Thomas Marshall
“Worlds Apart:
The European Concept of Property and its Effects on Native Title in Canada and Australia Today”
There are few things less contentious in Western Society than control over resources - or, to be more precise - control of property, as an object of exploitation. This is, of course, one of the chief reasons for the law of property’s existence; to exclude some, and to privilege others, with this scarce and valuable commodity. With it in one’s hands comes power and mobility; without it, one is left with neither. It is, therefore, in acknowledgment of this fact that one should not be surprised that, since ‘discovery’ - and until very recently - it has served the dominant elite well to exclude the original inhabitants of Australia and Canada from the benefit of land’s control and exploitation.
This historical pattern of exclusion, however, was dealt a serious blow in both Canada and Australia through two landmark cases that found in favour of recognizing an historical common law right to land for aboriginals. With the adjudication of these cases, (Calder in Canada, and Mabo in Australia) there flowed a steady stream of both hope, and apprehension.
With the initial euphoria from Calder and Mabo exhausted however, these two cases became the subject of both judicial and legislative scrutiny. Today, much of the promise of these two decisions is gone, and left in its place today are difficult and cumbersome legislative rules and judicial interpretations which make accessing Native Title rights, in some ways, more difficult than ever.
It will be the purpose of the essay to critically assess the comparative historical context, and present state, of Aboriginal Title in both of these Common Law countries. Through this international comparison the reader will come to better understand just how much has been achieved in favour of Aboriginal Title – and of course, how much has been lost. This will entail, firstly a delineation of the Western conception of property exemplified through the works of the famous English philosopher John Locke. Secondly, this essay will demonstrate how these Lockian concepts persist as the dominant conception of property rights in Western society today. Thirdly, this essay will attempt to navigate and explain some of the difficult Aboriginal conceptions of ‘property rights’ and show how these ideas necessarily find themselves at odds with the Lockian Western perspective. In the fourth section, this paper will give a detailed case analysis of both Calder and Mabo and address some of the inherent difficulties the Courts faced in trying to reconcile these two conceptions of ‘property’ into one coherent rule. And, lastly, this paper will describe the subsequent legislative and Courtroom events that seem to have destroyed any of the advances Calder and Mabo ‘may’ have represented. In the end, this paper will assert that the Lockian Western conception of property has reasserted itself once again as the dominant conception of property, to the near total exclusion of all Aboriginal ideas regarding land.
Locke, and the European Concept of Property:
In the 15th and 16th centuries, prior to John Locke’s birth , life in Europe truly was, to use Thomas Hobbes’ words, “poor, nasty, brutish, and short.” To modern eyes, our British and European ancestors would have looked very sickly indeed. They would have appeared short in stature, with large toothless grins, and would have had little of interest to say. At birth, these Britons could have expected a very short and rather toilsome life of perhaps twenty-two years, working the land in commune for daily sustenance. One reason for these conditions would have been, no doubt, the fact that food was universally of poor quality and of (constant) short supply. Cyclical shortages would have followed poor crop years or particularly harsh winters – whereupon thousands would perish in the most ill of conditions.
By the time John Locke was born, however, much of this historical legacy of misery was changing. For example, better drainage techniques made sustaining larger crops and more animals per square mile possible, thus increasing exponentially the overall output of any given piece of land. Within just a few years of the potato’s introduction famines too had ceased to be as great a threat as they had once been. And with increasing production came the - unto then - unthinkable advantage of having sufficient supplies not only to feed one’s family, but also to potentially reap a profit by selling goods to others. Thus, for the first time in history, men could orient their productive capacities not only towards mere survival, but also towards the marketplace.
As a philosopher therefore, Locke was fascinated with this great shift in world history. To all it appeared that European man had, to some extent, conquered nature. European man had laborsly pulled himself out of perpetual misery and into an elevated position relative to Nature – above it. Written and published in the late 17th century, Locke’s most famous work, The Second Treatise of Government, sought to capture the essence of these great changes, and in so doing, emphasized the “increasing…productivity of land by labour and industry.” (Emphasis added) Let us now turn to look more closely at his Second Treatise.
From Forests to Fence Posts:
Locke, like many of his age, had grown up in the folkloric shadow of an expanding British Empire - with its (romanticized) encounters and stories of the “savages” of the new world. Tales of “discoveries” of non-Christian nomads roaming the Earth in simple skins – living in commune with few possessions - led to a revolution in European Man’s understanding of himself, other civilizations, and their relations with the natural world. “What is the nature of property and possessions?” many would have asked. “Why are we so blessed to have been lifted from such a sorry state of misery and Godlessness?” others would have wondered. For Locke, the answer to these and similar questions lay in two very simple concepts – both of which led (for him) to the foundation of private property. Firstly, European Man had accepted the word of the one-and-only God, Jesus Christ (and importantly, his teachings) - and secondly, that European Man had lifted himself from the same ‘State of Nature’ now found in the New Worlds through his labour. We shall now briefly turn to look at these two concepts together and try to decipher what Locke was truly saying about “property.”
The Teachings of Jesus Christ and the Bible were enormously influential on Locke, but he specifically chose to focus narrowly on the teachings that helped him explain the greater productivity and creativity European society seemed to represent relative to the New World. He wrote, “God directed man to subdue the Earth…for the benefit and greatest conveniences of Life that (we are) capable to draw from it…it cannot be supposed (that God) meant it should remain common and uncultivated. He gave (the world) to the Industrious and Rational.” (Emphasis original)
From this it appears that Locke, in describing God’s Will, was suggesting three distinct things about Man’s relation to Nature: That the Earth is for the benefit and convenience of Man, that communally held property is a primary and not desirable state for land to remain in, and that rational beings will cultivate and subdue nature. Indeed, it appears that what Locke was explaining was a European conception of Land in relation to what could be observed in the new World. As he states, once upon a time “all the world was America” – communal, savage, and uncultivated.
If, as was suggested by Locke, European man had once existed as the savages of the new world did (communal, savage, and uncultivated), it was necessary to explain how one could be entitled (gain title to) to something from Nature’s great store house of communal goods. Indeed, it was necessary to explain how Europeans had transcended this primary state relative to the natural world. For Locke, the answer to this was a mere matter of work. Labour, the original possession and effect of every man’s limbs, would bestow title upon the individual who undertook God’s command to subdue the Earth. If, for example, one were to pick “apples…from under the trees in the wood” he would have mixed his labour with the object, thus irreversibly making it his possession – and further – taking it out of the communal store of Earth’s bounty. In so doing, he expropriated the object, making it his against the lesser entitlement of others.
Aboriginal Conceptions of Land and “Property”:
The first difficulty to admit in any section purporting to define “aboriginal” concepts regarding land is that “aboriginals” are varied in both location and beliefs. Aboriginals are not one group, but many groups, each with particular ways of seeing and interpreting the world around them. A further difficulty, however, is that in using certain terms to describe Aboriginal relations in regards to land, the English language presupposes a number of culturally specific terms that better describe the Lockian notion of property. Words like “property” or “title” hold little translational value when used to describe fundamentally different ways of viewing Man’s relation to nature.
With that said however, it is possible to ascribe, and describe, some common features for Aboriginals and their relations to land throughout the New World. Firstly, land tends to be central to Aboriginal societies and their identities as peoples. Unlike in Locke’s conception – where Man is above nature – Aboriginals see themselves as intimately connected with and as part of the land. An Aboriginal person might describe his “relationship” with a tree or place near a lake, rather than describe its “usefulness” to him. Indeed, ownership, in the Lockian way, would make little sense to an Aboriginal person since this would denote subservience of the land to an individual, and would similarly exclude other people from having any relationship with that particular piece of land. That is why Aboriginals are often said to possess land “communally”, even though that term too is an awkward one for describing an Aboriginal group’s relation to land.
As Bradley Bryan rightly suggests, Aboriginal understandings of ‘property’ tend to be viewed, from the Lockian Western perspective, as rather “holistic” or collectivist, since Aboriginals did not conceive of land as capable of being parceled out to individuals. And yet, as noted above, the use of these terms does not entirely connote the true meaning of their relationship to nature, or to other persons, by way of land.
Worlds Apart: Lockian and Aboriginal Understandings in the New World
When explorers came to North America, and Australia , they no doubt would have been keenly aware of the differences in perspective they held relative to the Native inhabitants. Individualized plots of land, laboriously cultivated and cleared for farming, simply did not exist ‘yet’. To Europeans it would have appeared that the land was, according to Locke’s precepts, Terra Nullius – or free lands. And according to the “traditional” doctrine of discovery held by European nations at that time, this meant that the discoverer of “an uninhabited region” without “’civilized’ society” might stake claim to the rightful ownership of the new lands. And that is exactly what they did: “The Colonial (European) governments (established in the New Worlds proceeded to) disregard any concept of Native Title from their inception. Traditional lands (of Aboriginals) were granted to settlers without any agreement with, or payment of compensation to, Aboriginal peoples.” At best, what could be said of the Native’s right to remain on the land was that their remaining land “tenure…was a personal and usafructory right, dependant of the goodwill of the (European) sovereign.” (Emphasis added)
Calder and Mabo: Trying to Right the Past
Through the above writings the reader has now, it is hoped, become familiar with some of the basis of European cum New World land law. Its foundations, found in the great changes of the 15th and 16th centuries led to a revolution in the way Europeans imagined themselves, and their place in the World. And, with exploration, and the conquering of the New Worlds, (Canada and Australia in particular) these ideas were exported and applied to these new lands with little or no regard to the Aboriginal perspectives of land and property.
Now, we shall turn to look at a unique period in the judicial histories of both Canada and Australia where for the first time in both countries, the courts found the strength to establish a legal regime that would attempt to include Aboriginal property conceptions within the prevailing European Common Law system. We shall begin with the Canadian Supreme Court case of Calder (1973) and then focus on the Australian High Court decision of Mabo (1992).
Calder v the Attorney General (British Columbia) (1973) 34 DLR (3d) 145
Mr. Calder was a representative of the Nishga Nation of British Columbia who wished to have the court declare that his Tribe’s ‘Native Title’ had never been extinguished or otherwise released to the Canadian Nation. In effect, therefore, he was asserting that his ancestor’s original right to be on that particular piece of land, and thus his and the Nishga Nation’s, had existed at the time of colonization, and remained intact despite it. It was recognized that Mr. Calder and his tribesmen’s ancestors had indeed inhabited the lands in question “since time immemorial”. The land under consideration was mostly unalienated save for a few small plots sold by the Crown in fee simple to non-Aboriginal persons – but the question of Aboriginal Title was contentious because no Canadian Court had ever found such a thing to exist. This question then, became a central focus of the case.
In support of Aboriginal Title, Mr. Calder tendered evidence which demonstrated that his people had in fact occupied the Nass Valley to the exclusion of other Tribes, and that they had not ceded this ‘title’ to the Canadian or Colonial Government. And while, perhaps their occupation of the land did not conform to Western standards of ownership and possession, it was an alternative form of entitlement. Indeed, in the agreed statement of facts, both sides concurred with the characterization by Wilson Duff regarding Aboriginal practices: Duff states,
“It is not correct to say that the Indians did not ‘own’ the land but only roamed over the face of it and ‘used’ it. The patterns of ownership and utilization which they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected. Even if they didn’t subdivide and cultivate land, they did recognize ownership of plots used for village sites, fishing places, berry and root patches, and similar purposes.”
In the end, while the Court was divided over the issue of whether or not Aboriginal Title had been extinguished by acts of the British Columbian Government (remember the small fee simple sales to non-Aboriginals?) it was clear that the Court was willing to concede that Native Title did exist as a right at common law. As Peter Russell writes, “All of the six judges who decided the case on its merits recognized the existence of Aboriginal rights in Canadian Common Law and that the Indians’ title to their land was not a creation of European statutory law but was founded on ‘their original and previous occupation” – the precise dimensions of which could be determined at a later date. What is most remarkable for our purposes however, is the Court’s willingness to consider alternative non-Lockian conceptions of land use that might ground a right in land. Indeed, in the judgment of Hall J. his Honour was quite clear that Aboriginal Title had never been lawfully extinguished – and this in turn presupposed the existence and righteousness of Aboriginal Title rights. This is because, unlike before, the Court appeared receptive to alternative ideas about what land usages could constitute meaningful possession of the land – and by that token, how Aboriginals might retain control of lands upon which they and their ancestors had lived since time immemorial.
In later cases which followed Calder the notion of Aboriginal Title was refined, as were the methods and requirements for proving such title rights. But, this is not of concern here, for what we are interested in at this juncture is the very fact that, for the first time ever in Canadian legal history, Canadian courts were willing to include Aboriginal conceptions of Man relative to Nature. This seemed a clear indication that Canada’s Courts were finally willing to relinquish thier monopoly on the definition of what could constitute, and in turn be recognized as, an entitlement to land. (In a later section below we will turn to even later cases in the post-Calder era that appear to have reversed any of these gains.) Now let us turn to similar developments which took place in Australia regarding Aboriginal Title.
Mabo v Queensland (No 2) (1992) 175 CLR 1 (Australia)
Like in Canada, the Aboriginal groups of Australia are today considered to have been very intricate and developed societies – albeit differently developed than is understood by Western-oriented minds. Both of these land’s peoples had very specific forms of governance and rules (laws) that regulated conduct within their respective societies. But if the European settlers paid some attention and respect to the Aboriginals of Canada in these and similar matters, they certainly did not do so in Australia. From the onset of European settlement there seems to have remained in the Westerner’s mind a very strong sense that the Aboriginals of Australia were devoid of any rights to the lands upon which their entire lives, and the lives of all of their ancestors, had been lived. In fact, just three years prior to the Calder decision in Canada, Australian courts were still refusing to admit that such a thing as Aboriginal Title could exist and survive the establishment of British-Australian sovereignty.
In 1982 however, this tide of events looked as if it might be turning. In that year Eddie Mabo, and other Meriam People Islanders, instituted a legal action (which would last over ten years) against the Queensland Government for the recognition of their Aboriginal Title to traditional lands. In particular, these Miriam representatives argued that the Murray Islands, the most northerly of the Torres Strait Islands, had been the ‘home’ of their people since “time immemorial.” The Miriam had continuously lived there, with settled communities which had “social and political organizations of their own” - and that they were, therefore, rightfully entitled to possess these Islands.
The 1992 judgment of Brennan J. was particularly enlightening in its characterization of Native Title, and in its characterization of Aboriginal practices which might ground such entitlement. He stated, for example, “Native title has its origin in and is given its content by the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a territory.” Brennan J continued by suggesting that “whatever be the precision of Meriam laws and customs with respect to land there is abundant evidence that land was traditionally occupied by individuals of family groups and that contemporary rights and interests are capable of being established with sufficient precision to attract declaratory or other relief.” Some of the evidence cited by Justice Brennan included findings made by Moynihan J. (in previous pleadings regarding Mabo in 1989) such as the fact that “prior to European contact the Islanders were part of an evolving social organization in which the position of the individual was determined by complex and intricate collections of interrelated groupings. “ As well, it was found that the Meriam constituted villages and divided plots of land for gardens, which were “owned” by families of even individual persons, and that while not “spiritual, these connections to the lands were very “significant”.
In the end, importantly, Brennan J. stated that “what the common law requires is that the interest under the local law or custom (merely) involve an established entitlement of an identified community…or use of particular land and that that entitlement to occupation or use be of sufficient significance to establish a locally recognized special relationship between the particular community, group or individual and that land.” (Emphasis added) In such instances, said Justice Brennan, “English concepts of property might be quite inappropriate” since all that might be found, under local customs, when put in English legal terms, might involve “the possession of the common enjoyment of a (or) traditional interest (of) use by a tribe…for purposes such as the obtaining of food.” (Emphasis Added)
In looking at Mabo, and especially when looking at Calder and Mabo together, one might be fooled into thinking that an entire legacy of colonization and monopolization of definitional approaches to Land Law had been overturned by these two decisions. Justice Brennan suggested that the entitlement to Aboriginal Title should come from and be identified by the indigenous community concerned– rather than come from without. In Calder too the Judges also seemed willing to include Aboriginal conceptions of land entitlement in Canadian jurisprudence, despite the obvious difficulties of meshing the two philosophical paths into one route for rectifying the historical legacy of dispossession and alienation caused by the settler society. And yet, one might ask why so many academic journal articles and books have been written which suggest that, in fact, the opposite path has since been taken - in Canada through the courts, and in Australia through the Legislature and courts. A quick look at the titles of such articles spells out some of the feelings in the wider legal community regarding the legacy of the Calder and Mabo decisions. For example, one author wrote of “A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten years of the Native Title Act.” (Australia) Another author has written about the “Vulnerability of Indigenous Land Rights in Australia and Canada.” Still more have suggested that we are “Losing Sight of the Big Picture: the Narrowing of Native Title in Australia” and Canada. Could it be that these cases, and the advances they represented, did not translate into increased control over resources and land for Australian and Canadian Aboriginals? And, how could this become so?
In the next section we will look at how the concept of Native title in Canada and Australia has been “narrowed” through a series of court cases (which is particularly the case in Canada) and legislation. In the Canadian context, this will mean focusing on how Canadian courts have widened the range of justifications open to the courts to allow for the infringement of Aboriginal title. And, in the Australian context this section will look at both the public and political reactions that resulted from the Mabo decision which have made accessing Native Title rights a ‘red-tape’ nightmare. This next section will attempt to explain the pessimism expressed by the many legal and academic authors - a pessimism which suggests that instead of a meaningful integration of ideas about land entitlement, the Lockian conception of property has reasserted itself once again as the dominant conception of property, to the near total exclusion of all Aboriginal ideas regarding land.
Canada Post-Calder:
The 1973 Calder case shook up the legal understanding of Aboriginal land rights in Canada and led to a series of cases that would help refine and further articulate this newfound Common Law right. We will quickly proceed though the series of cases that will lead the reader to the 1997 Delgamuukw Case. There it will be shown that the Lockian conception of land has reasserted itself to the fullest extent possible while at the same time maintaining a façade of aboriginalness.
Baker Lake (Hamlet) v. Canada (minister of Indian Affairs & Northern Development) (1979) 107 D.L.R. (3d) 513 at 542
Following Calder many Aboriginal groups in Canada sought to establish their Aboriginal Title - and one such group, the Inuit of Baker Lake, sought a declaration that their lands had never been ceded to the Canadian Government. Justice Mahoney, in Baker Lake, attempted to put some limits on those who could legitimately claim Aboriginal Title – and though superceded now by later case law on the same matter - this case represents the first in a line of cases that articulated the elements for establishing Aboriginal Title “cognizable at Common Law.” In order to be a right known to the Common Law of Canada, Justice Mahoney determined that four factors must be shown by the Aboriginal claimant:
1) That they and their Ancestors were members of an organized society
2) That this organized society occupied the specific territory over which they assert Aboriginal title
3) That the occupation was exclusive
4) That this exclusive occupation was so at the time Britain Asserted sovereignty over the territory
While Justice Mahoney’s list of elements has since become the template for proving Aboriginal Title (with minor changes) it too has caused cultural and philosophical problems for the splicing of Western and Aboriginal views on the notion of property. One of the difficulties of the above 4 elements of proof is that they denote the need to have a specific and definable territory, and that the occupation of that territory be exclusive. For some Aboriginals, especially nomadic tribes people, this requirement will always be fatal to their claim. As Brian Burke writes, “there is no justifiable reason to restrict historically nomadic peoples to the lesser entitlements of site-specific rights when their more sedentary counterparts who did not necessarily enjoy a more intimate connection with the land, are afforded the opportunity to prove Aboriginal Title.” Indeed, when looking at it from the standpoint of Lockian-versus-Aboriginal conceptions of land use and control, it appears that what the courts did, and continue to do, is presuppose that land control is a stationary, and not mobile, act. But, unlike farmers or others who might “subdue” the Earth and bring it under their yoke, Nomadic peoples tended to move with the seasons and migrating animals over vast tracks of land. Given these elements, it appears that the Aboriginal conception of land use and control, in terms of nomadic peoples, was, and remains, completely excluded from the equation.
R v. Sparrow [1990] 1 S.C.R. 1075
Another watershed case was the 1990 decision of Sparrow – which in many ways remains one of the most enduring cases in Aboriginal Rights law. In 1984, Sparrow, a Musqueam Band member, was caught using a fishing net that was too long for the license he had been permitted to fish under. But, while admitting that he had technically committed the elements of the offence under the Federal Fisheries Act, Sparrow claimed that the regulation of the fishery in this way infringed his Aboriginal right to fish. The case came before the Supreme Court of Canada where the Judgment of the Court was delivered by Chief Justice Dickson and Justice La Forest. In that judgment, Chief Justice Dickson and Justice La Forest attempted to delineate and construct a test to determine when (and if) government might legitimately infringe Aboriginal rights – including Aboriginal Title.
He wrote, “legislation that affects the exercise of aboriginal rights will…be valid if it meets the test for justifying an interference with a right recognized and affirmed” as an Aboriginal Right protected under the constitution. “Federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies Aboriginal rights.” (Emphasis added)
Accordingly Chief Justice Dickson suggested some ways to test whether an infringement by Government would be valid. “The first question” he suggested, “to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement.” Chief Justice Dickson and Justice La Forest then continued:
If a prima facie interference is found, the analysis moves to the issue of justification. [I]s there a valid legislative objective? An objective aimed at preserving (Aboriginal) rights by conserving and managing a natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of (Aboriginal) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial. (Emphasis Added)
Therefore, according to Sparrow, some of the only legitimate aims of a government regulation might be, specifically, such things as preserving the means for exercising the Aboriginal right in question. Strip mining might, therefore, be regulated by the government if the Aboriginal right asserted was the enjoyment of a spiritual connection with the forest that would be cut down for the mine. Another legitimate regulation might also be the protection of the general populace from heavy metals which could leach from the mine into a nearby river which supplies water to the local town. In all cases however, the governmental objective must be, according to the Chief Justice and Justice La Forest, “compelling and substantial” if it is to justify displacing the protected rights of Aboriginals to control and direct their lands according to Aboriginal understandings.
R v Gladstone [1996] 2 S.C.R. 723
Gladstone concerned two Aboriginal fellows who had attempted to sell “herring spawn on kelp” contrary to their food-fishing license which allowed only fish for personal or communal consumption. Mr. Gladstone stated that this restriction unjustifiably restricted his Aboriginal Right to fish. According to Chief Justice Lamer this case differed from Sparrow in two ways:
- The right in question was one to sell commercially a fish product, not merely a purported right to fish for food
- The right in question had no internal limits – selling fish products would only stop once the market was satiated – if ever, whereas fishing for food stops when the people fishing have sufficient for their personal needs
If Gladstone did have an Aboriginal right to fish, and that right included a right to sell, then, in poor crop times, his right might become a prioritized one if regulations restricting yields (or banning yields) would apply to other Canadians but not to Aboriginals. Therefore, according to the Chief Justice, the justification test laid down in Sparrow needed to be adjusted to take into consideration those instances where an Aboriginal right might have no internal limit. As Chief Justice Lamer states at paragraph 63 of the case:
[U]nder Sparrow’s priority doctrine, where the Aboriginal right to be given priority is one without internal limitation, courts should assess the government’s actions not to see whether the government has given exclusivity to that right, but rather to determine whether the government has taken into account the existence and importance of such rights.”(Emphasis added)
Unlike in Sparrow then, instead of prioritizing a constitutionally protected Aboriginal Right, all a court must do, according to Chief Justice Lamer, is take into account the existence and importance of such rights. But he then goes even further ten paragraphs later:
“Aboriginal rights are recognized and affirmed…in order to reconcile the existence of distinctive Aboriginal societies prior to the arrival of Europeans in North America…because however, distinctive Aboriginal societies exist within and are part of a broader social and political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are part of that community), some limitation of those rights will be justifiable…objectives such as the pursuit of economic and regional fairness…are the types of objectives which can satisfy this standard.
Delgamuukw v British Columbia [1997] 3 S.C.R. 1010
If Gladstone suggested that Aboriginal rights might be justifiably infringed for broader public interest concerns such as “regional fairness” (a much lower standard when compared to the high justifications required in Sparrow) such justifications were necessarily widened with the decision of Delgamuukw.
Delgamuukw concerned a number of ‘Houses’ of the Wet’suwet’en Nation that sought to have established their Aboriginal Title to a portion of the British Columbian interior. Two questions that are important for our purposes were raised;
- What was the content of Aboriginal Title?
- What infringements and justifications for infringement of that Aboriginal Title could be considered legitimate?
In relation to the first question, the Court’s responses seemed to parallel the narrative begun in Calder and Sparrow. “The content of aboriginal title” said the Court, “contains an inherent limit that lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants' attachment to those lands” Therefore, as a familiar example, strip mining might be contrary to an Aboriginal Title premised on the spiritual connection to a forest which will be destroyed by such mining. In such instances, this would limit the uses to which Aboriginal Title lands could be put.
The Court then continued to the second question, to address what justifications for infringement from without might be legitimate restrictions on Aboriginal Title. Here Chief Justice Lamer, again, addressed the issue with relevance to the past decisions of Sparrow and Gladstone. He wrote, “The general principles governing justification laid down in Sparrow, and embellished by Gladstone, operate with respect to infringements of Aboriginal Title. In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad.” (Emphasis added)
Then the Chief Justice proceeded to delineate a range of rather amazing factors which might be considered legitimate objectives requiring the Government to infringe Aboriginal Title: The entire paragraph is reproduced bellow:
Most of these 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 a part of, a broader social, political and economic community". In my opinion, 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 kinds 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.
Discussion: Canada and Aboriginal Title in the Post-Calder Era
It is plain that Delgamuukw has significantly changed the ground rules for determining what interests are protected by Aboriginal Title in Canada. From the high-water mark in Sparrow where only the most pressing of objectives, such as public safety (remember the heavy metals leaking into the river example?) were considered sufficient to breach Aboriginal title, we now have aims such as the “settlement of foreign populations” meeting the test. What does this mean for Aboriginal Title? As Chief Justice Lamer said, and following Sparrow’s dictates, Aboriginals should not be permitted to engage in activities (like strip mining) that are inconsistent with the nature of their title. And yet, in nearly the same breath the Court seems willing to consider “forestry, mining and hydroelectric” projects initiated by the government (or under its authority), as justifiable aims for limiting the scope of Aboriginal Title. This, of course, begs the question, ‘won’t these Lockian “objectives” not be as - or more - offensive to the nature of the Aboriginal Title under consideration?’
As Gordon Christie suggests, “the result” of Delgamuukw “is the creation of a judicial concept of Aboriginal title which on first reading might appear to hold out much promise…but which is actually impotent to slow the exploitation of Aboriginal lands by Canadian governments and third parties.” Part of the reason for this may stem from the Calder/Sparrow-to-Delgamuukw shift from Justification to reconciliation test – which implies a balancing of interests rather than the giving of ‘compelling and substantial’ reasons for infringement. Therefore, when an Aboriginal right comes into direct confrontation with an external interest, such as a provincial hydroelectric project, the court is asking not which rights or are at stake, but rather what interests are at stake. This, no doubt, leads the court into a corrosive mental calculation whereby the Justices are forced to ask themselves, “which interests should prevail in this case?” The inevitable response, it is submitted, is a biased one which inherently favours a Lockian conception of Land use at the expense of Aboriginal conceptions.
Perhaps this is the inevitable effect of having Euro-Canadian educated, non-Aboriginal men, judging the importance of an Aboriginal claim to Canada’s limited resources. The evidence that this may be so can seen in the very uses (objectives) which Chief Justice Lamer suggests can justify infringement. Forestry, mining, and hydroelectric power developments all represent significant economic interests which imply vast changes to the Earth’s natural makeup – all of which would most certainly destroy areas which might be sacred to Aboriginal groups. The building of infrastructure likewise negates Aboriginal conceptions of proper land use and implies a certain conception of The Good whereby the subduing of Nature, and not its stewardship, is the most desirable outcome. Likewise, the settlement of foreign populations suggests an expansion into the territory of Aboriginals which would most certainly destroy the control Aboriginals seek over their traditional lands. But, perhaps the most telling Lockian conception employed by the Chief Justice to usurp Aboriginal conceptions of the Good is the development of agriculture. One can almost hear the Court saying, “you are entitled to use the land for now. But only until ‘we,’ the rest of Canada, decide to show you how to get the most from the land. Then, our entitlement will surpass yours.” Perhaps this is why Gordon Christie suggests that Delgamuukw “must be understood as a legal tool employed” for the “continuing effort to assimilate Aboriginal peoples into the mainstream (Lockian) Canadian society.”
Australia: Post-Mabo
The reader, by now, should understand the significance and impact that Mabo made on the Australian legal structure. In this section we will look at how Mabo effected a political, legislative, and judicial, counter-reaction which would, in the end, reverse much of the great changes ushered in by the 1992 decision. In particular, pay attention to the way in which political and legal devises have been used to nearly completely erase Mabo from the history of Aboriginal Title in Australia.
In 1992, the year Mabo was handed down by the Australian High Court, Australia also kicked off celebrations for the International Year for the World’s Indigenous Peoples. The Prime Minister of Australia, at the launching ceremonies, suggested “Mabo was an historic decision. We can make it an historic turning point, the basis of a new relationship between indigenous and non-Aboriginal Australians. Unfortunately, his words were not representative of the future to come. While “Mabo was a watershed” that resulted in the “first determination by the high Court of the rights of Aboriginal peoples to land at common law,” few could have predicted the political storm which would form following it.
Political Fallout
The first and foremost difficulty for the wider Australian community was the perceived uncertainty produced from the decision. Would land values drop? Would Aboriginals be able to claim title to urban fee simple homes – or the family farm under lease? The short answer was, of course, no. In fact the High Court had gone to great lengths to demonstrate that Aboriginal Title would affect very few average Australians, and that pastoral leases and free holds would largely be unaffected at all by the decision. In Wik Peoples v Queensland , a 1996 decision, Justice Kirby remarked of the effects of Mabo;
“[T]he holders of pastoral leases are left with precisely the same legal rights which they enjoyed pursuant to the leases granted…those rights will prevail, to the extent of any inconsistency with native title.”
But this type of reassurance did not stop the media and Mining Industry Council (AMIC) from whipping up mass concern. Sir Arvi Parbo of the Western Mining Corporation stated publicly that, “whatever the intrinsic merits of the court’s decision, it has very serious consequences and raises more issues than it settles. [M]any of the investments that we desperately nee will not be made.”
Native Title Act 1993 (Cth)
In 1993 the Government responded to these fears with the enactment of the Native Title Act. This Act purported to achieve four main objectives to augment and usurp Mabo
1) The recognition and protection of native title
2) The regulation of future dealings affecting native title
3) The establishment of a means to deal with Native title Claims
4) The validation of past grants/acts if they had been invalid because of native title
As Richard Bartlett suggests, the legislation was the product of “panic and haste” and was totally at odds with other common law countries such as Canada and the United States. When the 1993 legislation was unveiled, it appeared as if the mining and pastoral lease-holder interest groups had drafted the Act themselves. The recognition of all past acts or grants by governments meant that Aboriginals dispossessed of their lands before January 1st 1994 would not regain them, period. Thus, the potential claims area was necessarily reduced by legislative fiat overnight. Future acts too would extinguish Aboriginal Title if they complied with the Racial Discrimination Act and would affect free holds in the same way – that is, in a non-discriminatory manner. This was meant to help mining dispositions particularly, no doubt.
Wik Peoples v Queensland (1996) 187 CLR 1
While the NTA 1993 stated that Native Title could not be extinguished contrary to the Act, some European Australians remained unclear, and weary, as to whether their titles and grants would be protected from Native Title. Thus, in the 1996 Wik case the Court once again set out to ease the minds of most Australians at the expense of the few. The case concerned the determination of whether or not Aboriginal title could survive a lease grant.
While the majority held that Aboriginal title might survive pastoral lease grants, the majority were equally clear that the “rights under pastoral leases (would) prevail at common law over native title rights to the extent of any inconsistency.” This however, seemed insufficient, since as Richard Bartlett suggests, “the certainty sought by (critics) was…(a) general blanket extinguishment” of Aboriginal title.
Responses to Wik: The NTA 1998
Wik, like Mabo had, produced another firestorm of media, interest group, and political responses. The Government, which had come to power in part from its promise to amend the perceived deficiencies of the 1993 Native Title Act, tailored its response, the proposed 1998 bill amending the NTA, as a formal rebuke of the Wik and Mabo decisions’ problems. The government issued a ten-point plan in which it laid out what the new bill would hopefully achieve for ‘all’ Australians. Some of these ten points were:
- The validation of non-Aboriginal grants from 1994 to Wik
- Certainty for pastoralists
- Devolution to the States and Territories
- Speedy and sustainable resolution of concerns and uncertainty
The effect of many of the amendments which the 1998 Act represented further diminished the areas that might be subject to Aboriginal Title – they were thus vigorously opposed by Aboriginal rights groups and human rights groups alike. It similarly further forced the positive effects of Mabo underground by diminishing the relevance of the common law rules in favour of legislative political solutions. The Courts too, however, were complicit in this funeral for Mabo.
Western Australia v Ward (2002) 191 ALR 1
In Western Australia v Ward (2002) 191 ALR 1 one of the questions furnished asked the Court to decide the relationship between common law Aboriginal title and the NTA 1998. At paragraph 19 the majority wrote; “No doubt account may be taken of what was decided and what was said in Mabo when considering the meaning and effect of the NTA…It is however, of the very first importance to recognize two critical points: that section 11 (1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute.” (Emphasis Added) Other effects of Ward were the denial of mineral entitlements for Aboriginal title-holders, and the decision that inconsistent grants, and not “clear and plain intention,” could extinguish Aboriginal title. This meant that, as Maureen Tehan states, “it is possible that most if not all surviving native title rights might also be extinguished.” This is so since “wherever any rights (are) created by third parties including rights of the general public, the native title right to control access or use of land (is) said to be extinguished.”
Discussion: Australia and Aboriginal Title in the Post-Mabo Era
One could go on and on to investigate the intricacies of even more recent decisions such as Yorta Yorta but the trend should be sufficiently clear for our purposes here. Whereas the decision and reasons in Mabo expressed a newfound interest in blending Aboriginal conceptions of land use and control into the common law of Australia, the recent history has all but written Aboriginal conceptions out of the statute books. Aboriginals were not consulted in the process of devising the NTA 1993 and 1998 and were certainly drown out by the overriding chorus of opposition that swept the country in the wake of Mabo. Perhaps, however, this should not be a surprising turn of events. As the Journal of Real Estate Literature states, “taken together, agricultural, pastoral, mineral, fishing, and timber industries account for a significant proportion of Australia’s GDP.” Given this, the Mabo decision “created an air of uncertainty” that was bound to upset most, if not all, Euro-Australians. A counter-reaction was inevitable, perhaps, even if regrettable. One question that might be asked, however, is whether or not it would have been better if the conception of Aboriginal title had remained a creature of the Common Law, as in Canada, rather than become integrated into the legislative framework of the country. Would this have protected Aboriginal rights from the political fallout that came from Mabo? Given the Australian court’s willingness to concede its authority to determine the parameters of aboriginal title, however, as was the case in Ward, this may be too hopeful. Also, as we have seen, Canada’s courts have done a poor job as well of helping to maintain a conception of Aboriginal title which retains a coherent and honest dose of “Aboriginalness”.
Conclusion:
“As renaissance Europe had debated, were these fully formed societies, although of models very different from those of Europe. Did they have the rights of proprietorship and sovereignty? Or were they living according to nature, and thus with no more property rights (or rights of any kind, for that matter), than panthers or bears?”
So what does all the above reading tell us? While Calder and Mabo were indeed landmark cases for their attempts to blend Aboriginal and Euro-settler ideas into one coherent rule governing land’s control and use, much of this progress seems to have been zapped by subsequent events. In Canada, the ability of the courts to justify dubious objectives that can “legitimately” infringe on Native Title has rendered this “Title” somewhat hollower than would otherwise be the case. Objectives such as mining and agriculture are, as we have noted, historically at odds with Aboriginal conceptions of land use and control. And while Aboriginal conceptions should be allowed to evolve, Aboriginal Title, if it is to remain meaningful, must include the right of Aboriginals to control and direct such practices, if they so choose. In the end, however, it appears that much of the protections first spelled out in Calder and Sparrow have, in large part, been overtaken by wider societal goals that reflect a decidedly European conception of proper land use and control, to the exclusion of Aboriginal ones. In Australia too, since Mabo, the path towards reconciliation of these two divergent conceptual notions has been decidedly bumpy. The political fallout of the Mabo decision caused widespread fear that Aboriginals had been given the upper hand in land matters. The family farm, it appeared, was at stake. Of course this was not the case, but nonetheless, Mabo, or perhaps more accurately, the broad counter-reaction to Mabo, led the parliaments of Australia to fundamentally reshape the intended results of the case. Today, significantly less area is susceptible to Native Title claims, and the rights contained within that title, if they can be demonstrated, are decidedly less too.
Perhaps the most disturbing fact of all this is that the field of land law has become a battlefield of ideas. This, it is submitted, was not the intention of the Courts in Calder and Mabo. Indeed, it appears that what was attempted in these two historically significant decisions was to come to a compromise between peoples who see the world, and its resources, in very different ways. And yet, there are few things less contentious in Western Society than control over resources - or, to be more precise - control of property, as an object of exploitation. This, as we have seen, is the very foundation of how Western man sees the natural world, and by that token, his place in it. It is the function of our Lockian land law to exclude some, and privilege others with this resource – and to protect these interests against those “less entitled” to its bounties. And while this historical pattern of exclusion (of Aboriginals from land’s benefits) was dealt a serious blow in both Canada and Australia through Calder and Mabo, unfortunately, the evidence is clear that, since then, and up to now, the Lockian Western conception of property has reasserted itself once again as the dominant conception of property, to the near total exclusion of all Aboriginal ideas regarding land.
TDMARSHALL
Bibliography
Canadian Statutes
The Canadian Constitution Act 1982
Canadian Cases
Baker Lake (Hamlet) v. Canada (1979) 107 D.L.R. (3d) 513
Calder v. British Columbia (Attorney General) [1973] S.C.R. 313
Delgamuukw v British Columbia [1997] 3 S.C.R. 1010
R v Gladstone [1996] 2 S.C.R. 723
R v. Sparrow [1990] 1 S.C.R. 1075
St Catherine’s Milling & Lumber Co. v. R. (1888) 14 App. Cas. 46 (P.C.)
Australian Statutes
The Native Title Act 1993 (Cth)
The Native Title Act 1998 (Cth)
The Racial Discrimination Act 1975 (Cth)
Australian Cases
Fejo v Northern Territory (1998) 195 CLR 96
Mabo v Queensland (No 2) (1992) 175 CLR 1
Millirrpum v Nabalco (1971) 17 FLR 141
Western Australia v Ward (2002) 191 ALR 1
Wik Peoples v Queensland (1996) 187 CLR 1
Yorta Yorta v Victoria (2002) 194 ALR 538
Books
Bartlett, Richard. Native Title in Australia: Second Edition (Markham Ontario: LexisNexis Butterworths Publishing, 2004)
Borrows, John. Aboriginal Legal Issues: Cases, Materials & Commentary, 2nd Edition (Markham Ontario: LexisNexis Group Publishing, 2003)
Morgan, Michael. Classics in Moral and Political Theory (Indianapolis Indiana: Hackett Publishing Co., 1992)
Roberts, John. History of the World (New York NY: Oxford University Press, 1993)
Sheehan, Bernard. Seeds of Extinction: Jeffersonian Philanthropy and the American Indian (Chapel Hill, North Carolina: University of North Carolina Press, 1973)
Wood, Neal. John Locke and Agrarian Capitalism (Los Angeles California: University of California Press, 1984)
Stephenson, Margaret. Supplementary Materials on Australian Native Title Law (University of Queensland: Beirne School of Law, 2007)
Journal Articles
Burke, Brian. “Left Out in the Cold: The Problem with Aboriginal Title under Section 35(1) of the Constitution Act, 1982 for Historically Nomadic Aboriginal Peoples (2000) 38 Osgoode Hall L.J. 1-37
Bryan, Bradley. “Property as Ontology: On Aboriginal and English Understandings of Ownership” (2000) 13 Can. J.L. & Juris. 3-31
Christie, Gordon. “Delgamuukw and the Protection of Aboriginal Land Interests” (2000-2001) 32 Ottawa L. Rev. 85 – 115
Dickason, Olive Patricia. “Expanding Canada’s Historical horizons: The native Factor” (1993) The Canadian Circumpolar Institute, Alberta Canada
Mykyta, Sky. “Losing Sight of the Big Picture: The Narrowing of Native Title in Australia” (2004-2005) 36 Ottawa L. Rev. 93 – 126
Russell, Peter. “High Courts and the Rights of Aboriginal Peoples: The Limits of Judicial Independence” (1998) 61 Sask. L. Rev. 247
Tehan, Maureen. “A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act” (2003) Melbourne University Law Review MULR 19
Wilson, Patrick et al. “Land Claims of Indigenous Peoples – The Impact on Property Value: A Comparative Study on South Africa and Australia” (2000) Journal of Real Estate Literature Vol. 8 No. 1
Web resources: http://www.austlii.edu.au (accessed for Mabo case details, facts, figures)
