Castles, Alex; Gill, Jon --- "Canadian Supreme Court Clarifies Mabo Paradox" [1997] AboriginalLawB 4; (1997) 3(88) Aboriginal Law Bulletin 11

CANADIAN SUPREME COURT CLARIFIES MABO PARADOX

By Alex Castles and Jon Gill

A paradox surrounding the decision of the High Court in Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 (`Mabo [No. 2]') is the way the majority dealt with Aboriginal law. Its separate existence was acknowledged to determine the continuing existence of native title. The regulation of family affairs and other arrangements made under Aboriginal law were held to be crucial in determining this. As Brennan J (as he then was) affirmed: `Native title has its origin and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory' (Mabo [No. 2] at 58). Simultaneously, however, the Court resiled from giving any greater legal status to it.

Soon after, in Walker v New South Wales (1994) 182 CLR 45, Sir Anthony Mason, the former Chief Justice of the High Court, who had been part of the effective majority in Mabo [No. 2], refused to extend the recognition of Aboriginal law beyond this. Almost peremptorily, he rejected a claim that Aboriginal law could be brought into account in any substantive way in determining the application of European-based criminal law to Aborigines. As he affirmed: `It is a basic principle that all people should be equal before the law' (Walker at 49). He did not elaborate on how that was meant to equate with the acknowledgment of the separate existence accorded to Aboriginal law in Mabo [No. 2].

Five decisions handed down by the Supreme Court of Canada in 1996, however, demonstrate that issues like this cannot be put aside so readily. They show that, as in the United States of America, with Supreme Court decisions that date back at least to Johnson v McIntosh, [1823] USSC 22; (1823) 8 Wheat 543, the logic of the recognition of Aboriginal law in Mabo [No. 2] carries far more with it than simply determining the validity of claims to native title land. Significantly, as in the United States, these cases also demonstrate this is based on similar juristic foundations to those used by the majority of the High Court to reach its conclusions in Mabo [No. 2].

These cases arose in the context of giving content to the concept of `aboriginal right' in section 35(1) of the Canadian Constitution Act 1982. But this does not appear to have been regarded by the Canadian judges as creating a substantial difference between the legal recognition of `aboriginal rights' in Canada compared to Australia under general principles. The court did not distinguish between the parts of Canada first settled by France, and those occupied in a similar fashion to Australia under the umbrella of the common law: two of the cases came from Quebec, and the others from British Columbia.

Three of these cases decided in August are known as the `Van der Peet trilogy': R v Gladstone, 21 August 1996; R v NTC Smokehouse, 21 August 1996; R v Van der Peet, 22 August 1996 (see <http://www.droit.unmontreal.ca /Droit/CSC/arrets/recent/ascii/weldon.en.txt> ). They concern fishing rights that were related to traditional land holding. The court, however, moved beyond this in defining the circumstances where `aboriginal rights' can be recognised. This became the juridical foundation for two decisions handed down in October.

As Chief Justice Lamer potently affirmed in the Van der Peet decision (paragraph 74), the analysis of what constitutes an `aboriginal right' must not be confused by relationships with aboriginal title. As he went on:

`Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organisation and distinctive cultures of aboriginal peoples on that land. In considering whether a claim to an aboriginal right has been made out, courts must look at both the relationship of an aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant's distinctive culture and society. Courts must not focus so entirely on the relationships of aboriginal peoples with the land that they lose sight of the other factors relevant to the identification and definition of aboriginal rights.'

The Canadian court has now adopted this reasoning in recognising aboriginal rights that have no present-day relationship to traditional landholding. In R v Adams, 3 October 1996 (internet reference, above), regulations that forbade Mohawk Indians from fishing on land that had been ceded to the Crown in 1888 were held not to be applicable to them. In R v Cote, 3 October 1996 (internet reference, above), the conviction of an Algonquin Indian for fishing without a valid licence was quashed, even though this had occurred in territory the court ruled had never been the subject of sufficient occupation by the Algonquin Indians to make out a valid claim to native title.

As the court set out in Adams, an aboriginal right can separately be recognised if it is a `practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right'. The court then required that this right be in existence prior to the coming into force of the Canadian Constitution Act 1982. It can then only be extinguished by legislation exhibiting a clear and plain intention to do so.

Clearly, as these cases show, the Canadian Constitutional recognition of aboriginal rights has provided a special reason for reaching these decisions. But like the United States decision making that dates back for more than 150 years, these rulings also encompass an acknowledgement of the rights of Indigenous peoples that have deep roots within the same principles that the majority of the High Court of Australia espoused in Mabo [No. 2].

In all three countries, these can be traced back to the evolution of principles of international law interacting with domestic law, often based on common law precedents, as the High Court demonstrated in Mabo [No. 2]. But in contrast to Australia, in the United States, and now Canada, there has been clear recognition of the artificiality of distinguishing between land and other rights when these are based on systems of Indigenous law that do not recognise this: the basic situation with Aboriginal law in Australia.

Ironically, the approach taken by the Canadian court in these cases also echoes administrative and judicial attitudes that once seemed likely to become entrenched in the ordering of Australian legal processes in the first half of the nineteenth century. For more than fifty years after the arrival of the First Fleet at Port Jackson, there was no general acceptance of the view that Aborigines were necessarily British subjects, and ipso facto subject to European law.

As Roger Milliss records in his monumental Waterloo Creek (UNSW Press, Sydney, 1992), one of Governor Gipps' top advisers in 1838 doubted whether Aborigines could truly be described as British subjects (p240). Whether they were to be regarded as British subjects or not, Gipps himself had doubts whether they were fully amenable to European law, except in direct relationships with European settlers (p819, footnote 14).

This changed, however, for reasons that had little to do with jurisprudence. Instead, a combination of imperial and local politics helped to dictate otherwise, not least the demands of land hungry members of emerging colonial legislatures, as Milliss and other scholars has helped to demonstrate. This also helped to obscure previous Australian judicial decision making that was not so all-embracing in rejecting the recognition of Aboriginal law as it has sometimes been made to appear.

In the twentieth century, the decision of three judges of the New South Wales Supreme Court in R v Jack Congo Murrell (1836) Legge 72 has been assumed to have regarded Aborigines as being subject fully to European law (R v Wedge, [1976] 1 NSWLR 581). The case as reported by Legge, however, is based on a truncated newspaper version of the decision. It omits significant words and phrases from the original judgment lodged in the New South Wales Archives that cast doubts on this conclusion (The Age, 17 June 1996).

The full version of the ruling by Willis J of the Supreme Court of New South Wales in R v Bonjon (Port Phillip Patriot, 30 September 1841) demonstrates similar reasoning to the approach now adopted by the Canadian Supreme Court in recognising aboriginal law. It was also based on judicial authorities and other writings that had already led to the separate recognition of native American law by the Supreme Court of the United States.