McIntyre, Greg --- "Book Review - Common Law Aboriginal Title" [1992] AboriginalLawB 21; (1992) 1(55) Aboriginal Law Bulletin 17

• Book Review-Common Law Aboriginal Title

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Book Review -

Common Law Aboriginal Title

by Kent McNeil

Clarendon Press, Oxford, 1989. 357 pp.

Reviewed by Greg McIntyre

This book addresses the land rights question – isolating fundamental principles applicable throughout the British Empire – and assesses the impact of the reception of English law into colonies acquired by the Crown through settlement. It goes on to suggest an approach to be used in resolving outstanding Aboriginal land claims in Australia.

The author acknowledges and picks up from previous works in the area, including Brian Slattery’s The Land Rights of Indigenous Canadian Peoples as Affected by the Crown’s Acquisition of Their Territories and Geoffrey Lester’s thesis The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument.

Professor McNeil’s work adds a new clarity to the attempts by legal authors, lawyers and the Courts to grapple with the nature of the title which indigenous inhabitants may claim in relation to lands colonised by the British Sovereign. He argues in a thoroughly sourced and exhaustively researched fashion the proposition that common law Aboriginal title is descriptive of a presumptive title arising from possession which to common law attributes to indigenous occupiers the moment a territory is acquired by settlement. He argues that the fiction of original Crown ownership arising from occupation is effective only to support the Crowns rights as paramount Lord over land held by the Crown subjects and could not be applied to support any injustice to dispossess the indigenous occupiers.

Chapter Two explores in some detail the concept of possessory title to land at English law. It traces the history of the ancient legal actions relating to real property and discusses the issue of abandonment and possession, occupancy versus occupation, the presumptive possessory title and the concept of adverse possession or title by limitation.

Chapter Three discusses the origins of the Crown’s title to land and the doctrine of tenures, and distinguishes and record as a basis for the Crown’s claim to title. He concludes that the doctrine of tenures has the effect of giving the Crown a paramount lordship over lands that the fiction of original Crown ownership in grants was invented to explain how this feudal relationship arose.

Chapter Four discusses the English law in relation to acquisition of new territory and distinguishes between the acquisition of sovereignty over a territory and the claim of Crown title to particular lands. It provides an examination of the various means of classifying acquired territories – ie. as conquered, ceded or settled.

Chapter Five focuses on the title to the lands where they are uninhabited settled territories and discusses the examples of Barbados, British Honduras and Pitcairn Island. It confirms the limitation upon British subjects acquiring land for themselves.

Chapter Six then addresses the effect on customary rights to land of Crown acquisition of a territory, using as examples: Sierra Leone and the Gold Coast, British New Guinea, Ocean Island and New Zealand. The author acknowledges that in the course of acquiring sovereignty over a territory the Crown could seize property by Act of State and if the Crown chose to do so the rights of previous owners would come to an end unless an express or implied intention to the contrary appeared. Such an express intention would amount to an act of recognition of rights of property. The author distinguishes the recognition doctrine applying in that situation from the continuity doctrine. In cases where the Crown has left the inhabitants in possession of their private property those rights are presumed to continue regardless of the form of acquisition of the territory, whether by conquest, cession or settlement.

Chapter Seven reaches the heart of the publication and discusses the sufficiency of indigenous land use to provide a basis for common law Aboriginal title. This chapter largely summarises the effect of the law as expounded n the previous chapters and pursues the thesis that indigenous occupation has the legal effect of giving rise to a presumptive title. It rejects the notion that indigenous people are incapable of benefiting from that English law presumption and examines how a communal group might hold the title. It reaffirms the author’s view that the Crown’s title is only as paramount Lord and is to be distinguished from indigenous occupation and possession. The author also in this chapter explores whether, as a matter of principle, indigenous title is inalienable and after canvassing, in particular, the leading American decisions characterises the rule as one of policy rather than something bases in the common law.

The penultimate chapter discusses in some detail how the doctrine has been applied in the United States, Canada and Australia and concludes that:

“Australian Judges not bound by Milirrpum are in a unique position to approach this matter afresh. Unlike their American and (to a lesser extent) Canadian counterparts they are not overburdened by judicial precedents dating from a time when indigenous people were generally regarded as inferior to Europeans.

Moreover there is now a wealth of previously non-existent archaeological, historical, anthropological, and legal research upon which to draw. One may hope the Courts will take advantage of the opportunity any new litigation involving Aboriginal land rights may develop a more enlightened approach, firmly grounded on fundamental English law principles, which, as demonstrated here, are considerably more favourable to indigenous land claims than has commonly been assumed.”

The text is one which would prove very useful to the serious student in this area and proved invaluable to Counsel preparing the argument in Mabo v State of Queensland which is currently before the High Court. The degree of research which has gone into the book is exemplified by a bibliography of thirty four pages, twenty three pages of case references and a table of statutes and ordinances covering sixteen different jurisdictions.

It is a very tightly written legal text with much cross-referencing between the chapters and a large volume of footnotes. It places common law Aboriginal title clearly within its legal and historical framework as part of the law of the British Empire and its colonies, and provides and appropriate analysis of how, in today’s world, current and former British Colonies ought to be dealing with indigenous inhabitants and their lands, particularly in Australia.