Dancing in September

This is Janey and I with the wedding party, don't they look like a motley crew...

My Keeshia, the greatest "man's best friend" any fellow could ever hope for

Sacha, braving the cool April winds of Northern Ontario

This is me and Sacha, our Great Dane, out on a walk in the mountains near Ottawa

Janey in Moose Factory, Ont. Near Hudson Bay

To My Wife

This is a picture of the most important person in my life - my beautiful wife. She is a talented, smart, and very beautiful person, and I love her dearly. I love you,
TDM

Essay, Mortgages, leases, and Freehold Issues Discussed

Thomas D Marshall
"Necessitous men are not truly speaking, free men, but, to answer a present contingency, will submit to any terms that the crafty may impose on them..." Lord Henley LC in Vernon v Bethell (1762)

This essay concerns the plight of a couple and their children. The father, who granted a mortgage over the family home, has suffered under the financial strain of mortgage payments and lower-than-expected income, and now finds himself falling into arrears. The purpose of this essay will be to explore some options and consequences for the family at this unfortunate crossroads.

What is a Mortgage?
It is first helpful to understand what a mortgage is before looking at the family’s options. As stated in the case of Santley v Wilde? a mortgage is simply "a conveyance of land...as security for the payment of a debt or discharge of some other obligation." This means that a mortgage society may be granted a legal estate in the land 'in rem'.? In return, the family will receive a loan and an equitable "right of redemption."?
Whilst a mortgage may be a great facilitator for the majority of citizens looking to purchase a home the difficulty, for this family in particular, is what can occur when one falls into arrears. The mortgagee may seek to recoup its losses, exercise its legal interest in the land, and possibly take possession of the property to realize on its debt.?

What Options Might the Lender Exercise Prior to Possession?
The Council Of Mortgage Lenders (CML) to which many lenders belong, understands that more drastic options can result in loss for both parties, and so suggests several options for lenders in its published practice code. For the family, this might provide some welcomed alternatives. The CML suggests that a lender might make the following attempts to help a mortgagor with arrears.? A lender might lengthen the loan period, change the mortgage type from monthly installments plus interest to simply interest payments (the principle due at the end of the mortgage period), defer the interest for a period, or allow the mortgagor to re-capitalize the arrears (i.e. adding the arrears to the principle and then continuing monthly installments on the "new" principle).?
In the event however, that the family is unable to exercise the CML's suggested alternatives, it may be the desire of the lender to seek possession. Again however, there may be alternatives or methods of postponing such a fate. Let us turn to examine the issue of possession and deferment.

When the Lender Wishes to Seek Possession
Under the unregistered system, title and deeds to a mortgaged property are vested in the lender, as security for the loan. Upon redemption, the title and deeds are returned to mortgagor.? Under the registered system, the result is very much the same; the lender when repaid ceases to have a legal interest in the property.? In default however, the title deeds or legal charge over the property are used to seek possession of the property.? Interestingly, this right of the lender to take possession arises automatically at Common Law even when the mortgagor is not in default. For example, in Western Bank Ltd v Schindler? the mortgagee (in the absence of default) sought possession in simple reliance on the legal estate conferred on it under the charge as soon 'as the ink was dry' on the mortgage agreement. This situation though is "unusual" and most mortgage contracts, and likely this family's, will include a term that possession will not be sought unless the mortgagor defaults.?
Of course the purpose of seeking possession is to realize the debt outstanding on the mortgage. This will often take the form of seeking possession for the purposes of sale.? However, whilst there is a Common Law right to take possession, there is no Common Law power of sale - a power of sale exists only under statute.? Thus, the Law of Property Act (LPA) 1925 draws a distinction between when a power of sale arises at law and when it becomes exercisable.? Section 101 of LPA 1925 states that a power of sale arises when it is not excluded in the mortgage deed, when the mortgage is made by deed (thus all legal mortgages – and excluding most equitable mortgages), and when the legal redemption date has passed. Therefore s.101 implies into every deed a power of sale in the above conditions.? Section 103 of the LPA 1925 states three instances where a power of sale becomes Exercisable: Where a notice requiring payment of the entire money has been served and this has not been complied with for three months or more (this refers to capital payments), where some interest under the mortgage is two months in arrears and unpaid, and where there is a breach of some other mortgage covenant - for example not keeping the house in repair, or failing to insure the property.?
When one examines the plight of this family in relation to s.101 and s.103 the situation appears rather grim. The facts suggest that their mortgage payments have remained unpaid longer than the minimum two months, and notice has been given of the arrears several times by the lender. And since the family's mortgage agreement does not likely exclude a power of sale, is a legal mortgage, and the likelihood that the legal redemption date has passed, it seems that if desired, the lender could seek possession for the purposes of sale. Unfortunately, a sale will destroy the equity of redemption.? Therefore, for the sake of this family, it is now necessary to turn to an examination of how to defer or avoid an order for possession.



Avoiding Dispossession
Under s.36 of the Administration of Justice Act (AJA) 1970, the court is given a degree of discretion to stay a lender's application for possession. This discretionary power is enhanced further by s.8 of the AJA 1973.? The combined effect of these two provisions, as noted in Cheltenham & Gloucester Building Society v Norgan, is that a court may suspend or delay possession for a "reasonable period" if it is likely that the mortgagor will be able to "bring his payments up-to-date."? Furthermore, the payments due may be treated as only those "as the mortgagor would have been expected...to pay" and not the entire mortgage sum. In Norgan, it was determined, relying in part on the Dicta of Buckley LJ in West Bank Ltd v Schindler? that such a "reasonable period" for paying off arrears should be the "remaining part of the original term of the mortgage.”
Following this reasoning then, a court via s.36 and s.8 might suspend an application for possession if it is likely that the family will be able to pay off the arrears over the remaining term of the mortgage. Should the family be able to demonstrate, as Mrs. Norgan was able to, that the prospect for payment is "likely" then it may be that a stay of execution will be granted. Alternatively, if the mortgagor is unable to show that it is likely that he will be able to bring payments up-to-date and continue under the mortgage, the court may have little alternative but grant execution of an order for possession in favor of the lending institution. In the event that a power of sale is exercised equity will however, require that the lender receive ‘proper market value’ for the estate, and may hold the lender or his agent liable for any shortfall. As well, should the lender sell to himself, or his agent, equity may also set aside the sale.?
On the other hand, there may also be instances where a mortgagor will want to sell the property to realize the debt, since a mortgagor may receive a better sum from sale than a mortgagee or his agent. This may be an option for this family, if their home is worth more than the outstanding debt. Indeed, a mortgagor may apply under s.91 (2) of the LPA 1925 to have the court order sale, and if necessary, suspend an order for possession made by the mortgagee. In Cheltenham and Gloucester plc v Krausz? the Court of Appeal held that, "Where the proceeds of sale were likely to discharge the mortgage debt, s.36 of the AJA 1970 (as amended by the AJA 1973) conferred on the court the power to suspend a warrant for possession of mortgaged property in order to enable the mortgagor to make an application for sale under s.91 of the LPA 1925.”? However the combined use of s.36 and s.8 does not appear to empower the court to do so where the mortgage debt will not be fully discharged. For the family then, the possibility of selling the home under their direction may depend on what the value of the home is in relation to the outstanding debt.

Occupation:
The general rule under s.70 (1)(g) of the LRA 1925? is that persons in "actual occupation" have an overriding interest.? This means that a purchaser or mortgagee will take possession subject to such rights. However, a person seeking to rely on such an overriding interest must, independently of mere occupation, have some identifiable property interest or right in the land and that interest must be enforceable prior to disposition.? In Strand Securities v Caswell? the occupation of the (unregistered) lessor's stepdaughter as a licensee of the absent lessor was insufficient to establish a right in the land. This was because the stepdaughter, unlike her stepfather, could show no right in the property. For the family then, it is necessary to examine whether the children and wife have an interest in the property that might override the rights of the mortgagee, since they are obviously in occupation.
Occupation: Children in the Home
The family has three children living in the home, but it is uncertain how this might affect an order for possession. In First National Bank v Nano Kojo Adjei Achampong? the presence of children in the home was not sufficient to prevent an order for sale. "It seems however, that the mere presence of infant children or disabled persons...at most" would "be sufficient to postpone" a sale.? As Nourse LJ stated in Re Citro? such hardships resulting from the disruption to children is a necessary, even if unpleasant result of failing to maintain mortgage payments. Nourse LJ in Hypo-Mortgage Services Ltd v Robinson and Another? again reinforced this point where he suggested, "it was axiomatic that minor children of the legal owner are not in actual occupation within the meaning of s.70 (1)(g)"? This is because the courts have tended to characterize the occupation of children as merely a “shadow” of the parent’s status as occupiers.? Therefore, in light of the above, although it is unfortunate for the children of the family, their presence in the home may only be sufficient to postpone and not halt an order for possession.

Occupation: Non-Contributing Spouse
While the Matrimonial Homes Act (1983) s.1 (MHA) and the Family Law Act (1996) s.30 grant a statutory right of a spouse to occupy the matrimonial home,? whether such a statutory right will bind a mortgagee depends firstly on whether this spousal interest is an overriding, or merely a minor one.? Unfortunately it appears that under s.31 of the FLA (1986) and schedule 3 of the LRA 2002, a statutory right of spousal occupation is excluded from being an overriding interest.? This means that such a right will only take effect as a minor interest. Minor interests are only protected under s. 32(1) of the LRA 2002 if a notice on the register is created. Such a notice must be registered prior to the disposition. This is because of s.20 of the LRA 1925 (now enacted in s.29 of the LRA 2002), which provides that upon disposition for valuable consideration, a purchaser or mortgagee will take free of any minor interests if not protected on the register, even if the purchaser or mortgagee has actual notice of such interests.? Therefore, in the case of registered land whether the lender was granted a mortgage free of the wife’s interest depends on whether she has protected her minor interest by entering a notice on the property’s register prior to the disposition for valuable consideration.?
Indeed, even if the land were unregistered, the wife would still need to protect her spousal right of occupation as a land charge under the Land Charges Act (LCA) 1925. Under this Act, the wife would be required to register a “Class F” land charge against the full and correct name of the legal estate owner – in this case her husband.? Failure to do so would result in a purchaser or mortgagee taking free of her interests. In Midland Bank trust Co Ltd v Green? a father granted an option to his son to purchase the family farm – the contract being one of the classes of registerable charges against the estate. However, the son failed to register, and after a family dispute the father sold the farm to his wife. It was held that since the son had failed to register his interest prior to the disposition, the mother, as purchaser took free of the estate contract. Therefore, like in registered land, it appears that for the wife to have an occupational interest enforceable against the lender it will be necessary for her to have registered it. Otherwise the lender will take possession without reference to her interests.




Note: From the formulation of the Coursework Question, it appears that reference to beneficial interests under resulting or constructive trusts was specifically excluded. This is alluded to in the words, “ Marie neither contributed to the purchase price, nor to the household expenses.”? Therefore, this essay has merely dealt with some of the practical considerations for a family finding itself in arrears. It seems that, when a detailed inspection of the wife and children’s interests is made, there is little practical difference between whether the land occupied is registered or unregistered. Furthermore, while this essay has dealt with the issue of unregistered land where applicable, it seems that on the facts as stated, it is possible that the property is subject to compulsory registration.? In other words, either the purchase of the home, or the acquiring of a legal mortgage over the property may have triggered registration.? In either case however, it seems that at best, if the family is unable to regain control of their mortgage payments, the only remedy available to them may be to defer possession by the bank for a period prior to the “evil” day when they will be forced to leave their home.



Thomas D Marshall



Bibliography
Cases
Abbey National Building Society v Cann and another [1991] 1 AC 56
Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883
Bristol and West Building Society v Henning [1985] 2 All ER 606
Bull v Bull [1955] 1 WB 234
Carsborne v Scarfe (1738)
Cheltenham and Gloucester Building Society v Norgan [1996] All ER 449
Cheltenham and Gloucester plc v Krausz [1997] 1 All ER 21
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] ER 779
Dilligent Finance Ltd v Alleyne [1972] 23 p & CR 346
Drake v Whipp [1996] 1 FLR 826
First National Bank v Nano Kojo Adjei Achampong [2003] EWCA Civ 487
Four Maids Ltd v Dudley Marshall Properties Ltd [1957] Ch 317
Hypo-Mortgage Services Ltd v Robinson and Another [1997] 2 FCR 422
Kreglinger v New Patagonia Meat & Cold Storage Co. Ltd [1914] AC 25
Midland Bank trust Co Ltd v Green [1981] AC 513
NWB v Skelton [1993] 1 WLR 72
Paddington Building Society v Mendelsohn [1987] Fam Law 121
Re Citro[1991] Ch 142 at 157
Santley v Wilde [1899] 2 Ch 274
Strand Securities v Caswell [1965] Ch 958
Vernon v Bethell (1762) 2 Eden 110 at 113
Western Bank Ltd v Schindler [1976] 2 All ER 393
William & Glyn’s Bank Ltd v Boland and Another [1981] AC 487

Internet Resources
Lexis-Nexis online legal resource material
http://www.landregistry.gov.uk/assets/library/documents/fact_sheet011.pdf
http://www.landregistry.gov.uk
http://www.legalweek.com/documents/UPDATES/LU_1004_7.pdf

Statutes
Administration of Justice Act 1970
Administration of Justice Act 1973
Family Law Act 1996
Land Charges Act 1925
Law of Property Act 1925
Land Registration Act 1925
Land Registration Act 1997
Land Registration Act 2002
Land Registration Rules 2003
Matrimonial Homes Act 1983

Texts
MacKenzie, Judith et al, Textbook on Land Law Oxford University Press. Oxford: 2004

Journal Articles
Morgan, Jill. “Mortgage Arrears and the Family Home” (1995) 112 LQR

Freedom of Expression: A Pan-Common Law World View

Thomas D Marshall (2006)

On Freedom of Expression and its Limitations
From the Common Law World - Canada, the United States, and Britain

Freedom of expression is a tool that is, as John Stuart Mill suggested, always in need of defence. This is, perhaps, because its benefits are so often diametrically opposed to other human desires such as safety, religion, and power. Its regulation then should come as no surprise, since 'ideas' are often a force to be reckoned with; or to adapt a phrase from Shakespeare: Man's mind is mightier than the sword. But, much like a sword, a judgement of free expression's worth comes from an examination of its use and therefore must be judged with regard to content and context. Thus, one must consider how best to manage this freedom so that both free expression and other competing social values attain fruition.
The difficulty of balancing competing values is, however, great. This difficulty often arises not in regard to private conversation or most political discourse, but in the context of some political expression which is so offensive to other social values that it is prone to official sanction. For example, 'racist expression that includes a significant political element' forces one to consider a set of competing interests; freedom of expression (with all of its possible benefits) on the one hand, and on the other the value of maintaining a society which prevents substantial harm to individuals and promotes equal concern and respect for its citizens.
This paper will seek firstly to elaborate on the general importance of freedom of expression. It will secondly demonstrate that the value of expression exists on a "sliding scale" and therefore may be judged by its ability to bring about the social values which underpin such freedom. Finally, it will illustrate that judging the limitations of speech, through the example of hateful expression, may mean expanding the traditional harm principle to include harm's less obvious forms.

Freedom of Expression and its Importance
Within most contemporary writings on freedom of expression only a handful of recurring rationales for its protection appear. Most are merely elaborations on the reasons once proffered by JS Mill in his Essay On Liberty. In general they are; the pursuit of truth, participation in social and political decision-making, and individual self-fulfilment.

Truth
For Mill, mankind's nature being "fallible" meant that a laisser-faire "marketplace" of ideas would help promote the attainment of truth - since only the best ideas would find currency. Only those who believed themselves infallible would suggest to have found the truth, or seek to deny another his expression lest he (whoever that might be) had found truth. For truth to be discovered, therefore, the greatest liberty possible should be afforded every individual in all matters political or otherwise - this would for Mill be the governing principle of society.

Political Participation
Throughout history, many have been the target of suppression for political views then held to be antithetical to the foundations of society. Today however, it is almost uniformly accepted that to promote equal concern and respect for citizens each must be permitted the freedom of political participation. This rationale, which first found life in the writings of contractarian theorists such as Hobbes and Locke, rests on the belief in the inherent worth of the individual and important involvement in the affairs of the regime under which he lives. Individuals must, therefore, be able to voice discontent, proffer alternatives, and question the status-quo freely.

Self-Fulfilment
When reduced to its essential elements, this rationale means the external realization of man's consciousness. According to professor Heyman of Boston University, "a person differs from a thing in not being merely external, but having an inner dimension as well; it is a distinction...that makes it possible for humans to be autonomous." Therefore, denying man the liberty to express his inner being is akin to the imprisonment of his truest self.

The Varying Importance of Expression
It is clear that free expression serves important functions that benefit both society (as a mode for truth-seeking and political exchange) and the individual. But, if this freedom is generally accepted as an important part of what it means to be human and live in political union with others, it is still not necessary to accept that all expression is equally important. This is because 'expression' is unlike its more absolute 'cousins'. Unlike, for instance, Article 3 of the European Convention on Human Rights which prohibits torture, expression is not of value in itself but merely a means of attaining other social goals. Thus expression's importance is a function of its usefulness in bringing about the values which support it - through an appeal to its potentially valuable content in warranting circumstances; or in other words, with regard to content and context.

In Regards to Content
For example, expressive content that targets children in advertising campaigns indeed possesses some value, but few would contend that a law proscribing such content would be as serious a threat to freedom as one forbidding political dissent. Thus, if one takes the Canadian case of R v Keegstra where a schoolteacher was convicted of promoting hatred towards an identifiable group, one can see the limits of expressive content's value. As Justice McLachlin rationalized;
"The suppression of hate propaganda undeniably muzzles the participation of a few...in the democratic process...but...expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values...arguing as it does that...individuals are (to be) denied respect and dignity simply because of racial characteristics...(such) propaganda repudiates and condem(ns) the view that all citizens need be treated with equal respect and dignity so as to make participation...meaningful...I am unable to see the protection of such expression as integral to (a constitutional guarantee of free expression)"
Of course, one might counter-argue that such content regulation is merely a form of view-point discrimination or 'state paternalism.' But Justice McLachlin's argument in favour of 'limited' free expression appeals to a practical sense of justice by suggesting that we protect the values which underpin expressive freedom instead of defending their manifestation. She further refutes Mill's misconception that the "voodoo priest and medical doctor" should be given equal weight since we might know with "a degree of certainty that some (content is) erroneous...(and therefore) of less...value in the quest for truth." Furthermore, as Willmoore Kendall argues, and as demonstrated in Konigsberg v State bar of California , "society may legitimately cherish a whole series of goods - among others, self-preservation (or) the living of the truth they believe themselves to embody" and value these above 'free expression.' Thus, if we accept Justice Dickson and Justice McLachlin's determination that some expression is of low value , and that our democratic values and sense of equality are of high value, it is clear that we might collectively rank some content above others.

In Regards to Context
Similarly, expression's utility varies with context. Thus there are two interrelated variables which impact its usefulness, and hence the "price society (must) pay in order to allow certain acts of expression." Indeed, neither content nor context can lead a life of its own. For example, shouting "fire" in a crowded theatre is of negative value where no fire exists, but such content would be vital in the context of an all-engulfing blaze. Or again, in Jordan v Burgoyne for example, the same expressive content which was “threatening” and “abusive” in the context of an excited gathering would not have led to conviction had Jordan expressed them to a disinterested crowd.
But if we can measure expression's importance by taking into account its content and context, we must now determine the purposes for which we might impose limits on free expression.

The Limits of Free Expression – A Wider Notion of Harm?
If we accept that racist expression is of low value when compared to the values which are harmed by its dissemination, and that such expression might become subordinate to attain other pressing social goals, then racist speech might be legitimately regulated for the prevention of substantial harm to individuals - the prevention of harm being one of the primary goals of society. It must however be stressed that little consensus on what constitutes 'harm' exists.
One central reason for this lack of consensus results from the rigid definitional approach to the word “harm” in that much literature still focuses on the classical notion of harm and not on its less obvious (and often more insidious) forms. If one takes the traditional approach advanced by Mill then only physical harm or slander, for example, can legitimize the curtailment of expression.
Historically, this rather limited conception of “harm” has been the adopted view of the common law world; aptly captured in the American judicial phraseology of “clear and present danger” – a standard which many over the past century view as giving little regard to the consequences (other than traditional harm) that might result.
If one takes a broader view of 'harm' however, by taking into account extreme emotional and psychological harm, it is clear that much racist expression not caught by the 'traditional principle' still results in substantial injury. For example, as Professor Rumney cites, victims of racism suffer depression, anger, stress, impacted health, and feelings of insecurity. As well, “racist speech…operates to diminish the victim’s sense of worth (which) impedes their full participation in many activities of civil society, including public debate.” Such findings were foreseen some thirty years prior by Martin Luther King Jr when he stated;
“As you seek to explain to your six year old daughter why she can’t go to the public amusement park…you see tears welling up in her eyes when she is told that Funtown is closed to coloured children, and you see the clouds of inferiority beginning to form in her little mental sky…distort(ing) her personality…developing an unconscious bitterness towards white people.”

In Canada, while Keegstra was decided on largely theoretical grounds surrounding the value of racist expressive content, the tone of the judgments seems to lend credence to this 'newer' conception of harm. Though no tangible victim resulted from Keegstra’s crimes, Justice Dickson admitted that such speech had the potential to “chill” expression in target groups, cause fear, and distress. He suggested that an individual’s sense of self-worth might be affected, leading them to avoid activities which bring them into the wider society.
Unfortunately, such 'modern' judicial thinking seems absent in the United States. In RAV v City of St. Paul Minnesota the Supreme Court held that an ordinance banning the burning of crosses was unconstitutional because it went beyond proscribing “fighting words” or expression which caused “clear and present danger.” Perhaps optimistically however, it must be pointed out that Justice O’Connor, while concurring with the majority, added that “by characterizing fighting words as a form of debate” the majority was legitimizing “hate speech as a form of public discussion”. Given such pronouncements moving from Mill's traditional harm principle does not appear to be on the horizon of American jurisprudence.
Similarly, the move to include a wider conception of harm as a guiding principle for regulation seems absent in the United Kingdom, which, as Rumney argues in some instances is more veracious in its protection of free speech than the American First Amendment. As Rumney suggests, the British "incitement law leaves most...expression entirely unregulated" so that many racist groups can continue to "distribute its literature" with little regard to the social costs of such activities.
While it is indeed difficult to measure personal injuries like intense fear and intimidation caused by racist expression, the effects are, as noted, humanly perceptible. It is, for example, easy to imagine the trauma caused by burning crosses on one’s property or injury caused to children through exposure to hate. But despite growing evidence that 'traditional harm' is ill equipped to account for such forms of hurt, movement towards a more inclusive harm principle, as seen above, appears far off.


Conclusion
Freedom of expression is always in need of defence: That much is true. If we admit however, that its importance is its ability to attain other social goods - not because it is a 'good' in itself - we find ourselves in the difficult position of giving some expression more 'weight' than others. As has been asserted above, this position is tenable, but open to criticism; not least because balancing competing values is itself controversial. Considering competing interests like the usefulness of hate speech in promoting underlying social values, or the value of preventing substantial harm to individuals, remains an open 'Pandora's Box.' Both interests are susceptible to the argument that if one allows regulation in any area of expression one puts expressive freedom on a "slippery slope" towards tyranny. However, this paper has attempted to illustrate that this balancing act is a necessary undertaking if we are to understand the value of free expression at all. The importance that is carried in content and context is a fluid quotient and therefore poorly represented by rigid rules regarding harm. Flexibility is necessary in law if it is to remain relevant; this challenge, as has been argued, must include expanding the traditional harm principle to incorporate its less obvious, modern, forms.


T David Marshall

The Calder and Mabo Decisions, Reflections of Western and Aboriginal Conceptions of Land, and Property

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)

Book Review: Killing the Messenger: Journalists at Risk in Modern Warfare. By Herbert N. Foerstel

Thomas Marshall, B.A., B.A., L.L.B., (L.L.M. Candidate, University of Ottawa)

Killing the Messenger: Journalists at Risk in Modern Warfare. By Herbert N. Foerstel. Westport, CT: Praeger Publishing, 2006. 160 pages.


There is ‘something different about Iraq’ - at least that is a perception anyone would be forgiven for maintaining. This might be particularly so for journalists. To everyone who is aware of the present issues in Iraq, a recurring and pressing one is the acute vulnerability of these ‘messengers in the field.’ Whereas once upon a time, journalists could, and did, freely roam between friend and foe, gathering the facts along the way, today one is more likely to find a war correspondent pinned down behind the ‘Green Zone’, or huddled inside the safety of a bombproof Hummer Jeep. This is because journalists – our messengers in the field – have themselves increasingly become objects of attack. Is this a new phenomenon? That question is debatable. What is not debatable, however, is that journalists in Iraq (and in many other war zones) are receiving unprecedented levels of violent attention from insurgents, gangs, militias, and many others. In this way, contemporary armed conflict is different – and dangerously so.

Killing the Messenger , by Herbert Foerstel, is a book about this difference. Foerstel, former head of Branch Libraries at the University of Maryland, advocate and author of books on free press issues, has undertaken the great task of bringing attention to the current plight of journalists in conflict zones.

At just 160 pages, Killing the Messenger is a short – but punchy – read. The author has painstakingly packed into his book an array of information concerning journalists in conflict zones – everything from whimsical (and fun) personal tales of adventure, to more philosophical and pressing issues like, “Why Do They Hate Us?”

In Chapter 1, “The Dangers of Reporting Conventional War,” Foerstel introduces the reader to the real-life dangers, in past wars, of correspondents. Foerstel instantly engages the reader through a series of short interview-style passages recounting the personal war stories of legendary war correspondents like Martha Gellhorn, Ernie Pyle, and Walter Cronkite. In discussing the conventional dangers of working in war zones, for example, Foerstel writes of Martha Gellhorn, “(she) would walk along, hearing the normal city sounds of streetcars and automobiles, and suddenly would come the huge booming of a falling shell. There was no place to run…because how would you know that the next shell would not be behind you, or ahead, or to the left or right?” That bomb, of which Gellhorn spoke, landed not far from where she had been just minutes before, in the middle of a crowded market. She later learned that, “[a] small piece of twisted steel, hot and very sharp” had sprung from the shell’s explosive power catching a small child in the throat. This, to Martha Gellhorn, was a powerful example of the dangers journalists face daily in order to bring information back from the front. It was a danger she could live with.

There was however, in those days, and according to Foerstel, more to be feared than falling bombs and flying metal. Ernie Pyle, for example, the great World War II correspondent, while advancing with American troops in the Pacific, was killed by a ‘lucky’ shot taken by a hidden Japanese sniper – an unexpected and untimely death for a journalist who had survived so many other dangerous encounters. Just months before his death, Foerstel tells, Pyle had been in what seemed an even greater danger from friendly fire. Allied Forces had been bombing Saint Lo, France, where Pyle was stationed – and instead of advancing in the opposite direction, Pyle noted that allied bombs and machine gun fire were in fact coming in his direction. Of this close encounter, Pyle later wrote; “as we watched, there crept into our consciousness a realization that windrows of exploding bombs were easing back towards us, flight by flight, instead of gradually forward, as the plan called for…An incredible panic comes over you at such times…it was bombs by the hundreds, hurtling down through the air above us.”

Perhaps most exciting for readers is Foerstel’s passage about Walter Cronkite. Cronkite, one of the most famous U.S. reporters of our age, is similarly nostalgic, and yet reserved, about the dangers past wars posed for journalists in ‘the zone’. Cronkite was working as a writer for the United Press in New York City when the 1941 tragedy of Pearl Harbor struck a cord deep within him. Deciding he wanted to “get into the war as a correspondent” Cronkite set off for the European war theatre with little idea of what lay before him. Soon, he became a member of the ‘fabled’ ‘The Writing Sixty-Ninth ’ - and a man looking for action. Cronkite states of his experiences: “We were out there with the guys (soldiers) in the foxholes, in the airplanes, in the parachute jump groups, in the gliders. It was entirely voluntary, and the frequent question asked by GIs was, ‘what the hell are you doing here?’”

Of course, as Foerstel suggests throughout the first chapter, these were the old dangers encountered by young men using new technologies like real-time radio communications. To them, and to many other brave reporters, this combination of ‘old’ and ‘new’ made the war zone both a familiar and exciting place – and often translated into fame and notoriety. The risks were calculable, and knowable – as much as they could be to anyone in a battlefield – and that was real comfort to the messenger in the field.

The new face of war, on the other hand, is anything but calculable. In Chapter 2, “Journalism and the New Face of War” , Foerstel takes the reader on a graphic journey that illustrates just how much things have changed for journalists engaged in conflict zones such as the Middle East. “Gone is the assumption”, says Foerstel, “that correspondents are more valuable as witnesses than as targets…[T]o insurgents [in Iraq] foreign journalists are just another element of an occupying force.” Terry Anderson, a life-long journalist, who was until recently in Iraq, tells the author that, “today journalists are targeted. During most of the war in Lebanon you could go and talk to anyone, including the most radical groups…I would go and talk to just about anyone during those days.” Today, both Anderson and Foerstel assert that, “it is the purposeful targeting of journalists by combatants that is new.” As the author suggests, “insurgents have (even) begun coordinated attacks on the hotels housing journalists.” This has, in turn led to a situation whereby the entire “way…of covering [wars has] changed.”

Chapter 2 is also the location where, for those who enjoy or can utilize such figures, the author provides shocking statistics about journalists in contemporary war zones. For example, Foerstel writes that by 2004 there were some six thousand journalists registered in the Baghdad Green Zone. And at the time of publication the most recent figures for journalist deaths in Iraq amounted to 46 reporters killed in 19 months of fighting.

In the third chapter the author recounts the more modern tails of ‘near misses’ by journalists in the field. Here the reader finds some fascinating stories of journalists who have been either held in captivity, tortured, abducted, abused, or worse. One fascinating story is of the reporter Jerry Levin who, for over a decade, was held in solitary confinement in Lebanon. This is where Foerstel’s writing style is particularly vivid and effective in keeping readers ‘hooked’. Of Levin’s captivity, Foerstel writes, “by April 1984, Jerry remained in the same tiny room…chained night and day to a radiator. Because the chain was too short to allow him to stand, his leg muscles had begun to cramp horribly. The bare room had a single window, painted over.” Foerstel’s descriptive writing almost makes the reader shiver with Jerry Levin in that dank, stale, room - and his sheer writing talent makes it is hard for anyone to put the book down.

In the fourth chapter, “Why Do They Hate Us?” , Herbert Foerstel tries to address some of the possible reasons for the changes in warfare as they relate to journalists. His subtitles throughout the chapter help illustrate some of the more relevant issues putting journalists at risk: “Real-Time (in the field) Reporting”: “Cash is a Dangerous Magnet”: “Loss of Objectivity”: “Journalists as Intelligence Agents”: and “Death From Friendly Fire”. Perhaps the most revealing of these sub-themes is “journalists as Intelligence Agents.” This is because unlike the other issues raised in Chapter 4, this one is referred to at other times throughout the book. In Chapter 3 for instance, the reader learns that every time a western journalist is held captive, one of the first questions that will be asked of him or her is, “are you a CIA spy?” To most this would seem a rather odd, almost funny thing to ask someone who is clearly a journalist carrying a pad and pen in hand. But, as Foerstel suggests, this is a deadly serious question – and a problem that the United States government may have inadvertently created for ‘real’ journalists. As he says, “In February 1996, when the Council on Foreign Relations (CFR) [met, they recommended to] ‘resume sending spies posing as journalists’” into the field. Jerry Levin, who was held for over ten years (see above), states that “no [retraction] could help at this point…no matter what we say…our history [as a country fielding spies posing as journalists] speaks for itself.” Given that an enemy’s suspicions may be well founded, it seems hard, it is suggested, that anyone, anywhere, would want to talk to reporters in the field. It may be more ‘safe,’ – the logic goes - from an insurgent’s point of view, to see journalists as potential threats, and therefore targets, that need to be eliminated, rather than take a chance.

In the final chapter of the book, Foerstel tries to draw all his ‘strings’ together to shed some light on what this all means for the quality of news gathering today. With journalists “embedding” for protection and with the death toll rising, the author asks, ‘are we getting accurate information – are we getting the truth?’ While the latter is a debatable point at any time, the former, according to Foerstel, is not. The new face of war has undoubtedly impacted the quality of journalism in the field. As he suggests, with journalists cowering in the ‘Green Zone’, “Washington, London, and Alawi [are producing] a picture of Iraq which is a fantasy.” Journalists, and indeed whole news agencies, have resorted to hiring local staff as stand-in reporters. This results, no doubt, in a lack of control over what questions are asked, and with whom the local ‘reporter’ speaks. Are we getting good coverage? No one knows. And therein lies the problem.

As noted above, this book is a spry 160 pages – but it is packed with stories and information that keep the reader interested the entire way through, from cover to cover.
If there is one criticism to be made about this book, it might be that more could have been done with the material amassed. While Herbert Foerstel is good at convincing the reader that there really is a “new face” to war, he offers few practical solutions to address the situation. One would have thought that he might have suggested instituting (perhaps through an international legal regime promoted by the International Committee of the Red Cross (ICRC)) increased protections for journalists engaged in conflict zones. While it is clear that Foerstel is not an international humanitarian lawyer, it is clear that he is well aware of the current protections afforded by certain legal regimes. It is also clear that he is aware that these regimes seem insufficient – yet he leaves the reader wondering why he proffers no alternative solutions to address this apparent gap. Given his obvious experience in this area, this is a somewhat disappointing end result.
With that said, however, it must be stated that Foerstel is clearly a gifted and evocative writer. Anyone who is interested in the current War on Terror, or in international affairs generally, should read Killing the Messenger. Academics too should not shy away from this book. While the writing is sporty, and tends towards anecdotalism in some parts, there is something to be taken from this book for all. Also, international humanitarian lawyers should note that, while not specifically addressed in the book, the issue of protection regimes for journalists and war correspondents does crop up within the text and is addressed, as a matter of necessity, in the writing.


Thomas D Marshall