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* Senior Lecturer in Law, TC Beirne School of Law, University of Queensland.
This paper will compare and critically assess resource regimes on Aboriginal lands in both Australia and Canada. To understand how natural resource development regimes on Aboriginal lands work and how they may be improved requires an appreciation of the legal foundations on which such regimes are based. It is necessary to have a full appreciation of the concept of native title and Aboriginal title to land in each jurisdiction, including the recognition of indigenous rights to land, the source of indigenous title and what the content of that title comprises. Identification of questions of ownership of natural resources, of rights to use, of management and of the control of access to natural resources is essential. The workability of resource regimes can only be analysed against the constitutional context of each jurisdiction. Here it is important to identify the constitutional basis of government power to enact legislation in relation to resource development on Aboriginal lands and to deal with, or purport to govern, resource development on indigenous lands. An examination of the legislative framework and legal context in which resource development operates is also necessary. One of the significant questions is whether current Australian and Canadian (British Columbia) models accord Aboriginal peoples full rights in the development of natural resources on indigenous lands.
The Commonwealth Government’s legislative response to the High Court’s 1992 decision in Mabo was to enact the Native Title Act 1993 (Cth).[7] This legislation gives statutory effect to much of the decision in Mabo, while also introducing new elements in relation to native title and providing a framework in which native title can operate. Part of this framework is the future dealings regime which regulates all dealings with native title lands after the passage of the Act. It is this future dealings regime which dictates procedures that must be followed prior to any dealing with native title land, including the development of natural resources on native title land. This Act was substantially amended in 1998 in relation to some key provisions.
Federal policy had been not to recognise Indian land claims outside reserves, but this changed after the 1973 Supreme Court of Canada in Calder v Attorney General of British Columbia[9] confirmed that Aboriginal title existed at common law. In 1973 the federal government’s Statement on Aboriginal Land Claims declared that negotiations with Aboriginal peoples who were able to establish their traditional interests in lands would be conducted and compensation, or benefits in exchange for those interests, would be provided. Federal government policy with regard to land claims was updated in 1981 in In All Fairness: A Native Claims Policy, Comprehensive Claims. Negotiations have resulted in the settlement of several comprehensive land claims agreements with First Nation peoples in the North West Territories and in British Columbia. Settlements usually involve the exchange of Aboriginal land for specific rights and native title may be partially or totally surrendered in exchange for a reservation of lands. It is expected that these agreements will be final settlements. In 1982 the Canadian Constitution Act recognised and affirmed the existing Aboriginal rights of the indigenous peoples of Canada. In 1987 federal policy was altered to enable Aboriginal title to be preserved in reserves and in offshore areas and to allow agreements to be reached on resources and revenue sharing. In British Columbia no homelands for the Aboriginal peoples had been established and only small reserves were set aside. [10] Since 1990 the Province of British Columbia has been undertaking the process of settlement of native title claims and a Treaty Commission has been established to facilitate this.
The majority in the Ward decision rejected the broad view that native title is a possessory title based on the prior occupation of land giving rise to possession of lands at common law.[17] Toohey J in Mabo was the only judge to formally state that Australian native title was sourced in the prior occupation giving rise to possession by Aboriginal people.[18] Given the findings of a traditional title in Mabo there was no need for the court to make a decision about the plaintiff’s arguments concerning possessory title. However, it is arguable this was never clear from the Mabo decision itself. The High Court found that ‘the Meriam peoples are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’.[19] This finding appears almost identical in its terms with that in Delgamuukw where the Canadian Supreme Court found that Aboriginal title encompassed ‘the right to the exclusive use and occupation of land’. In this context it is significant that Moynihan J’s determination of the facts in the Queensland Supreme Court had found that there was apparently no concept of public or general community ownership among the peoples of the Murray Islands, all the land of the Murray Islands being regarded as belonging to individuals or groups.[20] Despite this the High Court in Mabo found that native title was a communal title.[21] If native title derives solely from the laws and customs of the indigenous community concerned, how could the court have found that a customary communal title exists? Therefore it is arguable that native title must have originated and derived its content from the Meriam peoples’ exclusive occupation as a community of the Murray Islands, and not from their traditional laws and customs. On this basis the laws and customs would arguably be applicable to determine the existence and content of individual and group rights within the indigenous community, but would not be the source of the title itself.
If native title as recognised by the common law is, as is argued above, sourced in the exclusive occupation of the indigenous community then how could this be reconciled with the majority view in Ward that native title is derived from the traditional laws and customs of the Aboriginal peoples?[22] It is submitted that two sources of native title potentially exist in Australia. The first source, the exclusive possession and occupation of indigenous peoples of their land, is recognised at common law. The second source is in the traditions and customs of the indigenous community. Claims for recognition of native title at common law, outside the NTA, are not precluded by the NTA. It is argued that where native title is claimed at common law, the common law source of native title is relevant in determining native title rights. When native title claims are conducted through the statutory regime of the NTA then the definition in the Act is applicable. In this way it is arguable that the majority view in Ward should be read as applicable only to native title claims which are made under the NTA.
Does the source of the native title make a real difference to the content of native title? The answer is clearly affirmative. As a possessory title is the equivalent of a fee simple, it follows that the holder of a possessory title should have rights equal to those of the holder of a fee simple. If a possessory title is obtained then this title should be ample and plenary. For example, such a title should be fully transferable and should be lost only in accordance with the ordinary rules applicable to loss of possessory title. However, a title sourced in the traditional laws and customs of an Aboriginal community potentially may be restricted by the limits of that community’s laws and customs. It requires proof of every right by reference to a particular customary use of the land. If it is not possible to establish a custom or tradition in relation to an aspect of the title then such title may not include that aspect. (For example, to take a narrow approach to this: if mining was never part of a group’s traditions or customs then such native title may not include rights to minerals.) There exists a wide chasm between possessory native title and native title limited to traditional laws and customs.
2 The Nature and Content of Native Title in Australia
In 2002 the High Court handed down its decision in Western Australia v Ward[23] addressing some threshold questions on the concept of Aboriginal title in Australia. The Ward decision focussed questions concerning the nature and content of native title on the definition of native title as set out in the Commonwealth Native Title Act 1993. In addition, the High Court in Ward conceptualised native title as a ‘bundle of rights’.[24]
Native title rights are defined in s 223 of the Commonwealth Native Title Act 1993.[25] Under the Act the nature of native title will be a question of fact which requires identifying which laws and customs are traditional laws and customs and whether the particular native title rights are possessed under those laws and customs. In accordance with this interpretation, the nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.[26] This interpretation of native title confines the content of native title (that is the rights which relate to the use of the land and its resources) to those found in the traditional laws, customs and practices of the native community.
Despite s 223 requiring that native title rights and interests are recognised by the common law of Australia[27] the Ward majority considered that the only relevance of the common law, and cases such as Mabo, is whatever light they cast on the NTA definition.[28] In restricting native title to the definition contained in the Native Title Act the ability of the courts to interpret native title in accordance with contemporary developments becomes limited.
The Ward majority clearly endorsed the position that native title is a bundle of rights which can be extinguished piece by piece. Thus the High Court majority applied the approach taken by the Full Federal Court that native title rights consist in separate components and interests.[29] The Court’s reasoning flowed from the emphasis it placed on the terms of the definition of native title in the NTA. The majority said: ‘It is a mistake to assume that what the Native Title Act refers to as native title rights and interests is necessarily a single set of rights relating to land that is analogous to a fee simple’.[30] Neither the view of Lee J at first instance in the Federal Court[31] nor that of North J (dissenting) in the Full Federal Court[32] was accepted by the High Court. In adopting the bundle of rights approach the High Court majority have ignored the sui generis nature of native title.[33] The majority did acknowledge that what is considered by the Aboriginal people to be a singular relationship with their land is being divided in its recognition. The majority stated:
The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the Native Title Act. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.[34]
The Ward High Court’s narrow interpretation of native title fails to recognise native title as equivalent to full ownership of land and restricts native title to land rights based on the traditions and customs of the particular community. The Ward High Court has failed to adopt the Canadian Supreme Court’s interpretation of Aboriginal title in Delgamuukw that Aboriginal title is a right to the land itself.[35]
It is therefore arguable that in post-Ward Australia, two forms of native title could be recognised. One form, that defined by the NTA and sourced in the traditional laws and customs of the Aboriginal community, the other, that which is recognised and interpreted by the common law and sourced in possession and occupation of traditional lands.
What does the Ward interpretation of the content of native title mean for Aboriginal title holders in relation to resource development in Australia? By limiting the native title rights to ‘the traditional resources of the land’ the ability of native title holders to trade in those resources, to be consulted regarding their use, to exercise any control over the access of others to those resources or to share in the royalties from the use of the resources, has been effectively eliminated.[36] Native title as categorised in Ward will not afford the native title holders a direct right to control and regulate resource development and its profits except where the traditional laws and customs of the Aboriginal group incorporate resource development. Therefore, post Ward native title holders must rely on the provisions of the Native Title Act, either through the right to negotiate procedures or through the Indigenous Land Use Agreements to deal directly with developers.[37]
3 Minerals and Natural Resources
At common law a landowner had the right to all minerals (except gold and silver which are the prerogative of the Crown) found below the surface of the land. The Ward High Court majority found the indigenous claimants did not own the mineral and petroleum resources in the claimed land as there was no evidence of native title to the sub-surface rights. In this case minerals and petroleum were not, on the evidence, part of the traditional laws and customary uses of the Aboriginal communities.[38] The High Court declined to make a general finding about whether native title can exist in minerals and petroleum. In this respect the Australian High Court has declined to follow the Canadian jurisprudence in Delgamuukw that Aboriginal title is a broad overarching right to the land itself which includes rights to natural resources.[39]
4 Resource Legislation
Any determination as to the content of native title will also involve an interpretation of legislation purporting to vest ownership of resources in the Crown. The Commonwealth Native Title Act[40] allows a State to confirm ownership of natural resources such as minerals, petroleum, quarry materials and fauna and rights to use, control and regulate water. Confirmation of ownership of resources will not of itself extinguish or impair native title rights and interests.[41] The date of the original appropriation will be significant, as any purported appropriation of resources after 1975 would have to treat native title land in the same way as freehold land to avoid infringement of the Racial Discrimination Act 1975 (Cth). In Ward the majority in the High Court indicated that if a right to minerals existed it would have been extinguished by the Western Australian State Mining and Petroleum legislation.[42] In all States in Australia, legislation vests ownership of minerals and petroleum products in the Crown.[43] Each piece of legislation would require examination in order to ascertain if ownership of minerals in the Crown extinguished native title rights.
The approach taken by the High Court in Ward in relation to resource legislation appears to differ from that taken by the same Court in Eaton v Yanner.[44] In this case the Court found that the Queensland Fauna Conservation Act 1974, which purported to vest ownership of all wildlife and fauna in the State of Queensland, did not prevent Aboriginal people from hunting for crocodile in their traditional ways. The High Court found that the native title rights relied on had not been extinguished by the Fauna Conservation Act. The Court found that the use of the term ‘property’ in the legislation merely conferred the power to forbid the taking and keeping of property and it did not confer an actual property right of the Crown in the fauna.[45] The Act was merely regulatory and therefore was consistent with the continued existence of the native title right.[46]
5 Native Title and Sea Rights
In 2001 the High Court in Commonwealth v Yarmirr[47] recognised non- exclusive native title rights of fishing in territorial waters. Offshore native title rights were found not to include a right to exclusive possession and commercial rights to the use of the seas, sea-beds or natural resources in the area. Aboriginal participation in offshore natural resource development appears limited.[48]
6 Traditions and Customs The finding in Ward also raises the issue: what does ‘tradition and custom’ include? Clearly it means something that is linked to the past. Customs are not immutable. It is the very essence of custom and tradition that change occurs. But how much change will be acceptable? This remains unclear. The Mabo court took the view that the content of traditional laws and customs can change over time and yet still be recognised by the court.[49] In Yorta Yorta[50] the High Court took a similar approach and found that the Aboriginal ‘body of laws’ may undergo evolution and development and yet still remain traditional laws and customs of the community.[51] Certainly a continuous tracing of particular activities to pre-sovereignty times was not necessary.[52]
7 Enforcement of Native Title Interest
Native title is recognised as a legal right, and can be protected by legal and equitable remedies that are appropriate to the particular rights and interests held.[53] Protection of native title would be available for the infringement of rights, for example to prevent trespass to land provided that the native title holders had exclusive possession of the land.
8 Transferability of Title
The question of the transferability of native title rights, that is whether native title can be sold or leased, depends on the laws from which native title is derived. These laws have traditionally forbidden alienation.[54] Leasing by native title holders could be achieved under the NTA by surrendering native title to the government and by the native title holders being granted a freehold or leasehold title in exchange.[55] Here native title and the rights associated with it under the legislation would be lost. A possible alternative may be for the native title holders to enter into an agreement with the government for the granting of a Crown lease, for example to either a commercial developer or a corporate entity comprising the native title holders.[56] However, where commercial development or exploitation of native title land is the objective, the better solution may be to surrender the land in exchange for a grant in fee simple. Development of native title land could also be achieved through the use of Indigenous Land Use Agreements under the amended native title legislation.[57] Further restrictions are imposed by s 56 of the NTA.[58] In accordance with the Act if native title land is pledged as security it cannot be forfeited for debts and cannot be seized under bankruptcy. Where rights to mortgage native title land as security for a loan are restricted (either because of the customs of the community or because of the terms of the Act) the commercial development potential of native title land may also be limited.[59]
9 Aboriginal Title and Aboriginal Rights
As noted above, Australian courts have to date made no distinction between Aboriginal/native title to land and freestanding Aboriginal rights. All indigenous rights are categorised as rights of native title.
10 Limitations on Aboriginal Title
Unlike Canadian Aboriginal title, no inherent limitation has been judicially or legislatively imposed on Australian native title.[60] Any limits imposed on the use of native title would arise from the traditional laws and customs of the community concerned.
B Content of Aboriginal Title in Canada
Although Aboriginal title has been recognised by the Canadian courts since 1973 with the decision in Calder, it was only with the 1997 Supreme Court’s decision in Delgamuukw that key issues regarding Aboriginal title were resolved and a clearer definition of Aboriginal title was elucidated.[61]
1 Source of Aboriginal Title
Aboriginal title was found by the Canadian Supreme Court in Delgamuukw to be based in both the relationship between the common law and pre-existing systems of law, and in Aboriginal pre-sovereignty occupation.[62] Lamer CJC in Delgamuukw found that Aboriginal title arises from the physical fact of occupation by Aboriginal peoples prior to the Crown acquiring sovereignty.[63] This title is referred to as a possessory title.[64]
2 The Nature and Content of Aboriginal Title
The nature and content of Aboriginal title remained unclear until the Supreme Court handed down its decision in Delgamuukw v British Columbia[65] in 1997. It was possible for the Court in Delgamuukw to reach the interpretation that they did in relation to Aboriginal title because of their findings in relation to the source of Aboriginal title. The most significant findings from a natural resources perspective are as follows: first, that Aboriginal title is a right to the land itself; secondly, that ‘site specific’ Aboriginal rights and Aboriginal title are distinct; thirdly and most importantly, that ownership of minerals, forest products and other natural resources is part of Aboriginal title. The Delgamuukw decision appears to guarantee that Aboriginal title holders now have a clear right to choose how their lands will be used and developed. Despite Aboriginal title being recognised as a possessory title, certain limitations were placed on this title by the Canadian Supreme Court. These limitations are of relevance to resource development. First, Aboriginal title contains an inherent limit on its range of uses and thus on the content of Aboriginal title. Aboriginal title cannot be used for purposes that would destroy the people’s relationship with the land. Therefore, some limits on development must be respected. Secondly, Aboriginal title is inalienable except by surrender to the Crown. Thus Aboriginal land cannot be sold directly to the resource developer. As this title is alienable only to the Crown, title would first have to be transferred to the Crown and then to the developer where sale or other form of outright alienation is contemplated.
3 Aboriginal Title Is a Right to the Land
The Supreme Court in Delgamuukw found that Aboriginal title is a right to the land itself.[66] This meant that Aboriginal title is not simply a usufructuary right to hunt and fish on the land in traditional ways, nor is it a collection of rights to carry out activities on the land, nor is it a title limited to the historical uses of the land.[67] Aboriginal title is an all- encompassing right.[68] In reaching this finding the Court rejected both the arguments of the claimants that Aboriginal title is tantamount to an inalienable fee simple and the arguments of the respondents that Aboriginal title is merely a bundle of rights to engage in site specific activities. The Court defined Aboriginal title as encompassing ‘the right to the exclusive use and occupation of land’.[69] The exclusive nature of this title should enable Aboriginal peoples to choose the uses to which their land is put.[70] The content of Aboriginal title is not to be restricted to traditions, practices and customs which were integral to the distinctive culture of the Aboriginal community prior to contact with Europeans.[71] Thus Aboriginal title encompasses a right to use the land for a variety of purposes which may not necessarily be traditional purposes. In the context of Aboriginal title the Court rejected the application of the Van der Peet[72] test. Here the Canadian Supreme Court had taken a restrictive interpretation of Aboriginal rights and had found that prior to any activity being characterised as an Aboriginal right it must be shown to be ‘integral to the distinctive culture of the Aboriginal group claiming that right’.[73]
After Delgamuukw, therefore, Aboriginal title may include practices that were not part of the historical culture of the group concerned. For example, if a particular Aboriginal group were originally hunters but now decide that, as they are in the city limits, a shopping mall should be built, then in accordance with the Delgamuukw test this could now be a permissible use of the land.[74] In reaching this position the Court relied on the Supreme Court decision in Guerin v The Queen.[75] Dickson J in that case referred to Aboriginal title as ‘an interest in land’ which included a legal right to occupy and possess lands. This right was framed broadly and was not qualified by reference to traditional practices and customary uses of lands.[76] Thus Aboriginal title includes a full range of uses that are not restricted to past practices.[77] The exclusive nature of Aboriginal title will enable Aboriginal title holders to exclude others (including governments) from using their lands without their consent.[78] The exclusive nature of Aboriginal title also means that legal and equitable remedies would be available to protect this title. Section 35 of the Constitution Act, 1982 affirms and guarantees protection of ‘existing’ Aboriginal rights, which should re-enforce the protection available in relation to an Aboriginal title.[79] However, as indicated earlier, Aboriginal title is subject to certain limitations recognised by the Court in Delgamuukw. First, Aboriginal title cannot be used for purposes that would destroy the peoples’ relationship to the land. [80] Secondly, Aboriginal title is inalienable except by surrender to the Crown.[81] This is an important aspect of the title, discussed at length below. Thirdly, the Crown is entitled to interfere with the Aboriginal title provided that the interference is justified.[82]
4 Aboriginal Title and Aboriginal Rights
In Delgamuukw the Court confirmed that site specific rights to engage in particular activities and Aboriginal title are distinct.[83] Site specific Aboriginal rights are practices, customs and traditions integral to the distinctive Aboriginal culture of the group, where the use and occupation of land are not sufficient to support a claim to the land. For example, a right to hunt in a specific area of land that is not Aboriginal title land would be a site specific right. Site specific rights can be established even where Aboriginal title cannot (for example, where the requisites to prove Aboriginal title are lacking). It is therefore possible that some Aboriginal communities will possess rights protected by s 35 of the Constitution Act and yet not have title to land. To establish Aboriginal rights that are site specific, the test to be applied is that formulated in Van der Peet.[84] Here the activity must not only be integral to the distinctive culture of the claimants, but in addition, the prior existence of the activity should be established at the time of first contact with Europeans. To establish Aboriginal title to land, however, the requirement that the land usage be integral to the distinctive culture of the Aboriginal community is subsumed by the requirements of occupancy. This occupancy must have existed at the time the Crown asserted sovereignty. Just as Aboriginal title, these site specific activities enjoy constitutional protection under s 35 of the Constitution Act. Therefore resource developers cannot ignore such rights.
A third category of Aboriginal rights, neither site specific nor title to land, has been identified by Professor Slattery as ‘floating rights’.[85] These rights would include cultural rights of the particular group that are not linked to any specific area of land. For example, a right to collect certain native plants for medicinal purposes would not necessarily be attached to any particular area of land as the location of such plants could differ seasonally.
5 Minerals and Natural Resources
The Court found in Delgamuukw that ownership of minerals, forest products and other natural resources can be a part of Aboriginal title in Canada. So Aboriginal title includes rights to minerals and the rights to their exploitation (where that Aboriginal title can be proved).[86] This conclusion was reached by Lamer CJC after an exhaustive examination of the jurisprudence on Aboriginal title,[87] the relationship of reserve land and lands held pursuant to Aboriginal title, and the terms of the Indian Oil and Gas Act.[88] The conclusion of the Court, that the content of Aboriginal title is not limited to those uses with their origins in the practices, customs and traditions of Aboriginal societies, is supported by Dickson J’s views in Guerin v The Queen.[89] Dickson J considered that the same legal principles which govern the Aboriginal interest in reserve lands pursuant to the Indian Act govern lands held pursuant to Aboriginal title, and his Honour concluded that ‘the Indian interest in these lands is the same in both cases’. Lamer CJC considered that as the Indian Act did not restrict the use and benefit of reserve lands to practices, customs and traditions integral to the distinctive Aboriginal cultures nor to activities which have their origin in pre-contact practices, it follows that the use of reserve lands would include the present day needs of Aboriginal communities.[90] Therefore, on the basis of Guerin, Lamer CJC concluded that lands held pursuant to Aboriginal title are also capable of being used for purposes which could include rights to minerals. In addition, the Indian Oil and Gas Act presumed that the Aboriginal interest in reserve land included mineral rights.[91]
Accordingly, as the Indian interest in minerals in reserve lands is a recognised interest, for consistency the same rules must apply to Aboriginal title, which must also encompass mineral rights. Therefore, although the right to minerals and the use by Aboriginal peoples of minerals may not always have been a part of the Aboriginal traditional law and customs, Aboriginal title will always include the minerals in the soil.[92] Similarly it would also include the right to timber on the surface of Aboriginal title land.
6 Resource Legislation
Given the Supreme Court’s decision in Delgamuukw[93] that ownership of minerals vests in the Aboriginal title holders, can provinces justifiably continue to claim ownership of these minerals on Aboriginal title lands? Section 109 of the Constitution Act, 1867 provides that all lands and minerals belong to the province subject to other existing interests.[94]
Mineral exploration, development, conservation and management are stated to be the subject of exclusive provincial legislative jurisdiction in section 92A of the Constitution Act.[95] It will be important to determine whether Aboriginal ownership of the minerals in Aboriginal land was an existing interest prior to the passage of the Constitution Act, 1867.[96] This will require a detailed examination of legislation and dealings with Aboriginal title land prior to 1867, in order to determine if Aboriginal title to the minerals had subsisted or been extinguished prior to the passage of the Constitution Act, 1867. Such examination is beyond the scope of this paper.
7 Limitations on Aboriginal Title
Aboriginal title, as recognised in Delgamuukw,[97] contains an inherent limit on its range of uses and thus on the content of the title.[98] Aboriginal title land cannot be used in a manner that is ‘irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s claim to Aboriginal title’.[99] The community cannot use the land in a way that would destroy or impair the inherent and unique value of their Aboriginal title or threaten the future relationship, the attachment or the bond which the Aboriginal community has with their land. For example, if the land was hunting territory then it cannot be strip-mined, or if the land is of cultural significance then it cannot be built on.[100] Such uses would be excluded from Aboriginal title. In real property terms, this limitation could be seen as similar to a restrictive covenant on a fee simple title.[101]
Has the Court in Delgamuukw, by imposing an inherent limit, restricted Aboriginal title to traditional customs, practices and uses, despite releasing Aboriginal title from the ‘integral to the distinctive culture’ test? It does not appear that it was intended by the court that Aboriginal title be restricted to original Aboriginal uses.[102] Lamer CJC rejected the view that Aboriginal title would be restricted to historical uses and confirmed that a full range of uses of Aboriginal land would be available, subject only to the limit defined by the special nature of Aboriginal title.[103] It appeared to be important to the Court that the land be preserved for future generations of traditional owners.[104] Where does this limit come from? Is there an inherent limit in Aboriginal law itself? The Court recognised this limit because Aboriginal title is based on occupancy of the land and is established by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group.[105] The Court considered that where lands were so occupied a special bond would exist between the group and the land in question so that the land would be a part of the definition of the group’s distinctive culture.[106] Certainly, to some extent this inherent restriction would appear to be a part of Aboriginal culture itself, which recognises a special bond between the community and the land. There is also the question of the enforceability of the inherent limit. Who would be likely to challenge land usage by raising such a limitation? It may be surmised that trade competitors, or government, particularly a provincial government, may attempt to prevent or regulate certain Aboriginal uses of land, and may thus wish to enforce this limitation in a manner consistent with the purpose of use or the subject land.
8 Transferability of Title
The Court confirmed in Delgamuukw that Aboriginal title is inalienable.[107] Aboriginal title cannot be sold, transferred or leased to third parties. Aboriginal title is capable of surrender only to the Crown. (Surrender would be in exchange for valuable consideration.) If Aboriginal peoples wish to commercially develop their lands then the lands could be surrendered to the Crown and converted into non-Aboriginal title lands which, for example, the Crown could then lease for development on behalf of the Aboriginal peoples.[108] In addition, it may not be possible to mortgage Aboriginal title land due to the inalienability of Aboriginal title.[109] A commercial mortgage of an inalienable title would be of little value or interest to a mortgagee. Other forms of financing may need to be considered by Aboriginal people contemplating development of their Aboriginal title land. A restriction on mortgaging could make the direct development of Aboriginal land by Aboriginal peoples difficult.
9 Enforcement of Aboriginal Title
In Canada, s 35 of the Constitution Act, 1982 constitutionally recognises and protects Aboriginal title, as it does ‘existing Aboriginal rights’ from the time that this Act came into force on 17 April 1982.[110] Aboriginal title is protected in its entirety, where Aboriginal rights to land existed and were unextinguished in 1982.[111] Site specific activities which do not amount to Aboriginal title are also subject to the protection of s 35 of the Constitution Act, 1982.[112]
Division of Powers
In considering Commonwealth and State powers in relation to indigenous peoples an understanding of the general format of the Australian Constitution is required. The Australian Constitution gives the Commonwealth government an enumerated list of powers with the residue of possible legislative powers left to the States. Jurisdiction over Aboriginal lands is not vested solely in the Commonwealth; it remains with the States. In contrast to the position in Canada, the Australian federal government acquired jurisdiction to make laws in relation to Aboriginal affairs only in 1967. Prior to 1967 the States had the exclusive power to make laws concerning Aboriginal people within their territory. Until a referendum in 1967, Aboriginal people (living in the various States) were expressly excluded from the legislative power of the Commonwealth. Section 51 of the Constitution was amended to give the Commonwealth concurrent power with the States over Aboriginal affairs.[114] However, the Commonwealth has rarely used this power. Section 109 of the Constitution provides that where there is a conflict of laws, valid federal legislation will take preference over State legislation. Valid legislation is legislation within the Commonwealth’s sphere of responsibility as defined by the Constitution.
The Native Title Act binds the Crown in right of the Commonwealth and each of the States. Section 8 of the NTA provides that the NTA is not intended to affect the operation of any law of a State or Territory that is capable of operating concurrently with this Act. Therefore State laws must fall in line with the federal law to avoid inconsistency with that Act.
In 1982, s 35(1) was included in the Canadian Constitution. Section 35(1) Constitution Act, 1982 constitutionally protects ‘the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada’.[116] Section 35 protects those Aboriginal rights and treaty rights that had not been extinguished prior to 1982. Parliament’s power to extinguish legislatively existed only prior to the enactment of the Constitution Act , 1982, as after that date it is not possible for Parliament to extinguish constitutionally protected rights. However, Aboriginal rights which are recognised and affirmed by s 35 of the Constitution Act, 1982 are not absolute.[117]
Aboriginal rights can, in a very limited range of circumstances, be extinguished and infringed by legislation. Extinguishment could occur where there has been a voluntary surrender to the Crown, constitutional amendment, or legislation enacted by the federal Parliament prior to 1982. Although legislation may infringe Aboriginal rights, any such infringements must be justified under the Sparrow test.[118] The Sparrow test of justification has two parts. It requires that the government show first that the infringement is ‘in furtherance of a legislative objective that is compelling and substantial’, and secondly that the infringement is ‘consistent with the special fiduciary relationship between the Crown and the Aboriginal peoples’.[119] After the decision in R v Gladstone[120] the range of legislative objectives that can justify the infringement of Aboriginal title is fairly broad. Lamer CJC in Delgamuukw considered that mining on Aboriginal land would be a ‘compelling and substantial’ objective.[121]
2 Division of Powers (a) Federal Legislative Power
Section 91(24) of the Constitution Act, 1867 vests in the Canadian federal government exclusive power over ‘Indians, and Lands reserved for the Indians’.[122] This comprises two heads of power: one over Indians, whether they reside on reserve lands or not, and the other that extends to both Indians and non-Indians where the laws relate to ‘Lands reserved for the Indians’. What implications follow from the exclusive federal jurisdiction over Aboriginal title and rights? As the federal government has exclusive jurisdiction in relation to Aboriginal lands this would mean that, prior to the constitutional entrenchment of Aboriginal rights in 1982,[123] the federal parliament would have had the exclusive power to extinguish Aboriginal title.[124] Another implication of the federal government’s exclusive jurisdiction in relation to Aboriginal title is that grants of title issued by the provinces, where Aboriginal title was not extinguished, could potentially be invalid. (In British Columbia this would involve grants from 1871, when British Columbia joined the Confederation.)[125]
Given that federal jurisdiction over Aboriginal title is an exclusive jurisdiction under s 91(24) of the Constitution Act, 1867, the question is: does a province have the constitutional power to infringe or regulate Aboriginal title or Aboriginal rights? The answer would appear to be that provincial laws are inapplicable to Aboriginal title lands. The Court in Delgamuukw left the question of provincial jurisdiction to infringe or regulate Aboriginal title unclear and unresolved.[126] (Note the opposite position in Australia, where State and federal governments have concurrent jurisdiction over Aboriginal peoples.)
(b) Provincial Legislative Power
Provincial legislative powers are set out primarily in s 92 of the Constitution Act, 1867. These include general jurisdiction over property and civil rights. The provinces have no head of legislative power under the Constitution that allows them to legislate for Indians or Indian lands. Section 91(24) of the Constitution Act, 1867 protects a ‘core’ of federal jurisdiction from provincial laws of general application through the doctrine of interjurisdictional immunity. This doctrine prevents the provinces from enacting legislation which affects a vital aspect of the subject matter within the exclusive federal jurisdiction. The ‘core’ of subject matter of federal jurisdiction has been described as laws that affect ‘Indians qua Indians’ or ‘Indianness’, the ‘core of Indianness’, the ‘status or capacity’ of Indians, or the ‘use and possession of land’. It is for this reason that provincial laws which affect ‘Indianness’ are incapable of affecting Aboriginal rights or title. Thus a province cannot enact legislation which directly affects Aboriginal title. In order for provincial laws to affect Aboriginal title those laws must be laws of general application as discussed below.
It may be possible for laws of general application that affect Indians to be referentially incorporated into federal law by s 88 of the Indian Act to apply to Indians.[127] The purpose of s 88 of the Indian Act was to make provincial laws applicable to Indians. Section 88 provides:
Subject to the terms of any treaty and other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made there under, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.
Pursuant to s 88 provincial legislative power can apply to Indians if the provincial law is a law of general application, and not a law specifically relating to Indians.[128] For example, provincial laws that would apply to Indians include traffic regulations, provincial motor vehicle laws, laws relating to the manufacture of shoes, and child welfare laws. However, laws that relate to the use of the land, such as provincial zoning laws, would be inapplicable. If a law applies to Indians because it regulates Indians as Indians then that law is incorporated into federal law by s 88. However s 88 relates only to Indians covered by the Indian Act and not to other Indians nor to Indian lands. It is doubtful whether referential incorporation would allow such laws to apply to reserve lands as the weight of case law and legal principle is against such an interpretation.[129]
In Delgamuukw the Court confirmed that the federal government’s legislative and executive jurisdiction over ‘Lands reserved for the Indians’ under s 91(24) of the Constitution Act , 1867, included within its meaning Aboriginal title lands.[130] Given that federal jurisdiction over Aboriginal title is an exclusive jurisdiction under s 91(24) of the Constitution Act, 1867, the question is: could a province have the constitutional power to infringe or regulate Aboriginal title? In the 1997 decision of Delgamuukw
v British Columbia[131] the Supreme Court left the question whether provincial jurisdiction could infringe or regulate Aboriginal title unclear and unresolved. The answer it would seem would be that provincial laws are inapplicable on Aboriginal title lands. Thus, a province’s environmental laws and mining laws should not apply to Aboriginal title lands. If it is confirmed that provinces have no power to infringe Aboriginal title, serious consequences will result for provincial land and resource development laws which affect Aboriginal title.
A recent case on this issue has not produced a favourable outcome for the Aboriginal peoples involved. In 2002 the Canadian Supreme Court in the case of Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture)[132] found that provincial legislation which dealt with the protection of heritage objects, and in certain circumstances the destruction of heritage objects, was valid provincial legislation. This legislation was found not to have encroached upon federal jurisdiction over indigenous peoples and accordingly was not invalid. The heritage objects in this case were ‘culturally modified trees’. The trees had been modified for cultural purposes by Aboriginal peoples and were clearly heritage objects. The provincial government had issued certain timber harvesting permits which included the ‘culturally modified trees’ pursuant to the provincial legislation. On a strict interpretation of the division of powers between the federal government and the provincial government, provincial legislation cannot apply to ‘Indians, and Lands reserved for the Indians’. It is difficult to see how provincial legislation could be justified as applying to Aboriginal heritage objects such as culturally modified trees. Will such a broad interpretation by the Canadian Supreme Court expand the scope of provincial laws to apply to Aboriginal land in respect of resource development? For example, will the decision in this case guarantee the application of general provincial mining and environmental laws to Aboriginal title land? The answer is probably negative. Kitkatla is a case of limited application. It should be remembered that in this case there was no Aboriginal land involved as the trees were not on Aboriginal lands. This case dealt with neither Aboriginal title nor Aboriginal rights. The finding of the Court was simply that the provincial law was a ‘law of general application and was not in pith and substance a law in relation “to Indians, and Lands reserved for Indians”’. Thus the law was found to be within the legislative competence of the province.
3 The Federal Indian Act
The most significant piece of legislation which governs the rights of Aboriginal peoples in Canada is the Indian Act,[133] first enacted in 1867. Its essential provisions have remained unchanged despite numerous amendments. It is through this Act that the federal government administers and manages reserve lands and certain aspects of the lives of those who live on reserve lands. The Act gives the Minister for Indian Affairs and Northern Development broad power to control Indian lands, assets and moneys.[134]
A Resource Development on Aboriginal Lands in Australia
In Australia, prior to the 1992 High Court decision in Mabo v Queensland recognising native title and the subsequent Commonwealth Native Title Act 1993 ensuring native title holders a right to negotiate in relation to development on their lands, negotiated resource agreements with indigenous peoples were not the norm.
In Australia the legislative scheme which governs all dealings with native title land, including resource development, is set out in the Native Title Act 1993 (Cth), the Commonwealth government’s legislative response to the High Court’s 1992 decision in Mabo.[136] This legislation had several objectives including the recognition and protection of native title, the validation of past government actions that may have been invalid due to the existence of native title, and the regulation of dealings on native title land to guarantee the validity of future government and development actions over native title lands and to protect native title. The NTA was based on the assumption that the Crown grant of a lease would extinguish native title. However, in Wik Peoples v State of Queensland[137] the High Court held by a majority that native title was not necessarily extinguished by certain pastoral leases. Wik questioned the status of certain grants made after 1 January 1994 (the date of the commencement of the NTA). The Commonwealth government’s legislative response to the High Court’s decision in the Wik case in 1996 was to formulate the ‘10 Point Plan’ and in 1998 to substantially amend the original Native Title Act 1993.[138] The Native Title Amendment Act 1998 (Cth) came into operation on 30 September 1998.
As part of the first objective, to recognise and protect native title, the Act established the National Native Title Tribunal and inaugurated court processes to deal with native title questions. The Act also established Registers of Native Title Claims and Holdings. In relation to the second objective, the validation of past government actions or grants that may have been invalid due to the existence of native title, the NTA designated such previous actions by government as ‘past acts’ or ‘intermediate period acts’. For the purposes of validation these acts were assigned one of four categories.[139] Validation, either under the Commonwealth Native Title Act or through State or Territory legislation, could result in extinguishment, impairment or suspension of native title.
Why was there a question of invalidity? Since the Mabo decision, an important question has been: what effect does the Racial Discrimination Act 1975 (Cth) have on grants of title (that is freehold, leasehold or mining titles) made after the enactment of the Act on 31 October 1975? Sections 9 and 10 of the Racial Discrimination Act 1975 provide, in effect, that if Aboriginal people are deprived of certain rights by discriminatory laws, then those rights are not lost. The right being denied is the right not to be arbitrarily deprived of property.[140] The majority in Ward found that if government action (including legislation or grants of title) dealt with native title rights and interests differently from other forms of title then the government action would be invalid. However, if the government action simply failed to bestow on native title holders the same rights as other title holders enjoy then the native title holders will be deemed to enjoy the same rights. In the latter case government action will not be invalid.[141]
Therefore the test of invalidity is: does the government action single out native title for detrimental treatment? If it does, for example by denying native title holders the same safeguards against loss of title as are enjoyed by other title holders, then the grant of title or the legislation will be invalid.
2 Future Dealings Regime for Native Title Land
The NTA established a new regime designed to regulate all dealings with native title land after the commencement of the Act. The scheme of the NTA designates new titles, including mining titles, granted after 1 January 1994 and legislation made after 1 July 1993 as ‘future acts’[142] An essential feature of a ‘future act’ is that it must impact on native title in some way, for example it must be inconsistent with native title.[143] Potentially this makes the grant or renewal of all mining interests on native title land subject to the provisions of the Act. To the extent that a future act affects native title it will be valid if it is covered by the provisions of the NTA and invalid if it affects native title and is not covered by the Act. [144] A feature of the future dealings regime is the analogous freehold status of native title. This means that government can deal with native title only in the same manner in which it deals with freehold land. Acts that pass the freehold test would be valid (subject to any requirement to comply with the ‘right to negotiate’).[145] Acts that fail the freehold test must be validated by an agreement with the native title holders unless validated by a provision in the NTA. Future acts that will pass the freehold test (apart from the exceptions specified in the NTA) include compulsory acquisitions and grants of mining interests.
3 The ‘Right to Negotiate’
The key feature of the future dealings regime is that native title holders and registered claimants have the right to negotiate with government (and the proposed grantee party) prior to the government’s carrying out certain future acts.[146] Any creation, variation, renewal and extension of rights to mine on native title lands are subject to the native title holder’s right to negotiate under the NTA.[147] . For example, if a mining project was to be established then the right to negotiate process had to be complied with prior to a grant by government of a mining lease. The Native Title Act provides the legal right to negotiate with developers without an Aboriginal right of ownership in the minerals themselves being recognised. The right to negotiate is with government (and the proposed grantee party) prior to the government’s granting a mining interest over native title land. While this right is not a veto right it does allow native titleholders and claimants to have some influence and control over future developments of their lands. Without the right to negotiate process indigenous people would have to rely on their rights of traditional native title to either prevent mining from proceeding on the land or to reach a negotiated development agreement.
4 The Process of Negotiation
The ‘right to negotiate’ is a structured process designed to encourage the reaching of an agreement about the nature of the proposed act and the conditions under which it would be carried out and any compensation payable. The right to negotiate process under the NTA requires that the native title parties, the government and the grantees reach an agreement. Where agreement cannot be reached then the arbitral body (the National Native Title Tribunal) or the Minister must make a determination regarding the doing of the act.[149] Compliance with the right to negotiate process involves the following:
(1) The government must give notice of the proposed act. A native title holder has four months from the date of the notice to become a registered claimant to be able to participate in the negotiation process.[150] Only registered native title claimants (or the holders of a native title determination) can exercise this right to negotiate.[151]
(2) Scope of negotiations: It is not possible for an arbitral body to impose royalty-like payments and income and profit sharing arrangements in the agreements. However, the parties themselves may reach agreement on such terms.[152] The right to negotiate process would allow native titleholders to negotiate for joint ventures with a mining company. It also allows agreements for the building of facilities (such as hospitals, clinics, schools or housing) that would benefit the whole community, and also encourages agreements for job training or the employment of local people.[153]
(3) Duty to negotiate in good faith : The right to negotiate requires that all parties must negotiate in good faith.[154] The standard requirement for good faith is the need for an actual intention to attempt to come to an agreement. The intention of the parties can be assessed from objectively observing whether their total conduct during the negotiation process is reasonable. The National Native Title Tribunal (hereinafter ‘NNTT’) suggested certain criteria by which it could be determined whether a party has negotiated in good faith.[155] This list of ‘useful indicia’ includes the following: unreasonable or unexplained delays in negotiations, failure to make an offer or counter-offer; lack of communication or response; refusal to attempt to reach agreement, such as by not agreeing on trivial issues or by adopting a rigid non-negotiable position; by adopting conduct which obstructs the negotiating process, such as by refusing to sign a written agreement in relation to the negotiation process; or by failure to supply reasonable requests for information.
(4) Agreement: Native title holders, the government and the grantees must endeavour to reach an agreement with regard to the doing of an act and the conditions under which the act may be done. The effect of an agreement made by the parties is the same as if a determination was made. Any of the negotiating parties may request mediation. After six months a negotiating party can ask the arbitral body, ie the NNTT, for a determination regarding the act. Failure to negotiate in good faith precludes the arbitral body from making a determination. If the NNTT fails to make a determination within six months, the Minister may request a determination to be made within a set period.
(5) Criteria: In making a determination, account must be taken of the effect of the grant or act on the criteria stipulated in the Act.[156] This includes the effect on native title rights and interests.
(6) The determination or agreement: When either an agreement is reached or the arbitral body makes a determination, the right to negotiate process is satisfied. The conditions imposed in the agreement or determination will have effect as if they were the terms of a contract between the parties.
(7) Ministerial override: The Federal Minister can override a determination of the NNTT in the national interest or in the interest of the State or Territory.
5 Indigenous Land Use Agreements
When resource development is to be conducted on native title land the parties have a choice. They can either proceed under the ‘right to negotiate’ process under the Commonwealth Native Title Act, or reach an Indigenous Land Use Agreement (hereinafter ‘ILUA’).[157] An ILUA is a voluntary agreement between the parties regarding the use of the land. Any future act done in accordance with a registered ILUA is legally valid, overriding any conflicting provision in the NTA.
The amended NTA promotes the status of ILUAs. Under the original NTA agreements were designated as permissible future acts under s 21 and were validated. These agreements were problematic in that s 21 required the agreements to be made with the native titleholders who were sometimes impossible to identify prior to a binding determination of native title. In addition, the original NTA did not remove the need to comply with the right to negotiate and required that the government be a party. The 1998 amendments rectified these defects, introducing certainty regarding the effect of an executed agreement, offering a variety of agreements for use in differing circumstances, recognising the role of indigenous representative bodies in coordinating claims, and improving the overall effectiveness of ILUAs.[158]
Three basic kinds of ILUA may be used under the Act: Body Corporate Agreements, Area Agreements, and Alternative Procedure Agreements. Body Corporate Agreements [159] are the form of agreement to be used when native title has been determined over the whole of an area and all native title holders have been identified. Area Agreements are the agreements utilised where native title has not yet been determined.[160] Area agreements can deal with extinguishment or suspension of native title and any matter relating to native title, such as the alteration of the effect of the validation provisions or the grant of a lease over native title land. Alternative Procedure Agreements are appropriate where native title has not yet been determined.[161] Here all registered native title bodies corporate and all representative bodies in the area must be parties to such agreements but registered claimants need not become parties. This type of agreement cannot be used to extinguish native title as not all possible native titleholders are parties. The particular form of agreement chosen largely depends on whether a native title determination has been made in relation to part or the whole of the area which is the subject of the future act. It is crucial to ensure that the right type of ILUA is negotiated. If the wrong type of ILUA is negotiated, or the parties are incorrect, then the ILUA will not be registrable. The NTA is deliberately non-prescriptive as to the content of ILUAs, so as to promote flexibility.
An ILUA must generally relate to matters involving native title although it can include any conditions that are not illegal. Agreements can be small- scale through to large-scale regional agreements about land use or management. Although some differences exist in the subject matter that can be contained in a particular type of agreement, matters covered by an ILUA include the following: the doing of future acts; the imposition of conditions in relation to the doing of future acts; the validation of future acts; the manner of exercise of any native title rights in the area; the determination of compensation; and the extinguishment or surrender of native title.[162]
(a) Registration of ILUAs
A party to an ILUA may, subject to the agreement of the other parties, apply to the NNTT to have the agreement registered. The NTA permits objections against the registration of the ILUA on certain grounds. If the NNTT is satisfied those grounds are established, it cannot register the ILUA.[163] Once an ILUA is registered, however, it has contractual effect on the parties to the agreement and the ILUA becomes legally binding. While registered the agreement will also bind all native titleholders in the area covered by the agreement whether they are parties to the agreement or not.[164]
(b) Why choose an ILUA?
An ILUA is decidedly beneficial to both the resource developer and the native title holder. From a developer’s perspective this agreement avoids the lengthy and complex right to negotiate procedures of the NTA. ILUAs can be used as a bridge to forming a long-term relationship between the resource developer and native title parties. ILUAs allow applicants to deal with a whole range of future acts for a project and are not limited to just prospective mining. Finally, an ILUA guarantees the validity of future acts. From the native title holder’s perspective Aboriginal people have little to lose. They are not bound by the strict time frames in the NTA and if co-operation ceases to be forthcoming from the developer the native title parties can always insist on opting for the right to negotiate procedures under the NTA.
(c) Risks Associated with ILUAs
ILUAs are not a quick solution. They are resource intensive and take time to negotiate. Success depends on the existence of a positive relationship between the parties: that is, the will to negotiate.[165] If one registered native title party chooses to cease negotiations, the ILUA is worthless. Issues concerning the need to identify the correct parties to such an agreement are critical. This is certainly the case in relation to an area agreement. Here it is imperative that the relevant native title group is a party to the agreement.[166] Included in this group are all registered native title bodies corporate and all registered claimants. In addition, any person who claims to hold native title in relation to land or waters in the area may be a party to the agreement.[167] While developers must include registered native title claimants or registered native title bodies corporate in an ILUA,[168] there is no requirement that developers should include anyone who claims to hold native title (and is entitled to be a party to an ILUA pursuant to s 24CD(4)). However, excluding such interest holders could prove problematic in obtaining registration of the ILUA. For example, parties who claim to hold native title (but are not registered native title claimants nor a registered native title body corporate) could object to the ILUA being registered.[169] Alternatively, the Registrar may refuse registration if it is considered that reasonable efforts had not been made in identifying all persons who hold or who may hold native title.[170] Thus, in relation to area agreements, a developer continues to be faced with the dilemma of deciding who exactly to negotiate with. Ignoring unregistered native title claimants in negotiating an agreed development project could ultimately result in non-registration of any agreement reached and consequently the need to recommence proceedings under the NTA ‘right to negotiate’ process to enable the development to proceed.[171]
6 Outcomes of Negotiated Resource Agreements
Negotiated agreements have important advantages such as certainty, stability and security, and they obviate delay and time that litigation entails. Despite the advantages of negotiated settlements, recent research indicates that where Australian Aboriginal people lack the wherewithal to properly conduct negotiations the outcomes achieved fail to fully reflect their rights and interest in the traditional lands and lead to resentment and conflict in the future.[172] Studies also demonstrate that the best outcomes are achieved where sufficient resources are available, adequate information is provided to the indigenous community, the negotiations are inclusive (ie the right people are designated as participants) and sufficient time is allowed to reach an agreement.[173] One of the criticisms levelled against the ‘right to negotiate’ process is that only six months is available for negotiation prior to a party being able to demand arbitration. Often this is not long enough for indigenous communities. Resource developers also face challenges in the negotiation process. They cite difficulties with correctly identifying potential native titleholders and in establishing exactly what rights are comprised in native title itself.
B Resource Development on Aboriginal Lands in Canada
Mineral and resource development has successfully been undertaken on certain types of Aboriginal lands in Canada for many years.[174] Canadian Aboriginal lands include not only Aboriginal title lands but also reserve lands under the Indian Act, treaty lands and Aboriginal lands the subject of comprehensive claims. It is, of course, possible that Aboriginal title may exist in all three cases. Resource development regimes vary according to the type of land involved.
1 Resource Development on Indian Reserve Lands
In all the provinces, except British Columbia, most indigenous land is held in reserves pursuant to treaties and this land vests in the federal government. The legislation governing resource development of Indian land on reserves is the Indian Act.[175] That Act gives the indigenous peoples absolute power of veto of mining development as the Indian band can refuse to surrender their land or can surrender on stipulated conditions. In this way the Indian tribes can retain some control over the mineral development. Until the 1980s the standard form agreements pursuant to the Indian Act were almost exclusively used. There has been a departure from these in recent times resulting in agreements with flexible and innovative terms.
Development of mineral resources is not possible without the voluntary agreement by the Indians to surrender their land pursuant to the Indian Act.[176] Individual Indians or bands do not have the power to lease or convey reserve lands as this power vests in the Minister.[177] A surrender of reserve land is essential to enable the Minister to enter an agreement with regard to mining. The Indian Act allows the Minister to manage, sell, lease or dispose of resources on the surrendered portion of Indian Reserves[178] and after a surrender the Crown enters into a contract in the form of leases and permits with the development company. Surrender can be absolute, or by a ‘designation’.[179] Surrender by designation is the common way that reserve land is leased for commercial purposes. Surrender can be conditional, thus enabling the Indian tribe to negotiate terms in the mineral development agreement favourable to that tribe.[180] The normal process is that the Indian community first negotiates the terms of the lease directly with the developer, then the Crown designates the land which it then leases on the agreed terms and conditions to the developer. The Crown holds the lease directly with the third party. Aboriginal people are not party to such lease. The Minister is bound to act in accordance with the terms of the surrender. The lease agreement usually specifies that the designated land is to be returned to the Indian community as soon as the designated use stops.[181] Canadian leases are drafted on the basis that all the benefits go to the Indian tribe. Surrenders under the Indian Act are not surrenders in the usual conveyancing sense.[182] The surrender and lease processes are commonly used for leasing for all commercial development, including for example construction of buildings for shopping centres, and not limited to the development of natural resources on Indian land only.[183] The current form of the Indian Mining Regulations was drafted to allow flexibility in negotiating rents, royalties and agreements for the disposition of minerals.[184] Responsibility for the administration and enforcement of mining leases rests with the Department of Indian and Northern Affairs.[185]
(a) Fiduciary Duty
It is established that in circumstances where a ‘surrender’ of reserve lands to the Crown occurs for the purpose of third party development, the Crown owes a fiduciary duty to a band which ‘surrendered’ the land. In Guerin v
R [186] the Crown was held accountable for the consequences of the breach of this duty. In Canada the Crown must act in the Indian community’s best interests, therefore the best interest of the community must be objectively determined and the wishes of the community must be ascertained. An important part of that duty is the duty to consult.
(b) Mining on Reserves in British Columbia In British Columbia the situation regarding mining on Indian reserve land is slightly different from that of the other provinces. In the province of British Columbia few treaties were signed and all reserve land vested in the province, but jurisdiction regarding Indians remained with the federal government. An agreement in 1943 between the federal and provincial governments gave the Province of British Columbia ‘jurisdiction’ over Indian minerals. British Columbia claimed ownership of minerals on reserve lands within the province and the 1943 agreement allowed the province to administer the disposition of metallic minerals.[187] The province sets and collects rates, fees and royalties. Although the federal government is entitled to half of the revenues for the benefit of the Indian bands, revenues in British Columbia are not high due to heavy provincial taxes.
2 Resource Development on Aboriginal Lands the Subject of Comprehensive Claims Agreements
The second type of Canadian Aboriginal land is land which has been the subject of contemporary comprehensive land claim settlements.[188]
Comprehensive land claims are based on Aboriginal title to lands and natural resources. Since 1973 a series of comprehensive claims has been negotiated and concluded in British Columbia, the Yukon and the North West Territories.[189] Agreements generally specify the rights of the Aboriginal peoples to their land and resources. Usually full ownership of lands by the Aboriginal peoples is recognised, often with resource revenue-sharing terms.[190] Land claim settlements with the federal government generally recognise that the Aboriginal title holders have rights to control resource development. Pre-Delgamuukw agreements negotiated with the provinces generally specified that ten percent of the land in the settlement agreements included direct sub-surface ownership rights of the minerals. Post Delgamuukw, agreements would be expected to embrace full ownership of sub-surface rights. The treaty process in British Columbia, managed by the British Columbia Treaty Commission since 1996, has become increasingly deadlocked between the indigenous parties and the governments.[191] Both federal and provincial governments continue to insist, inter alia, upon extinguishment of Aboriginal title; and Aboriginal people now insist on their full rights to Aboriginal title of their lands in accordance with the Delgamuukw decision.
Nishga’a Final Agreement (Treaty)
The Nisga’a Agreement was signed and ratified by the Nisga’a Peoples of British Columbia and both provincial and federal governments in 1998.[192]
It is a modern day indigenous self-government agreement and was the first claim agreement settled in British Columbia. (It was negotiated outside the BC Treaty Process.) The Nisga’a Treaty has significant implications for resource development on the lands included under the Treaty and provides investment certainty for resource development on the Nisga’a lands. The Treaty settled land claims in the Nass River valley by an agreement which gave a portion of land to the Nisga’a peoples while leaving much of the land and resources originally claimed under the Canadian legal system. The Nisga’a government is both recognised and integrated into the constitutional system of Canada, but with most federal and provincial laws continuing to apply to Nisga’a and Nisga’a lands. The treaty stipulates that ownership of all mineral resources on or under Nisga’a lands is vested in the Nisga’a government. Nisga’a land covers 1930 square kilometres. The treaty allows the Nisga’a government and the British Columbia government to agree to the application of provincial administrative systems in relation to the development of mineral resources. For example, provincial systems relating to mining procedures could be utilised. Federal law which deals with uranium mining is to apply to Nisga’a lands. Mineral rights in relation to other lands previously claimed by the Nisga’a are extinguished as part of this agreement. It should be remembered that this Treaty was negotiated prior to the Supreme Court decision in Delgamuukw, that is prior to recognition by the Canadian Supreme Court that Aboriginal title is a right to the land itself encompassing ownership of natural resources. Despite this it is anticipated that the Nisga’a treaty will provide a template for subsequent British Columbia treaties.
3 Resource Development on Aboriginal Title Lands
The third type of Canadian indigenous land interest is in Aboriginal title lands. As discussed above, in 1997 in Delgamuukw the Supreme Court of Canada strongly endorsed the survival of a legal Aboriginal title with full ownership of natural resources.[193] Often no treaty rights exist in relation to natural resources on unextinguished Aboriginal title lands and no formal process had been established to foster negotiated resource development agreements.
(a) Resource Development Pre-Delgamuukw
Again, prior to the Canadian Supreme Court’s decision in Delgamuukw few satisfactory agreements were reached regarding resource development on Aboriginal title land. Canadian Aboriginal land title holders were forced to rely on the lodgment of caveats on title and injunctive relief to restrain development from proceeding and to protect traditional Aboriginal title. Injunctions were successfully obtained in certain cases to restrain forestry and logging operations and to halt mineral exploration. Often the recognition by the courts that a prima facie case or a serious question of law had to be decided was sufficient incentive for negotiated settlements to be reached with the Aboriginal title holders.[194]
(b) Resource Development
Post-Delgamuukw The Delgamuukw decision should have changed the process of resource development on Aboriginal title land. Lamer CJC in Delgamuukw stated that governments should: accommodate the participation of Aboriginal peoples in the development of resources of British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of Aboriginal title lands, that economic barriers to Aboriginal uses of their lands (eg licensing fees) be somewhat reduced. This list is not exhaustive. This is an issue that may involve an assessment of the various interests at stake in the resources in question. No doubt there will be difficulties in determining the precise value of the Aboriginal interest in the land and any grants, leases, licences given for its exploitation. These difficult economic considerations cannot be solved here.[195]
Lamar CJC further stated that ‘moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct negotiations in good faith’.[196] Thus the Delgamuukw decision mandated a moral obligation on the Crown that good faith consultation with traditional owners be undertaken prior to the commencement of any development activities. In addition, Delgamuukw has also ordained that payment of fair compensation, perhaps in the form of appropriate mining royalties, be made.
(c) Duty to Consult
Did the Crown abide by the duty to consult in the post-Delgamuukw era in British Columbia? Until the 2002 decision by the Court of Appeal in British Columbia in Haida Nation v Minister of Forests and
Weyerhaeuser[197] the answer would have been negative.[198] British Columbia courts, in resource development cases, refused to make determinations relating to the existence of Aboriginal title or Aboriginal rights in summary proceedings. The courts were clearly signalling that Aboriginal peoples had to prove their claims to Aboriginal title in court (a costly and time-consuming exercise) or enter the treaty negotiation process. As a result Aboriginal titleholders had no control over any resource development on their lands. The authors of an article on the duty to consult indicate that the call of the court in Delgamuukw for negotiated settlements has failed to impact on disputes involving Aboriginal property rights.[199] The Crown’s duty to consult was ignored and consultation processes have failed to produce long-term agreements in relation to resource development. The Delgamuukw call for negotiated settlements and the Crown’s duty to negotiate had little effect on disputes involving Aboriginal property rights.
However, in Haida Nation v Minister of Forests and Weyerhaeuser[200] the Court of Appeal of the Supreme Court in British Columbia found that there is not only a moral duty but also a legal and equitable duty on the Crown to consult with Aboriginal peoples about potential infringements of their Aboriginal title and Aboriginal rights.[201] This duty to consult applies prior to Aboriginal title being determined by the courts and prior to development permits or licences being granted by the Crown in relation to Aboriginal title land. In addition, the court found that a similar obligation applied to third parties, in this case to the transferee of a logging licence. The Court of Appeal in the Haida case indicated that the nature and scope of the duty to consult would vary with the circumstances. The duty to discuss any proposed development on Aboriginal title land would apply in cases of less serious breach. Most cases would involve significantly more intense negotiations than mere consultation.[202] The basis of this duty to consult lies in the trust-like relationship expressed as a fiduciary duty owed by the Crown to the Aboriginal peoples.[203]
The Haida decision leaves many questions unanswered. For example, in what circumstances will the duty arise? What will the guidelines be for good faith negotiations? When will the duty be fulfilled — perhaps only when a legally binding agreement is reached?[204] In what circumstances will such a duty be breached? What will a breach of the duty to consult result in? Will failure to consult mean that a subsequently granted interest will be invalid?[205] Perhaps a legislatively structured solution with set timeframes and with established consequences for breach would be preferable to one which depends on the Crown’s obligation to consult, despite this being a fiduciary obligation. Would a technical system along the lines of the ‘right to negotiate’ process under the Australian Native Title Act be preferable for both developers and Aboriginal peoples to a nebulous and open-ended duty to consult?
(d) Negotiated Agreements in British Columbia
One of the constant themes of Canadian judicial pronouncements relating to Aboriginal rights and title has been the encouragement by the courts for parties in such litigation to negotiate settlements of their disputes. Litigation to establish Aboriginal title is very costly in time and money. This is evident from the Delgamuukw case.[206] The Supreme Court’s advice to seek settlements by negotiated agreement and the Court’s observation that indigenous and non-indigenous peoples are in Canada to stay seem to provide a moral directive for the future. The government of British Columbia has established a Ministry of Aboriginal Affairs incorporating a Negotiations Division. This section conducts not only treaty negotiations but also other negotiations in relation to economic and development issues. The British Columbia government has prepared Consultation Guidelines[207] for negotiations in relation to Aboriginal title and rights and a complementary Quick Reference guide has been published by the British Columbia Ministry of Energy and Mines for use in conjunction with the guidelines.[208] Despite the structured procedure set out for consultation these processes lack a mechanism for binding settlement and determination if the negotiation process breaks down. The process has serious limitations for the Aboriginal title holders who are therefore forced to resort to common law remedies to protect their rights if negotiations fail.
In Australia, the Commonwealth Native Title Act 1993 with its ‘right to negotiate’ provisions provides a limited bargaining power for the Aboriginal traditional owners. However, the legislation guarantees traditional owners no veto rights in relation to resource development. Despite the legislation being structured to promote negotiated agreements, negotiated outcomes are not always achieved and arbitration is often required. Where Aboriginal people lack the necessary finances to properly participate in negotiations, the outcomes achieved could fail to fully reflect their rights and interests in the traditional lands, and the agreements reached under these conditions may not be sustainable in the future. Agreements negotiated in such circumstances may ultimately lead to resentment and attempts at renegotiation. The Australian High Court’s recent interpretation of the concept of native title in the Ward case recognises only limited rights of the traditional owners over their traditional lands. Without recognised rights of ownership of minerals and natural resources the ability of the traditional owners to effectively control resource development on native title land is minimal and traditional owners will have limited capacity to negotiate agreements with developers outside the framework of the NTA.
In Australia it is now over a decade since the High Court recognised native title at common law in Mabo. In Canada it is now some 30 years since the Supreme Court’s recognition of common law Aboriginal title in Calder. In both Canada and Australia, the relationships between both the indigenous peoples and other stakeholders in natural resource regimes have changed during that time. In both jurisdictions, the legal regimes governing these relationships and rights have increased in complexity. With goodwill and continued vigilance, progressive advancement is possible towards achieving workable and more mutually beneficial resource development regimes: regimes in which natural resource development can occur on Aboriginal lands and Aboriginal peoples can achieve full respect and recognition of their rights.
[1] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[2] ‘Indigenous peoples’ is used in this paper interchangeably with ‘Aboriginal’ and, in reference to Canada, ‘Indian’ and ‘First Nations peoples’.
[3] [1997] 3 SCR 1010; (1998) 153 DLR (4th) 193 (‘Delgamuukw’).
[4] [1973] SCR 313 (‘Calder’).
[5] [1992] HCA 23; (1992) 175 CLR 1.
[6] Ibid. In relation to the Mabo decision see M A Stephenson (ed), Mabo: A Judicial Revolution (1993); R H Bartlett, The Mabo Decision (1993).
[7] The Native Title Act (hereinafter ‘NTA’) became law on 1 January 1994. In relation to the NTA see R Bartlett, Native Title in Australia (2000); M A Stephenson (ed), Mabo: The Native Title Legislation (1995); R Bartlett and G Meyers (eds), Native Title Legislation in Australia (1994). See also P Butt, ‘The Native Title Act: A Property Law Perspective’ (1994) 68 Australian Law Journal 285.
[8] The Royal Proclamation prohibited private purchases of Indian land. See generally R H Bartlett, ‘The Reconciliation of Resource Development and Aboriginal Land Rights at Common Law in North America: Implications for Australia’ (unpublished paper for the Australian Mining and Petroleum Law Association, University of Western Australia, 1995).
[9] [1973] SCR 313.
[10] The only exception in British Columbia was Treaty 8, including part of the Rocky Mountains in British Columbia.
[11] See generally R Bartlett and J Milroy (eds), Native Title Claims in Canada and Australia: Delgamuukw and Miriuwung Gajerrong (1999); D Dick, ‘Comprehending the Genius of the Common Law: Native Title in Australia and Canada Compared Post Delgamuukw’ [1999] AUJlHRights 3; (1999) 5(1) Australian Journal of Human Rights 79; M Tehan, ‘Delgamuukw v British Columbia [1998] MelbULawRw 33; (1998) 22(3) Melbourne University Law Review 763; R Glindemann and D Bursey, ‘Compensation and Native Title Rights in Australia and Aboriginal Rights in Canada: An Overview’
(2001) Australian Mining and Petroleum Law Journal 286.
[13] (2002) 191 ALR 1 (‘Ward’).
[14] Ibid 11, 12.
[15] Ibid 131.
[16] Section 223(1)(c) requires that native title rights and interests must be capable of being recognised by the common law.
[17] See for a contrary view K McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (1997) 36 Alberta Law Review 117.
[18] The majority of the High Court in Mabo appeared to reach a conclusion that native title in Australia is sourced in the ‘traditional laws and customs’ of the Aboriginal peoples. Brennan J (with Mason CJ and McHugh J concurring) stated that ‘the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands’: [1992] HCA 23; (1992) 175 CLR 1, 15, 58. However, these views were never consistent with the actual order made by the High Court in Mabo. The terms of this order were framed as though the native title recognised was a possessory title emanating from the prior occupation and possession of the lands by the traditional owners.
[19] [1992] HCA 23; (1992) 175 CLR 1, 76. Cf Delgamuukw [1997] 3 SCR 1010, 1083.
[20] [1992] HCA 23; (1992) 175 CLR 1, 22.
[21] Ibid 61–2 (Brennan J), 88 (Deane and Gaudron JJ).
[22] The majority finding in Ward was that native title is defined in accordance with s 223 of the NTA.
[23] (2002) 191 ALR 1. See generally L Flynn, ‘Implications of the Recent High Court Decisions of Western Australia v Ward and Wilson v Anderson for Property Transactions’ (2002) 17 (2) Australian Property Law Bulletin 9; A Reilly, ‘From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward’ (2002) 9(4) E Law—Murdoch University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/ vqn4/reillyq4nf.html/> D Ritter, ‘Fin de Siecle: Western Australia v Ward’ (2002) 5(10) Native Title News 162; H Ketley, ‘Characterisation of Native Title’ (2002) 5(10) Native Title News 160; L Strelein, ‘Western Australia v Ward on behalf of Miriuwung Gajerrong: Analysis of Judgment’ (2002) Native Title Research Unit, AIATSIS <http://www.aiatsis.gov.au> J Basten, ‘The Content of Native Title’
(2002) 21 Australian Mining and Petroleum Law Journal 225. See also regarding the concept of native title: L Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95; C Mantxiaris and D Martin, Native Title Corporations —
A Legal and Anthropological Analysis (2000); S Grattan and L McNamara, ‘The Common Law Construct of Native Title Rights’ [1999] GriffLawRw 3; (1999) 8 Griffith Law Review 50;
L McNamara and S Grattan, ‘The Recognition of Indigenous Land Rights as Native Title’ (1999) 3 Flinders Journal of Law Reform 137.
[24] This interpretation of native title has profound implications in relation to the extinguishment of native title. Extinguishment was the primary issue in the Ward case. A discussion of extinguishment is beyond the scope of this paper. See generally R Bartlett ‘General Principles of Extinguishment after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 255.
[25] Section 223 provides:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) The rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) The Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) The rights and interests are recognised by the common law of Australia.
(2) Without limiting subsection (1), rights and interests in that subsection include hunting, gathering, or fishing, rights and interests.
[26] This interpretation is not dissimilar to the words used by Brennan J in Mabo when his Honour stated that ‘native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’: [1992] HCA 23; (1992) 175 CLR 1, 58.
[27] Section 223(1)(c). Traditional laws and customs that are repugnant to Australian law may not be given recognition: Mabo [1992] HCA 23; (1992) 175 CLR 1, 61.
[28] Prior to the High Court’s decision in Ward it had been suggested that the common law in relation to native title would continue to develop on a case by case basis. In Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 486 the High Court recognised that changes in the common law of native title will continue to occur. The Court stated:
The common law relating to native title is … substantive law the content of which is declared from time to time by the courts. Mabo (No 2) is a dramatic example of how the declaration of the common law relating to native title can change when a new judicial examination is made of basic legal principles which underlie a proposition earlier accepted.
[29] [2000] FCAFC 191; (2000) 170 ALR 159, 185. The majority in the Full Federal Court took a narrow approach to the question of native title and found that native title is constituted by a bundle of largely independent rights.
[30] (2002) 191 ALR 1, 37. To support this view of a bundle of rights that could be extinguished separately the majority referred to the distinction between complete extinguishment and extinguishment to the extent of inconsistency in s 23A NTA. The bundle of rights reference had been used previously by the High Court. In Mabo [1992] HCA 23; (1992) 175 CLR 1, 88 the High Court described native title as a bundle of rights which will vary from group to group depending on the traditional customs of the group. In Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 151 the High Court referred to ‘the rights which constitute native title’. See K Barnett, ‘Western Australia v Ward: One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis’ [2000] MelbULawRw 17; (2002) 24(2) Melbourne University Law Review 462.
[31] [1998] FCA 1478; (1998) 159 ALR 483, 508.
[32] [2000] FCAFC 191; (2000) 170 ALR 159.
[33] See Mabo [1992] HCA 23; (1992) 175 CLR 1, 89.
[34] (2002) 191 ALR 1, 15.
[35] In Ward at first instance in the Federal Court, Lee J’s approach to native title, that is Aboriginal ownership pursuant to the concept of a possessory title, reflected the Canadian Supreme Court’s view of Aboriginal title in Delgamuukw [1997] 3 SCR 1010. Lee J stated that:
Aboriginal title is a right in land… more than the right to engage in specific activities which may themselves be aboriginal rights. Rather it confers the right to use the land for a variety of activities… Those activities do not constitute the right per se; rather they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land: Ward v WA [1998] FCA 1478; (1998) 159 ALR 483: at 505.
The majority, Beaumont and Von Doussa JJ, in the Full Federal Court rejected Lee J’s approach to Canadian jurisprudence on the basis that Canada’s recognition of native title occurred in circumstances very different to those in Australia. The difference in these two interpretations of native title (at first instance and on appeal in the Federal Court) reflects the difference in how that title is characterised — either as a possessory title or as a title limited to and restricted by traditional laws and customs.
[36] [1998] FCA 1478; (1998) 159 ALR 483. Lee J in Ward at first instance took an expansive view of native title (presumably based on the concept of a possessory title). Lee J distinguished between the rights of native title, such as the rights to hunt and fish, and the underlying title itself. His Honour’s finding that native title included a right to use and enjoy the resources in the native title lands, the right to control the use and enjoyment by others of the resources, and a right to receive a portion of any resource taken by others clearly indicated that the holders of native title would have the right to control mining on their land, irrespective of questions of ownership of minerals. This would have allowed traditional owners to exert extensive control over resource development on their traditional lands.
[37] D Young, ‘Native Title after Ward: A General Overview of the Implications for the Mining and Petroleum Industry’ (2002) 21 Australian Mining and Petroleum Law Journal 207; M Hunt, ‘Native Title and the Mining Industry after Ward: Including Recommendations for Participants’ (2002) 21 Australian Mining and Petroleum Law Journal 294. K Jagger, ‘Ward: Mining and Petroleum’ (2002) 5(10) Native Title News 169.
[38] (2002) 191 ALR 1, 113–14. The High Court in Ward took the narrow view that the use of ochre did not establish a right to minerals or to the subsoil as ochre is not a mineral. Kirby J was prepared to recognise a right to minerals on the basis that such a right can evolve.
[39] Delgamuukw [1997] 3 SCR 1010, 1112–13.
[43] In Queensland this legislation is the Mineral Resources Act 1989 (Qld).
[44] [1999] HCA 53; (1999) 201 CLR 351. Yanner, an Aboriginal, was prosecuted for killing two juvenile crocodiles in the Gulf of Carpentaria and was charged with taking fauna contrary to the Fauna Conservation Act 1974 (Qld).
[45] The property which was vested in the Crown by the State legislation was no more than an aggregate of the various rights of control by the executive, which the legislation had created.
[46] [1999] HCA 53; (1999) 201 CLR 351, 372–3. In a joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ considered that the regulation of the way in which rights and interests may be exercised is not inconsistent with their continued existence. In fact the wording of the legislation presupposes that the right might exist. A statute may regulate the exercise of a native title right without in any degree abrogating it.
[48] Ibid 145. The High Court found:
… there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.
[49] Courts have been reluctant to recognise commercial rights in other jurisdictions. See R v Van der Peet [1996] 2 SCR 507. See also D Sweeney, ‘Fishing, Hunting, and Gathering Rights of Aboriginal Peoples in Australia’ [1993] UNSWLawJl 7; (1993) 16(1) University of New South Wales Law Journal 97, 135.
[50] Members of the Yorta Yorta Community v Victoria [2002] HCA 58; [2002] 194 ALR 538, 552–3, 560. The High Court found that the word ‘traditional’ in s 223(1)(a) of the NTA required that the communities’ practices have their origin in pre-sovereignty laws and customs. To prove native title the High Court in Yorta Yorta required that the acknowledgment and observance of traditional laws and customs must have continued substantially uninterrupted from pre-sovereignty times.
[51] Ibid 552.
[52] Ibid 562–3.
[53] See Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).
[54] Ibid 59.
[55] Native title may be surrendered to the Crown and authority for this lies in the Crown’s common law right of pre-emption. This right was recognised in Mabo[1992] HCA 23; , (1992) 175 CLR 1, 70.
[56] Query whether this is legislatively possible under the Commonwealth Native Title Act. Could a State create such new interest not mandated by statute? Possibly an Indigenous Land Use Agreement could be a vehicle for this.
[57] See below.
[58] See NTA s 56. This section provides that native title rights and interests held by the body corporate are not able to be assigned, seized or sold or made subject to any charge or interest as a result of any debt or liability of, or any act done by, the body corporate unless that debt was incurred in connection with dealings authorised by the Commonwealth NTA or Regulations.
[59] It has been suggested that financing commercial operations could be restricted to borrowing funds on the basis of the cash flow of the commercial operation. Financiers involved with native title land should ensure their entitlement to obtain notices issued under the NTA 1993 to guarantee that they are kept informed of possible future dealings with the land. B Horrigan, ‘Mabo and Native Title — The Final Implications: Key Concerns for Miners, Developers, Investors, and Financiers’ (1994) 13(4) Australian Mining and Petroleum Law Association Bulletin 158, 167.
[60] Delgamuukw [1997] 3 SCR 1010, 1088. As discussed above, the Court in Delgamuukw found that Aboriginal title contains an inherent limit on the content and this title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to Aboriginal title.
[61] Ibid. The court did not decide whether the Gitksan and Wet’suwet’en peoples who brought the action had Aboriginal title. The case was sent back to trial for this determination due to defects in the pleadings and issues concerning the trial judge’s dealings with the oral evidence. Lamer CJC wrote the principal judgment and La Forest and L’Heureux-Dubé wrote a separate judgment concurring in the result but differing on some points.
[62] The Royal Proclamation, 1763 recognised Aboriginal title in Canada and was the legal basis for the treaties which were signed with Aboriginal peoples. However, the Royal Proclamation was not the source of Aboriginal title in Canada. Although the Court in St Catherine’s Milling and Lumber Company v The Queen (1888) 14 App Cas 46 (PC) had regarded the Royal Proclamation as the source of Aboriginal title this view was rejected by the Canadian Supreme Court in Calder v AG British Columbia [1973] SCR 313. The Calder view was confirmed by Lamer CJC in Delgamuukw [1997] 3 SCR 1010, 1082:
It is now clear that although aboriginal title was recognised by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical occupation, which derives from the common law principle that occupation is proof of possession in law.… What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward … This idea has been further developed in Roberts v Canada, [1989] 1 SCR 322 where this Court unanimously held at p. 340 that ‘aboriginal title pre-dated colonisation by the British and survived British claims to sovereignty.
Also see Guerin v The Queen, [1984] 2 SCR 335, 378). What this suggests is a second source of Aboriginal title — the relationship between common law and pre-existing systems of Aboriginal law.
Lamer CJC stated that ‘… if, at the time of sovereignty, an aboriginal society had laws in relation to land, those laws would be relevant to establishing occupation of lands which are the subject of a claim for aboriginal title. Relevant laws might include, but are not limited to, a land tenure system or laws governing land use’: at 1100.
[63] Delgamuukw [1997] 3 SCR 1010, 1820 and see 1000–1100; K McNeil, ‘The Meaning of Aboriginal Title’ in M Asch (ed), Aboriginal and Treaty Rights in Canada (1997) 135, 144; K McNeil, Common Law Aboriginal Title (1989) 6–7. Although most estates in land, such as the fee simple, arise after British sovereignty, Aboriginal title in Canada arises from possession prior to the assertion of sovereignty.
[64] At common law such title is akin to a fee simple. To establish a possessory title at common law it is necessary to show physical possession of the land. This goes further than mere occupation of the property and amounts to actual control of the property and an intention to possess the land. The physical occupation must be coupled with an intention by the possessor to posses the land to the exclusion of all others. See P Butt, Land Law (2001) 740—5. See also Megarry and Wade, Law of Real Property (C Harpum, M Grant & S Bridge, 6th ed 2000) 1308–11, 1328.
[65] Delgamuukw [1997] 3 SCR 1010; (1998) 153 DLR (4th) 193. See generally in relation to this decision: K McNeil, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (2001) 102–58; K McNeil, ‘Defining Aboriginal Title in the 90s: Has the Supreme Court Finally got it Right?’ (Twelfth Annual Robarts Lecture, Robarts Centre for Canadian Studies, York University, Toronto, Ontario, 25 March 1998); O Lippert (ed), Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision (2000); H Foster, ‘Aboriginal Title and the Provincial Obligation to Respect It: Is Delgamuukw v British Columbia “Invented Law”?’ (1998) 56, The Advocate 221; S Rush, ‘Aboriginal Title: The Path to Co-existence’ (Delgamuukw Workshop, Australian National University, Canberra, October 1998); L Mandell, ‘The Delgamuukw Decision’ (Delgamuukw Workshop, ANU, Canberra, October 1998); G Neate, ‘Three Lessons for Australians from Delgamuukw v British Columbia’
(Delgamuukw Workshop, ANU, Canberra, October 1998) and R Blowes, ‘Delgamuukw v British Columbia’ (Delgamuukw Workshop, ANU, Canberra, October 1998). See also R A Reiter, The Law of First Nations (1996); J Woodward, Native Title (1989 looseleaf). Previous decisions of the Supreme Court of Canada had recognised that Aboriginal title was a freestanding right and that Aboriginal title to land is one aspect of Aboriginal rights generally. See R v Adams [1996] 4 CNLR 1 (SCC) and R v Cotè [1996] 3 SCR 139.
[66] Delgamuukw [1997] 3 SCR 1010, 1084–5, 1096. The Privy Council in St Catherine’s Milling v The Queen (1888) 14 App Cas 46, 55 had described Aboriginal title as a ‘personal and usufructuary right’ in land.
[67] Delgamuukw [1997] 3 SCR 1010, 1084–5, 1096.
[68] Ibid 1087–8.
[69] Ibid 1088.
[70] Ibid 1084, 1113 where Lamer CJC stated that ‘Aboriginal title encompasses with it a right to choose to what ends a piece of land can be put’.
[71] Ibid 1084–5. The view that Aboriginal title was so restricted has received much criticism from academic sources. See Canada, Royal Commission on Aboriginal and Treaty Rights, Report Vol. 2, Restructuring the Relationship, (1996) 561; K McNeil, Common Law Aboriginal Title (1989) 242; K McNeil, ‘The Meaning of Aboriginal Title’ above n 63, 143–50; B Slattery, ‘The Constitutional Guarantee of Aboriginal and Treaty Rights’ (1982–83) 8 Queen’s Law Journal 232, 268–9;
B Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (1983) 34; B Slattery, ‘Understanding Aboriginal Rights’ (1987) Canadian Bar Review 725, 746-8.
[72] R v Van der Peet [1996] 2 SCR 507 (‘Van der Peet’). For a critique of this test, see J Borrows, ‘Frozen Rights in Canada: Constitutional Interpretation and the Trickster’ (1997– 1998) 22 American Indian Law Review 37.
[73] In Van der Peet [1996] 2 SCR 507 according to Lamer’s majority judgment, to be ‘integral to the activity’ had to be of central significance to the culture in question and had to be one of the things that truly made that society what it was. The majority suggested that a practical way of thinking about the issue was to ask ‘whether without this practice, tradition or custom, the culture in question, would be fundamentally altered or be other than what it is’. Thus an activity that was incidental to the culture would not satisfy the integral component of the test. In relation to the distinctive culture the majority indicated that the practice must be characteristic of the culture in the sense that it was central to it. The majority also indicated that a current activity must have its roots in pre-European activities, resulting in Aboriginal rights being restricted to historical practices.
[74] This would be subject to the inherent limit recognised by the Court in Delgamuukw as discussed below.
[75] [1984] 2 SCR 335, 382 (‘Guerin’).
[76] Delgamuukw [1997] 3 SCR 1010, 1085–6.. Further support was found in the statements of Dickson J in Guerin [1984] 2 SCR 335, 382 wherein he considered that the same legal principles governed the Aboriginal interest in reserve lands and lands held pursuant to Aboriginal title, and that the Indian interest in these lands is the same in both cases. Additional support for the view that the content of native title is not restricted to traditional practices and customs was found in the Indian Oil and Gas Act, RSC 1985, c 1–7, which presumed that the Aboriginal interest included mineral rights.
[77] However, Aboriginal title may be restricted by past practices due to the inherent limit.
[78] See McNeil, ‘Defining Aboriginal Title in the 90s’, above n 65.
[79] See ibid. It is arguable that Aboriginal title holders should have even greater protection against government intrusion than other landholders as their Aboriginal rights have been affirmed and recognised by the Constitution. Surely the holders of constitutionally entrenched rights should be provided with greater protection against government infringement than the holders of non-entrenched rights.
[80] Delgamuukw [1997] 3 SCR 1010, 1089. This is explicated in detail below.
[81] Ibid 1081–2. This is also explicated in detail below.
[82] Ibid 1111–14. A detailed discussion of extinguishment is beyond the scope of this paper. See the discussion of infringement below in Constitutional Context.
[83] Delgamuukw [1997] 3 SCR 1010, 1094. Lamer CJC confirmed that this distinction arises because Aboriginal title is based on occupation of land, whereas other Aboriginal rights are not based on occupation. La Forest and L’Heureux- Dubé JJ also considered that a distinction should be drawn between the recognition of a right to possess ancestral lands and a right to engage in an Aboriginal activity.
[84] [1996] 2 SCR 507, 509–11.
[85] See B Slattery, ‘Varieties of Aboriginal Rights’ (1997) 6(4–6) Canada Watch 71–3.
[86] Delgamuukw [1997] 3 SCR 1010. Thus Aboriginal peoples of Canada clearly may own subsurface minerals outside reserves and outside of treaty lands. Cases prior to Delgamuukw did not deal with the issue of Aboriginal rights to mine or rights to extract minerals from the subsurface of the land, largely because of the necessity of establishing that any purported Aboriginal rights were integral to the subject Aboriginal culture.
[87] See discussion in relation to Aboriginal title as an overarching right to the land itself, above.
[88] RSC 1985, c 1-7.
[89] [1984] 2 SCR 335, 379. Dickson J noted that the Indian interest in reserve land is broad, s 18 of the Indian Act 1985 providing that the reserve lands may be used for any purpose for the general welfare of the band, with no restriction to traditional activities.
[90] Section 18 of the Indian Act, 1985.
[91] In Delgamuukw [1997] 3 SCR 1010, 1086 Lamer CJC noted that the overall purpose of the statute is to provide for the exploration of oil and gas on reserve lands through their surrender to the Crown.
[92] This result is consistent with common law principles.
[93] Delgamuukw [1997] 3 SCR 1010.
[94] Section 109 Constitution Act, 1867 ((UK) 30 and 31 Vict, c 3) provides that:
All Lands, Mines, Minerals and Royalties belonging to the several Provinces...shall belong to the several Provinces...in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
‘Royalties’ covers the prerogative rights of the Crown connected to the land. Gold and silver, the precious metals, belong to the Crown as a special prerogative right and not as one of the ordinary rights of a landowner. See AG British Columbia v AG Canada [1889] UKLawRpAC 8; (1889) 14 App Cas 295 (‘Precious Metals’ case). The Privy Council confirmed that British Columbia held the rights to precious metals in the Railway Belt land which had been transferred to the Federal Government for the purpose of constructing the transcontinental railway. British Columbia had agreed to convey ‘public lands’ which the Privy Council found did not include the prerogative minerals, but did include base minerals.
[95] This provision was inserted by the Resources Amendment in 1982 which defined the division of powers and the provincial powers more clearly.
[96] See generally N Bankes, ‘Indian Resource Rights and Constitutional Enactments in Western Canada, 1871–1930’, in Louis A Knafla (ed), Law and Justice in a New Land: Essays in Western Canadian Legal History (1986); B J Barton, Canadian Law of Mining (1993); G La Forset, Natural Resources and Public Policy under the Canadian Constitution (1969). See also R H Bartlett, Resource Development and Aboriginal Land Rights (1990).
[97] Delgamuukw [1997] 3 SCR 1010.
[98] Ibid 1088.
[99] Ibid.
[100] Ibid 1089. The Court in Delgamuukw identified an analogy to the doctrine of equitable waste whereby the holder of a life estate cannot commit wanton or extravagant acts of destruction.
[101] However, there are some difficulties with this analogy. It must be recognised that Aboriginal title and restrictive covenants have different origins. There is no comparable restriction on fee simple titles. Also there is the question of who has standing to sue for alleged violations of the inherent limit.
[102] Delgamuukw [1997] 3 SCR 1010, 1091.
[103] Ibid. Lamer CJC said that such limitation would not restrict the use of the land to activities that had been traditionally carried out on the land. Nor would it amount to a legal strait-jacket on Aboriginal peoples who have a legitimate claim to the land. It would allow for the full range of uses of the land subject only to an overarching limit defined by the special nature of the Aboriginal title. Professor McNeil in ‘Defining Aboriginal Title in the 90s’, above n 65, comments that it seems that ‘present uses are not restricted to, but they are restricted by, past practices and traditions’.
[104] As Professor McNeil in ‘Defining Aboriginal Title in the 90’s’, above n 65, states: ‘Isn’t it paternalistic for the Supreme Court to impose restrictions on Aboriginal title in the interests of cultural preservation ... if the Aboriginal community in question does not want them?’ Because Aboriginal title is held communally, any decision in relation to that title will be made by the community decision-making process, which is effectively self-government, and it is up to the self-governing body to decide how the land is to be used.
[105] Delgamuukw [1997] 3 SCR 1010, 1089.
[106] Ibid.
[107] Ibid 1090. The inalienability of Aboriginal title had previously been recognised by the courts. The Court in Delgamuukw attributed the non-alienability of Aboriginal land to the fact that title to this land is derived from occupancy and this title is determined by reference to the activities that have taken place on the land and the uses to which the land has been put, and the past usages of Aboriginal title land would not have included sale or lease. The Court also noted that inalienability of Aboriginal land is also due to the function of the common law principle that settlers in colonies must derive their title from Crown grant, and cannot acquire title through purchase from Aboriginal inhabitants. This policy was partly to ensure that Indians were not dispossessed of their entitlements: Mitchell v Pegus Indian Band [1990] 2 SCR 85, 133. And this policy ensured that a Crown grant was the only valid method to obtain a title for land other than Aboriginal land.
[108] While the Court in Delgamuukw did not deal with the issue of the return of Aboriginal title, it is arguable that, as the Court indicated that the rights of native title are the same as rights to land under the Indian Act, it follows that after the lease expires the reversion held by the traditional title holders in Aboriginal lands could be retransferred to those traditional title holders.
[109] Section 89 of the Indian Act prohibits mortgaging reserve lands. Such statutory limitations in the Indian Act would not apply to Aboriginal title lands.
[110] See generally: K McNeil, ‘The Constitutional Rights of the Aboriginal Peoples of Canada’ (1982) 4 Supreme Court Law Review, 255, 256–7; P Macklem, ‘First Nations Self-Government and the Borders of the Canadian Legal Imagination’
(1991) 36 McGill Law Journal 382, 447–8; D Sanders, ‘The Rights of Aboriginal Peoples of Canada’ (1983) 61 Canadian Bar Review, 314, 329.
[111] Delgamuukw [1997] 3 SCR 1010, 1091–2. Aboriginal title could be extinguished by federal legislation prior to 1982 where legislation showed a ‘clear and plain intention to extinguish that title’. However, Aboriginal title could not be extinguished by provincial legislation as the federal government had the exclusive power to deal with ‘Indians, and lands reserved for the Indians’ under s 91(24) of the Constitution Act, 1867. After 1982, despite the Constitutional protection it is still possible for the federal government to infringe or impair Aboriginal title where the Sparrow test of ‘justification’ is satisfied: R v Sparrow [1990] 1 SCR 1075.
[112] Delgamuukw [1997] 3 SCR 1010, 1094.
[113] Unlike the position in Canada both State and Commonwealth governments can potentially extinguish, impair or regulate native title in Australia (subject to the above).
[114] The parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) The people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws.
[115] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.
[116] Section 35 of the Constitution Act, 1982 provides:
(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.
In this Act, ‘Aboriginal peoples of Canada’ includes the Indian, Inuit and Metis peoples of Canada.
…
(3) For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.
[117] See Delgamuukw [1997] 3 SCR 1010, 1107. In R v Sparrow [1990] 1 SCR 1075 it was recognised that the rights recognised under s 35 were not absolute:
‘Federal legislative powers continue including the right to legislate with respect to Indians...’ and that: ‘federal power must, however, be reconciled with the federal duty towards the aboriginals and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights’: at 1109 (Dickson CJ).
[118] Sparrow [1990] 1 SCR 1075 at 1109–19.
[119] The federal government must show a valid reason exists for making the law, for example conserving and managing the resource. In addition it must demonstrate that the law upholds the honour of the Crown. The government must further establish that the infringement of the Aboriginal right is minimal, that fair compensation is paid to Aboriginal peoples affected, and that the Aboriginal peoples concerned have been consulted.
[121] In Delgamuukw [1997] 3 SCR 1010, 1111 Lamer CJC expanded on the justification test and stated:
The range of legislative objectives that can justify the infringements of Aboriginal title is fairly broad. Most of the objectives can be traced to the reconciliation of the prior occupation of North America by Aboriginal peoples with the assertion of Crown sovereignty which entails the recognition that ‘distinctive Aboriginal societies exist within, and are part of, a broader social, political and economic community... The development of agriculture, forestry, mining and hydroelectric 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 those aims, are the kind of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title’. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case by case basis.
Most of the activities mentioned by Lamer CJC, (eg agriculture, forestry and mining) are within provincial jurisdiction under s 92 of the Constitution Act, 1867 which deals with division of powers.
[122] For a discussion of s 91(24) of the Constitution, 1867 , see generally: P Hogg, Constitutional Law of Canada (Loose-leaf, 4th ed, 1997), ch 27. See also M A Stephenson, ‘Provincial Legislative Powers and Aboriginal Rights Since Delgamuukw: Can a Province Infringe Aboriginal Rights or Title?’ (2003) 8 International Trade and Business Law Annual 57; K McNeil, ‘Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction’, (1998) 61 Saskatchewan Law Review 431; K McNeil, ‘Defining Aboriginal Title in the 90s’, above n 65; B Slattery, ‘The Constitutional Guarantee of Aboriginal and Treaty Rights’, above n 71, 233; B Slattery, ‘First Nations and the Constitution: A Question of Trust’ (1992) 71 Canadian Bar Review 261.
[123] Section 35 of the Constitution Act, 1982.
[124] This was recognised in Delgamuukw [1997] 3 SCR 1010, 1119. Extinguishment is discussed in detail below. It was also recognised by Lamer CJC in R v Van der Peet [1996] 2 SCR 507, 538, that the enactment of s 35(1) of the Constitution Act, 1982, prevents even Parliament from extinguishing Aboriginal rights.
[125] The provincial underlying title would remain subject to the Aboriginal title. Any action here by the Aboriginal title holders might, however, be subject to the statutes of limitation. Statutes of limitation, being provincial statutes and not federal statutes, will be subject to the same rules of application to which provincial laws are subject in relation to Aboriginal lands. Provincial legislation, including statutes of limitation, may not apply to Aboriginal title, unless referentially incorporated by federal legislation under s88 of the Indian Act. See discussion below.
[126] In 1888 the Judicial Committee of the Privy Council in St Catherine’s Milling [1888] UKLawRpAC 59; (1889) 14 AC 46, 59 signalled to the provinces that Aboriginal title lands would not be available as ‘a source of revenue’ to the provinces until that title had been extinguished. In that case it was stated that: ‘The fact that the power of legislating for Indians and [their lands] has been entrusted to ... the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title’: at 59. See M A Stephenson, ‘Provincial Legislative Powers and Aboriginal Rights Since Delgamuukw’, above n 122; H Foster, ‘Aboriginal Title and the Provincial Obligation to Respect it: Is Delgamuukw v British Columbia “Invented Law”?’
(1998) 56 The Advocate 221.
[127] This is supported by Dick v The Queen [1985] 2 SCR 309, that s 88 of the Indian Act applied to referentially incorporate provincial laws that affected Indianness by impairing the status or capacity of Indians; in this case in relation to Indian hunting. The legislation in question was a law of general application and thus applicable to the Indian person by referential incorporation. See P Hogg, Constitutional Law of Canada, above n 122, ch 27; B Slattery, ‘Understanding Aboriginal Rights’, above n 71, 774–82.
[128] See Kruger v The Queen [1978] SCR 104.
[129] See Re Stony Plain Indian Reserve No 135 (1982) 130 DLR (3rd) 636. See also K McNeil, ‘Aboriginal Title and Section 88 of the Indian Act’, (2000) 34(1) University of British Columbia Law Review 159, 172; N Bankes, ‘Delgamuukw, Division of Powers and Provincial Land and Resource Laws: Some Implications for Provincial Resource Rights’ (1998) 32(2) UBC Law Review 317.
[130] Section 91(24) of the Constitution Act, 1867 30 & 31 Vict, c3 (UK). See Delgamuukw [1997] 3 SCR 1010, 1116–18 (Lamer CJC).
[131] [1997] 3 SCR 1010. Although the Supreme Court in Delgamuukw at 1107 and 1109 found that the provinces had neither the power nor the jurisdiction to extinguish Aboriginal title, it was suggested that provinces have the power to infringe or regulate Aboriginal title. However, this latter issue was not examined in depth. The Court in Delgamuukw focussed on defining the content of Aboriginal title to land, the requirements as to proof of Aboriginal title, and the use of oral histories as evidence.
[132] [2002] 210 DLR (4th) 577, 604–6 ‘Kitkatla’.
[133] RSC 1985 c 1–5.
[134] Section 4 of the Indian Act states that the Minister … shall have the control and management of the lands and property of the Indians in Canada.
[135] See M A Stephenson, ‘Negotiating Resource Agreements with Indigenous People: Comparative International Lessons’ in B Horrigan and S Young (eds), Commercial Implications of Native Title (1997) 320; Bartlett, ‘The Reconciliation of Resource Development and Aboriginal Land Rights at Common Law in North America’, above n 8; A Knox, ‘Aboriginal Title and Mineral Development in Canada and Australia’, Mineral Law Institute Conference Proceedings (2000); G Nettheim, G D Meyers and D Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (2002); G Meyers, ‘Native Title Rights in Natural Resources: A Comparative Perspective of Common Law Jurisprudence’ (2002) 19 Environmental and Planning Law Journal 245; C O’Faircheallaigh, Implementing Agreements between Indigenous Peoples and Resource Developers in Australia and Canada, Australian Politics and Public Sector Management Research Paper No 13, January 2003.
[136] The Native Title Act 1993 came into operation on 1 January 1994. For more detailed discussion of the legislation see Bartlett, Native Title in Australia, above n 7; Stephenson (ed), Mabo: The Native Title Legislation, above n 7.
[137] (1996) 187 CLR 1 (‘Wik’).
[138] The Commonwealth government’s 10-point plan included the following: 1. Validation of government grants from 1 January 1994 to the Wik decision.
(b) Confirmation of the extinguishment of native title in relation to exclusive tenures granted prior to 1 January 1994.
(b) Tightening of the registration tests for native title claimants. Native title claimants need to satisfy a new threshold test prior to the registration of claims. This required native title claimants to establish a physical connection with their traditional lands prior to a claim being recorded on the Native Title Register.
The right to negotiate in respect of a mining project will be limited to one negotiation only. The right to negotiate will not be repeated at each stage of the project.
Alternative State Regimes could be established which remove the right to negotiate in respect of mining development on leasehold property. In the alternative regimes a duty of consultation, but not negotiation in good faith is required. In addition disputes do not have to be determined by an independent arbitral body.
A scheme of voluntary but binding agreements is incorporated as an alternative to the right to negotiate process. These are the Indigenous Land Use Agreements. These agreements can be registered in the Native Title Register. The validity of future acts included in an Indigenous Land Use Agreement is guaranteed.
The provision of government services to land affected by native title.
[139] NTA ss 14(1), 19(1), 228. Mining leases are validated as Category C acts. Most other resource development activities are validated as Category D acts. The effect of validation operates on Category C and D interests to suspend native title for the period of the lease. At the end of the validated mining interest native title revives.
[140] Two interpretations seem possible. First, the right being denied is the right not to be deprived of the land itself, in which case all title granted by government since 1975 over land in which native title exists would be invalid. Secondly, the right being denied is the right not to be deprived without adequate compensation, in which case title granted by government since 1975 over land in which native title exists would be valid but subject to the payment of compensation.
[141] Ward (2002) 191 ALR 1 [122]. See C Davie, ‘Invalidity of Dispositions and Tenements under the Racial Discrimination Act and Validation under the Native Title Act’ (2002) 21 Australian Mining and Petroleum Law Journal 244.
[142] NTA div 3 pt 2 ss 233, 226.
[143] NTA ss 233, 227. An act will affect native title if it extinguishes native title or is wholly or partly inconsistent with native title.
[144] NTA ss 24AA(2), 240A.
[146] See generally K Morgan-Wicks, ‘Balancing Native Title and Mining Interests: The Queensland Experience’ in J F Boge (ed) Justice for All? Native Title in the Australian Legal System (2001); M Hunt, ‘Workability of the Native Title Act (as amended)’ (1998) 17 Australian Mining and Petroleum Law Journal 330; A De Soyza, ‘The Right to Negotiate and the Amendments to the Native Title Act 1993’ (1998) 3(11) Native Title News 172.
[147]
Under the 1993 legislation the right to negotiate applied to any act
creating the right to mine and to the compulsory acquisition
of land
for the benefit of a third party. However, the Commonwealth’s
1998 amendments to the Native Title Act have watered down the original
ambit of the right to negotiate and have also removed certain
categories of ‘future acts’
to which the right applied. 148
[151] The right to negotiate process is available only to claimants recorded on the Native Title Register. With the 1998 amendments there has been a tightening of the registration tests for native title claimants. Native title claimants need to satisfy a new threshold test prior to the registration of claims. This requires native title claimants to establish a physical connection with their traditional lands prior to a claim being recorded on the Native Title Register: NTA s 190B. As a result the right to negotiate process will arise in respect of mining only upon native title claimants being registered. As registration is not essential to prove native title at common law it seems possible that a native title claim could succeed at common law and yet be denied registration under the Act.
[152] NTA ss 33, 38.
[153] In relation to negotiating the terms of indigenous agreements see Stephenson, ‘Negotiating Resource Agreements with Indigenous People’, above n 135, 320; C O’Faircheallaigh, Negotiating a Better Deal for Indigenous Landowners Combining Research and Community Service, Aboriginal Politics and Sector Management Research Paper No 11, January 2003; C O’Faircheallaigh, Financial Models for Agreements Between Indigenous Peoples and Mining Companies, Aboriginal Politics and Sector Management Research Paper No 12, January 2003.
[154] NTA ss 31, 30A. See also Walley v Western Australia (1996) 76 FCR 366; Coppin v Western Australia [1999] FCA 931; (1999) 92 FCR 465; and Strickland v Minister of Lands (WA) (1998) 85 FCR 320.
[155] See Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211, 224–5.
[156] NTA s 39.
[157] NTA pt 2 div 3 subdivision C. See generally Bartlett, Native Title in Australia, above n 7; P Lane, ‘A Quick Guide to ILUAs’ in Keon-Cohen (ed) Native Title in the New Millennium, (2001); L Godden and S Dorset, ‘The Contractual Status of Indigenous Land Use Agreements’, Land Rights, Laws: Issues of Native Title, Native Title Research Unit, AIATSIS, Vol 2 Issues Paper No 1, September 1999;
J McPherson, ‘Indigenous Land Use Agreements as a Risk Management Tool: A View from the Resource Industry’ (1999) Australian Mining and Petroleum Law Association Yearbook 234; J Ellis, ‘Indigenous Land Use Agreements — A Minerals Industry Perspective’ in G Meyers (ed), The Way Forward Collaboration and Cooperation in Country’ (2nd ed 1996) 163; G Neate, ‘Agreement Making After Western Australia v Ward and Wilson v Anderson: Where to from Here?’ (2003) Native Title Conference 2003: Native Title on the Ground, Alice Springs, 5 June 2003.
[158] Specific improvements include: excluding the right to negotiate provisions (s 26(2)); validating acts done in accordance with the agreement upon registration of an ILUA; enabling the terms of an ILUA to take precedence over other provisions in the NTA dealing with the validity of future acts (s 24AB(1)). This makes it possible, for example, for an ILUA to enable a mining lease to be validly granted without going through the right to negotiate process, or for an ILUA to validate future acts undertaken invalidly by registering the ILUA. Section 24CD is designed to overcome the problem of identifying indigenous parties to the ILUA agreement. Refer to the discussion below.
[159] NTA ss 24BD–24BI.
[160] Ibid ss 24CA–24CL.
[161] Ibid ss 24DA–24DM.
[162] Ibid ss 24BB, 24CB, 24DB, 24BE, 24CE, 24DF, 24EB(4),(5),(6).
[163] Ibid ss 24BI(2), 24CI, 24DJ.
[164] Ibid s 24EA(1)).
[165] See Sheehan & Mascher, ‘Indigenous Land Use Agreements: A Pathway for Negotiating the Future’ [1998] AUMPLawJl 57; (1998) 17(3) Australian Mining and Petroleum Law Journal 300.
[166] NTA s 24CD.
[167] NTA s 24CD(4).
[168] NTA s 24CD(2).
[169] NTA s 24CI.
[170] NTA s 24CG(3). The Registrar cannot register an area agreement if the requirements of s 24CG(3)(b) have not been met, ie the application must be certified by all representative Aboriginal bodies for the area, with a statement that all persons so identified have authorised the making of the agreement.
[171] NTA s 24CD. Including unregistered claimants could potentially antagonise the registered native title claimants, making negotiating and reaching a mutual agreement more difficult.
[172] Indigenous Support Services and ACIL Consulting, Report to the Australian Minerals and Energy Environment Foundation, Agreements Between Mining Companies and Indigenous Communities, December 2001.
[173] Ibid. See also P Kauffman, Wik, Mining and Aborigines (1998).
[174] See generally in relation to resource development in Canada: G Nettheim, G D Meyers and D Craig, Indigenous Peoples and Governance Structures, above n 135, ch 5. See also generally S Dorsett and L Godden, A Guide to Overseas Precedents of Relevance to Native Title (1998).
[175] Indian Act s 53. See C Notzke, Aboriginal Peoples and Natural Resources in Canada (1994) 201. See B A Crane, ‘Native Rights and Resource Development in Canada’ (1994) 12 Journal of Energy and Natural Resources Law 406, 407. See generally R H Bartlett, Indian Reserves and Aboriginal Lands in Canada: A Homeland (1990); see R H Bartlett, ‘Reserve Lands’ in B W Morse (ed), Aboriginal Peoples and the Law (1st rev ed, 1991).
[176] For a valid surrender it is necessary that the majority of the band consent and there is acceptance of the surrender by the Governor in Council.
[177] See Surrey v Peace Arch Enterprises (1970) 74 WWR 380; D Kydd, Indian Land Holdings on Reserve (1992), 1–18.
[178] The Governor in Council has power to make regulations providing for the disposition of surrendered lands and minerals underlying the lands in the reserve: Indian Act s 57.
[179] Indian Act ss 37–41.
[180] Indian Act s 53(1).
[181] Indian Act ss 37–40 describe the procedures to be followed for a valid surrender. Section 41 gives the government power to carry out the surrender and ss 53–60 govern the management of the surrendered land.
[182] See Surrey v Peace Arch Enterprises (1970) 74 WWR 380.
[183] Would the Australian Native Title Act 1993 (Cth) allow this to occur? As noted earlier, certain barriers to economic development on Indian land have been identified in that the Indian Act does not permit property to be subject to a charge or mortgage and thus it is difficult for Indians to obtain financing for projects on reserve land (Indian Act s 89(1)). In 1988 the Federal government resolved this problem by a new enactment providing that a leasehold interest in designated lands could be subject to a charge mortgage seizure (Indian Act s 89(1.1)). The consent of the minister must be obtained before any leasehold interest can be mortgaged (Indian Act s 54). Any mortgaged leasehold interest, however, remains subject to the Crown’s right of reversion on the termination of the lease. See B Garton and R J Bauman, ‘Economic Development on Indian Land: Some of the Ground Rules’ (1992) 50(2) The Advocate 237.
[184] Department of Indian Affairs and Northern Development Canada, 1968–69 Annual Report, 82. The Indian Chief has the power to allocate minerals on such terms as are considered appropriate: regs 31–3. See Bartlett, above n 8, 38–9.
[185] Oil and petroleum exploration and mining on Indian reserves are governed by the Indian Oil and Gas Act 1985 and Regulations. Either the public tender process or negotiated agreements can be used to obtain rights to oil and gas.
[187] British Columbia–Canada Agreement, SC 1943 c 19; Indian Reserves Mineral Resources Act, RSBC 1979 c 192. Pursuant to this agreement the province is entitled to half the mineral revenues and the remaining half is held by the federal government for the benefit of Indians. The Indian agent has a veto. Subject to this the province administers and disposes of reserve minerals.
[188] See M Ivanitz, ‘The Emperor Has No Clothes: Canadian Comprehensive Claims and Their Relevance to Australia’ in Regional Agreements: Key Issues in Australia, Vol. 2, Case Studies 314.
[189] Comprehensive Claims Agreements include the following: James Bay and Northern Quebec (1975), Northeastern Quebec (1978), Invuvialuit Final (1984), Gwich’in (1992), Nunavut Land Claims (1993), Sahtu Denee and Metis (1994), six Yukon Nation Final Agreements (1994), Vuntut Gwichín First Nation (1995), First Nation of Nacho Nyak Dun (1995), Teslin Tlingit Council (1995), Champagne and Aishihik First Nations (1995), Little Salmon/Carmacks First Nation (1997), and Selkirk First Nation (1997).
[190] For example see the Western Arctic (Inuvialuit) Final Agreement 1984: pursuant to this agreement rights of use and occupancy including rights to explore and develop resources can be granted by the Inuvialuit Regional Corporation. Those holding mining interests are able to acquire surface rights pursuant to a ‘participation agreement’. Oil and gas development on this land is the responsibility of the National Energy Board. The Inuvialuit people also have an advisory role in planning land usage, environmental matters and wildlife management for all land and developments surrounding the settlement area. Similar patterns have been established for the following agreements: Gwich'in 1992, Nunavut (1993), Sahtu (1993) and Yukon Agreement (1994). These agreements provide for Aboriginal ownership of mineral resources including the power to manage and dispose of such resources.
[191] Treaty Commission Act RSBC 1996 ch 461.
[192] See D Sanders, ‘We Intend to Live Here Forever: An Analysis of the Nisga’a Treaty’ (1999) 33 University of British Columbia Law Review 103.
[193] In Haida Nation v BC [1998] 1 CNLR 98 the British Columbia Court of Appeal found that Aboriginal title ‘encumbered’ Crown rights to forest lands.
[194] See D Sweeney, ‘Interlocutory Injunctions and Aboriginal Title’ (1993) 17(2)
University of Queensland Law Journal 141; MacMillan Bloedel Ltd v Mullin (1985) 61 BCLR 145, where the Clayoquot and Abousaht Indians sought and obtained an injunction to restrain logging on Mears Island on the ground that irreparable harm would be caused to tribal lands. Similar decisions were reached in Hunt v Halcan Log Services [1987] 4 CNLR 63, and Westcar Timber Ltd v Ryan [1990] 1 CNLR 151. See Bartlett, Resource Development and Aboriginal Land Rights, above n 96, 29–35. The James Bay and Northern Quebec Agreement 1975 with the Cree Inuit resulted from negotiations commenced after an interlocutory injunction was obtained against the construction of the James Bay hydroelectric project (James Bay Development Corporation v Kanatewat [1974] RP 38 (Que Sup Ct)). In Re Paulette and the Registrar of Land Titles (1976) 72 DLR (3rd) 161 the caveat filed by the Dene Indian plaintiffs to restrain oil and gas development was not sustained; however, the Federal Government concluded a Comprehensive Land Claim Agreement in 1990 allowing participation in resource development by the Dene Nation and Metis Association of North West Territory Indians. In Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1978) 107 DLR (3rd) 513, although the interlocutory injunction to restrain mining was dissolved the Inuit of the Eastern and Central Arctic reached an Agreement in Principle in 1989 regarding resource development.
[195] [1997] 3 SCR 1010, 168–9. The court in Delgamuukw said in effect that Aboriginal title may be infringed for a compelling and substantial legislative objective consistent with the special fiduciary relationship of the Crown with indigenous peoples.
[196] [1997] SCR 1010 para 186.
[198] Prior to Haida Nations v Weyerhaeuser, (2002) 216 DLR (4th) 1, the British Columbia courts insisted that Aboriginal title be proved prior to granting injunctions against unauthorised developments on Aboriginal land. For example, in the case of British Columbia (Minister of Forests) v Westbank First Nation [1999] BCJ No 254, the British Columbia Supreme Court would not, in summary proceedings, discuss whether Aboriginal title existed. In other cases the courts have denied rights or actions which were based on the existence of alleged Aboriginal title. For example, in Chief Ron Ignace v Registrar of Land Titles, Kamloops Land Title District [2000] BCSC 0118, the Court upheld the Registrar of Land Titles’ refusal to register a caveat based on an unproven Aboriginal title.
In British Columbia (Minister of Forests) v Okanagan Indian Band [2000] BCJ No 560, the BCSC refused to consider whether provincial legislation, which stopped Aboriginal people from logging timber on alleged Aboriginal title land, was constitutionally valid, without evidence of Aboriginal rights. See also Cheslatta Carrier Nation v British Columbia [1999] BCJ No 2639.
[199] See S Lawrence and P Macklem, ‘From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult’ (2000) 79(1) Canadian Bar Review 252.
[200] (2002) 216 DLR (4th) 1. In this case the Crown was found to have a legal obligation to consult the Haida people about logging on their traditional lands prior to any determination of Aboriginal title being made by the courts.
[201] Ibid para 55.
[202] The Court cited with approval Lamer CJC in Delgamuukw [1997] 3 SCR 1010, 1113. Lamer CJC discussed the duty to consult in the context of infringement and justification. His Honour stated:
There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified. … The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, where the breach is less serious or relatively minor, it will be no more than a duty to discuss important decision that will be taken with respect to lands held pursuant to aboriginal title. Of course even in these rare cases when the minimum standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal people whose lands are at issue. In most cases it will be significantly deeper than mere consultation. Some cases may even require the full consent of the aboriginal nation: at 1113.
[203] Guerin v R [1984] 2 SCR 335.
[204] In Haida (2002) 216 DLR (4th) 1, 58 the Court granted a declaration that the Crown (in lieu of the provincial government) and Weyerhaeuser owed a legally enforceable duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the Aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown and Weyerhaeuser, on the other. What exactly is required by the expression ‘endeavor to seek workable accommodations’? The Court failed to elaborate.
[205] In ibid paras 58, 59 the Court found that the transfer of logging permit was not necessarily either invalid or void due to breach of the duty to consult. The Court made no order as to the validity of the transfer permit, stating that this issue was not sufficiently argued.
[206] The Delgamuukw case commenced in May 1987 and the final decision was published in December 1997, some 10 years later. Submissions of counsel took 374 days at first instance.
[207] British Columbia Consultation Guidelines (Sept 1998) available online at:
<http://www.aaf.govbc.ca/aaf/consult.htm> .
[208] Available online at:
<http://www.em.govbc.ca/Aboraffa/Consultation/20Guidelines/Consultation.htm> .
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