crown has stood in a position of trust for the Indians but that trust is a moral obligation and not a legal one."
Many of the propositions of Steele J., were contrary to anthority at the time and subsequent cases have emphasised those errors. His perception of the ambit of aboriginal title and, how it might be extinguished, has been challenged by the Supreme Court of Canada in Sparrow and Simon v The Queen;.[1985] 24 DLR (4th) 390 (SCC). His astonishing vietwof the operation of limitation periods against Indian claims was rejected in Guerin. His other conclusions were considered in the subsequent passage, through the appellate structure, of the Bear Island case.
On appeal, the Band and the Federal Government "challenged much of the reasoning of Steele J. In particular, the Band asserted that SteeleJ., had imposed too high a standard of social organisation and exclusive use for the proof aboriginal title. However, the Ontario Court of Appeal concluded merely that if aboriginal title had existed it had been terminated by the Robinson-Huron Treaty, either because the Band was a party, by its representation by a member of another Band or by adhesion by acts subsequent to 1850, or because the Treaty operated as a sovereign act of extinguishment irrespective of whether the Band was party.
The case went on appeal to the Supreme Court of Canada. The likelihood of success for the Band seemed remote given the number of issues confronting it and the findings of fact made by the trial judge. In the Supreme Court of Canada the Band's appeal was dismissed, but it did have some success. The Court observed that
"this case, it must be underlined, raises for the most part essentially factual issues on which the Courts below were in agreement."
The Court accordingly did not take issue with the findings of fact, but it did reject some of the legal findings based on those facts. The Court observed:
"In particular, we find that on the facts found by the trial judge the Indians exercised sufficient occupation of the lands in question throughout the relevant period to establish an aboriginal right: see in this context, Simon; Sparrow. In our view, the trial judge was misled by the considerations which appear in the passage... "
The effect of the Court's observation is to reject the high standard of proof demanded by Steele J., his understanding of what constitutes abandonment, and possibly also his emphasis on the critical dates for proof of aboriginal title.
The Court went on to observe however, that it was unnecessary to examine the specific nature of the aboriginal rights because the title was surendered "by arrangements subsequent to that treaty by which the Indians adhered to the treaty in exchange for treaty annuities and a reserve." It accordingly dismissed the appeal, "but not without stating the obligation of the Crown, namely that "the Crown has failed to comply with some of its obligation under this agreement and thereby breached its fiduciary obligation to the Indians."In the result the Band was assured by the Supreme Court of a remedy to ensure the provision of land to the Band. It represents the first time that the Supreme Court has declared the fiduciary obligation that attaches upon the surrender by aboriginal peoples of aboriginal title to non-reserve land.
Bear Island indicates a familiar pattern in the assertion of aboriginal rights. Invariably local courts are unsympathetic to aboriginal claims. It requires the decision of the highest court in the land to require the local courts too give effect to aboriginal rights. In that context Delgamuukw appears as a last attempt by a local B.C court to rely on the only remaining issue rationally left to the court to deny a land claim. It is an attempt that will probably fail!
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/62.html