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ANDREW LOKAN[*]
[Australia’s recent recognition of native title arises out of the moral and legal claims of its Aboriginal inhabitants. In order to develop a framework for reconciling such claims with countervailing interests, it is helpful to analyse three interrelated rationales that support recognition of Aboriginal rights. These are Aboriginal first possession of land, the need for substantive equality for Aborigines, and the need to preserve Aboriginal cultural identity. Recent Canadian Aboriginal rights jurisprudence is reviewed as a useful model for how doctrines can be further developed in accordance with these rationales, to provide for broader recognition of Aboriginal rights beyond native title per se, and to provide sophisticated balancing mechanisms to fashion compromises between Aboriginal and non-Aboriginal interests. While differences in the Canadian legal system preclude wholesale importation of these doctrines, there is both the potential and the need for Australian law to develop along analogous lines.]
In the last 30 years, and particularly since the landmark judgment of the High Court in Mabo v Queensland [No 2],[1] Australia has struggled to redefine its relationship with its indigenous peoples. In adopting doctrines developed in the United States of America, Canada, New Zealand and other common law countries, Australian common law has belatedly moved from its traditional denial of the legitimacy of claims by its original inhabitants[2] towards recognition of legally enforceable Aboriginal[3] rights.[4]
The predominant vehicle in this process of reassessment has been the common law doctrine of Aboriginal or native title. While much remains unclear about the precise definition and content of native title in Australian law (including the circumstances under which it may have lapsed[5] or may have been extinguished),[6] the core concept of a communal right, probably of a proprietary nature, based on traditional occupation or use by the claimants and grounded in Aboriginal custom, is firmly established.[7] The recognition of native title in Australia has been welcomed by many as long overdue, while others fear the potential destabilising effects of what they regard as a radical departure from the traditional approach.
Once the legitimacy of claims based on the prior occupancy of indigenous peoples is recognised, however, an extraordinary challenge is presented to the flexibility and imagination of the legal system. For recognition is only one part — and in some ways the easiest part — of the work that Aboriginal rights must do. Balancing these claims against the competing claims of non-indigenous interests — that is, reconciling Aboriginal claims with non-Aboriginal sovereignty, the history of non-indigenous settlement, the rights of non-Aboriginal landholders and the practical exigencies of modern life — is every bit as much a function of Aboriginal rights law as the initial recognition of such claims.
Understandably, the emphasis and rhetoric in Mabo are heavily slanted towards recognition, as befits its status as the ground-breaking, landmark case in the area in Australia. Wik, too, has been received as a decision which dramatically broadens the scope for recognition of native title, not least because it approximately doubles the area of Australia that is potentially subject to native title claims.[8] In fact, though Wik broadens the scope for recognition of native title, it also places a strong emphasis on coexistence and compromise between Aboriginal and non-Aboriginal interests.[9] Thus, it may be seen as marking the beginning of the development of a distinctly Australian approach to balancing Aboriginal rights with countervailing values. As the courts move beyond Mabo and Wik, however, to the processing of the hundreds of claims currently in the Native Title Act system,[10] and possibly to claims of a non-proprietary nature, they will face increasingly difficult questions as they attempt to give effect to the broad principles set out in those cases. Inevitably, given the intractability of the competing parties’ positions and the uncertainty surrounding their legal rights, the courts will be forced to give definition to Aboriginal rights in a way that fashions compromises of a markedly political nature.[11] Especially since Wik, the future of Aboriginal rights litigation seems to require the courts to make such judgments, with little (so far) to guide them in Australian law or history. In short, the courts can be expected to shift their emphasis further from recognition towards reconciliation.[12]
In this regard it may be particularly instructive to look at the experience of Canada, where native title per se forms only one strand in a broad tapestry of Aboriginal legal entitlements, including also a broader concept of common law Aboriginal rights (such as non-exclusive hunting and fishing rights and other rights arising from custom), a potential (but not yet judicially established) limited right to self-government, rights arising from the Crown’s fiduciary duty towards Aboriginal peoples, and treaty rights. Each of these alternative strands (except for treaty rights, which are historically inapplicable) has been put forward by proponents of Aboriginal rights in the Australian context,[13] and each has been the subject of judicial comment.[14] Each has, to some degree, the potential to be incorporated into Australian doctrine, and to the extent that this incorporation occurs, it is likely that Canadian law will provide an important source of precedent to the courts.
The Canadian experience is instructive for several reasons. It is a commonplace that with its similar history, common law heritage and institutions of government, Canada may offer the closest parallels to Australia in this area[15] — as is evident from the High Court’s extensive citation of Canadian authorities in recent cases (a process which is now also occurring in reverse).[16] Furthermore, the jurisprudence of Aboriginal rights has had much longer to mature in Canada, with basic recognition of such rights occurring in the Royal Proclamation of 1763[17] and the historical treaty process,[18] and in the modern era commencing with Calder v A-G of British Columbia[19] (the closest Canadian analogue to Mabo) in 1973. For this reason, Canadian law may be a predictor of the future shape of Australian law in this area. But perhaps most importantly, Canada has a long (if not always successful) history of accommodation of different peoples within its legal and political system through legal compromise,[20] eschewing grand principle in favour of pragmatic coexistence. Indeed, this tendency, while always apparent in the historical development of Aboriginal rights law in Canada, has become increasingly evident in recent decisions.[21] It is this penchant for compromise which may ultimately provide the most valuable models to Australian lawyers, judges, activists, politicians and other participants in the Aboriginal rights debate.[22]
This article will suggest that the Canadian law of Aboriginal rights, particularly in recent cases, has begun to develop sophisticated doctrines which are better adapted to achieving both the recognition and reconciliation functions than Australian law has been to date. Not only does the Canadian law more fully recognise the moral and legal claims of Canada’s indigenous peoples to a broad array of rights, it also allows for the development of a vocabulary of compromise of those rights with legitimate countervailing interests. To support this claim, the article will commence with an evaluation of the moral and legal claims to recognition of Aboriginal rights — that is, the underlying rationales that support Aboriginal rights, and some countervailing considerations which suggest limits on these rights. From this perspective, the article will turn to a detailed examination of recent Canadian jurisprudence to evaluate the extent to which it reflects these rationales and their limits. Lastly, the article will examine the implications of this jurisprudence for the possible future development of Australian law.
There are at least three interrelated rationales for recognising Aboriginal claims, each with its own complexities and qualifications.[23] First, and most obviously, Aboriginal rights flow in part from indigenous peoples’ ‘first possession’ of the lands they occupy or have occupied — a time-honoured source of rights under property law.[24] However, first possession does not fully account for the distinctive nature of Aboriginal claims as recognised by the courts in Australia or elsewhere. A second basis, which is sometimes explicit and sometimes only implicit in the authorities, is the right to equality.[25] A third basis, usually only implicit, is the right of Aborigines to assert, preserve and maintain their cultural identity.[26] Each of these rationales contributes to the case for recognition, and each has been significant in the development of the law in Australia and elsewhere. However, each also raises distinctive countervailing values, with corresponding implications for the law’s reconciliation function. They will now be considered in turn.
The most basic reason for recognising rights of indigenous peoples, in Australia and elsewhere, is that it was their land first. This is particularly central to the claim for recognition of native title, as distinct from other forms of Aboriginal rights. Indeed, ‘first possession’ is often regarded as the moral[27] and legal[28] cornerstone of all property rights. In a legal system which attaches a high level of privilege to claims based on prior possession, it would be surprising if this were not a key foundation of Aboriginal rights law.
There are problems, however, with treating first possession as the sole basis for recognition of Aboriginal rights, whether as a moral or a legal claim. As a moral argument, a claim based on simple priority in time contains a strong element of windfall. If the earth’s resources must ultimately be shared among all, there is little reason to reward exclusively those who, by accident of history, or in some cases by conquest and dispossession of their own, were in the favoured position of being able to claim them before subsequent claimants arrived. Rather, the moral argument must incorporate other considerations to be convincing.
For example, priority in time can gain moral force if it is taken to be a proxy for attachment to land — other things being equal, a person or group whose association with land goes back further in time is likely to regard it as a more significant part of their life or lives, and may have invested more in it emotionally or materially. However, this will not be true in every case, and in circumstances where it is not true (for example where another person or group has developed an equal or greater attachment to the land than the prior possessor(s)), it could be argued that priority in time should give way to other claims.[29]
Furthermore, recognition of priority of time as a moral basis for the assertion of rights may be qualified by a need for the prior claimant to have put the land to a socially beneficial use.[30] In a world of scarce resources, it may be regarded as immoral to exclude others from receiving the benefits of access to resources that are not being used.[31] Conversely, to claim rights over land in the first place may be regarded as limited by a need to leave ‘enough and as good’ land available for others to claim.[32] In these ways, concepts of a greater social good can qualify and limit the moral force of claims arising solely from first possession. This was precisely the way in which ‘first possession’ claims were historically used to justify displacement of Aborigines, and it is somewhat ironic to see the same arguments now put forward by proponents of Aboriginal rights.
The moral arguments for Aboriginal rights may well overcome these qualifications. Particularly in the forms that such qualifications have traditionally been articulated, by Locke, Vattel and other apologists for the claims of European settlers, they raise immediate objections of cultural bias. Yet if one analyses these objections, one is drawn away from reliance upon rights based on priority of possession, and into broader rationales for Aboriginal rights. For example, it may seem inherently implausible and discriminatory to suggest that the attachment to land of Aboriginal claimants would be less than that of subsequent European claimants. But this is at least partly because of what we know of Aboriginal cultural values, in which land may assume a high degree of cultural and spiritual significance,[33] and because of our desire to afford equal respect to those values, rather than being a direct function of priority in time. Likewise, the objection to Locke and Vattel’s views on Aboriginal claims to land is not that they were wrong on the need for land to be put to socially beneficial use,[34] but that they devalued Aboriginal culture in assuming that Aboriginal land use was not beneficial. These are arguments about cultural identity, and the need to give equal status to Aboriginal perspectives, they are not simply arguments about first possession.
Not surprisingly, first possession is also problematic as a sole legal foundation for Aboriginal rights. For this reason, it has never been the sole focus of common law Aboriginal rights doctrine, though the courts naturally refer to it in justifying their approach.[35] Rather, the standard approach of the courts in this area (even in the context of native title per se) has been to refer to the sui generis nature of Aboriginal interests in land,[36] which appears to draw on the other rationales for their recognition to a significant extent. Indeed, the closest that any judge of any court has come to adopting a pure first possession justification for native title is the acceptance of ‘possessory title’ as an alternative ground for the plaintiffs’ claim by Toohey J in Mabo,[37] drawing heavily from the writings of Kent McNeil.[38] As will be seen, even this approach must draw on the other rationales in some respects in order to have meaningful application to Aboriginal claims.
It is not that a legal claim based on first possession lacks strength. Property rights attaching to possession are, unless another person can show a superior title, theoretically equivalent in all respects to a title based on a Crown grant — a possessor is presumed to be seised of a fee simple estate.[39] As such, these rights are perhaps the highest-order rights known to private law, attracting the full range of proprietary remedies.[40] For centuries, the remedy for dispossession has normally been recovery of the land,[41] protecting the integrity of a possessor’s rights. Thus, to the extent that Aboriginal claimants can establish legal possession that predates Crown sovereignty and has not been lost since, their claims are unassailable. However, the law of possession has always operated on an individualistic and value-laden basis, with strict doctrinal controls on the powerful proprietary remedies. These controls have the potential to make the possession-based claims of Aborigines highly vulnerable.
The first significant control on property rights flowing from a claim of first possession is the need to establish ‘possession’ in the legal sense — that is, acts showing a sufficient assertion of physical dominion over the land, together with the requisite intent, to be the basis for the legal reward of property rights. This standard is inherently highly flexible, comprising value-based judgements about the desirability of clearly communicating claims to land, and the ‘efficient use’ of land as a resource.[42] Not surprisingly, in its most common modern form of the law of adverse possession, this branch of property law is riddled with inconsistencies, uncertainty and subjectivity.
Judges have readily admitted to the variability in the standard of acts (including acts from which intent is inferred) sufficient to constitute legal possession, but have rarely admitted to the value judgements behind this variability, attributing it instead to the variety of contexts in which such claims arise.[43] Clearly, however, such judgements are made. If application of this law has proved difficult in the historical common law context, where there was at least some broad consensus as to what constituted a clear signal of a proprietary claim and a desirable use of land (such as the construction of fences, cultivation of crops or grazing of animals), it is even more difficult to apply as a cross-cultural norm which balances both Aboriginal and non-Aboriginal perspectives.
If traditional precedents about fences, cultivation of crops or grazing of animals, and other signs of continuous ‘productive’ occupation of land[44] were applied, it is possible that many specific Aboriginal claims to prior possession of land, based only on the common law approach set out by McNeil, would fail. In Eurocentric terms, this would be because the claimants had not invested sufficient labour, or derived sufficient production, from the land to ‘deserve’ property rights in it.[45] For, in accordance with the moral arguments canvassed above, simple priority in time has never been sufficient to justify fully the award of property rights at common law.[46] Indeed, without the notions of just reward inherent in judgements about productive ‘possession’, priority in time is largely a matter of mere happenstance or fortuity.
It is of course possible (and, arguably, in the best traditions of the common law) to adapt the highly flexible law of possession to the ‘different circumstances’ of Aboriginal land use.[47] This analysis would point out that Aboriginal land use, while not coinciding with non-Aboriginal values, was highly adapted to Aboriginal survival and prosperity, and that signals as to rights to use land would have been clearly understood by other Aborigines, within the system of Aboriginal customary law. In these circumstances, precise demarcation of boundaries and individual exclusive control (so important to establishing property rights under the traditional common law system) might be less important than such matters as mutual respect for and recognition of access to sacred sites and scarce food resources. This approximates the position taken by Toohey J in Mabo. His Honour would allow native title to be based on traditional use of the land that was ‘meaningful’, understood ‘from the point of view of the members of the society’ — but would recognise no rights in those whose presence was ‘coincidental only or truly random, having no connection with or meaning in relation to a society’s economic, cultural or religious life.’[48] Likewise, in Delgamuukw the majority found that occupancy sufficient to support Aboriginal title should be based on both ‘the physical occupation of the land in question’ and ‘the pattern of land holdings under aboriginal law’, in keeping with what the court identified as the dual sources of Aboriginal title in the common law and the Aboriginal perspectives on land.[49]
To adopt this analysis, however, is to go beyond the pure ‘first possession’ rationale for recognising native title. If Aboriginal perspectives on appropriate and clearly-signalled land use do not coincide with non-Aboriginal perspectives, non-Aboriginal courts cannot be rewarding such use with property rights because they value that use per se. Rather, it is because they have other reasons for doing so. For example, it may be thought that it would be a denial of racial equality to fail to give legal effect to the Aboriginal perspective, or that it is necessary or desirable to recognise and preserve the different cultural norms of Aborigines. Inevitably, the courts are drawn into the other rationales in their effort to find cross-cultural norms.
A second significant control on claims based on first possession is the potential need for a claimant to show that such possession has been continuous as against the Crown, from a time predating Crown sovereignty. In a case where the Aboriginal claimants are currently in occupation of the land, since the Crown is not in possession, it ‘must prove its present title just like everyone else’[50] in order to prevail over the claimants. However, the Crown is in a special position when it comes to proving its title. First, it seems that the Crown’s radical title will ripen into a full proprietary title automatically upon the original possessors abandoning their possession, without the need for any assertive act on its part.[51] Second, once the Crown has acquired a full proprietary title it is generally in a privileged position when it comes to claims of adverse possession — in most Australian jurisdictions, for example, the Crown cannot lose its title by adverse possession.[52] The combined effect of these two rules is that a gap in possession may prove fatal to the Aboriginal occupants’ case. While technically the onus of proof may be on the Crown to prove a gap, in practical terms Aboriginal occupants could find that they are required to establish continuity of possession going back to annexation — for example, in a case where non-Aboriginal historical records raise the suggestion that there may have been such a gap.[53]
Outside of the Aboriginal context, proving continuous possession over a lengthy period would involve proof of an unbroken ‘chain of title’ between individuals, likely involving documentary evidence of transmission of title at the relevant times. But if this were required of native title claims, few (if any) would succeed. In many cases, no written records will exist, and individual claims to land may not have been recognised within Aboriginal customary law. Particularly as one goes back several generations, the evidence may be very patchy, and may consist largely of hearsay that in other contexts would possibly not be admissible under any recognised exception to the hearsay rule.[54]
Again, it is possible to attenuate the effects of these doctrines by adapting common law rules to the special circumstances of native title claims. The hearsay rule can be relaxed to make proof of Aboriginal land claims easier — for example, by admission of evidence of oral tradition.[55] Likewise, a rigid requirement of showing an individual chain of title can be avoided by treating native title as a communal right, so that it is necessary only to show membership in the relevant community, and not a specific individual chain of transmission of title from some prior possessor.[56] Even the need for continuity can be mitigated by allowing an inference of continuity to be drawn from present occupation,[57] or tolerating gaps provided the traditional connection of the Aboriginal occupants to the land is not severed.[58] Again, however, such adaptation requires some justification other than the mere fact of first possession, such as an equality-based argument and/or a recognition of the cultural significance of Aboriginal attachment to the land.[59]
The need for such adaptations, and for the incorporation of other considerations into the law of native title, may explain why a purely possession-based concept of native title has found little favour with the courts. Even where it has been accepted, it has not been in unqualified form. In Mabo, Toohey J commented that if possessory title were accepted as an alternative basis for the plaintiffs’ claim, the consequences would be ‘no more beneficial’ for the plaintiffs.[60] If this represents a proposition which is generally true, then the title is qualified in at least two respects. First, native title is uniquely vulnerable to extinguishment by the Crown.[61] Second, native title (as explained by other members of the High Court) is inalienable outside of the Aboriginal community from which it originates.[62] These qualifications, if they apply, are difficult to explain in terms of rights that should flow from prior possession. However, the second qualification at least is quite concordant with a view that protecting Aboriginal rights is justified by the cultural identity rationale. As noted above, recognition of land rights is, in part, a recognition of the heightened cultural significance that traditional lands may have for indigenous peoples,[63] and restrictions on alienation may be seen as reflecting this.[64] Also, preserving a land base is likely to be an essential part of preserving the cohesiveness of Aboriginal communities, which is in turn necessary to maintain living Aboriginal cultures. To permit unfettered alienation of such lands may substantially undercut this rationale.[65]
In sum, the first possession rationale for recognition of Aboriginal rights is an important one, but is not sufficient to explain their unique nature. Both as a moral and a legal claim, prior possession faces considerable areas of difficulty, and requires resort to other rationales to make it workable and comprehensible. By the same token, when it comes to balancing Aboriginal land rights against countervailing values, it is a mistake to think in purely proprietary terms. If the law is to fulfil its reconciliatory function, it must not focus solely on concepts of possession, ownership and title, but must consider more broadly the relationship between Aboriginal and non-Aboriginal communities. Furthermore, it is artificial to confine legally enforceable Aboriginal rights to land rights only. These points will be developed further below.
An additional support to the recognition of Aboriginal rights is supplied by the idea of equality. From an ‘equality rights’ perspective, attempts to deny the existence or continued vitality of Aboriginal rights are viewed as discriminatory. As with the first possession rationale, the right to equality is both a moral and a legal claim. Equality has been regarded as an essential component of justice since at least the time of Aristotle.[66] In modern times, equality rights are a feature of international human rights instruments such as the Charter of the United Nations,[67] the Universal Declaration of Human Rights,[68] the International Covenant on Civil and Political Rights,[69] and the International Convention on the Elimination of All Forms of Racial Discrimination,[70] and are incorporated into the domestic law of Australia,[71] Canada[72] and many other nations.
Equality rights have been invoked in support of Aboriginal rights both as a broad moral principle and as legal grounds to challenge particular government actions. For example, the doctrine of terra nullius (in its application to the denial of native title, though not in its application to the establishment of English sovereignty) was rejected as ‘unjust and discriminatory’ by the High Court in Mabo.[73] Likewise, Queensland’s attempt to forestall the ultimate result in Mabo by passing a statute retrospectively declaring the Murray Islands to have vested in the Crown upon annexation in 1859, and extinguishing any ‘other rights, interests and claims of any kind whatsoever’ in the Islands, was held by a majority of the High Court to have infringed the guarantee of equality before the law in s 10 of the Racial Discrimination Act.[74] On this analysis, native title is viewed as the equivalent of title derived from a Crown grant, and a common law rule or statutory provision which fails to treat them comparably must be a denial of equality. This analysis was extended to strike down the Western Australian Government’s attempt, in response to Mabo, to statutorily diminish native title rights but not other property holders’ rights, in Western Australia v Commonwealth.[75]
It will be immediately apparent that the concept of equality relied upon in these cases is not a strictly formal one. Indeed, a strictly formal analysis may yield the result that native title is not to be protected at all, as a distinctive and sui generis form of property right. Except to the extent that native title can be claimed pursuant to traditional property law doctrines of first possession, undiluted by any special considerations (a proposition that is fraught with doctrinal difficulties, as outlined above), the whole point of native title is that it is not the same in either its nature or its derivation as other titles known to the common law. It was this logic that led Wilson J (dissenting, with the concurrence of Dawson J) to reject the argument, in Mabo [No 1], that Queensland’s express legislative extinguishment of native title infringed the Racial Discrimination Act. As Wilson J noted, there was no (formal) inequality before the law in denying the plaintiffs’ native title, because by definition, ‘the plaintiffs were alone in the enjoyment of traditional rights’.[76]
Rather, for the concept of equality to have any relevance to the case for recognition of native title, it must be a substantive one. On this approach, native title must in some contexts be regarded as equivalent to non-native title, but in other contexts it must be conceded that it is different. For example, while a failure to recognise native title in circumstances where non-native title would have been recognised amounts to a denial of racial equality (an appeal to the ‘sameness’ of native title), in order for native title to be meaningful it must be treated as sui generis for other purposes, such as its communal basis, or the need to relax evidentiary rules and requirements of proof to make establishing native title a realistic possibility[77] (an appeal to the ‘difference’ of native title).[78]
In any particular context, however, whether to treat native title as the same or different requires one to refer to broader notions of justice between groups. That is, once one moves beyond the narrow and formal concept of equality in the sense of identical treatment, it becomes necessary to justify the criteria by which one can decide whether an appeal to sameness or to difference is merited. To apply ‘substantive equality’ here presents a challenge, because ‘equality’ loses its sharp, analytical focus once formal equality is abandoned as the guiding principle. In any particular case, one may generally determine whether individuals have been treated identically, without reference to any extrinsic considerations. (This does not, of course, mean that identical treatment is always fair.) On the other hand, to be able to conclude that sometimes ‘equality’ requires identical treatment, and at other times ‘equality’ requires different treatment, requires reference to considerations of justice or fairness that go beyond the particular case.[79] Articulating these considerations may be far from easy.
It is possible to give content to these broader notions of justice by taking an instrumentalist approach to equality — for example, to point out that present conditions in Aboriginal communities remain appalling, in terms of health, education, level of income, wealth and opportunity.[80] To a great extent, it is plausible to suppose that these conditions represent the continuing effects of past discriminatory treatment, such as racially-based denial of civil rights, denial of employment and education opportunities, forced removal from parents and communities, and racially-motivated dispossession and persecution. On this approach, it can be argued that it is justifiable to use native title as a vehicle to remedy the continuing effects of this past discrimination.[81] As long as Aborigines remain disadvantaged in socio-economic terms, and that disadvantage represents the continuing effects of past discrimination, the law can choose whether to treat native title as the same or different on the basis of which yields the more favourable result.
As with the ‘first possession’ rationale, however, there are problems in deciding how far this approach would extend. At what point, and in what way, do we decide that ‘equality’ is satisfied? A recognition of native title on ‘equal’ terms to Crown-derived title in 1788 may well have precluded non-Aboriginal settlement of Australia entirely. Does this mean that substantive equality now requires that all of Australia be given back? Or is the measure of equality to be found in comparing the amount or value of Aboriginal lands in comparison to non-Aboriginal lands? If Aborigines account for two per cent of Australia’s current population, does equality require (only) that Aboriginal-held land amount to two per cent of Australia’s land mass? Alternatively, should Aboriginal-held land be worth two per cent of the total value of all land in Australia? If so, which Aborigines should be able to claim the benefit of which land, and from whom? And by what measures would ‘value’ be calculated — the ‘market’ value of land in an exchange economy (arguably Eurocentric), or the ‘spiritual’ value of land in Aboriginal culture? Alternatively, are claims to native title only to be recognised up to the point where levels of income, wealth, and opportunity reflect those of the non-Aboriginal population? If so, what would be the position of a particular claimant or group of claimants (if any exist), who may happen to be above the national average in these areas?
Such questions about the legitimate extent of an instrumentalist approach to ‘equality’ are not often discussed. This may be in part because of the probability that on any measure of equality, Aborigines generally remain starkly disadvantaged in comparison to non-Aborigines, so there is little reason to worry about defining the ultimate goal. Moreover, in terms of analysing equality as a legal concept, the courts would find it difficult to admit to partaking in such an overtly political exercise as developing native title doctrine in such a way as to attempt to provide a partial remedy for the general socioeconomic disadvantage of Aborigines — particularly in light of the bitterness of debates surrounding measures or benefits available only to Aborigines. Nevertheless, there is an undercurrent of an instrumentalist approach in many decisions on Aboriginal rights — for example, in the approach of Toohey J to the requirements for establishing prior occupation in Mabo,[82] or in the well-established North American doctrine that treaties are to be construed liberally, in favour of the Aboriginal understanding of their terms.[83]
An instrumentalist approach to equality, however, does not fully explain the model of substantive equality invoked by judges in the Aboriginal rights context. When Brennan J describes the doctrine of terra nullius as ‘unjust and discriminatory’, he is not merely making the point that failure to recognise Aboriginal land rights in the past has left Aboriginal peoples in a position of present socioeconomic disadvantage. Rather, it is that the failure to give effect to Aboriginal law and custom (as manifested in rights to use and occupy their traditional lands) on the same terms as Anglo-Australian or other European law, is in itself discriminatory. What is postulated is that equality (or freedom from discrimination) in this context means equality of status between Aboriginal and non-Aboriginal law.[84]
Again, it is worth examining why a claim to equality of legal status should have force, apart from its possible use as an instrument to remedy disadvantage. Other sub-groups in society (freemasons? motorcycle gangs? academics?) cannot simply declare that they have their own code, based on law or custom, and claim legal recognition of that code on an equal basis to the law of the rest of society, including an exemption from the generally applicable law to the extent that this is necessary in providing such recognition. Clearly, there is something special about the Aboriginal claim to recognition of their laws and customs.
To some extent, the special nature of this Aboriginal claim may be based on the ‘first possession’ rationale set out above. Unlike other groups, Aborigines used and occupied land prior to the arrival of the now dominant culture. However, as set out above, this does not, in and of itself, provide a full moral or legal underpinning for recognition of a system of Aboriginal entitlements. To raise an obvious question, why should the pattern of land use of a present claimant’s distant ancestors be relevant to his or her claim now? The answer lies in part in the fact that Aborigines are seen not just as a random collection of individuals, linked only by common racial characteristics, but as belonging to cohesive cultural groups that deserve recognition and protection. Thus, the equality rationale blends inevitably with the ‘cultural identity’ rationale for recognising Aboriginal rights.
Further questions then arise as to what equality of status between Aboriginal and non-Aboriginal law means in this context. Obviously, land rights are not the only matter relevant to cultural identity, so the equality and cultural identity rationales point to recognition of rights beyond ‘native title’ per se. However, to recognise Aboriginal law as fully equivalent in all respects to non-Aboriginal law appears to amount to a rejection of Crown sovereignty, which is inconsistent with the axioms of common law.[85] A narrower (and still somewhat formalistic) approach, accepted in part by the High Court in Mabo, is to insist on identical treatment between Aboriginal laws and customs that existed when a new country was ‘settled’ by England, and the laws of a territory governed by another ‘civilised’ nation that existed when the territory was gained by England by conquest or cession.[86] Under the common law doctrine of reception, the laws of a conquered or ceded territory would remain in force unless and until they were altered by the conquering nation;[87] therefore, Aboriginal laws and custom (including, but not necessarily limited to, laws and customs relating to land) should likewise remain in force until altered. This, of course, involves the conclusions that Aboriginal societies were, for these purposes, the equivalent of conquered or ceded nations when settlement commenced, and that they have continued to function as such in their adherence to pre-settlement law and custom. Again, these conclusions are inextricably bound up with the rationale that effect should be given to Aboriginal rights because Aboriginal peoples possess a cultural identity that requires recognition and protection.
From a more philosophical viewpoint, another approach to equality of legal status has recently been put forward by Will Kymlicka.[88] Starting from the premise that a person’s ‘societal culture’ is central to his or her identity and self-realisation, Kymlicka asserts that the state should recognise special rights of indigenous peoples and other ‘national minorities’ to the extent necessary to remove or compensate for the ‘morally arbitrary disadvantages’ their members would suffer without such special rights, through not having ‘the same ability to live and work in their own language and culture that the members of majority cultures take for granted’.[89] This approach is potentially far broader than the High Court’s approach in Mabo, which relies on establishing an equivalence between the common law’s treatment of Aboriginals and treatment of the inhabitants of conquered or ceded territories of another ‘civilised’ society. Though justice may require such equivalence at a minimum, such equivalence does not ensure a just result, because the prior question of whether inhabitants of conquered or ceded territories were treated fairly by the common law is not answered. Kymlicka’s approach seeks to answer that prior question — fair treatment of national minorities requires that the state recognise and support their institutions and culture to the point where members of those minorities experience life on terms that are substantively equal to those enjoyed by members of the majority culture.
Again, this approach is indeterminate on the precise issues of how far differences of treatment between members of the majority and minority cultures are justified or required to achieve substantive equality — a point which Kymlicka recognises.[90] It appears, however, that his conception is an expansive one, comprising not just land rights but also ‘a wide range of self-government rights’ and support for minority institutions, as well as mechanisms to ensure that the interests of minority cultures are properly represented in national institutions.[91] This in turn depends on an examination of the merits of protecting cultural identity in itself, and thus this approach to equality also ultimately blends with the cultural identity rationale.
This third rationale for recognising Aboriginal rights is based on the perspective that Aboriginal societies are definable groups, with definable cultures, whose members have a moral and legal right to such legal recognition and protection as may be necessary to allow their culture to survive and flourish. This too is a rationale with deep philosophical and historical roots.
Kymlicka attempts to situate the case for recognising cultural identity within the broader liberal tradition of respect for individual autonomy and choice. Cultural identity is important because ‘[p]ut simply, freedom involves making choices amongst various options, and our societal culture not only provides these options, but also makes them meaningful to us.’[92] Moreover, membership in a societal culture appears to be integral to people’s self-identification and sense of dignity and self-respect.[93] This gives individuals a legitimate interest in protecting their culture. Yet cultures are not static and indestructible, and particularly in the case of minority cultures, they face the constant threat of being overwhelmed by majoritarian norms. For equality-based reasons as outlined above, as well as reasons based on historical considerations,[94] and to a lesser extent because cultural diversity is valuable in itself, states are justified in granting (or recognising) group-differentiated rights for members of minority cultures.[95] Kymlicka points out that respect for the collective rights of members of national minorities was very much a part of liberal thinking in the nineteenth and early twentieth centuries, though in more recent times liberalism has emphasised more abstract political rights.[96] Whatever the derivation and philosophical pedigree of the cultural identity rationale may be, it is clear that it is now well-established, and it may be observed that some of the more stable and successful empires in history have taken a pluralistic approach to their legal systems that is consonant with a broad recognition of this rationale. [97]
As a legal concept, the cultural identity rationale finds its most developed expression in international human rights standards (but is also at least implicit in the Aboriginal rights jurisprudence of common law countries).[98] The international human right of members of cultural minorities generally to protection within larger sovereign states can be traced back to the system of protection of national minorities under the League of Nations.[99] In the modern context, this right takes various forms. Least controversially, it requires at a minimum that members of a minority not be actively discriminated against, as part of the broader international human right to equality.[100] But the right goes further than freedom of minorities from discrimination, embracing also the right to ‘suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics’.[101] This right to cultural protection and preservation finds expression in article 27 of the International Covenant on Civil and Political Rights[102] and the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,[103] the former of which at least may be regarded as expressing a norm of customary international law.[104] Article 27 has been invoked by indigenous complainants on several occasions.[105]
Other international human rights instruments pertain specifically to indigenous peoples, in recognition of the argument that special considerations apply to indigenous rights.[106] These include the International Labour Organisation (‘ILO’) Indigenous and Tribal Populations Convention 1957 (No 107),[107] and the more recent ILO Indigenous and Tribal Peoples Convention 1989 (No 169),[108] which provides for rights of cultural integrity, land and resource rights, and non-discrimination against indigenous peoples.[109] More controversially, there is some support at international law for indigenous peoples having a ‘right of self-determination’. This right, recognised as inhering in all ‘peoples’ under the terms of the Charter of the United Nations,[110] is argued to apply to ethnically and culturally distinct indigenous minorities, despite the overarching claims to national sovereignty of the states which govern them. Recent international instruments which reflect the tension between indigenous claims to self-determination and state sovereignty include the ILO Convention No 169[111] and the Draft United Nations Declaration on the Rights of Indigenous Peoples,[112] which provides that ‘[i]ndigenous peoples have the right of self-determination’, by virtue of which ‘they freely determine their political status and freely pursue their economic, social and cultural development.’[113] The self-determination aspects of the ILO Convention No 169 and the Draft Declaration can, at their highest, only be described as ‘emergent’ customary law,[114] and it remains to be seen in what form and to what extent a right of self-determination might become established as a binding international law norm. Nevertheless, these instruments may represent the shape of future developments in the international human rights of indigenous peoples.[115]
The international law human right to recognition and preservation of cultural identity is not, of course, directly and automatically incorporated into domestic law (though international human rights norms are increasingly influential in shaping domestic law in Australia[116] and elsewhere[117]). In this respect, the third rationale, which finds its most obvious expression in international law, differs from the first two.[118] First possession is firmly embedded in the common law of property, while equality is reflected in human rights legislation such as the Racial Discrimination Act. Nevertheless, an examination of native title doctrine reveals that the cultural identity rationale is, at least implicitly, one that is strongly reflected in its content.
The most obvious example is the relationship between native title and Aboriginal custom. In insisting that native title owes its existence to Aboriginal customary law, and that rights under this customary law will be given effect in the common law courts, the Australian courts have sought to ensure the continuing vitality of one particular aspect of Aboriginal culture. Conversely, according to the lead judgment in Mabo, ‘when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs’, there is no longer any basis for claiming native title.[119] On these standards, Aboriginal groups that have maintained their cultural integrity are most likely to be rewarded with property rights, while those that have abandoned their cultural traditions (whether voluntarily or by force of assimilationist pressures) may suffer the penalty of non-recognition of land rights.[120]
Another example of the law’s concern with cultural identity is the communal basis of native title. Property law is generally highly individualistic and fragmented, yet in this area rights are primarily held at the level of the community[121] (though individual members may have derivative rights).[122] By defining native title rights primarily at the level of the community, native title doctrine reinforces the community’s identity. At a practical level, it further provides an incentive for the community to remain cohesive, since members who leave the community may lose their ability to enjoy the rights and benefits that are associated with membership. This is a marked departure from the individual basis of common law property rights in most other contexts.[123]
Less dramatically, but no less importantly, the rules of evidence and requirements of proof in the native title context have been adapted in a manner which suggests that the courts are attempting to fashion cross-cultural norms that take into account the cultural identity of Aboriginal claimants. Even without a statutory discretion to do so such as is contained in the Native Title Act, courts have shown some willingness to consider Aboriginal perspectives in admitting evidence.[124] Likewise, courts have repeatedly acknowledged that differences in cultural perspectives must be taken into account in meeting the requirements of proof of native title.[125]
Acknowledging that the law of native title is as much about preserving Aboriginal cultural identity as it is about remedying dispossession, or enhancing equality in an abstract sense, makes it easier to understand why it should be regarded as sui generis, and (at times) deserving of special treatment in its intersection with other branches of law such as the law of evidence or possession. If the purpose of this law is to allow specific aspects of Aboriginal culture to survive and flourish (against the assimilationist pressures of modern society), then some degree of differential treatment can surely be justified.[126] Moreover, the law’s apparently greater concern with more cohesive groups in remote areas, with stronger attachment to the land and greater adherence to custom, is perfectly rational despite the fact that such groups are the least dispossessed among Aborigines.
The countervailing values raised by the ‘cultural identity’ rationale are first, the equality claims of competing non-indigenous groups, and second, the potential threat to state sovereignty (ie majoritarian rule). Arguments raised by the first of these are familiar and well-rehearsed. Any time that a particular group or individual is given special status or treatment, there is perceived to be an equality-based claim (in the formal equality sense) by non-recipients. As far as the dominant non-indigenous culture is concerned, such claims can be answered by the contrast between the precarious position of the indigenous minority, which must constantly struggle to survive in a cohesive form, and the more secure position of the majority, whose culture is continually reflected, reproduced and reinforced in majoritarian institutions. Nevertheless, there is a hard-to-specify point at which the preservation and promotion of minority cultural identity at the expense of the majority becomes unjustifiable.[127]
The equality argument is more difficult with respect to other minorities who compete with indigenous groups for recognition. Here, the comparison between the legal recognition of Aboriginal custom and non-recognition of legal claims of other ethnic minorities requires particular justification. That justification can be found in part by referring back to the previous rationales. Unlike immigrant groups, Aborigines were in occupation of Australia prior to the arrival of the now-dominant culture, and this gives them a special claim related to the first possession rationale.[128] Moreover, any other minority that was similarly situated would have as strong a claim — for example, under the doctrines of the common law relating to reception of English law in conquered or ceded territories.[129]
The second countervailing value, that of state sovereignty, is intractably in conflict with the cultural identity rationale. Any legal recognition of Aboriginal custom will involve some dilution of the state’s power to determine and enforce norms, just as Aboriginal submission to state sovereignty (ie government by the majority, according to the majority’s norms) inherently qualifies the expression of Aboriginal identity. For this reason, while Aboriginal rights and native title may be grounded in part in Aboriginal custom, the legal acceptance of these rights is somewhat grudging and limited, and hedged by doctrinal devices designed to allow state sovereignty to be (re)asserted at critical moments. For example, the doctrine of extinguishment allows a residual power to the Crown to terminate custom-based native title at any time, subject to any applicable statutory or constitutional limits and possible rights of compensation.[130] More tellingly, it appears that even the initial recognition of custom-based native title may be conditional on the specific customs not infringing the core values of the majority — ie, not being ‘repugnant to natural justice, equity and good conscience’.[131] Yet despite the intractable nature of this conflict, pragmatic compromises may be reached between asserting state sovereignty and protecting Aboriginal identity (uneasy though such compromises may be), and this has historically been one of the functions of Aboriginal rights doctrine.
Once it is acknowledged that recognition of Aboriginal rights draws strength from each of the three interrelated rationales of first possession, equality and cultural identity, the limited nature and potentially somewhat misdirected focus of common law Aboriginal rights in Australian law emerges. Recognition of such rights has, to date, been arbitrarily confined to specific ‘private law’ rights to land, as opposed to a broader conception of Aboriginal rights which would embrace a wide range of Aboriginal custom, and would include a ‘public law’ component to regulate relations between Aboriginal groups and the state generally. The latter description, as will be seen, is a more accurate portrayal of the current Canadian law of Aboriginal rights.
It is not disputed that land rights are an obvious place to start in recognising Aboriginal rights. Unlike other areas which do not directly invoke the rationale of first possession, land rights draws on all three rationales, and may thereby represent the strongest case for recognition. However, persuasive arguments may be made for similar recognition (even if only in a more qualified form) of other customary laws.[132] From the perspective of the preservation of Aboriginal identity, customs and practices relating to (for example) hunting and fishing rights, marriage and separation, custody of children, adoption, authority within Aboriginal communities, and crime and punishment may be at least as important as land rights in defining the cultural entity that is to be recognised and protected. In this sense it is arbitrary to recognise native title without also recognising other Aboriginal customary law norms.
Moreover, even the relatively narrow conception of equality that has already found expression in Mabo would support a recognition of Aboriginal customary entitlements beyond those relating to land. The logic which compelled Brennan J to give recognition to native title — that is, the need to treat Aboriginal claims with respect to settled lands on a par with the claims to property rights of inhabitants of conquered or ceded lands — applies equally to the recognition of other customary law rights.[133] The doctrine of reception preserved all legal rights of the inhabitants of conquered or ceded lands unless or until such rights were superseded by English law, not just property rights.[134] If a distinction is to be made between Aboriginal customary law (other than land law) and the customary law of inhabitants of a conquered or ceded territory, some account needs to be given as to why this should be the case. And moving beyond the argument accepted by Brennan J in Mabo to the broader conceptions of equality and cultural identity outlined above, arguments may be made in support of wider-ranging recognition and support of Aboriginal practices, institutions and autonomy.
If a broader, generalised conception of Aboriginal rights is adopted, however, it becomes harder to maintain the position that common law Aboriginal rights are purely private in nature, and represent no challenge to state sovereignty. To the extent that recognition of Aboriginal custom marks out a space where otherwise applicable law will not intrude, it obviously represents a limited zone of Aboriginal sovereignty or ‘self-government’. And while limited recognition of customary land rights may be sanitised by regarding and defining such rights largely in private law terms, this may be more difficult in other areas where private ordering is not the norm. Thus, as the scope of Aboriginal rights is broadened and comes into more pronounced conflict with majority standards, it becomes more urgent to develop or adopt doctrines to reconcile such rights with the overarching sovereignty of the governing state. Much of the recent work of the Supreme Court of Canada has been in this area, for example in attempting to develop tests for which customary practices acquire the status of constitutionally-protected ‘aboriginal rights’,[135] the potential contours of a right to self-government,[136] and the nature of the fiduciary relationship between indigenous peoples and the Crown as a limit both to the scope of Aboriginal rights and to their curtailment by governments.[137]
It must be stressed that recognition of a broader concept of Aboriginal rights, including mechanisms for reconciling such rights with state sovereignty, does not necessarily entail recognising radically greater rights and privileges for all Aboriginal claimants. Indeed, in some respects it gives the parties and the courts a broader range of options, and facilitates compromise solutions. This alone would be a welcome development if it could be imported into the Australian context.
With this framework in mind, we will now turn to an examination of the recent Canadian trends.
The modern era in Canadian Aboriginal rights law commenced with the recognition of Aboriginal title based on the common law in Calder in 1973.[138] Like Mabo, Calder analysed the issue of common law Aboriginal rights in terms of specific rights to land arising from the prior occupation or possession of those lands.[139] However, prior to Calder Canadian courts had a lengthy history of recognising both Aboriginal title based on the Royal Proclamation of 1763, and a variety of entitlements (not necessarily connected or confined in their exercise to particular lands) negotiated as part of the historical treaty process. Unedifying and restrictive though much of the older jurisprudence may be, it provided precedents for a broader concept of Aboriginal rights, extending to such matters as hunting and fishing rights[140] and limited rights to government services in health and education.[141] Conceptually, the treaty process required that Indian signatories be viewed as having (at least initially) sovereign or quasi-sovereign status,[142] and from a practical point of view it required that ‘status’ Indians[143] subject to treaties maintain a basic level of administrative structure (band councils) to manage reserves and administer treaty benefits (though heavily regulated and subject to government supervision).[144]
In this context, claims to common law Aboriginal rights to hunt and fish, independently of Aboriginal title or treaty rights, were recognised by the Supreme Court of Canada in R v Derriksan[145] and R v Kruger,[146] though such rights were held to be subject to any validly-enacted applicable federal or provincial legislation. In the areas of marriage and adoption, Aboriginal customary law was also given limited recognition in areas left unregulated by statute,[147] or where statutes of general application could be interpreted as not applying to Aboriginal people.[148] However, since the constitutional entrenchment of ‘existing aboriginal and treaty rights’ in s 35 of the Constitution Act 1982, common law rights coming within the descriptive term ‘aboriginal rights’ (whether or not based on Aboriginal title) now prevail over inconsistent legislation, subject only to a test of justification.[149] This has given enormous impetus to the growth of the concept of Aboriginal rights.
In cases decided since the enactment of s 35, the courts have attempted to develop a general theory of what ‘aboriginal rights’ should comprise, and to articulate tests that govern both the circumstances in which such rights will be found to exist, and the ways in which they must be balanced with competing rights and interests. Sparrow, the first major case under s 35, involved the right of the appellant (a Musqueam Indian) to fish for salmon in the traditional Musqueam fishing areas, without complying with federal fishery regulations. The Supreme Court found that the appellant was exercising an ‘aboriginal right’ within the meaning of s 35, because the salmon fishery had always constituted ‘an integral part of [the Musqueam’s] distinctive culture’.[150] As such, this right prevailed over federal fishery regulations that could not be shown as necessary (in their application to Indians) to conserve fish stocks. Significantly, the ‘aboriginal right’ relied upon did not need to be based on any pre-existing or associated land claim, nor did the appellant need to demonstrate that the Musqueam were exclusive users of the salmon fishery.[151]
In the leading case, Van der Peet,[152] the Supreme Court of Canada affirmed that the ‘integral to a distinctive culture’ test was one which applied generally to all claims of Aboriginal rights,[153] and set out a list of factors to be considered in applying the test. These factors are as follows:
Under this test, Aboriginal rights, though they ‘arise from the prior occupation of land’, need not be confined to a specific location in their exercise,[164] nor need they relate specifically to use of land as such. Most litigation so far has focussed on hunting and fishing rights, which represent only a small extension from traditional proprietary concepts — indeed, rights that may have been regarded in the past as a form of ‘aboriginal title’ may now simply be described as ‘aboriginal rights’.[165] Such rights would generally be exercisable only in specific areas where they had been exercised in the past,[166] and relate to a use of land which is readily assimilable into traditional property law concepts.
However, in shifting the juristic basis for recognition of Aboriginal rights from property to custom (ie from the first possession claim to one more influenced by the cultural identity rationale) a wider range of claims has become possible. That range is, to date, relatively little exploited, though claims have been made that there is an Aboriginal right to conduct an on-reserve high-stakes gambling operation (unsuccessful),[167] to require that family status be defined according to Aboriginal custom rather than provincial regulation for the purposes of making a no-fault benefits insurance claim (successful),[168] and to confine those eligible to vote in Indian band elections to those resident on a reserve (unsuccessful).[169] It is likely, however, that with time a wide range of activities will be put forward as Aboriginal rights.
The potential breadth of the concept of Aboriginal rights requires the courts to give much more definition to the reconciliation function of Aboriginal rights law. This is achieved in various ways. First and foremost, in defining the activities that may come within the scope of the Aboriginal rights guarantee, it is necessary to relate the practice to the claimant’s Aboriginality.[170] Without such a relation, Aboriginal rights could be infinitely elastic. Thus, the ‘integral to the distinctive culture’ test attempts to identify the dividing line between matters of such significance to the cultural identity of indigenous peoples that they should be within the zone of privilege where laws of general application do not intrude, and those matters where the normal sovereignty of the Crown is undiluted.
It is amply evident from the terms in which the test is set out that this is an exercise which is designed to fulfil the function of reconciling Aboriginal claims with non-Aboriginal sovereignty. Some of the factors set out in Van der Peet, obviously, are explicitly designed not just to reconcile Aboriginal claims with competing values, but also to be seen to be doing so. This is stressed in the court’s explanation of the first factor, that of taking ‘into account the perspective of Aboriginal peoples themselves’.[171] As explained by Lamer CJ:
The definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system. It is possible, of course, that the Court could be said to be ‘reconciling’ the prior occupation of Canada by aboriginal peoples with Crown sovereignty through either a narrow or broad conception of aboriginal rights; the notion of ‘reconciliation’ does not, in the abstract, mandate a particular content for aboriginal rights. However, the only fair and just reconciliation is ... one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.[172]
Likewise, in explaining the need for ‘continuity’ between pre-contact practices and modern claims, and on the related question of the significance of post-contact European influences, the court appears to be searching explicitly for cross-cultural standards. To have given protection to Aboriginal claims only when they are related to Aboriginal customs in their ‘primeval simplicity and vigour’,[173] aside from making such claims extremely unlikely to succeed, would have denied the legitimacy of non-Aboriginal influence on Aboriginal culture — precisely the area in which common ground is most likely to be found. Conversely, by stressing that Aboriginal rights can evolve and can be influenced by majority culture without losing their legal status, the court has encouraged them to be defined and develop in ways which emphasise what they have in common with majority norms.[174]
A further example of the reconciliation function at play in these factors is their pronounced emphasis on particularisation of Aboriginal rights. Such rights are emphatically not of general application; rather, they depend on the customs of the particular group and must be adjudicated on a specific rather than general basis. Moreover, courts must identify ‘precisely’ the nature of the right being asserted in the individual case. This emphasis on particularity of Aboriginal rights does much to ensure that claims will not be far-reaching, and may incidentally preserve a zone of judicial discretion (through the judicial fact-finding process) by which claims can be managed and compromises found in individual cases.[175] This tendency is evident in the results of Van der Peet and two other companion cases which applied the ‘integral to a distinctive culture’ test to claims for an Aboriginal right to engage in commercial fishing. Based on the evidence and applying this highly particularised approach, the court found that the claim to an Aboriginal right to engage in fishing for commercial purposes was made out in respect of one of the cases, Gladstone, but not in the other two.[176]
The second major way in which the broadening of Aboriginal rights beyond claims of Aboriginal title emphasises the reconciliation function of the law is by allowing for intermediate claims. Aboriginal title in the sense of full proprietary ownership is notoriously difficult to establish in the courts. Indeed, it was reported in 1994 that ‘not a single square foot’ of Canadian territory had been found to be subject to Aboriginal ownership by a Canadian court.[177] By contrast, more limited and flexible Aboriginal rights such as non-exclusive hunting and fishing rights may be found by the courts even where the requirements of Aboriginal title are not made out.[178] The existence of an intermediate solution allows the courts to adopt a much more inclusive approach to Aboriginal rights that are accessible to Aboriginal peoples in long-settled areas as well as remote ones, and to define such rights in such a manner as to allow them to coexist with property rights of non-Aboriginal people.
Ironically, the shift in the juristic basis from possession to custom that underlies the broadening of Aboriginal rights has also had a pronounced effect on the development of the court’s conception of Aboriginal title. By distinguishing between the concepts of Aboriginal rights and Aboriginal title, the court has articulated a theory that different consequences should flow from the fact of first possession, than from the existence of customs and practices which define an Aboriginal culture. In this context, it may be regarded as rational to insist upon a finding of exclusive occupation as the dividing line between the two. By contrast, the High Court of Australia, which has so far largely adopted a private law, proprietary or quasi-proprietary framework for native title, appears to be struggling with the issues of whether and why exclusivity should be significant.[179] On the other hand, even with respect to Aboriginal title proper, the Canadian Supreme Court has placed the doctrine in a broader cross-cultural context which gives greater play to the cultural identity and equality rationales. According to the court, since the common law of Aboriginal title is not Anglo-Canadian law but cross-cultural law, the entire relevant legal framework must reflect cross-cultural content. Admissibility and interpretation of evidence, as a matter of the common law of Aboriginal title, must reflect both Aboriginal and non-Aboriginal perspectives.[180] Even exclusivity of occupation, that which separates Aboriginal title from other Aboriginal rights, must be assessed in light of Aboriginal perspectives as well as non-Aboriginal.[181] Thus, the traditions of the common law are reinterpreted in a matter which is arguably more conducive to reconciliation.
The third major way in which a broader concept of Aboriginal rights leads to a greater emphasis on the reconciliation function is by making it more necessary for the courts to develop mechanisms to balance Aboriginal rights against other values where they compete. This is particularly true where Aboriginal rights are given the status of constitutional rights, and thereby prima facie prevail over competing non-constitutional rights and interests as expressed in common law and legislation. As will be seen below, the primary mechanism of this nature has been developed in the context of the Crown’s fiduciary duty towards Aboriginal peoples.[182]
A shift in emphasis from the first possession rationale towards the cultural identity rationale inevitably also raises questions concerning the exercise of power over and within Aboriginal communities. As long as Aboriginal rights are conceived of wholly in proprietary terms, and provided that proprietary interests recognised are regarded as equivalent to non-indigenous interests, it is possible to define the zone of non-interference by the sovereign state as a matter of purely private law. If, for example, pre-contact land use was equated with possession under non-indigenous land law, and Aboriginal claimants were awarded a possessory fee simple on this basis, the successful claimants would in theory have exactly the same freedoms to use their lands as any other person establishing a possessory title. Subject to any valid, generally applicable laws, they would be permitted to use their land in whatever manner and for whatever purposes they wished.[183] A purely possession-based title, however, has never been the dominant approach of common law jurisdictions towards Aboriginal or native title. Rather, the nature and incidents of Aboriginal or native title must at some level take into account the customs on which the Aboriginal society is based.[184]
The approach accepted in Mabo is that the nature and content of native title are defined by Aboriginal customary law. In one sense, the result of this approach is that there must, by definition, be areas in which Aboriginal customary law supplants the non-Aboriginal law which would otherwise be applicable. At a minimum, customary law will govern the issue of the respective rights and entitlements of members of the Aboriginal community among themselves.[185] Aboriginal custom with respect to non-alienability of land has also been held to supplant the general rule that privately held land is to be freely alienable.[186] At least to this extent, then, some aspects of Aboriginal ‘self-government’ are inherent in the Australian High Court's recognition of native title. The scope for self-government is broadened further if a general approach is taken to recognition of customary Aboriginal rights, as has now occurred in Canada. As with native title, by definition there is a zone where Aboriginal custom supplants otherwise applicable non-Aboriginal law in every instance where an Aboriginal right is recognised. The question is how far the zone of Aboriginal self-government extends.
As discussed above, however, the foundation of Aboriginal rights on the value of protecting cultural identity runs directly into the countervailing value of acknowledging state sovereignty. Sovereignty may be viewed as a zero-sum game, and any concession to Aboriginal self-government must, at some level, represent a diminution of state sovereignty. For this reason, the treatment of claims to an inherent Aboriginal right to self-government in the Canadian courts has been extremely cautious and highly ambivalent.
An Aboriginal right to self-government at large, which appeared to be self-evident to Marshall CJ in 1832,[187] has not yet been judicially recognised by any Canadian court.[188] At the political level, the Canadian Federal Government has clearly articulated a policy of recognising self-government rights, though again with remarkably little definition of the scope of such rights. Constitutional entrenchment of the inherent right to self-government was a feature of the Government’s proposed ‘Charlottetown Accord’ of 1992.[189] While this initiative failed to win sufficient popular support in a referendum to be enacted, the current Federal Government subsequently released a policy paper clearly committing itself to Aboriginal self-government,[190] said to be an ‘inherent right’ under s 35 of the Constitution Act 1982. Most recently, the Royal Commission on Aboriginal Peoples, while concluding that s 35 does protect self-government as an inherent right, has recommended explicit recognition of self-government powers.[191]
The Supreme Court of Canada has not yet ruled on the issue of self-government, but has given very strong indications that it is likely to take an incremental and cautious approach if any such right is recognised. In Gardner, where the Aboriginal appellants asserted a right to conduct on-reserve commercial gambling free from provincial or federal regulation, the court explicitly reserved its judgment on whether any inherent right to self-government existed, but noted that if such a right did exist it would exist only as an outgrowth of the recognition of specific customs according to the tests set out in Van der Peet.[192] A robust and apparently unqualified argument that the Aboriginal claimants had ‘jurisdiction’ over unceded lands was made in Delgamuukw, but was rejected in the lower courts on the overwhelming authority and basic constitutional principle that parliamentary sovereignty, though divided between the provincial and federal jurisdictions, has always been plenary and supreme, at least until the enactment of the Constitution Act 1982.[193] Two dissenting judges in the Court of Appeal would have found an Aboriginal right to some degree of self-government, characterised as ‘rights of self government and self regulation’, but with very little definition as to what the content of those rights might be.[194] At the Supreme Court of Canada, the court ruled that errors of fact made by the trial judge had made it impossible to determine whether the claim for self-government had been made out. The court further noted that the lower courts had not had the benefit of the Supreme Court’s reasons in Gardner, with its admonition that self-government rights, if they existed, could not be framed ‘in excessively general terms’.[195] Also, neither the lower courts nor the parties had addressed ‘many of the difficult conceptual issues’ surrounding Aboriginal self-government, as reflected in the RCAP Report.[196] Accordingly, the issue would fall to be determined on the retrial.
It remains to be seen how far this incremental approach to self-government, if subsequently adopted by the Supreme Court, will extend. It seems unlikely that the approach foreshadowed by Gardner, whereby self-government is recognised only as an incident of recognition of specific customary rights and starting from the premise that no such rights will be recognised unless they meet the ‘integral to the distinctive culture’ test, will go as far as the American approach, which starts from the opposite premise that self-government is inherent (but in practice allows it be heavily qualified).[197] However far the right extends, it is clear that it will be subject to all of the balancing devices and tendencies towards reconciliation that are set out above. If there are any that fear the revolutionary or radical potential of the purported right to self-government as it is likely to develop in the Canadian courts, their concern would appear to be misplaced.
Yet another strand of the law of Aboriginal rights in Canada is the recognition of a fiduciary duty owed by the Crown towards Aboriginal peoples in certain circumstances. Such a duty, long a feature of American Aboriginal rights law,[198] has been recognised in Canada since Guerin.[199] As with the other strands of Aboriginal rights law, the fiduciary duty has both a recognition and a reconciliation function. Moreover, it is the latter function which is receiving the more pronounced emphasis in more recent decisions.
As initially recognised in Guerin, the fiduciary duty was predominantly a private law concept in character, though the basis on which it was said to arise by various members of the court left room for its development as a public law right. In that case the Musqueam Indian band had surrendered certain valuable reserve lands in Vancouver to the Crown in right of Canada, on the understanding that the lands surrendered would be leased on certain terms to a golf club. Without obtaining the band’s consent, the Crown proceeded to lease the lands on terms substantially less favourable to the band. In so doing the Crown was held to have breached its fiduciary duty towards the band, and was held to be liable for damages assessed at CAN$10 million.
According to Dickson J, writing for the majority, the fiduciary duty ‘has its roots in the concept of Aboriginal, native or Indian title’, but also, ‘depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.’[200] Since any dealings with the land, at least as between the band and third parties, would need to be by way of the Crown, holders of Aboriginal title who wished to alienate their land were at the mercy of the Crown’s discretion, which was set by majority to be ‘the hallmark of a fiduciary relation’.[201] In general terms, ‘where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary’.[202] Relying specifically on s 18 of the Indian Act 1985[203] (which provided that reserves must be held by the Crown for the use and benefit of the bands for which they were set apart) and on the surrender provision of the Indian Act 1985[204] (which confirmed that the band’s interest could only be disposed of by surrender to the Crown), the majority held that the Crown became a fiduciary on accepting the surrender from the band.[205]
As set out in Guerin, the fiduciary obligation is primarily of a private law character, restricted to specific surrender situations in which the Crown acquires the discretionary power to affect adversely the surrendering party’s interests.[206] Nevertheless, even in this guise it may fulfill an important reconciliation function. As a source of rights it would typically be less far-ranging than Aboriginal title per se. It will arise in specific fact situations where the Crown has dealt with Indian assets in an inequitable manner, providing a potential remedy for a specific wrong, but generally without applying to vast areas of land or threatening third party rights. Moreover, as an equitable doctrine it allows for the remedial flexibility that is characteristic of the courts of equity. Potentially, this provides a further mechanism whereby the courts may fashion compromise solutions which balance competing interests on specific claims. For example, in Blueberry River the court held that the Crown had breached its fiduciary duty in dealing with land which had been surrendered by the appellant Indian bands.[207] The bands had surrendered reserve lands to the Crown in trust to sell or lease the land, to permit its eventual sale to returning veterans. The Department of Indian Affairs subsequently sold the land to the Director of Lands under the Veterans Lands Act 1942[208] and the lands were resold to returning veterans. The Department of Indian Affairs had a longstanding policy of reserving mineral rights for the benefit of the Indians in such transactions, but here inadvertently made an outright transfer to the Director. Oil was subsequently discovered under the surrendered lands. The court unanimously held that there had been no breach of fiduciary duty by the Crown in accepting the original surrender, which had been with the bands’ consent and agreement, but that the duty had been breached by the Department’s failure to reserve mineral rights in accordance with its usual policy.[209] It is noteworthy that the breach of duty found turns on a very particular fact situation, and the holding that the Crown had no duty to second-guess the bands’ decision to surrender (in retrospect, an unfortunate one) may be seen as limiting the scope of the duty in any asset-management situation in which the Crown obtains the Indians’ consent.[210]
More broadly, even a relatively restrictive doctrine of fiduciary obligation, having a predominantly private law character, may help to reconcile Aboriginal claims arising from prior occupation with Crown sovereignty. It is axiomatic to the doctrine of Aboriginal title that the Crown has the sovereign right, as an aspect of its radical title, to deal with land over which Aboriginal title exists.[211] However, without some legal mechanism for constraining the Crown’s power to deal with Aboriginal lands (even if only a right to compensation which may arise in particular fact situations), Aboriginal title lacks security.[212] A flexible doctrine which allows the courts to supervise Crown dealings with Aboriginal land enables the courts to preserve the integrity of Aboriginal interests while respecting the Crown’s ultimate sovereignty.
A more explicit public law aspect to the Crown’s fiduciary duty was established in cases following Guerin, again apparently influenced by US authorities. In R v Agawa,[213] the Ontario Court of Appeal expressly linked the Crown’s fiduciary duty to the well-established propositions that treaties and legislation affecting Indians were to be liberally construed in favour of the Indians, and that treaties were to be interpreted in light of the understanding that the Indian signatories to them would have had at the time. According to the court, in interpreting the terms of a treaty ‘the honour of a Crown is always involved and no appearance of “sharp dealing” should be sanctioned.’[214] Thus, in addition to being a mechanism for controlling the Crown’s exercise of discretion with respect to specific dealings with Indian property, the fiduciary duty was cast as a more general presumption that the Crown acts on behalf of Aboriginal peoples in all of its dealings with them.[215] While this doctrinal development was not necessary to support the canons of construction referred to above,[216] it does provide a basis of general application which obviates the need for any specific factual enquiry into the circumstances of the treaty making.[217] As such, it represents an important development in defining the overall relationship between Aboriginal peoples and the government.
Moreover, the generous and liberal approach to treaty interpretation which is in part supported by the extension of the fiduciary duty to the analysis of the treaty process, provides another striking example of the law’s reconciliation function. It is well documented that, in fact, the treaty process was severely compromised by the conflicting motives of the Imperial and later Canadian governments, which were under intense pressure to open up lands for settlement.[218] In fact, treaty benefits were small in comparison to what was being given up by the Indian parties, and the Crown’s conduct in treaty ‘negotiations’ appears at times to have been less than honourable.[219] The generous and liberal approach to treaty interpretation, while in some circumstances providing substantial benefits to particular claimants, also does much to legitimise the entire treaty-making process.[220] Absent such legitimation, there is a much greater danger that the treaty process would be vulnerable to attack as an immoral land-grab. Conversely, because the treaty process has been legitimised, attempts to argue that historical treaties should be ignored because of defects in their process or inequalities in their substance have been comprehensively rejected by the courts.[221]
The public law aspect of the Crown’s fiduciary duty was endorsed by the Supreme Court of Canada in 1990 with its decision in Sparrow,[222] in which the court first interpreted s 35 of the Constitution Act 1982. Building on its earlier decisions regarding the interpretation of treaties and statutory provisions designed to protect Indians, and adopting the approach of R v Agawa,[223] the court cited the fiduciary relationship in holding that prima facie s 35 was to be given a large and liberal construction in favour of Canada’s Aboriginal peoples:
In our opinion, Guerin, together with R v Taylor and Williams ... ground a general guiding principle for s 35(1). That is, the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.[224]
However, the court was clearly concerned about the implications of applying a large and liberal approach to s 35, without having a mechanism for holding that, in appropriate circumstances, the Aboriginal right would have to give way to countervailing considerations, and therefore held that rights found to exist under s 35 could be infringed by justified government regulation.[225] To explain its importation of a justification test into s 35, the court turned again to the Crown’s fiduciary duty:
There is no explicit language in the provision that authorizes this court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words ‘recognition and affirmation’ incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognised and affirmed are not absolute. Federal legislative powers continue ... These powers must, however, now be read together with s 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in Nowegijick ... and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by Guerin v The Queen.[226]
Here again, the emphasis on reconciliation is striking. On the one hand, the court endorses an expansive notion of the fiduciary duty which appears to encompass the entire relationship between the government and Aborigines. On the other hand, the fiduciary duty has also been turned around to become an instrument of legitimation of the infringement of constitutionally guaranteed Aboriginal rights.[227]
The public law aspect of the fiduciary duty has most recently been analysed and applied by the Supreme Court in Gladstone and Delgamuukw.[228] In Gladstone, the court found on the evidence that the appellant had established an Aboriginal right to fish for herring spawn on kelp on a commercial basis. This was based on evidence that barter or trade in herring spawn on kelp had formed a significant part of the pre-contact practices of the appellant’s ancestors. Prima facie, then, the appellant’s right to fish could not be curtailed or restricted by the Pacific Herring Fishery Regulations,[229] which he was accused of violating. Applying Sparrow, the court remitted the matter to trial for evidence on whether the applicable regulation might meet the test of justification. In the circumstances of this case, however, the test required only
that the government demonstrate that, in allocating the resource, it has taken account of the existence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users,
but foreseeing that this priority would be ‘something less than exclusivity’.[230]
The majority, speaking through Lamer CJ, frankly admitted that the content of this priority ‘must remain somewhat vague pending consideration of the government’s actions in specific cases’, referring to the flexibility which had been shown by the court in balancing constitutional rights with other competing interests under s 1 of the Canadian Charter of Rights and Freedoms.[231] Particular emphasis was placed on the competing objectives of ‘the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups’, with the Chief Justice making the following pointed observation:
In the right circumstances, such objectives are in the interest of all Canadians, and more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.[232]
It need hardly be pointed out that the court is engaging in an overtly political exercise in these circumstances, and that it is well aware of this fact.[233] Nevertheless, such a pragmatic and flexible approach is in keeping with the traditional development of Aboriginal rights doctrines in Canadian law.[234]
These themes were carried further in Delgamuukw, where the court explained how the justification test would apply to Aboriginal title.[235] According to the court, the test has two parts. First, the infringement of the Aboriginal right must be in furtherance of a ‘compelling and substantial’ legislative objective.[236] These are objectives which are directed at either the recognition of prior Aboriginal occupation, or the reconciliation of that occupation with Crown sovereignty; more typically the latter.[237] These objectives include conservation, the pursuit of economic and regional fairness, and a wide range of other typical government objectives. Second, the infringement must be consistent with the ‘special fiduciary relationship between the Crown and aboriginal peoples.’[238] The scrutiny with which government measures are analysed will be heavily dependent on the nature of the right asserted and the legal and factual context; for example, where as in Gladstone the claimants assert a right to a resource that would potentially exclude non-Aboriginal interests, it will be easier to justify a limitation of the right.[239] In the specific context of Aboriginal title, compelling and substantial objectives are said to include such diverse matters as
the development of agriculture, forestry, mining and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support these aims.[240]
This list is not meant to be exhaustive, and it is difficult to imagine a legitimate governmental objective that would not be included. As to whether the limitation on the right is consistent with the ‘special fiduciary relationship’, that will depend on such matters as whether the government, infringing Aboriginal title, has sought to accommodate and give priority to (in the Gladstone sense) Aboriginal interests; whether the Aboriginal group has been consulted; and whether compensation has been paid.[241]
The logic of the test for infringement of Aboriginal rights developed in Sparrow, Gladstone and Delgamuukw is not particularly compelling. Rather, it appears to have been developed as a politically necessary corollary to the broader approach to Aboriginal rights that has been adopted by the Supreme Court. Nevertheless, it does give the court the flexibility to assume a broad jurisdiction over almost the entire relationship between Aboriginal and non-Aboriginal peoples, and to ensure that reconciliation is not short-circuited either by exaggerated claims of the minority or the tendency of the majority to ignore all but its own interests. It is almost as if the court, having good historical grounds for doubting the bona fides and the political maturity of the parties, and arguably having been so authorised by the text of the Constitution, has put a part of the political process into a sort of court-supervised trusteeship.[242] Difficult questions will undoubtedly arise in future as to the degree of deference that the court should show to government measures, and the court, aware of this problem, is preserving a broad discretion in this regard. However, it seems plausible to suppose that the court's assumption of this jurisdiction will be helpful to the reconciliation process.
To summarise, in broadening its conception of Aboriginal rights beyond Aboriginal title to encompass recognition of other customary law rights, a potential limited right of self-government, and a fiduciary obligation owed by the Crown towards Aboriginal peoples, the Supreme Court of Canada has given greater effect to the rationales behind the recognition of Aboriginal rights. More importantly, it has developed these doctrines in such a way as to facilitate the reconciliation of Aboriginal claims with the competing interests which are engaged by their recognition. This has provided the parties to Aboriginal rights disputes with a much more developed framework for resolving such disputes than currently exists in Australia.
Broadly speaking, the rationales for the recognition of Aboriginal rights, and the countervailing values which they raise, are the same in Australia as in other common law jurisdictions. So too is the law’s function of creating a framework within which the moral claims of indigenous peoples to recognition of enforceable legal rights are reconciled with Crown sovereignty. However, there are significant differences in the architecture of the legal structure between these countries, particularly in the historical lack of a treaty process in Australia and the lack of constitutional entrenchment of Aboriginal rights. This raises the question of the extent to which these recent developments in Canadian law might be adopted in Australia.
The lack of a treaty process and of constitutional entrenchment of Aboriginal rights are not mere details. Those developments in Canada have provided the primary basis for the vitality of the cultural identity rationale, by focussing attention on the autonomy and Aboriginality (respectively) of Canada’s indigenous peoples. By contrast, in Australia the cultural identity rationale has remained an implicit value lurking in the background of native title law. Rights flowing from first possession are embedded in common law, and guaranteed by the Native Title Act. Equality rights are guaranteed by the Racial Discrimination Act. But without a strong independent basis for recognising and protecting Aboriginal cultural identity in its own right, Australian law remains something of a two-legged stool. Nevertheless, there may be scope for Australian common law to evolve in ways similar to the Canadian model.
It may well be possible to give legal recognition to Aboriginal rights in Australia that go beyond native title per se. However, such recognition (if it occurs) is likely to be much more limited than has been the case in Canada. This is because such Aboriginal rights derive much of their vitality in Canada from their constitutional status under s 35 of the Constitution Act 1982.[243] Nevertheless, they may still play a useful role.
The argument that common law Aboriginal rights can extend beyond native title is simply made. Clearly, the system of pre-contact Aboriginal customary law was not confined to proprietary rights.[244] Pre-contact Aboriginal societies can be assumed to have pervasively regulated the rights and obligations of their members through recognised customs. Where such customs and traditions have survived (whether or not in an evolved form) they can be given effect by the common law in the same manner, and for the same reasons, as customary native title. As noted above, the analysis offered in Mabo in support of recognising native title, that it was a denial of equality to fail to recognise Aboriginal customary law rights in circumstances where such rights would have been recognised for inhabitants of conquered or ceded lands, applies equally to support the initial recognition of non-proprietary rights.[245]
For example, hunting and fishing rights of a non-proprietary character could be recognised under this approach. An individual descendant of a group which used particular lands or waters for hunting and fishing purposes could continue to assert such a right (absent any consideration of abandonment or extinguishment) without needing to prove that his or her ancestors were recognised under Aboriginal customary law as exclusive users,[246] and without needing to show sufficient connection to the land to make out a claim for native title.[247] The Supreme Court of Canada recognised such common law claims in decisions prior to the enactment of s 35 of the Constitution Act 1982,[248] so there is no reason in principle why the Australian courts should not. Quasi-proprietary rights of this nature may overlap with concepts of native title, since it is not yet clear what the requirements of establishing native title will be,[249] but there may be less stringent requirements of proof for the former.[250]
However, while the case for initial recognition of other Aboriginal rights may be strong, it will be to little avail in circumstances where Aboriginal law or custom has clearly been supplanted by an exercise of Crown sovereignty, unless some means can be found to challenge the Crown’s action. Thus, in the pre-s 35 Canadian cases, it was held that common law Aboriginal hunting and fishing rights could not be raised as a defence to valid federal or provincial legislation.[251] On this approach, operation of Aboriginal rights would prima facie be confined to areas which have been left unregulated by statute since annexation (for example, a customary law claim in an area otherwise governed by contract or tort). Slightly greater leeway may be gained by reference to the doctrine of extinguishment, which requires evidence of a ‘clear and plain intention’ before legislation will be held to abrogate Aboriginal rights,[252] thus giving rise to possible arguments that statutes should be construed as not applying to limit Aboriginal rights. However, these arguments will likely succeed only where there is a textual or historical basis for distinguishing between the application of the provisions to Aboriginal and non-Aboriginal parties.[253]
There may also be some scope for asserting that Aboriginal rights prevail over inconsistent legislation or other government action under the Racial Discrimination Act. Native title has been held to be protected under the Racial Discrimination Act because it may be regarded as equivalent to property rights held by non-indigenous Australians.[254] Any legislative or executive action which purports to affect native title on a discriminatory basis is therefore subject to challenge. Other forms of Aboriginal rights may find protection if they can be characterised as a ‘human right or fundamental freedom’ within the meaning of s 9, or a ‘right’ within the meaning of s 10 of the Racial Discrimination Act. Both of these provisions incorporate by reference article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which sets out rights to ‘equality before the law’ in the enjoyment of rights such as ‘the right to marriage and choice of spouse’ and ‘the right to equal participation in cultural activities’. Moreover, the reference to art 5 rights in these sections does not purport to be exhaustive, so other ‘cultural’ rights that are protected under international law might be included.[255] Thus, for example, it may be argued that to deny recognition of Aboriginal customary law relating to marriage would infringe the Racial Discrimination Act, on the same logic as has already been applied to the denial of recognition of native title.[256]
While the development of this strand of Aboriginal rights law may be less dramatic than has been the case in Canada, at least at the absence of a constitutional recognition of Aboriginal rights, there is no reason in principle why such rights should not be recognised. As a practical matter, any development of Aboriginal rights falling outside the definition of native title would lose the procedural and substantive protections of the Native Title Act, and therefore such developments are less likely to be pursued with vigour by Aboriginal litigants and their advisors than land claims. However, any steps which may be taken in this direction by Australian courts would be welcomed for their potential in contributing to reconciliation of Aboriginal and non-Aboriginal interests. In particular, if the courts shift some of their focus to recognition of rights flowing from matters integral to the various distinctive Aboriginal cultures in Australia, and to balancing such rights with the interests of the majority, they are more likely to contribute to an accommodation between the competing moral claims of the Aboriginal minority and the non-Aboriginal majority. More pragmatically, they may also be more able to fashion compromises through recognising intermediate claims where native title per se is not established.
More fundamentally, if the above analysis is persuasive there are also strong arguments for entrenching Aboriginal rights in Australia’s Constitution, as has been proposed by the Council for Aboriginal Reconciliation,[257] or otherwise further securing general statutory recognition of Aboriginal customary law in areas outside of the native title context.[258] This would encourage the development and flourishing of doctrines that would give better effect to the rationales that are already implicit in Mabo and Wik, while allowing for their reconciliation with countervailing interests. In short, it is submitted that Australian Aboriginal rights law can and should overcome its current almost exclusive focus on private property law concepts.
It appears unlikely that any broad and general right to self-government, of the kind recognised in the United States by Marshall CJ in the early decades of the 19th century, will be recognised as part of the common law of Australia. Mabo’s emphatic statements about the establishment of Crown sovereignty, coupled with the holdings in the two Coe v Commonwealth cases, appear to leave little or no room for a claim of this nature.[259]
Nevertheless, there may be some scope for the incremental approach to self-government which appears likely to be favoured by the Supreme Court of Canada, if the Australian courts do adopt a broader recognition of common law Aboriginal rights as outlined above. For the concept of self-government to be meaningful, however, the recognition of Aboriginal law and custom must be able to supplant otherwise applicable laws of general application. As noted above, there may be some scope to achieve this through the Racial Discrimination Act, but that scope does not appear to be as broad as under s 35 of Canada’s Constitution Act 1982. If the possibility of judicial recognition of the right to self-government in Canada under s 35 can be said to be modest, its potential in Australia seems at present to be even more so.
Despite this, even the most limited judicial recognition of a potential right to self-government or self-management in discrete areas may be valuable to the reconciliation process. It further encourages Aboriginal communities to develop their own structures, and allows them to assert a legitimate interest in self-regulation and in their land claims negotiations. In the long-term, the types of agreements that will be recognised by all parties as legitimate and useful are those which give the Aboriginal parties the tools they need for their own economic and social development, and to maintain and strengthen their cultural identity. Self-government powers have been a major feature of recent land claims agreements in Canada,[260] and over time the same may become true of agreements in Australia.
There also appears to be no reason in principle why Australian courts should not recognise a fiduciary duty owed by the Crown towards Aboriginal people in some situations, at least in the private law sense described above. Without an equivalent to Canada’s s 35 of the Constitution Act 1982, it may be more difficult to extend the fiduciary duty in its public law aspects, but even here there may be some possibilities in Australian law.
In general terms, the hallmarks of a fiduciary relationship are regarded as being the same in Canadian and Australian law. That is, a fiduciary relationship arises where
Canada, as described above, has taken a further step of recognising a general fiduciary duty owed by the Crown to its Aboriginal peoples, based on their peculiar vulnerability to the Crown because of the right of pre-emption flowing from statute, the Royal Proclamation of 1763, and the general nature of Aboriginal title. However, the content of the fiduciary duty has been crafted with some care, to provide for a balancing of interests between the peculiar vulnerability of Aboriginal peoples and the practical realities of government.
It appears to be firmly established after Mabo that Aboriginal interests in land cannot be alienated outside of the Aboriginal system, except by means of surrender to the Crown.[262] It is possible that this situation could be distinguished from Canada on the grounds that it did not arise because of any statute or Crown Act (that is to say, the Crown did not voluntarily assume the protective role), but rather because of the nature of property rights under Aboriginal custom. However, this distinction may be hard to sustain.[263] First, it appears that Imperial policy with respect to alienation by Aborigines to persons other than the Crown was similar in the two countries. While this policy did not find recognition in Australia at the level of a statute or the Royal Proclamation of 1763, when John Batman purported to purchase land directly from Aborigines in possession of the Port Phillip region, Governor Bourke issued a proclamation that such purchases were void as against the Crown.[264] Second, it is not clear why a voluntary assumption of such a role should be a necessary precondition to a finding of a fiduciary duty, at least in the context of the Crown’s relationship with Aboriginal people. If, as a matter of law, Aboriginal peoples are wholly dependent on the exercise of the Crown’s discretion in dealing with their lands, they are in a position of peculiar vulnerability whether or not the Crown has voluntarily assumed that position.
In Mabo, Toohey J indicated a willingness to recognise that the Crown is generally in the position of being a fiduciary in its relationship with Aborigines. As described by Toohey J, the fiduciary duty would not limit the legislative power of Parliament, but extinguishment of native title by legislation or executive act could be a breach of the duty.[265] Brennan J, on the other hand, commented only (and somewhat cryptically) that ‘if native title were surrendered to the Crown in expectation of a grant of a tenure to the indigenous title holders, there may be a fiduciary duty on the Crown to exercise its discretionary power to grant a tenure in land so as to satisfy the expectation’.[266] Thus, the court appears to be divided on the basis for finding a fiduciary duty if one exists, with Brennan J appearing to require a surrender to the Crown before any such duty would arise. This is consistent with a requirement that the Crown voluntarily assume the role of fiduciary.
Brennan CJ took the opportunity to develop his analysis further in his dissent in Wik.[267] The Chief Justice rejected an argument that a fiduciary duty was owed by the Crown to the plaintiffs because of the Crown’s unilateral ability to extinguish native title. In the Chief Justice’s view, the Crown’s statutory power to alienate land, whereupon the plaintiffs’ native title would be extinguished without their consent and contrary to their interests, was inherently inconsistent with the notion of a fiduciary duty. This was to be distinguished from situations in which a discretionary power had been conferred on a repository for exercise on behalf of or for the benefit of others. The latter case was how he characterised the Guerin and Blueberry River decisions, as well as relevant US authorities.[268] On this reasoning, a general fiduciary duty owed by the Crown to Aboriginal peoples would clearly not exist.
Even for the Chief Justice, however, there would still appear to be scope for application of the fiduciary duty in its private law aspect, in a specific situation where the Crown’s management of Aboriginal assets was in issue. Nothing said by the Chief Justice in Wik casts any doubt on the application of Guerin to Australian law in appropriate circumstances, though the Crown’s agreement to act in a fiduciary capacity (whether express or implied) may be a prerequisite for finding such a duty. As such, even on Brennan CJ’s approach the Crown’s fiduciary duty may be recognised in Australian law, and play some role in reconciling indigenous and non-indigenous interests, by providing a cause of action for relief against the Crown, without imperilling third party rights, in a specific situation analogous to one where a surrender has been mishandled.[269]
Any broader theory of fiduciary duty, in its public law aspect, would appear to be beyond the scope of Brennan CJ’s reasoning. He specifically rejected a claim that a supposed fiduciary duty was relevant to the interpretation of Queensland’s Land Act 1910 (Qld).[270] On this point, however, the Chief Justice was contradicted by Kirby J, who listed ‘the duty which the Crown owed, in honour, to native people who are under the Crown’s protection’ as a consideration relevant to the interpretation of the Land Act 1910 (Qld), citing Guerin and the judgment of Toohey J in Mabo.[271] Kirby J’s position is in accordance with the Canadian and US authorities, and should be preferred.[272] Since Brennan CJ was in dissent in Wik, it remains open to the court to embrace a broader approach to the Crown’s fiduciary duty.[273] It is to be hoped that this possibility is not foreclosed, as the public law aspect of the fiduciary duty may play a useful role as Aboriginal rights develop in Australia.
The development of Aboriginal rights in Australia is in its infancy. As this law develops, it may be expected that Australian courts will continue to look to overseas jurisdictions for guidance, though they will undoubtedly chart their own course to a large extent. However, even though doctrinal developments may differ between nations, the rationales behind the recognition of Aboriginal rights are the same in Australia as in other common law jurisdictions where indigenous societies have been supplanted by European settlement. Aboriginal rights must in each case fulfill the functions of giving effect to those rationales by recognising the justice of Aboriginal claims, and reconciling such claims with the competing interests that they invoke. Canada’s path has been to begin to develop sophisticated doctrines which combine elements of the first possession, equality and cultural identity rationales, and stress the points at which they must give way to countervailing concerns. Australian courts, though they may adopt different doctrinal devices to achieve the same ends, will face similar challenges. It is hoped that they do so with the required flexibility and imagination.
[*] Lawyer, Gowling, Strathy & Henderson, Toronto, Canada; part-time Lecturer in Constitutional Litigation, Osgoode Hall Law School. This article was substantially written while the author was employed at the Faculty of Law, Monash University. The author wishes to thank Professor Marcia Neave, Ms Pam O’Connor, and the Review’s anonymous referee for very helpful comments on previous drafts. Any errors which remain are, of course, the responsibility of the author.
[1] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[2] A-G v Brown (1847) 1 Legge 312; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
[3] The term ‘Aboriginal’ is capitalised throughout this article in accordance with common practice in Australia, except where quoting directly from another source where the lower case appears in the original. ‘Aboriginal’ is used, depending upon the context, to refer to either the indigenous peoples of Australia, the indigenous peoples of Canada, or indigenous peoples in general.
[4] Mabo [1992] HCA 23; (1992) 175 CLR 1. This common law development has been given a procedural framework, and to some extent modified and enlarged, by the Native Title Act 1993 (Cth) (‘Native Title Act’). Although the Native Title Act constitutes an important step in the recognition of native title rights, native title under the Act remains a common law concept: s 223(1)(c).
[5] Mabo [1992] HCA 23; (1992) 175 CLR 1 (Brennan J; Mason CJ and McHugh J concurring). Brennan J states that the basis for native title is lost ‘when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs’: at 60. Cf Deane and Gaudron JJ who state that it was ‘unnecessary, for the purposes of this case, to consider the question of whether [native title rights] will be lost by the abandonment of traditional customs and ways’: at 110. Brennan J’s dictum was applied by Olney J in Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [3] (‘Yorta Yorta’) to reject a claim of native title in parts of Victoria and New South Wales.
[6] On the question of the circumstances in which the grant of a pastoral lease will extinguish Aboriginal title, see The Wik Peoples v Queensland; The Thayorre People v Queensland (1996) 187 CLR 1 (‘Wik’). The ‘uncertainty’ of the High Court’s ruling led the Commonwealth Government to introduce amendments to the Native Title Act, which, inter alia, sought to codify the effects of certain leases on native title: Native Title Amendment Act 1998 (Cth). The High Court has now held definitively that an unreserved grant in fee simple to a non-Aboriginal, non-Crown entity or person permanently extinguishes native title: Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 156 ALR 721 (‘Fejo’).
[7] Mabo [1992] HCA 23; (1992) 175 CLR 1, 50–1, 58–63 (Brennan J; Mason CJ and McHugh J concurring), 109–13 (Deane and Gaudron JJ), 184–92 (Toohey J). Brennan J leaves open the question of whether Aboriginal title is proprietary in nature, but appears to contemplate exclusive use or occupation by the claimant group as the foundation for native title: at 51. Cf the generally more flexible approach taken on the question of exclusive occupancy by Toohey J: at 189. The majority in Wik, however, must be taken to have viewed native title rights as capable of being non-exclusive in nature, to contemplate their coexistence with non-exclusive pastoral leases: Wik (1996) 187 CLR 1, 126–7 (Toohey J).
[8] Wik (1996) 187 CLR 1, 219 (Kirby J).
[9] See Pamela O’Connor, ‘The Wik Decision: Judicial Activism or Conventional Ruling?’ (1997) 4 Agenda 217, 221–3.
[10] According to the second reading speech accompanying the Native Title Amendment Bill 1997 (Cth), there had been over 600 claims lodged under the Native Title Act, and only one determination of native title on mainland Australia as of September 1997: Commonwealth, Parliamentary Debates, House of Representatives, 4 September 1997, 7886 (Daryl Williams, Attorney-General). In November 1998, a determination of native title was made in respect of claims in the East Kimberley in Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 (‘Ward’), and in December 1998 a determination was made in respect of claims in areas of Victoria and New South Wales in Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998).
[11] See, eg, Jeremy Webber, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ [1995] SydLawRw 1; (1995) 17 Sydney Law Review 5, 7–9, in which the author explains the shape of North American indigenous rights jurisprudence as arising from the need to develop ‘cross-cultural norms’ to handle intercultural conflicts between colonists and indigenous peoples during the first decades of contact. Though the historical context of Australia in the 1990s is very different from that of 18th and 19th century North America, the need for such norms is just as apparent — as it is, for that matter, in modern Canada. Similar analyses are presented in Jeremy Webber, ‘Relations of Force and Relations of Justice: The Emergence of a Normative Community Between Colonists and Aboriginal Peoples’ (1995) 33 Osgoode Hall Law Journal 623; Mark Walters, ‘British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia’ (1992) 17 Queen’s Law Journal 350, 412–13 (cited in R v Van der Peet [1996] 2 SCR 507, 551; 137 DLR (4th) 289, 312 (‘Van der Peet’)); Brian Slattery, ‘The Organic Constitution: Aboriginal Peoples and the Evolution of Canada’ (1996) 34 Osgoode Hall Law Journal 101, 108–12; Brian Slattery, ‘Aboriginal Sovereignty and Imperial Claims’ (1991) 29 Osgoode Hall Law Journal, 681, 690–1.
[12] ‘Reconciliation’ has acquired political connotations in this context in Australia. However, it is also used in a more neutral sense in Aboriginal rights case law, to denote the process of balancing claims based on Aboriginal laws, practices and customs against countervailing values. Thus, in Van der Peet [1996] 2 SCR 507, 547–8; 137 DLR (4th) 289, 310, the Supreme Court of Canada, after extensively reviewing Canadian, US and Australian authorities, explicitly identifies ‘recognition’ and ‘reconciliation’ as the twin functions of Aboriginal rights law:
The Canadian, American and Australian jurisprudence thus supports the basic proposition put forward at the beginning of this section: the aboriginal rights recognized and affirmed by s 35(1) [of the Canadian Constitution Act 1982, which guarantees ‘existing aboriginal rights’] are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be directed at fulfilling both of these purposes (emphasis added).
This passage was adopted by Lee J in Ward [1998] FCA 1478; (1998) 159 ALR 483, 507. The word ‘reconciliation’ is used in this latter sense in this article.
[13] Common law Aboriginal hunting or fishing rights, not dependent on native title, have been mooted by Desmond Sweeney, ‘Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia’ [1993] UNSWLawJl 7; (1993) 16 University of New South Wales Law Journal 97, 111–12, and by Gary Meyers, ‘Implementing Native Title in Australia: The Implications for Living Resources Management’ [1995] UTasLawRw 1; (1995) 14 University of Tasmania Law Review 1, 18–19. Recognition of Aboriginal customary law generally is reviewed by Rob McLaughlin, ‘Some Problems and Issues in the Recognition of Indigenous Customary Law’ [1996] AboriginalLawB 45; (1996) 3(82) Aboriginal Law Bulletin 4; H Amankwah, ‘Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia’ [1994] UQLawJl 3; (1994) 18 University of Queensland Law Journal 15, and (pre-Mabo) by the Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986). The case for Aboriginal self-government rights is put forward by Stephen Gray, ‘Planting the Flag or Burying the Hatchet: Sovereignty and the High Court Decision in Mabo v Queensland’ [1993] GriffLawRw 2; (1993) 2 Griffith Law Review 39; Garth Nettheim, ‘The Consent of the Natives: Mabo and Indigenous Political Rights’ [1993] SydLawRw 17; (1993) 15 Sydney Law Review 223; Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (1996). Recognition of a fiduciary duty owed by the Crown towards Aborigines is suggested by Camilla Hughes, ‘The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada’ [1993] UNSWLawJl 6; (1993) 16 University of New South Wales Law Journal 70; Robert Blowes, ‘Governments: Can You Trust Them with Your Traditional Title’ [1993] SydLawRw 19; (1993) 15 Sydney Law Review 254; Frank Brennan, ‘Mabo and the Racial Discrimination Act: The Limits of Native Title and Fiduciary Duty under Australia’s Sovereign Parliaments’ [1993] SydLawRw 16; (1993) 15 Sydney Law Review 206; Lisa Di Marco, ‘A Critique and Analysis of the Fiduciary Concept in Mabo v Queensland’ [1994] MelbULawRw 19; (1994) 19 Melbourne University Law Review 868. The above is a selective list only from the vast literature spawned by Mabo.
[14] It may be argued that non-exclusive fishing rights have been rejected by the NSW Court of Appeal in Mason v Tritton (1994) 34 NSWLR 572 (‘Mason’), except to the extent they can be comprised within a claim to native title; however, the ambiguities in the concept of native title and in the court’s treatment of it leave the issue far from closed: see below nn 255–258 and accompanying text. Such rights were found to be established, among other ‘usufructury’ rights, in the waters surrounding Croker Island in Yarmirr v Northern Territory of Australia [1998] FCA 771; (1998) 156 ALR 370 (‘Yarmirr’). Very ambitious arguments for an Aboriginal right to self-government, amounting to a denial of Australian sovereignty, were rejected by the High Court in Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, and Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193. Mabo and Wik both stress that Australian sovereignty is not justiciable. However, it may be argued that these decisions do not preclude recognition of a right to self-government in a much more limited form: see below n 267 and accompanying text. A fiduciary duty owed by the Crown towards Aborigines was accepted by Toohey J and explicitly left open by Brennan J (Mason CJ and McHugh J concurring) in Mabo, and attracted further comment by various members of the court in Wik: see below nn 270–273 and accompanying text.
[15] These parallels are reviewed by Patrick Macklem, ‘Indigenous Peoples and the Canadian Constitution: Lessons for Australia?’ (1994) 5 Public Law Review 11, 12–13.
[16] See, eg, the extensive reference to Mabo in Van der Peet [1996] 2 SCR 507, 544–6 (Lamer CJ), 634–5, 644–5, 647–8 (McLachlin J); 137 DLR (4th) 289, 307–8 (Lamer CJ), 372–3, 379–80, 382 (McLachlin J).
[17] The Royal Proclamation of 7 October 1763, reprinted in RSC 1985, app II, no 1 (‘Royal Proclamation of 1763’).
[18] Over 500 treaties were concluded between the commencement of settlement and 1923, covering more than half of Canada’s land mass. These treaties, though typically ungenerous in their terms, did guarantee some level of legally enforceable rights to their Aboriginal adherents. See generally Macklem, ‘Indigenous Peoples and the Canadian Constitution’, above n 15, 15–16.
[19] [1973] SCR 313; 34 DLR (3rd) 145 (‘Calder’).
[20] The unique legal status of Canada’s French-speaking minority, including its predominantly Catholic religion and its adherence to civil law, has been recognised since the Quebec Act 1774 (Imp), reprinted in RSC 1985, app II, no 2, and finds expression in the guarantees of language rights (s 133), education rights (s 93), and representation of Quebec in the Senate (s 22) in the Constitution Act 1867, reprinted in RSC 1985, app II, no 5; in Quebec’s guaranteed representation on the Supreme Court of Canada: Supreme Court Act, RSC 1985 c S–26 s 6, and in the more recent entrenchment of language rights in ss 16–23 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 (‘Canadian Charter of Rights and Freedoms’ and ‘Constitution Act 1982’). Attempts to entrench this status further by constitutional recognition of Quebec’s ‘distinct society’ in 1987 (the ‘Meech Lake Accord’) and 1992 (the ‘Charlottetown Accord’) foundered in the face of sharply divided public opinion: see Macklem, ‘Indigenous Peoples and the Canadian Constitution’, above n 15, 25–8. Aboriginal rights have found expression in the Royal Proclamation of 1763, the treaty process, a host of statutes including the Indian Act, RSC 1985 c I–5 and its predecessors, s 25 of the Canadian Charter of Rights and Freedoms, and s 35 of the Constitution Act 1982. The relationship between the French presence in Canada and the recognition of Aboriginal rights in the Royal Proclamation of 1763 and contemporary treaties is explored by the Supreme Court of Canada in R v Sioui [1990] 1 SCR 1025, 1051–6; 70 DLR (4th) 427, 447–51, where the court reviews historical evidence that Britain’s alliance with Indian tribes was an integral part of its strategy to defeat France in North America.
[21] A series of six decisions in 1996, interpreting the guarantee of ‘existing constitutional rights’ in s 35 of the Constitution Act 1982, illustrate this tendency: Van der Peet [1996] 2 SCR 507; 137 DLR (4th) 289; R v NTC Smokehouse Ltd [1996] 2 SCR 672; 137 DLR (4th) 528 (‘NTC Smokehouse’); and R v Gladstone [1996] 2 SCR 723; 137 DLR (4th) 648 (‘Gladstone’) involved claims to constitutionally protected commercial fishing rights. Another case, R v Gardner [1996] 2 SCR 821; 138 DLR (4th) 204 (‘Gardner’, also known as R v Pamajewon) involved a claim to the Aboriginal right to operate an on-reserve gambling facility, while the two remaining decisions, R v Côté [1996] 3 SCR 139; 138 DLR (4th) 385 (‘Côté’) and R v Adams [1996] 3 SCR 101; 138 DLR (4th) 657 (‘Adams’) involved claims to fishing rights in Quebec. These six decisions have attracted some comment in Australia: see Alex Castles and Jon Gill, ‘Canadian Supreme Court Clarifies Mabo Paradox’ [1997] AboriginalLawB 4; (1997) 3(88) Aboriginal Law Bulletin 11; Janice Gray, ‘O Canada! Van Der Peet as Guidance on the Construction of Native Title Rights’ [1997] AUIndigLawRpr 10; (1997) 2 Australian Indigenous Law Reporter 18. To these cases may be added Delgamuukw v British Columbia [1997] 3 SCR 1010; 153 DLR (4th) 193 (‘Delgamuukw’), involving a broad claim to jurisdiction and ownership over a large area in British Columbia. In the area of fiduciary duties, Blueberry River Indian Band v Canada [1995] 4 SCR 344; 130 DLR (4th) 193 (‘Blueberry River’) may be seen to be setting a new course in its cautious approach to the obligations of the Crown in accepting a surrender. Seeds of the new approaches in both Aboriginal rights and fiduciary duties can be found in R v Sparrow [1990] 1 SCR 1075; 70 DLR (4th) 385 (‘Sparrow’): see below nn 150–242 and accompanying text.
[22] Not all commentators in the Australian context applaud the heavier emphasis on pragmatic compromise in the Canadian authorities: see, eg, Richard Bartlett, ‘Native Title: From Pragmatism to Equality Before the Law’ [1995] MelbULawRw 22; (1995) 20 Melbourne University Law Review 282 (writing before the most recent decisions of the Supreme Court of Canada, but characterising the dominant approach historically in Canada as being one of unjust pragmatism, ameliorated to some extent by responses such as constitutional protection of Aboriginal rights); Gray, above n 21, 26–7, questioning the legitimacy of the majority of the Supreme Court of Canada’s reliance on ‘moral and politically defensible considerations’ in Van der Peet. As I will argue below, however, such pragmatic compromise is inevitable given the complex interplay of the various rationales that support Aboriginal rights. Attempts to find a single unifying principle to support Aboriginal rights (such as Professor Bartlett’s reliance on equality) are not wholly satisfactory without a well-developed model of how these rationales interact.
[23] A useful summary of reasons for recognising Aboriginal law and custom generally, appears in the Australian Law Reform Commission, above n 13, ch 4. These reasons range from the philosophical ones discussed in this article to more pragmatic considerations such as Australia’s standing in the international community.
[24] See Kent McNeil, Common Law Aboriginal Title (1989) and authorities cited therein. See also Mabo [1992] HCA 23; (1992) 175 CLR 1, 206–14 (Toohey J); Calder [1973] SCR 313, 368, 376; 34 DLR (3rd) 145, 185, 190 (Hall J); Delgamuukw [1997] 3 SCR 1010, 1082 (Lamer CJ), 1125–6 (La Forest J); 153 DLR (4th) 193, 242 (Lamer CJ), 277 (La Forest J).
[25] Mabo v Queensland (1988) 166 CLR 186 (‘Mabo [No 1]’); Mabo [1992] HCA 23; (1992) 175 CLR 1; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. The use of concepts of equality as a basis for recognition of native title is a distinctive contribution of Australian law, as equality remains an unarticulated premise in North American jurisprudence, that is to some extent at odds with the pragmatic political compromises reflected in its early foundations: see Bartlett, ‘From Pragmatism to Equality Before the Law’, above n 22, 284–5, 298–9.
[26] See below Part II(C).
[27] See, eg, Carol Rose, ‘Possession as the Origin of Property’ (1985) 52 University of Chicago Law Review 73, 73–5, citing John Locke, Two Treatises on Government (first published 1690, 1924 ed), and Hugo Grotius, On the Law of War and Peace (first published 1646, 1925 ed). Rose distinguishes between these theorists on the process by which first possession becomes a recognisable claim (Locke’s mixing of labour with an unowned resource versus Grotius’ implied consent of the rest of humanity), but fundamentally both have a concept of first possession as a starting point.
[28] Asher v Whitlock (1865) 1 LR QB 1; Perry v Clissold [1906] UKLawRpAC 53; [1907] AC 73; Sir Robert Megarry and Henry Wade, The Law of Real Property (5th ed, 1984) 105–6; William Blackstone, Commentaries on the Laws of England (first published 1765–9, 12th ed, 1978) vol II, 8–9.
[29] See, eg, Thomas Merrill, ‘Property Rules, Liability Rules and Adverse Possession’ (1984–85) 79 Northwestern University Law Review 1122, 1131 (writing in the context of adverse possession).
[30] This is the main contribution of Locke’s labour theory to the justification of property rights: see John Locke, above n 27; Rose, above n 27. Locke himself believed that the lack of social benefit derived from land use by North American Indians (from his Eurocentric perspective) disentitled Indians from having a moral claim to their traditional lands, drawing a distinction between ‘the wild woods and uncultivated waste of America left to nature’ with the enclosed and improved lands of Devonshire: cited in Rose, above n 26, 86; see also Robert Williams, The American Indian in Western Legal Thought (1990) 247. The implications of a need to judge whether or not land has been put to a beneficial use in assessing claims based on prior possession are analysed below: see nn 42–49 and accompanying text.
[31] Kenneth Maddock, Your Land is Our Land: Aboriginal Land Rights (1983) 182–6, traces the history of this idea, particularly as expressed by John Locke, above n 27, and by the Swiss jurist Emer de Vattel, The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (first published 1758, 1834 ed).
[32] This proviso to Locke’s labour theory was to Locke as important a part of its ethical basis as the idea that useful labour deserves to be rewarded: see John Sanders, ‘Justice and the Initial Acquisition of Property’ (1987) 10 Harvard Journal of Law and Public Policy 367, 372–3; Locke, above n 27.
[33] See, eg, Canada: Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (1996) vol 2, 434–56 (‘RCAP Report’) (Canadian Aboriginal perspectives on the significance of land); Australia: Aboriginal Land Rights Commission, First Report of the Aboriginal Land Rights Commission (1973) (Australian Aboriginal perspectives); Amankwah, above n 13, 34–6 (traditional African perspectives).
[34] It seems difficult, for example, to raise a principled objection to Vattel’s criticism of excessive landholding by the church in Spain, which, together with punitive taxation by the King, led to insufficient agricultural production to feed the populace: Vattel, above n 31, 35.
[35] Calder [1973] SCR 313, 368 (Hall J), 328 (Judson J); 34 DLR (3rd) 145, 185 (Hall J), 156 (Judson J); Mabo [1992] HCA 23; (1992) 175 CLR 1 206–14 (Toohey J); Van Der Peet [1996] 2 SCR 507, 538–9; 137 DLR (4th) 289, 303 (Lamer CJ); Delgamuukw [1997] 3 SCR 1010, 1082 (Lamer CJ), 1125–6 (La Forest J); 153 DLR (4th) 193, 242 (Lamer CJ), 277 (La Forest J). Kent McNeil traces the ambivalence of Canadian courts in this area, pointing out that they have never unequivocally opted for either prior possession or custom as the basis for Aboriginal title, and that they have been inconsistent in defining the nature and content of Aboriginal title in terms of custom, while not in practice requiring proof of such custom to make a successful claim to title: Kent McNeil, ‘The Meaning of Aboriginal Title’ in Michael Asch (ed), Aboriginal and Treaty Rights in Canada (1997) 135, 136–48. This article was cited with approval by Lamer CJ in Delgamuukw [1997] 3 SCR 1010, 1082; 153 DLR (4th) 193, 243, and appears to have strongly influenced the Chief Justice’s approach in that case.
[36] Guerin v The Queen [1984] 2 SCR 335, 382; 13 DLR (4th) 321, 339 (‘Guerin’); Sparrow [1990] 1 SCR 1075, 1108; 70 DLR (4th) 385, 408; Amodu Tijani v The Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399, 402–3.
[37] Mabo [1992] HCA 23; (1992) 175 CLR 1, 206–14. In Delgamuukw, the rights flowing from prior possession at common law were accepted as one of the two sources of Aboriginal title, the other being ‘the relationship between common law and pre-existing systems of Aboriginal law’: Delgamuukw [1997] 3 SCR 1010, 1082; 153 DLR (4th) 193, 242.
[38] McNeil, Common Law Aboriginal Title, above n 24; Kent McNeil, ‘A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?’ [1990] MonashULawRw 5; (1990) 16 Monash University Law Review 91.
[39] Mabo [1992] HCA 23; (1992) 175 CLR 1, 208–11 (Toohey J); Megarry and Wade, above n 28, 39. There is perhaps an air of artificiality in applying this presumption to occupation by Aboriginal claimants, since its function may relate to the needs of a feudal society that had no relevance to pre-contact Aboriginal society: see, eg, Colin Kolbert and Norman Mackay, History of Scots and English Land Law (1977) 234, where the following explanation is given:
[P]rotection of possessors seems to have been an act of deliberate policy, perhaps for the following reason. The Royal courts had been supposed not to interfere with questions of title to land, which were left, or supposed to be left, as they actually were in Scotland, to the local feudal tribunals. But the Royal courts, thus debarred from questions of title, could protect possession on the ground of maintaining the king’s peace. The Angevin kings therefore obtained power, popularity and public peace, to say nothing of handsome litigation fees, by protecting the possessor as such.
Elsewhere in Mabo, Toohey J is sharply critical of those who would apply the fiction of original Crown possession beyond its original utility: Mabo [1992] HCA 23; (1992) 175 CLR 1, 211–12.
[40] See generally Guido Calebresi and A Douglas Meland, ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’ (1972) 85 Harvard Law Review 1089.
[41] Alfred Simpson, An Introduction to the History of Land Law (1961) 24–43.
[42] Rose, above n 27, 77–87; Merrill, above n 29, 1130–1.
[43] See, eg, Powell v MacFarlane (1977) 38 P & CR 452, 470–1.
[44] See, eg, Seddon v Smith (1877) 36 LT 168; Lord Advocate v Lord Lovat (1880) 5 AC 273; Littledale v Liverpool College [1899] UKLawRpCh 154; [1900] 1 Ch 19; Clement v Jones [1909] HCA 11; (1909) 8 CLR 133; Treloar v Nute [1976] 1 WLR 1295.
[45] See above nn 30–32 and accompanying text.
[46] This is apparent not only in the law of possession, but also with respect to priorities conflicts, where the property rights of a prior interest holder often give way to those of a subsequent interest holder on the grounds that the prior interest holder has engaged in some conduct that morally negates his or her prima facie claim: see, eg, Northern Counties of England Fire Insurance Company v Whipp [1884] UKLawRpCh 98; (1884) 26 Ch D 482; Walker v Linom [1907] UKLawRpCh 65; [1907] 2 Ch 104; Rice v Rice [1853] EngR 1102; (1853) 2 Drew 73; 61 ER 646.
[47] McNeil cites Red House Farms (Thorndon) Ltd v Catchpole (1976) 244 EGLR 295 (‘Red House Farms’) as an example of how little adaptation may be required to apply common law possession standards to Aboriginal land use and reach a favourable result for Aboriginal claimants. In Red House Farms the defendant successfully established adverse possession based on his regular use of marshy, unimproved land for hunting purposes. McNeil goes so far as to argue that it would be ‘highly discriminatory’ to fail to recognise a full possessory fee simple where Aborigines can demonstrate similar land use: McNeil, ‘The Meaning of Aboriginal Title’, above n 35, 143–4. However, it must be recognised that there may be limits to this approach — for example, if a court were to find that land was eminently suitable for agricultural purposes, but had been used by Aborigines only for hunting and gathering, a culturally insensitive court might well find that possession had not been made out.
[48] Mabo [1992] HCA 23; (1992) 175 CLR 1, 187–8 (Toohey J). Here his Honour is speaking of the requirements of ‘occupancy’ that would give rise to traditional title, but elsewhere in the judgment, in discussing possessory title, he invokes the common law presumption that an occupier has lawful possession: at 212–3. It is unclear whether his Honour would have applied a different standard to establishing factual occupation for the purposes of establishing possessory title.
[49] Delgamuukw [1997] 3 SCR 1010, 1099–100; 153 DLR (4th) 193, 255 (Lamer CJ).
[50] McNeil, Common Law Aboriginal Title, above n 24, 85.
[51] Ibid 216–17.
[52] Limitation of Actions Act 1974 (Qld) s 6(4); Limitation Act 1935 (WA) s 36; Limitation of Actions Act 1958 (Vic) s 7; Crown Lands Act 1989 (NSW) s 170. In other Australian jurisdictions, adverse possession against the Crown is possible, but a longer limitation period of 30 years in Tasmania (Limitation Act 1974 (Tas) s 10(1)) or 60 years in South Australia (by virtue of reception of the Crown Suits Act 1769 (Imp) 9 Geo 3, c 16 is prescribed. Depending on the terms of the legislation, adverse possession claims against the Crown by Aboriginal claimants may be possible: see, eg, Afton Band of Indians v Attorney General Nova Scotia (1978) 85 DLR (3rd) 454, where an Indian band sought a certificate of title based on adverse possession for land its members had occupied for over 100 years, though it had been granted by the Crown to one Colin Campbell in 1821. The court found that 60 years of adverse possession had been made out, but dismissed the action because the band had no standing to sue. Since there was no evidence of a successor in title to Colin Campbell, and no other claimant came forward, presumably the claim was of possession against the Crown.
[53] For example, in Adams [1996] 3 SCR 101, 124–9; 138 DLR (4th) 657, 672–5, the evidence was that the area in which the appellant asserted a right to fish had been a ‘war zone’ between rival Indian tribes, and therefore not subject to the appellant’s ancestors’ exclusive control, in the post-contact period. The court found, however, that the element of exclusivity was not required in the context of the more limited Aboriginal fishing rights being asserted by the appellant, and that the appellant's ancestors had used the area continuously, through not exclusively, since European contact.
[54] Prior to the Supreme Court of Canada's rulings in Delgamuukw [1997] 3 SCR 1010, 1064–5; 153 DLR (4th) 193, 229–30 and Van der Peet [1996] 2 SCR 507, 558–9; 137 DLR (4th) 289, 317–8 that Aboriginal rights litigation demands a ‘unique’ approach to admissibility and interpretation of evidence that takes into account both Aboriginal and non-Aboriginal perspectives, the Canadian experience was mixed on use of oral histories and other hearsay evidence. A useful review of the ways in which established exceptions to the hearsay rule have been or may be applied in Aboriginal rights litigation is given by Brian Glover and Mary Macauley, ‘Snow Houses Leave No Ruins: Unique Evidence in Aboriginal and Treaty Rights Cases’ (1996) 60 Saskatchewan Law Review 47, 60–78. While the courts did show flexibility in adapting common law rules in this area, the authorities cited by the authors show that there were limits to this approach. Moreover, even if such evidence was admitted in doubtful cases, trial courts tended to discount its weight for the same reasons as they called into question its admissibility: see, eg, Delgamuukw v The Queen (1991) 79 DLR (4th) 185, 259–60 (BC SC), varied in Delgamuukw v The Queen (1993) 104 DLR (4th) 470 (BC CA) and reversed in Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 193; A-G for Ontario v Bear Island Foundation (1984) 15 DLR (4th) 321, 336–40 (Ont HC), affirmed on other grounds A-G for Ontario v Bear Island Foundation (1991) 83 DLR (4th) 381 (SCC). See also Graeme Neate, ‘Proof of Native Title’ in Barbara Harrigan and Simon Young (eds), Commercial Implications of Native Title (1997) 239, 275–82. It remains to be seen how the lower courts will apply the new approach set out by Delgamuukw and Van der Peet.
[55] Relaxation of the rules of evidence in Aboriginal rights cases is now clearly the law in Canada: see Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 193 and Van Der Peet [1996] 2 SCR 507; 137 DLR (4th) 289. In Australia, Delgamuukw has been followed on this point in Ward [1998] FCA 1478; (1998) 159 ALR 483, 511. Likewise, in Yarmirr [1998] FCA 771; (1998) 156 ALR 370, 382 [21], the previous s 82 of the Native Title Act was applied together with ss 73(1)(d) and 74(1) of the Evidence Act 1995 (Cth) to authorise admission of oral history and other hearsay evidence.
[56] See, eg, Mason (1994) 34 NSWLR 572, 588–9 where Kirby P noted that he would have been willing to infer that the appellant could link his purported native title right to fish back to pre-1788 practices, despite gaps in the evidence, given the problems of proof in cases of this kind. A similar approach was adopted in Ward [1998] FCA 1478; (1998) 159 ALR 483, 532, where the court held that there was no requirement that a ‘biological’ connection be made between each member of the claimant community and an ancestor who was in occupation of the claim area at the time of sovereignty; rather, links between the present community and the community in occupation at sovereignty were sufficient. See also Yarmirr [1998] FCA 771; (1998) 156 ALR 370, 406 [88]. Likewise, in Simon v The Queen [1985] 2 SCR 387, 408; 24 DLR (4th) 390, 407 the court allowed a Micmac Indian to claim the benefit of a 1752 treaty despite the lack of proof of direct descendency from those covered by the treaty, given that ‘[t]he Micmacs did not keep written records’, and to impose too high a standard of proof would render the treaty rights nugatory.
[57] Delgamuukw [1997] 3 SCR 1010, 1102–3; 153 DLR (4th) 193, 257 (Lamer CJ).
[58] Ibid 1102–3 (Lamer CJ), 1130–1 (La Forest J); 257 (Lamer CJ), 281 (La Forest J).
[59] In Van Der Peet [1996] 2 SCR 507, 558–9; 137 DLR (4th) 289, 317–18, Lamer CJ warns against the dangers of ‘undervaluing’ Aboriginal evidence because it does not conform to the standards of other litigation, thus implicitly linking the relaxation of rules of evidence in Aboriginal rights cases with the differing cultural values of Aboriginal peoples: see below n 180 and accompanying text. Likewise, in Delgamuukw [1997] 3 SCR 1010, 1102–3; 153 DLR (4th) 193, 257, Lamer CJ justifies the relaxation of the requirement of proof of continuity by referring to the purposes of Aboriginal rights and the need to avoid perpetuating historical injustices caused by the failure of colonisers to respect Aboriginal rights to land, thus implicitly invoking the other rationales. This approach was followed by Lee J in Ward [1998] FCA 1478; (1998) 159 ALR 483, 504.
[60] Mabo [1992] HCA 23; (1992) 175 CLR 1, 214.
[61] Toohey J notes that the plaintiffs in Mabo conceded that possessory title, like traditional native title, would be extinguishable by ‘clear and plain’ legislation, and expresses the opinion that ‘[i]t may have been too great a concession that a fee simple arising from possession is “extinguishable” in the same way as traditional title’: ibid 207.
[62] Ibid 60 (Brennan J; Mason CJ and McHugh J concurring), 88–9 (Deane and Gaudron JJ); Delgamuukw [1997] 3 SCR 1010, 1089–90; 153 DLR (4th) 193, 247–8 (Lamer CJ). This is not a universal view: see McNeil, Common Law Aboriginal Title, above n 24, 221–35 and authorities cited therein.
[63] Amankwah, above n 13; Aboriginal Land Rights Commission, above n 33; RCAP Report, above n 33.
[64] This is, in part, the explanation offered for the inalienability rule by Delgamuukw [1997] 3 SCR 1010, 1090–1; 153 DLR (4th) 193, 248.
[65] J W Harris, Property and Justice (1996) 219. In the United States, the ‘allotment’ policy which operated between 1887 and 1934, under which Indians were granted individualised parcels of land which could be sold to non-Indians, resulted in a shrinkage of the Indian land base from 138 million acres to 48 million acres during its 60 years of operation: see Monroe Price and Robert Clinton, Law and the American Indian (2nd ed, 1983) 629. This policy is regarded as having been disastrous for American Indians.
[66] ‘[T]hings that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness’: Aristotle, Ethica Nichomacea (William Ross trans, 1925) [1131a]–[1131b], cited in Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143, 165–6; 56 DLR (4th) 1, 11.
[67] UN Charter art 1(3).
[68] GA Res 217A, 3 UN GAOR (183rd plen mtg), UN Doc A/Res/217A (1948) art 1.
[69] Opened for signature 19 December 1966, 999 UNTS 171, art 26 (entered into force 23 March 1976).
[70] Opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969).
[71] Racial Discrimination Act 1975 (Cth) (‘Racial Discrimination Act’).
[72] Canadian Charter of Rights and Freedoms s 15; Canadian Human Rights Act, RSC 1985 c H-6.
[73] [1992] HCA 23; (1992) 175 CLR 1, 42–3 (Brennan J).
[74] Mabo [No 1] (1988) 166 CLR 186, 218.
[75] [1995] HCA 47; (1995) 183 CLR 373.
[76] Mabo [No 1] (1988) 166 CLR 186, 206.
[77] See above nn 54–59 and accompanying text.
[78] The sameness–difference dilemma is a familiar idea in equality analysis in other contexts: see, eg, Martha Minow, ‘Learning to Live with the Dilemma of Difference: Bilingual and Special Education’ (1985) 48 Law and Contemporary Problems 157; Marcia Neave, ‘From Difference to Sameness — Law and Women’s Work’ [1992] MelbULawRw 18; (1992) 18 Melbourne University Law Review 768.
[79] See, eg, the argument presented by Wojciech Sadurski, ‘Gerhardy v Brown v The Concept of Discrimination: Reflections on a Landmark Case that Wasn’t’ [1986] SydLawRw 2; (1986) 11 Sydney Law Review 5, 7: ‘It is a substantive moral argument about the justness of a particular measure with respect to a particular social group in a particular historical context which is decisive for our judgments on discrimination’. Sadurski’s argument that the racial distinctions drawn by the Native Title Act are not discriminatory in their historical and social context was cited by the High Court in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 483–4.
[80] In Canada in 1991, Aborigines had an average income of CAN$14,561 compared to the non-Aborigines’ average of CAN$24,001; the Aboriginal unemployment rate was 24.6% compared to the non-Aboriginal rate of 10.2%; 3% of Aborigines had a university degree and 42.5% had completed secondary school, compared to 11.4% and 61.8% respectively of the non-Aboriginal population: RCAP Report, above n 33, vol 5, 29–30. A similar picture emerges from Australian figures: in 1991 60% of indigenous single-parent families had income of $A20,000 or less, compared to 43% of their non-indigenous counterparts; 51% of two-parent indigenous families had income of $A30,000 or less compared to 20% of their non-indigenous counterparts; in 1994 indigenous youth unemployment was 50% compared to 22% for non-indigenous youth; in 1991 only a quarter as many indigenous as non-indigenous persons had post-secondary qualifications; and in 1994, 57% of 16 year-old and 31% of 17 year-old indigenous children attended school compared to 80% and 60% respectively of non-indigenous children: Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) 551–4.
[81] Even here, it would seem to be arbitrary to consider only past treatment that was not identical — in many cases in the past, identical application of rules and standards to Aboriginals and non-Aboriginals would have resulted in relative hardship to the former. So defining substantive equality in terms of the treatment needed to address present effects of past discrimination does not fully solve the problem, because it does not define past discrimination.
[82] Mabo [1992] HCA 23; (1992) 175 CLR 1, 188–92.
[83] See, eg, Simon v The Queen [1985] 2 SCR 387; 24 DLR (4th) 390; Worcester v Georgia, 31 US 483 (1832); Jones v Meehan, [1899] USSC 152; 175 US 1 (1899).
[84] The claim to equality of status is put at a very general level by Michael Detmold, ‘Law and Difference: Reflections on Mabo’s Case’ [1993] SydLawRw 12; (1993) 15 Sydney Law Review 159, 162. Detmold notes that from a moral point of view there is no more reason to subject the European invaders to Aboriginal law than there was to apply European law to the Aborigines. Accordingly, he concludes that recognition of native title is morally mandated, but unilateral extinguishment lacks a moral foundation. Similar language is used by the court in Van der Peet [1996] 2 SCR 507, 550–1; 137 DLR (4th) 289, 312 regarding incorporation of Aboriginal perspectives into the common law of Aboriginal rights: ‘the only fair and just reconciliation is ... one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.’ See below nn 152–176 and accompanying text.
[85] Mabo [1992] HCA 23; (1992) 175 CLR 1, 34–5 (Brennan J; Mason CJ and McHugh J concurring), 78–9 (Deane and Gaudron JJ).
[86] Ibid 57 (Brennan J; Mason CJ and McHugh J concurring):
The preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land and recognises in the indigenous inhabitants of a settled colony the rights and interests recognized ... as surviving to the benefit of the residents of a conquered colony.
[87] Ibid 34–5 (Brennan J; Mason CJ and McHugh J concurring).
[88] Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995) chh 5–6. See also Patrick Macklem, ‘Distributing Sovereignty: Indian Nations and Equality of Peoples’ (1993) 45 Stanford Law Review 1311, 1355–63, where the author argues for recognition of both formal and substantive equality for indigenous peoples (but with a less individualistic focus than Kymlicka).
[89] Kymlicka, above n 88, 126.
[90] Ibid 131. As to the way to resolve this indeterminacy, Kymlicka, at 131, comments as follows:
These indeterminacies are unavoidable, given the complexity of the interests, principles and historical circumstances at stake. As a result, many important areas of conflict can only be resolved on a case-by-case basis, in the light of the particular history of a group, its status in the larger society, and the choices and circumstances of its members. In short, they must be resolved politically, by good-faith negotiations and the give and take of democratic politics.
Though Kymlicka sees this as being primarily an issue for the political process, legal rights as defined by the courts are an essential part of the background to ‘good faith negotiations’, and the logic which supports political recognition of Aboriginal rights would seem to be just as applicable to their legal recognition.
[91] Ibid 131, 109–13, 144–9.
[92] Ibid 83.
[93] Ibid 89–90.
[94] In a recent critique of Kymlicka’s work, Richard Spaulding has argued that the existence of Aboriginal societies as self-governing entities prior to their colonisation by Europeans provides a stronger basis for their assertion of the right to preserve their cultural integrity, in that it supports a ‘right of independent action’; that is, a basis for self-government powers that are inherent rather than devolved from the state: see Richard Spaulding, ‘Peoples as National Minorities: A Review of Will Kymlicka’s Arguments for Aboriginal Rights from a Self-Determination Perspective’ (1997) 47 University of Toronto Law Journal 35, 65–7. For the purposes of this discussion, however, it is not important what the ultimate source of the right is, since similar conclusions may be reached about its scope whether it be viewed as inherent or devolved: see Kymlicka, above n 87, 118.
[95] Kymlicka, above n 88, 107–30.
[96] Ibid 50–7.
[97] Kymlicka cites in particular the ‘millet system’ of the Ottoman empire, under which Muslims, Christians and Jews were recognised as self-governing units: ibid 156–8. He also points out that the problems of nationality in the British Empire ‘led to a wealth of experimentation regarding communal representation, language rights, treaties and other historical agreements between national groups, federalism, land rights, and immigration policy’: ibid 55.
[98] See below nn 119–125 and accompanying text.
[99] Louis Sohn, ‘The New International Law: Protection of the Rights of Individuals Rather than States’ (1982) 32 American University Law Review 1, 5.
[100] See above nn 67–70 and accompanying text for international human rights instruments incorporating a right to equality.
[101] Minority Schools in Albania (Advisory Opinion) [1935] PCIJ (ser A/B), No 64.
[102] Opened for signature 19 December 1966, 999 UNTS 171, art 26 (entered into force 23 March 1976).
[103] GA Res 135, 47 UN GAOR (92nd plen mtg), UN Doc A/47/678/Add.2 (1992).
[105] See generally S James Anaya, Indigenous Peoples in International Law (1996) 100–1, and cases cited therein, particularly Lovelace v Canada: Human Rights Committee, Report of the Human Rights Committee, Communication No R6/24, UN Doc A/36/40 Supp No 40 (1977), where the United Nations Human Rights Committee found that Canada had violated the principles of article 27 in providing by statute that an Indian woman who married a non-Indian would lose her Indian status, thereby losing the benefit of residency on an Indian reserve. By denying the complainant residency on her reserve, the Committee reasoned, the statute interfered with her right of access to her native culture and language in community with the other members of her group.
[106] Representatives of indigenous peoples have long resisted classification as mere minorities, arguing that they constitute distinct entities within the state: see Stephan Marquardt, ‘International Law and Indigenous Peoples’ (1995) 3 International Journal of Group Rights 47, 70.
[107] Opened for signature 26 June 1957, 328 UNTS 247 (entered into force 2 June 1959). This convention, though much criticised for its assimilationist and integrationist focus, is important in that it established a foothold for specifically indigenous rights in international human rights law. Anaya, above n 105, 45.
[108] Opened for signature 27 June 1989, 28 ILM 1382 (entered into force 5 September 1991) (‘ILO Convention No 169’). Australia has not ratified this convention.
[109] Anaya, above n 105, 47–9.
[110] UN Charter art 1(2).
[111] ILO Convention No 169 art 6(1)(b) speaks of the rights of indigenous ‘peoples’, including their right to ‘freely participate...at all levels of decision-making’ that affect them, but art 1(3) explicitly provides that ‘the use of the term “peoples” in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.’
[112] Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/1995/2, E/CN.4Sub.2/1994/56, 105 (1994); 34 ILM 541 (‘Draft Declaration’).
[113] Ibid art 3.
[114] See, eg, Anaya, above n 105, 53; Lisa Strelein, ‘The Price of Compromise: Should Australia Ratify ILO Convention 169?’ in Greta Bird, Gary Martin and Jennifer Nielsen (eds), Majah: Indigenous Peoples and the Law (1996) 63, 84–5.
[115] The right to self-determination is linked to claims by indigenous peoples to an inherent right to ‘self-government’ respecting various matters of importance to their cultural preservation and development. The Draft Declaration, above n 112, art 31, provides as follows:
Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
Indeed, self-determination is seen by Anaya as a principle underpinning both the more established cultural rights and more recent claims to rights of self-government, and as being reconcilable with state sovereignty as long as it is recognised that self-determination does not necessarily require full political independence: Anaya, above n 105, 97–125.
[116] See, eg, Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.
[117] In Canada, for example, international human rights instruments have been extensively relied upon in interpreting the Canadian Charter of Rights and Freedoms: see, eg, R v Keegstra [1990] INSC 224; [1990] 3 SCR 697. Even in the common law context, international human rights may have an impact: see, eg, Re Drummond Wren [1945] 4 DLR 674, where the court relied in part on the United Nations Charter in striking down a restrictive covenant that purported to prevent landowners from selling their land to Jews.
[118] In Canada, this rationale may be regarded as being reflected more directly in the constitutional entrenchment of Aboriginal rights in s 35 of the Constitution Act 1982, and in the numerous treaties and land claims settlements reached since English and French settlement commenced.
[119] Mabo [1992] HCA 23; (1992) 175 CLR 1, 60 (Brennan J; Mason CJ and McHugh J concurring). Deane and Gaudron JJ, though not in fundamental disagreement with respect to custom as the basis of native title, leave open the question of whether title can be lost as a result of abandonment of traditional customs and ways where the relevant tribe or group continues to occupy or use the land: at 109–10. Cf Toohey J’s view that an indigenous society cannot surrender its rights by modifying its way of life: at 192.
[120] Canada’s Supreme Court has recently found a slightly different way of integrating the first possession and cultural identity rationales. According to the majority of the court in Delgamuukw, an Aboriginal group that establishes title through demonstrating exclusive occupation prior to Canadian sovereignty is prima facie entitled to use the land in any manner it chooses, subject to the ‘inherent limitation’ that such use cannot be irreconcilable with the nature of the group’s attachment to the land. This approach, too, sees abandonment of cultural traditions as undercutting the basis on which Aboriginal claimants deserve to be recognised with land rights: Delgamuukw [1997] 3 SCR 1010, 1083; 153 DLR (4th) 193, 243.
[121] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61–2 (Brennan J; Mason CJ and McHugh J concurring), 109–10 (Deane and Gaudron JJ). Even in the context of discussing possessory title, Toohey J clearly treats the plaintiffs’ claim as being communal in nature, referring repeatedly to ‘the Meriam people’ as being in possession or occupation: at 212–13. In Delgamuukw, the court went so far as to state categorically that ‘[a]boriginal title cannot be held by individual aboriginal persons’: Delgamuukw [1997] 3 SCR 1010, 1082–3; 153 DLR (4th) 193, 242.
[122] Mabo [1992] HCA 23; (1992) 175 CLR 1, 62 (Brennan J; Mason CJ and McHugh J concurring): ‘[individual] rights and interests are, so to speak, carved out of the communal native title’.
[123] In Wik (1996) 187 CLR 1, 177, Gummow J points out that English law also historically recognised ‘notions of communal title which confer usufructuary rights’ in the case of rights of common such as common of pasture. While this serves to point out that communal rights have never been entirely foreign to the common law, it also reinforces the argument set out above that justice requires pluralism where cultures collide. Simpson suggests that the probable origin of rights of common was the traditional property rights of Anglo-Saxon villagers before the Norman conquest, which remained enforceable after the conquest as ‘customary’ rights: Simpson, above n 41, 101–2. Copyhold tenure, too, has its origins in the customary rights of Anglo-Saxon villagers or ‘villeins’; although such rights were not initially protected in the common law courts, they eventually gained the status of a recognised form of tenure, though local custom was still central to their content: ibid 146–55. Ultimately (long after the Anglo-Saxons ceased to exist as a discrete cultural entity, it may be observed) rights of common became virtually obsolete as they were extinguished by enclosure legislation: ibid 243–4; while copyhold tenures were converted to fees simple: ibid 257–8. The parallels to today’s native title debates are striking — in both cases, the courts responded to the problems of cultural collision by seeking to develop cross-cultural norms, which, in the case of Anglo-Saxon property rights, have now fallen into virtual disuse after the Anglo-Saxon culture was assimilated into modern English culture.
[124] In Mabo at the trial level, a major and long-running dispute arose between the parties as to the appropriateness of introducing hearsay evidence of customary law, but was never finally resolved by the court: see Nonie Sharp, No Ordinary Judgment (1996) 105–14. At least, however, the court did entertain the possibility of departing from the established rules in the interests of cultural understanding. Several Canadian decisions take a broad view of admissibility in an attempt to bridge the cultural gap between Aboriginal and non-Aboriginal litigants, and this approach now has the imprimatur of the Supreme Court: see Delgamuukw [1997] 3 SCR 1010, 1078–9; 153 DLR (4th) 193, 238–9 and Van der Peet [1996] 2 SCR 507, 558–9; 137 DLR (4th) 289, 317–8; and was applied in Australia in Ward [1998] FCA 1478; (1998) 159 ALR 483, 512: see also above nn 54–59 and accompanying text. Section 82 of the Native Title Act, which formerly gave the court broad discretion to admit otherwise inadmissible evidence, was amended in 1998 to provide that ‘the court is bound by the rules of evidence, except to the extent that the court otherwise orders’. It remains to be seen whether this amendment will foreclose or discourage a broader approach.
[125] For an approach to establishing possession in Australia, see Mabo [1992] HCA 23; (1992) 175 CLR 1, 187–8 (Toohey J) and in Canada see Calder [1973] SCR 313, 328; 34 DLR (3rd) 145, 156 (Judson J) and Delgamuukw [1997] 3 SCR 1010, 1099–100; 153 DLR (4th) 193, 255–6 (Lamer CJ). In the US, see Sac and Fox Tribe of Indians of Oklahoma v United States, 383 F 2d 991 (Ct Cl, 1967); United States v The Seminole Indians of Florida, 180 Ct Cl 375 (1967).
[126] Kymlicka, above n 88, ch 6.
[127] Ibid 110:
At some point, demands for increased powers or resources will not be necessary to ensure the same opportunity to live and work in one’s culture. Instead, they will simply be attempts to gain benefits denied to others, to have more resources to pursue one’s way of life than others have. This was clearly the case with apartheid, where whites constituting under 20% of the population controlled 87% of the land mass of the country, and monopolised all the important levers of state power.
One could imagine a point where the amount of land reserved for indigenous peoples would not be necessary to provide reasonable external protections, but rather would simply provide unequal opportunities to them. Justice would then require that the holdings of indigenous peoples be subject to the same redistributive taxation as the wealth of other advantaged groups, so as to assist the less well off in society. In the real world, of course, most indigenous peoples are struggling to maintain the bare minimum of land needed to sustain the viability of their communities. But it is possible that their land holdings could exceed what justice allows.
In a footnote to this passage, Kymlicka elaborates on the point, arguing that it is a ‘mistake’ to focus too much on historical property rights and the associated Aboriginal claim for compensatory justice, given that ‘the original European settlers and later immigrants have now produced hundreds of millions of descendants, and this land is the only home they know’: at 219–20. Rather, his argument ‘situates land claims within a theory of distributive justice, rather than compensatory justice’. The same would be true generally of claims to self-government powers to ensure cultural security, and thus equality acts as a ‘cap’ on self-government claims: see Spaulding, above n 94, 66.
[128] Kymlicka distinguishes between immigrants and colonised national minorities on the basis that the former have chosen to leave their original homeland and join a new nation, and that it is therefore reasonable to expect that they will assimilate to a certain extent: Kymlicka, above n 88, 14, 76–80. See also Macklem, ‘Distributing Sovereignty’, above n 88, 363–5, arguing that formal equality between peoples requires recognition of Aboriginal sovereignty, but no such recognition for immigrant groups. Spaulding argues that it appears to be implicit in Kymlicka’s theory (though not fully articulated) that a colonised community that has not consented to being incorporated into a state through treaty or otherwise, has a right to autonomy which is bounded only by the distributive justice concerns set out in the previous footnote: Spaulding, above n 94, 65–7.
[129] See below nn 133–134 and accompanying text.
[130] Mabo [1992] HCA 23; (1992) 175 CLR 1, 35–7 (Brennan J; Mason CJ and McHugh J concurring).
[131] Ibid 61 (Brennan J). He refers, at 59, in this context to the Case of Tanistry (1608) Davis 28; 80 ER 516, 94–9 where the court declined to give effect to the Irish custom of tanistry in part because it was founded in violence. Likewise, in Yarmirr [1998] FCA 771; (1998) 156 ALR 370, 429–31 [133–6], Olney J found that it would ‘fracture a skeletal principle’ of the common law to recognise exclusive native title rights in the seas inconsistent with the public rights to fish and navigate, enshrined in the Magna Carta. Other examples where courts declined to enforce customary law on repugnancy grounds in the West African context are described by Amankwah, above n 13, 26–7.
[132] See generally Australian Law Reform Commission, above n 13, vol 1, 79–94.
[133] This point is made by Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195, 208–9, from an international law perspective.
[134] Mabo [1992] HCA 23; (1992) 175 CLR 1, 34–6 (Brennan J; Mason CJ and McHugh J concurring); Blackstone, above n 28, vol 1, 106–8; Australian Law Reform Commission, above n 13, vol 1, 52–5.
[135] See the discussion of Van der Peet and its companion cases, below nn 152–182 and accompanying text.
[136] See below nn 183–197 and accompanying text.
[137] See below nn 198–242 and accompanying text.
[138] [1973] SCR 313; 34 DLR (3rd) 145.
[139] See especially the judgment of Hall J in Calder [1973] SCR 313, 368, 372–4; 34 DLR (3rd) 145, 185, 190.
[140] Many cases consider hunting and fishing rights, which were a feature of most major treaties: see, eg, R v Wesley [1932] 4 DLR 774; R v Sikyea (1964) 43 DLR (2nd) 150, affirmed in Sikyea v The Queen (1965) 50 DLR (2nd) 80; R v White (1964) 50 DLR (2nd) 613 affirmed in R v White (1966) 52 DLR (2nd) 481. Treaty rights have undergone a renaissance in recent years, as litigants seek and obtain more favourable interpretations in the light of the ‘growing sensitivity to native rights in Canada’: Simon v The Queen [1985] 2 SCR 387, 401; 24 DLR (4th) 390, 401 (expansive interpretation of treaty right to hunt ‘as usual’ to include modern weapons); R v Sioui [1990] 1 SCR 1025, 1045; 70 DLR (4th) 427, 443 (ambiguous document presumed to be treaty guaranteeing substantive rights to free exercise of religion and customs and liberty of trading with the English, despite argument that it may have been simply a ‘safe conduct’ pass); R v Badger [1996] 1 SCR 771; 133 DLR (4th) 324 (treaty interpreted to include the right to hunt on private but unoccupied lands).
[141] Treaty No 6 in Indian Treaties and Surrenders (1891) vol 2, No 157A, 35, concluded in 1876 for example, which covers a large area in Western Canada, contained clauses promising ‘to maintain schools for instruction ... whenever the Indians of the reserve shall desire it’ and ‘that a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent’. The ‘medicine chest’ clause was invoked to prevent the Government from deducting moneys from band funds for drugs and medical supplies in Dreaver v The King (Unreported, Exchequer Court of Canada, Angers J, 10 April 1935) extracted in Bradford Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1985) 399–401; but rejected as the basis for an exemption from a medical care levy in R v Johnston (1966) 56 DLR (2nd) 749.
[142] See R v Sioui [1990] 1 SCR 1025, 1038–9; 70 DLR (4th) 427, 437.
[143] ‘Status’ Indians are those who are members of Indian bands registered under the Indian Act, RSC 1985, c I–5, s 5 and thereby entitled to certain rights and benefits. Many of Canada’s Aboriginal people do not fall into this category.
[144] Richard Bartlett, ‘The Indian Act of Canada’ (1978) 27 Buffalo Law Review 581, outlines the history of Indian band management in Canada.
[145] (1976) 71 DLR (3rd) 159.
[146] [1978] 1 SCR 104; 75 DLR (3rd) 434.
[147] Connolly v Woolrich (1867) 17 RJQ 75.
[148] Re Noah Estate [1961] 36 WWR 577; Re Katie’s Adoption Petition [1962] 38 WWR 100. Such recognition was rejected, however, where the relevant statutory provisions did not admit such an interpretation: Mitchell v Dennis [1984] 2 WWR 449.
[149] See below nn 225–242 and accompanying text.
[150] Sparrow [1990] 1 SCR 1075, 1099; 70 DLR (4th) 385, 402.
[151] More recently, in Van der Peet [1996] 2 SCR 507, 562; 137 DLR (4th) 289, 320, the Supreme Court of Canada explained the relationship between Aboriginal rights and Aboriginal title in the following terms:
[A]boriginal rights and aboriginal title are related concepts; aboriginal title is a sub-category of aboriginal rights which deals solely with claims of rights to land. The relationship between aboriginal title and aboriginal rights must not, however, confuse the analysis of what constitutes an aboriginal right. Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organization 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 relationship of aboriginal peoples with the land that they lose sight of the other factors relevant to the identification and definition of aboriginal rights.
Aboriginal title has been further described by the court as being ‘the right to the land itself’, based on a showing of exclusive occupation at the time British sovereignty was established, while Aboriginal rights are the rights to carry on activities, based on showing that such activities were ‘integral to the distinctive culture’ of the claimant group at the time of European contact: Delgamuukw [1997] 3 SCR 1010, 1093–5; 153 DLR (4th) 193, 250–2.
[152] [1996] 2 SCR 507; 137 DLR (4th) 289. A useful general review of the case is provided by David Elliott, ‘Fifty Dollars of Fish: A Comment on R v Van der Peet’ (1997) 35 Alberta Law Review 759, while a somewhat more critical analysis is offered by Russel Barsh and James Henderson, ‘The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand’ (1997) 42 McGill Law Journal 993. See also sources cited in above n 21.
[153] In its first appearance in Sparrow, the term ‘integral to the distinctive culture’ seemed to be more of a casual phrase than a deliberate test, and Barsh and Henderson criticise the court heavily for reinterpreting it in Van der Peet into a restrictive and even imperialistic requirement that Aborigines conform to stereotypical non-Aboriginal judgements about what Aboriginal culture consists of: Barsh and Henderson, above n 152, 998–1005.
[154] Van der Peet [1996] 2 SCR 507, 550–1; 137 DLR (4th) 289, 311–12.
[155] Ibid 551–3; 312–13.
[156] Ibid 553–4; 313–15.
[157] Ibid 554–8; 315–17.
[158] Ibid 558–9; 317–18.
[159] Ibid 559; 318.
[160] Ibid 559–60; 318–19.
[161] Ibid 560–1; 319.
[162] Ibid 561–2; 320.
[163] Ibid.
[164] Adams [1996] 3 SCR 101, 117–18; 138 DLR (4th) 657, 667.
[165] For example, in Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development [1980] 1 FCR 518, 556; 107 DLR (3rd) 513 (‘Baker Lake’), the court found that Aboriginal title had been established, but the title ‘encompasses only the rights to hunt and fish as [the claimant’s] ancestors did’: at 544. Under the Supreme Court of Canada’s current doctrine, it appears that these rights could be established as Aboriginal rights without the claimants needing to meet the potentially stricter tests for establishing Aboriginal title. A possible divergence in terminology between Canada and Australia seems to be alluded to by Gummow J in Wik, where his Honour notes that Aboriginal rights ‘encompass more than what in Canada is regarded as aboriginal title’ (emphasis added): Wik (1996) 187 CLR 1, 182 fn 674.
[166] Such rights may by their very nature be ‘site-specific’: see Adams [1996] 3 SCR 101, 117–19; 138 DLR (4th) 657, 667–8.
[167] Gardner [1996] 2 SCR 821; 138 DLR (4th) 204.
[168] Casimel v Insurance Corporation of British Columbia (1994) 106 DLR (4th) 720.
[169] Corbiere v Canada (Minister of Indian and Northern Affairs) (1996) 142 DLR (4th) 122, 130–5.
[170] Van der Peet [1996] 2 SCR 507, 534–5; 137 DLR (4th) 289, 300.
[171] Ibid 550; 311.
[172] Ibid 551; 312.
[173] Sparrow [1990] 1 SCR 1075, 1093; 70 DLR (4th) 385, 397, citing Brian Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 Canadian Bar Review 727.
[174] For an interesting example of such development, see the description of Navajo customary law, and particularly principles of due process analogous to those guaranteed by the US Bill of Rights, in Daniel Lowery, ‘Developing a Tribal Common Law Jurisprudence: The Navajo Experience, 1969–1992’ (1993) 18 American Indian Law Review 381, 420–8.
[175] McLachlin J, dissenting in Van der Peet, was clearly troubled by the indeterminacy of the ‘integral to a distinctive culture’ test as applied by the majority, and proposed instead an ‘empirical historic’ approach: [1996] 2 SCR 507, 637–40; 137 DLR (4th) 289, 375–7. This criticism seems to be justified to an extent. Elliott, for example, traces seven different ways in which the right to fish commercially (at issue in Van der Peet and its companion cases) was expressed as they progressed through the courts. He queries, however, whether McLachlin J’s approach would prove any more determinate: see Elliott, above n 152, 772–3.
[176] Gladstone [1996] 2 SCR 723; 137 DLR (4th) 648, Van der Peet [1996] 2 SCR 507; 137 DLR (4th) 289 and NTC Smokehouse [1996] 2 SCR 672; 137 DLR (4th) 528.
[177] William Henderson and Derek Ground, ‘Survey of Aboriginal Land Claims’ (1994) 26 Ottawa Law Review 187. It is not clear how the authors account for the Baker Lake case, though this statement could be explained by the limited nature of the Aboriginal title established in that case. It may be that this record will improve given the more generous approach to establishing Aboriginal title claims set out by the Supreme Court of Canada in Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 193.
[178] Such was the holding of a majority of the British Columbia Court of Appeal in Delgamuukw v The Queen (1993) 104 DLR (4th) 470 (reversed in Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 193). The Supreme Court of Canada allowed an appeal from the Court of Appeal's decision and ordered a retrial on the basis that errors had been made at trial in the treatment of evidence and the pleadings, which might have altered the result. The court was of the view that had errors not been made, Aboriginal title might have been established. Thus, there is no final answer (to date) on whether the claimants have established Aboriginal title or merely Aboriginal rights. The Supreme Court of Canada also found Aboriginal rights to exist where claims to Aboriginal title failed in Adams [1996] 3 SCR 101; 138 DLR (4th) 657 and Côté [1996] 3 SCR 139; 138 DLR (4th) 385.
[179] Mabo [1992] HCA 23; (1992) 175 CLR 1; Wik (1996) 187 CLR 1.
[180] Delgamuukw [1997] 3 SCR 1010, 1067; 153 DLR (4th) 193, 231.
[181] Ibid 1103–4; 258.
[182] See below nn 222–241 and accompanying text.
[183] McNeil, above n 35, 143–4. This has now been accepted in a modified form by a majority of the Supreme Court of Canada as the prima facie rule, subject to the ‘inherent limits’ that Aboriginal land use cannot be irreconcilable with the nature of the claimants’ attachment to the land: Delgamuukw [1997] 3 SCR 1010, 1088–91; 153 DLR (4th) 246–9.
[184] The courts in Mabo [1992] HCA 23; (1992) 175 CLR 1 and Amodu Tijani v The Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399 (‘Amodu Tijani’), both treat the nature and content of native title as being based on the customs of the claimant group in the first instance. The majority in Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 193 would acknowledge the significance of such customs in a negative sense only, in that any land use which is irreconcilable with the nature of the claimant group's attachment to the land (as defined by their customs) is beyond the scope of their Aboriginal title. Cf the concurring judgment of La Forest J, which takes an approach much more in keeping with Mabo and Amodu Tijani.
[185] Mabo [1992] HCA 23; (1992) 175 CLR 1, 62 (Brennan J; Mason CJ and McHugh J concurring), 109–10 (Deane and Gaudron JJ).
[186] Ibid 60. The Supreme Court of Canada has supported the non-alienability of Aboriginal land in a slightly different way, stating that alienation would sever the holders' connection with the land and is therefore inconsistent with the very nature of Aboriginal title: Delgamuukw [1997] 3 SCR 1010, 1090; 153 DLR (4th) 193, 247–8.
[187] Worcester v Georgia, 31 US 483 (1832).
[188] Despite the lack of judicial authority, there is a great deal of Canadian literature on the moral and legal arguments supporting an inherent Aboriginal right to self-government: see, eg, Patrick Macklem, ‘First Nations Self-Government and the Borders of the Canadian Legal Imagination’ (1991) 36 McGill Law Journal 382; Macklem, ‘Distributing Sovereignty’, above n 88; Slattery, ‘Aboriginal Sovereignty and Imperial Claims’, above n 11; Brian Slattery, ‘First Nations and the Constitution: A Question of Trust’ (1992) 71 Canadian Bar Review 261; John Borrows, ‘Constitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation’ (1994) 28 University of British Columbia Law Review 1; Peter Hutchins, Carol Hilling and David Schulze, ‘The Aboriginal Right to Self-Government and the Canadian Constitution: The Ghost in the Machine’ (1995) 29 University of British Columbia Law Review 251.
[189] Macklem, ‘Indigenous Peoples and the Canadian Constitution’, above n 15, 27–8.
[190] Ottawa Minister of Indian Affairs and Northern Development, Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (1995).
[191] RCAP Report, above n 33, vol 2, 224–5, vol 5, 119. See generally the Commission’s interim report on self-government: Royal Commission on Aboriginal Peoples, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (1993).
[192] Gardner [1996] 2 SCR 821, 832; 138 DLR (4th) 204, 212. On the likelihood that this will prove much more qualified than the ‘inherent’ right to self-government recognised by the Marshall Court in the US, see Bradford Morse, ‘Permafrost Rights: Aboriginal Self-Government and the Supreme Court in R v Pamajewon’ (1997) 42 McGill Law Journal 1011.
[193] Delgamuukw v The Queen (1991) 79 DLR (4th) 185, 386; Delgamuukw v The Queen (1993) 104 DLR (4th) 470, 519–20, citing inter alia A-G for Ontario v A-G for Canada (1912) 3 DLR 509 and A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959).
[194] Delgamuukw v The Queen (1993) 104 DLR (4th) 470, 472–3 (Lambert JA dissenting, Hutcheon JA dissenting in part).
[195] Delgamuukw [1997] 3 SCR 1010, 1114; 153 DLR (4th) 193, 266.
[196] Ibid 1114–15; 266.
[197] N Bruce Duthu, ‘Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian Country’ (1994) 19 American Indian Law Review 353.
[198] In Cherokee Nation v Georgia, [1801] USSC 4; 5 US 1, 17 (1831), Marshall CJ described the general relationship between the Indians and the US as being like ‘that of a ward to his guardian’. The fiduciary duty crystallised into a source of enforceable rights against the executive branch of government in Lane v Pueblo of Santa Rosa, 249 US 185 (1919); Cramer v US, 261 US 342 (1923); and US v Creek Nation, 295 US 681 (1935): see Reid Chambers, ‘Judicial Enforcement of the Federal Trust Responsibility to Indians’ (1975) 27 Stanford Law Review 1213. The modern approach in the US is set out in US v Mitchell (I), 445 US 1349 (1980) and US v Mitchell (II), 463 US 2961 (1983).
[199] [1984] 2 SCR 335; (1985) 13 DLR (4th) 321. Recent academic literature on the fiduciary duty includes Leonard Rotman, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (1996); Leonard Rotman, ‘Provincial Fiduciary Obligations to First Nations: The Nexus Between Power and Responsibility’ (1994) 32 Osgoode Hall Law Journal 235; Michael Bryant, ‘Crown-Aboriginal Relationships in Canada: The Phantom of Fiduciary Law’ (1993) 27 University of British Columbia Law Review 19; Slattery, ‘First Nations and the Constitution’, above n 188.
[200] Guerin [1984] 2 SCR 335, 376; (1985) 13 DLR (4th) 321, 334.
[201] Ibid 380; 340.
[202] Ibid.
[203] RSC 1985, c I-5.
[204] RSC 1985, c I-5.
[205] Wilson J, concurring, wrote in somewhat broader terms, holding that s 18 recognised the existence of a fiduciary obligation in the Crown rather than creating it: Guerin [1984] 2 SCR 335, 348; (1985) 13 DLR (4th) 321, 356.
[206] Dickson J in Guerin [1984] 2 SCR 335, 385; (1985) 13 DLR (4th) 321, 341 characterises the nature of the fiduciary obligation in the following terms:
As was pointed out earlier, the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is none the less in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.
[207] [1995] 4 SCR 344; 130 DLR (4th) 193.
[208] SC 1942, c 33.
[209] The court found that the federal government’s breaches of its fiduciary duty in failing to reconvey mineral rights to the Indian plaintiffs gave rise to a claim for damages. In so deciding, the court ensured that the plaintiffs could be compensated for their loss without needing to disturb the entitlements of the veterans to the oil revenues. This was estimated at CAN$300 million: Blueberry River [1995] 4 SCR 344, 368; 130 DLR (4th) 193, 207.
[210] This is made abundantly clear in the concurring judgment of McLachlin J in Blueberry River [1995] 4 SCR 344, 371–2; 130 DLR (4th) 193, 209–10:
The measure of control which the Act permitted the Band to exercise over the surrender of the reserve negates the contention that absent exploitation, the Act imposed a fiduciary obligation on the Crown with respect to the surrender of the reserve.
McLachlin J further rejected the contention that anything in the particular fact situation had given rise to a fiduciary obligation on the Crown obliging it to reject the proposed surrender. Rotman is critical of this approach, pointing out that it is inconsistent with the general scope of the fiduciary obligation found in Sparrow, and ignores both the power imbalance between the parties and the fact that the band was not free to negotiate on its own behalf: Rotman, Parallel Paths, above n 199, 120.
The Blueberry River decision has since been applied for the proposition that a surrender made with the consent of an Indian band could not be declared void on the grounds that it had been made in breach of the Crown’s fiduciary duty, despite some questionable aspects to the surrender process, though the possibility of recovering damages for such breach was acknowledged: see Chippewas of Kettle and Stony Point v Canada (1996) 141 DLR (4th) 1 (Ont CA) and Chippewas of Kettle and Stony Point v A-G of Canada [1998] 1 SCR 756; 163 DLR (4th) 189 dismissing the appeal. The principal objection to the surrender transaction was that the Crown had permitted the prospective third party purchaser of the lands to be present at the meeting at which the band had agreed to the surrender, and the prospective purchaser had offered a CAN$15 per person cash bonus to the members if the surrender was agreed to. The third party purchaser subsequently resold the land soon after for nearly three times his original purchase price.
[211] Mabo [1992] HCA 23; (1992) 175 CLR 1, 63–5 (Brennan J; Mason CJ and McHugh J concurring), 89–90 (Deane and Gaudron JJ).
[212] A fiduciary duty is not the only possible source of law to fulfill this function — for example, in Australia the Native Title Act and possibly the Australian Constitution s 51(xxxi) provide some security in this regard.
[213] (1989) 53 DLR (4th) 101.
[214] Ibid 120, citing R v Taylor (1982) 34 OR (2nd) 360, 367; and R v George (1966) 55 DLR (2nd) 386, 396–7 (Cartwright J dissenting). These earlier authorities, though speaking of the ‘honour of the Crown’, do not explicitly relate it to the Crown’s fiduciary duty. However, they are likely influenced by a line of US cases that link the fiduciary relationship to principles of interpretation of treaties and statutes affecting Indians: see, eg, Worcester v Georgia, 31 US 483, 508–9 (1832); Choate v Trapp, [1912] USSC 127; 224 US 665, 675 (1912); Carpenter v Shaw, [1930] USSC 2; 280 US 363 (1930).
[215] For an interesting recent application of the duty, see R v Wolfe (1995) 129 DLR (4th) 58, where the court dismissed charges of dealing in wildlife and fish against Indian reserve residents as an abuse of process, in circumstances where an undercover officer had brought alcohol onto the reserve in breach of the Crown’s treaty obligations, and supplied it to the accused (three out of four of whom had a history of alcoholism) to win their trust and gather evidence.
[216] These interpretative principles had previously been recognised as being based on the inequality of bargaining power between the government and Aboriginal peoples, and on the contra proferentem rule: see, eg, Jones v Meehan, [1899] USSC 152; 175 US 1, 10–11 (1899); adopted by the Supreme Court of Canada in Nowegijik v The Queen (1983) 144 DLR (3rd) 193, 198 (applied to legislation), and R v Simon [1985] 2 SCR 387, 401–2; 24 DLR (4th) 390, 402 (applied to treaties).
[217] Cf Eastmain Band v James Bay and Northern Quebec Agreement (Administrator) (1992) 99 DLR (4th) 16, 25, where the court suggests that a generous interpretation in favour of Indian parties to a treaty is not necessarily appropriate to modern land claims agreements where both sides are represented and advised by counsel. With respect, this seems to discount unduly the alternative ‘honour of the Crown’ basis for the interpretative principle. The court’s analysis should not stop after determining whether the parties are in a position of equality of bargaining power, or it may find itself sanctioning sharp dealing by the Crown.
[218] RCAP Report, above n 33, vol 1, 154–73; Rotman, Parallel Paths, above n 199, 51.
[219] Rotman, Parallel Paths, above n 199, 51.
[220] For examples of the real and substantial benefits that can be obtained for Aboriginal claimants through a generous and liberal approach to interpreting treaties, see, for example, the allocation of 50% of the commercial fishery to Treaty Indians in the North Western United States as reflected in the Boldt cases: US v Washington, 384 F Supp 312 (DC Cir, 1974), affirmed in US v Washington, [1975] USCA9 362; 520 F 2d 676 (9th Cir, 1975), certiorari denied US v Washington, 423 US 1086 (1976); Washington v Washington State Commercial Passenger Fishing Vessel Association, [1979] USSC 151; 443 US 658 (1978); and the similar substantial share of the commercial fishery won by the Maori under the Treaty of Waitangi (Fishery Claims) Settlement Act 1992 NZ; Waitangi Tribunal, Ngai Tahu Sea Fisheries Report (1992); Waitangi Tribunal, Muriwhenua Report (1988).
[221] See, eg, A-G for Ontario v Bear Island Foundation (1984) 15 DLR (4th) 321 and A-G for Ontario v Bear Island Foundation (1991) 83 DLR (4th) 381; R v Howard (1992) 8 OR (3rd) 225; affirmed in R v Howard [1994] 2 SCR 299; 18 OR (3rd) 384.
[222] [1990] 1 SCR 1075; 70 DLR (4th) 385.
[223] (1989) 53 DLR (4th) 101.
[224] Sparrow [1990] 1 SCR 1075, 1107–8; 70 DLR (4th) 385, 408.
[225] By this point, the court had several years of experience in interpreting the conceptually-similar rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. All of the rights guaranteed by the Canadian Charter of Rights and Freedoms were subject to the ‘reasonable limits’ clause in s 1, under which governmental infringement of such rights could be justified in appropriate cases. Whether by accident or design, s 35 of the Constitution Act 1982 was not subject to the reasonable limits clause. Nevertheless, the court announced a test for justification of governmental infringement of s 35 rights that bears a remarkable resemblance to its approach to s 1.
[226] Sparrow [1990] 1 SCR 1075, 1109; 70 DLR (4th) 385, 409 (Dickson CJ and La Forest J) (emphasis added).
[227] The use of the fiduciary duty by the Courts as an argument against Aboriginal claimants in the public law context is not confined to Canada. For example, in Lone Wolf v Hitchcock, 187 US 553, 564 (1903), the United States Supreme Court rejected an argument that a Federal statute distributing tribal lands in apparent derogation of Treaty Rights was invalid:
The contention in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.
See also US v Kagama, [1886] USSC 194; 118 US 375 (1886), where the duty was invoked to justify the application of federal criminal law to Indians.
The public law connotations of Sparrow, and the irony of turning the fiduciary duty around to justify government infringement of Aboriginal rights, did not go unnoticed by commentators: see, eg, Slattery, ‘First Nations and the Constitution’, above n 188, relating the holding in Sparrow to a theory that First Nations possess government powers comparable to those of other orders of government; Bryant, above n 199, 36–40, questioning the extent to which the duty should be read as applying beyond government acts affecting Aboriginal rights.
[228] Gladstone [1996] 2 SCR 723; 137 DLR (4th) 648; Delgamuukw [1997] 3 SCR 1010; 153 DLR (4th) 193.
[229] SOR/84-324.
[230] Gladstone [1996] 2 SCR 723, 767; 137 DLR (4th) 648, 676.
[231] Ibid 767; 676–7. A more general ‘balancing of rights’ approach is also suggested by R v Nikal [1996] 1 SCR 1013, 1064–5; 133 DLR (4th) 658, 694 where the majority suggests that the ‘concept of reasonableness forms an integral part of the Sparrow test for justification’.
[232] Gladstone [1996] 2 SCR 723, 775; 137 DLR (4th) 648, 682–3 (emphasis in original).
[233] Gray, above n 21, 27 reports that the commercial fishing rights cases were met with hostility by many Aboriginal commentators in Canada, and criticised for favouring political expediency over principle. While I make no claims as to the wisdom or supportability of any particular one of these decisions, I think it is naive to attack the process of seeking to articulate cross-cultural norms in recognition of customary rights as ‘political’. Surely it is no more or less so than the recognition, or denial, of Aboriginal rights in the first place.
[234] Other cases demonstrating that the fiduciary duty in this context favours pragmatism over theoretical purity are Quebec (A-G) v Canada (National Energy Board) [1994] SCR 159, 182–5; 112 DLR (4th) 129, 147–9, where the court dismissed an argument that the Crown’s duty mandated special treatment by an independent licensing body of Aboriginal objectors to the grant of export licenses for electricity, but left open the issue of whether different standards might apply to the Crown’s conduct in litigation adverse to the interests of Aborigines (cf R v Seward [1997] 1 CNLR 139 where the court suggested that there were certain arguments the Crown should not be permitted to make in Aboriginal rights litigation, for example contesting the fact that the Penelakut Band constituted an organised society); and Eastmain Band v James Bay and Northern Quebec Agreement (Administrator) (1992) 99 DLR (4th) 16, 27–9, where the majority stated its opinion that in the context of Crown–Aboriginal negotiations the fiduciary duty did not prevent the Crown from compromising Aboriginal interests with the broader public interest, and that ‘good faith and reasonableness’ were required on both sides.
[235] Delgamuukw [1997] 3 SCR 1010, 1107–14; 153 DLR (4th) 193, 260–6.
[236] Ibid 1107; 260.
[237] Ibid 1107–8; 260–1. Here the court repeats and emphasises its statements in Gladstone that while ‘[a]boriginal rights are a necessary part of the reconciliation of aboriginal society with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation’: Gladstone [1996] 2 SCR 723, 774–5; 137 DLR (4th) 648, 682.
[238] Delgamuukw [1997] 3 SCR 1010, 1108; 153 DLR (4th) 193, 261.
[239] Ibid 1108–11; 261–3.
[240] Ibid 1111; 263.
[241] Ibid 1111–14; 264–6.
[242] There are striking parallels between the Delgamuukw test for justifying infringements of Aboriginal title and elements of the Native Title Act, such as the right to negotiate and the right to compensation where native title is impaired. This raises interesting questions about the appropriate respective roles of the courts and the legislature. It remains to be seen whether Australia’s attempts to balance the competing interests in a statutory regime will be successful, or whether race politics will ultimately make meaningful reconciliation impossible. The Canadian Supreme Court appears to be quite comfortable with a role that allows it to supervise the politics of relations between Aboriginal and non-Aboriginal people; in the related context of equality rights the court has justified intervention for the benefit of the ‘discrete and insular minority’ that has not been well served by the political process: R v Turpin [1989] 1 SCR 1296, 1332.
[243] Kirby J, concurring in Fejo [1998] HCA 58; (1998) 156 ALR 721, 754, cautioned against relying too closely on Canadian authorities on extinguishment of native title, because of the existence of s 35. While common law Aboriginal rights in Canada were not created by s 35, this section has clearly influenced their development, and this may be grounds for distinguishing Canadian cases. Similarly, in Yarmirr [1998] FCA 771; (1998) 156 ALR 370, 405 [85], Olney J stated that he did not find ‘any assistance’ in Canadian authorities on the ‘integral to the distinctive culture’ test.
[244] See generally Australian Law Reform Commission, above n 13, which comprehensively reviews Aboriginal customary law respecting, inter alia, marriage, children and family property, criminal law and procedure, dispute resolution, and hunting, fishing and gathering.
[245] See above n 133 and accompanying text.
[246] In Mason (1994) 34 NSWLR 572, 602–3, the majority relied in part on the lack of evidence of exclusive fishing rights or ‘the staking of a claim or the marking of boundaries or borders’ to the coastal waters in issue by the appellant’s ancestors in rejecting his native title claim. This emphasis on exclusivity and boundaries may be less important after Wik (1996) 187 CLR 1. Non-exclusive fishing rights were found to be an aspect of the native title established in Yarmirr [1998] FCA 771; (1998) 156 ALR 370, 438–9 [161].
[247] In the Canadian context, see Adams [1996] 3 SCR 117–8; 138 DLR (4th) 657, 667.
[248] R v Kruger [1978] 1 SCR 104; 75 DLR (3rd) 434; R v Derriksan (1976) 71 DLR (3rd) 159.
[249] Hunting, gathering and fishing rights and interests are specifically included in the statutory definition of native title under s 223(1)(c) of the Native Title Act. This, however, does not necessarily mean that a customary right to hunt, gather or fish in a particular location necessarily constitutes native title within the meaning of the Act, since s 223 also requires that such rights and interests ‘are recognised by the common law of Australia’. Depending on the reading which is given to the judgments in Mabo, non-exclusive rights or rights based on casual use may or may not be included. While s 223 is not on its face conclusive on this issue, in Mason (1994) 34 NSWLR 572, 600, Priestley JA stated that this section ‘puts beyond doubt the inclusion of hunting, gathering or fishing rights and interests within the meaning of native title’, though there was no Australian authority that this was the case at common law. A similar finding was made by Olney J in Yarmirr [1998] FCA 771; (1998) 156 ALR 370, 405–6 [87].
[250] The possibility of claiming fishing rights of this kind was noted, but given little serious consideration given the appellant’s evidentiary problems, in Mason. The majority did not explicitly address this possibility, but it may be argued to have implicitly rejected it in their partial reliance on exclusivity and boundaries. Kirby P, concurring, explicitly left open the possibility that the claim of a ‘mere right to fish’ might be good in law, agreeing that for other reasons the evidence did not support the appellant’s case: Mason (1994) 34 NSWLR 572, 582. Mason was applied in Derschaw v Sutton (1996) 17 WAR 419, 428, where the Aboriginal appellants were found not to have made out a native title right to fish because they had failed to show biological descent from a relevant group, had failed to show continuous and uninterrupted observance by that group of traditional laws and customs, and had failed to show that they were exercising a right in accordance with such traditional laws and customs: see also Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [68], [123]. This approach appears to be stricter than was required to establish an Aboriginal right to fish in cases such as Sparrow [1990] 1 SCR 1075; 70 DLR (4th) 385.
[251] R v Kruger [1978] 1 SCR 104; 75 DLR (3rd) 434. This would appear also to be the case in Australia as a result of Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, and Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45.
[252] With respect to interests in land, Sparrow [1990] 1 SCR 1075; 70 DLR (4th) 385 accords with Mabo [1992] HCA 23; (1992) 175 CLR 1, 64–5 (Brennan J; Mason CJ and McHugh J concurring), 153 (Toohey J).
[253] In Mason (1994) 34 NSWLR 572, 593, Kirby P expressed his opinion that the regulation in issue ‘applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise’. Cf Wik (1996) 187 CLR 1, 121 (Toohey J), 146–7 (Gaudron J), 191 (Gummow J), 245–6 (Kirby J) and Mabo [1992] HCA 23; (1992) 175 CLR 1, 66 (Brennan J; Mason CJ and McHugh J concurring), interpreting generally-worded provisions making it an offence to occupy Crown lands without a lease or license as being inapplicable to Aborigines exercising native title rights. See above n 148 for examples of Canadian marriage and adoption cases where similar interpretations were adopted to preserve the ambit of Aboriginal customary law. Interpreting criminal laws in this fashion would appear to be much more difficult in light of Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45.
[254] Mabo [No 1] (1988) 166 CLR 186; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.
[255] There appears to be little relevant precedent on this point. An argument that an Aboriginal customary right to fish could prevail over fishing regulations under the Racial Discrimination Act was summarily rejected by Kirby P in Mason (1994) 34 NSWLR 572, 594. However, that was an ambitious claim (apparently involving fishing for abalone on a commercial scale) made on a poor evidentiary record (the accused did not testify and no evidence was led linking the activity of the accused to the exercise of a purported Aboriginal right).
[256] This argument depends in part on the courts’ acceptance of the proposition that an Aboriginal customary law marriage is equivalent to non-Aboriginal marriages, in the same way that the High Court accepted in Mabo [No 1] (1988) 166 CLR 186 that native title was equivalent to non-native title, and therefore to selectively deny recognition to native title infringed ‘substantive’ equality under s 10 of the Racial Discrimination Act. In this context, it may be possible to analogise to the area of private international law, which allows for the recognition of personal rights flowing from foreign jurisdictions and argues that if a foreign marriage is recognised, it is discriminatory not to recognise an Aboriginal customary law marriage: see Amankwah, above n 13, 16.
[257] Council for Aboriginal Reconciliation, Walking Together: The First Steps (1994) ch 13; Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians (1995) 35–8; see also discussion paper by Frank Brennan, Agreeing on a Document: Will the Process of Reconciliation be Advanced by a Document or Documents of Reconciliation?, Council for Aboriginal Reconciliation Key Issue Paper No 7 (1994).
[258] As recommended by the Australian Law Reform Commission, above n 13, vol 2, 236–40; and the draft Aboriginal Customary Laws (Recognition) Bill 1986 (Cth) in Australian Law Reform Commission, above n 13, vol 2, 251.
[259] Mabo [1992] HCA 23; (1992) 175 CLR 1, 31–2 (Brennan J; Mason CJ and McHugh J concurring), 95 (Deane and Gaudron JJ); Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 128–9 (Gibbs J); Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193, 198–200. See also the comments of Kirby J in Wik (1996) 187 CLR 1, 213–14. Despite these decisions, some argue that there is scope for recognition of limited self-government powers under Australian common law: see, eg, Nettheim, above n 13, 223; McLaughlin, above n 13, 5–9.
[260] Self-government powers were included in the 1975 James Bay and Northern Quebec Agreement, implemented by the Cree-Naskapi (of Quebec) Act, SC 1984, c 18, and also feature in the Sechelt Indian Band Self-Government Act, SC 1986, c 27, enacted pursuant to the wishes of the Sechelt Band as expressed in a referendum. These statutes are briefly reviewed by Kent McNeil, ‘Aboriginal Government and the Canadian Charter of Rights and Freedoms’ (1996) 34 Osgoode Hall Law Journal 61, 90–8. The self-government aspects of the various Northern land claims that have been settled, including the Yukon First Nations, certain of the Dene and Metis First Nations in the North West Territories, the Inuvialuit of the Western Arctic, and the Inuit of Nunavut (Eastern Arctic) are reviewed in RCAP Report, above n 33, vol 4, 416–40. See also Yukon First Nations Self-Government Act, SC 1994, c 35.
[261] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96–7 (Mason J); Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574, 646; 61 DLR (4th) 14, 27 (La Forest J); Blueberry River [1995] 4 SCR 344, 371–2; 130 DLR (4th) 193, 209 (McLachlin J).
[262] Mabo [1992] HCA 23; (1992) 175 CLR 1, 59–60 (Brennan J; Mason CJ and McHugh J concurring), 109–10 (Deane and Gaudron JJ).
[263] In Delgamuukw [1997] 3 SCR 1010, 1090; 153 DLR (4th) 193, 247–8, the Supreme Court of Canada attributed the non-alienability rule in part to the inherent nature of Aboriginal title, under which Aborigines may not act in a manner that is irreconcilable with the nature of their attachment to land. This is similar, though not identical, to the logic in Mabo that alienation outside of the Aboriginal community is not permitted because it is by definition beyond the scope of Aboriginal customary law. For present purposes, the essential point is that neither explanation depends on any Crown act.
[264] McNeil, Common Law Aboriginal Title, above n 24, 224–5; cited in Mabo [1992] HCA 23; 175 CLR 1, 193 (Toohey J).
[265] Mabo [1992] HCA 23; (1992) 175 CLR 1, 199–205 (Toohey J).
[266] Ibid 59–60 (Brennan J), citing Guerin [1984] 2 SCR 335; (1984) 13 DLR (4th) 321. The possibility of a fiduciary duty existing under Australian law was also explicitly left open in Northern Land Council v Commonwealth [1986] HCA 18; (1986) 161 CLR 1.
[267] Wik (1996) 187 CLR 1, 95–7.
[268] Wik (1996) 187 CLR 1, 96–7. Note, however, that the court in Guerin did not rely exclusively on the trust-like language of the relevant provisions of the Indian Act, RSC 1985, c I-5, but referred also to the right of pre-emption and the nature of common law Aboriginal title. See discussion accompanying above nn 210–212.
[269] Guerin [1984] 2 SCR 335; (1985) 13 DLR (4th) 321; Blueberry River [1995] 4 SCR 344; 130 DLR (4th) 193; Chippewas of Kettle and Stoney Point v Canada (1996) 141 DLR (4th) 1 (Ont CA); Chippewas of Kettle and Stoney Point v Canada (1998) 38 OR (3rd) 640 (appeal dismissed, SCC).
[270] Wik (1996) 187 CLR 1, 97. Note, however, that Kirby J appears to have carefully avoided the use of the term ‘fiduciary’ in this aspect of his analysis. The same interpretive principle based on ‘the honour of the Crown’ is relied upon by the court in Ward [1998] FCA 1478; (1998) 159 ALR 483, 619.
[271] Wik (1996) 187 CLR 1, 248.
[272] See above nn 213–224 and accompanying text.
[273] The court in Wik did rule out a claim for damages or other relief arising from alleged breaches of fiduciary duty that, if they were made out, were clearly authorised by statute: Wik (1996) 187 CLR 1, 98–100 (Brennan CJ; Dawson and McHugh JJ concurring), 204 (Gummow J), 255–61 (Kirby J; Toohey and Gaudron JJ concurring). The National Native Title Tribunal has similarly ruled out using the duty to attack the validity of an executive act: see Re Wadi Wadi People’s Native Title Application (1995) 129 ALR 167.
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