1 Introduction
The question related to Aboriginal1 peoplesâ rights to their traditional lands which was raised as far back as the second half of the 19th century in various countries came to roost at the end of the 20th century. This was especially so in the previous English colonies of Canada, Australia and New Zealand. It also became an issue in fraternal jurisdictions which emanated from a similar colonial background. Court decisions on the issue through comparative judicial cross-pollination played a major influential role in all these countries. Although each country developed differently the basic issues remained the same as Aboriginal peoples faced similar institutional and ideological intolerance. These issues included how the land was settled, what use could be made of it and by whom and what rights Aboriginal peoples had at customary and common law. Had their rights to traditional lands been expropriated or extinguished? Who spoke for whom in the ensuing litigation or negotiation processes which were time consuming and expensive? Were the courts adept at dealing with the issues (Knafla and Westra 2010)?
This chapter illustrates how Aboriginal peoples became proactive in regaining their status as distinct peoples and were at the centre of the battleground surrounding the various legal contests. A court-based jurisprudence emerged in which judicial recognition of common law Aboriginal title to traditional lands emanated This court-based jurisprudence emerged from a post-Second World
2 Doctrine of Discovery
The doctrine of discovery3 was used against Indigenous peoples in various parts of the world. It was used by England and its courts, politicians, governments and settlers in relation to Australia, Canada, New Zealand and various other of its colonies. It was utilised to justify Crown and colonial control of the Indigenous peoples and their lands within these colonies and has had an enduring impact on the ownership of the traditional lands of the Indigenous peoples in British colonies. The doctrine was through the years accepted in British colonies and adopted and applied in their legal regimes relative to their Indigenous peoples. The doctrine thus deserves more than passing mention and its constituent elements will consequently be briefly set out.
The United States Supreme Court in Johnson v McIntosh (1823)4 set a standard against which the doctrine of discovery would be measured against by the governments and courts of Australia, Canada, New Zealand and the United States vis-Ã -vis their Indigenous peoples. This case became heavily relied on by these four countries in developing their policies and laws towards their Indigenous populations. In a nutshell the Johnson case held that under international law when a European Christian nation discovered new lands it
For the United States Supreme Court to have come to above decision in the Johnson case it had a vast body of generally accepted legal principles of the day that governed the conduct of nations to rely on, the doctrine of discovery being one of the earliest examples of international law (Dugard 2018, 182). The doctrine was developed by European nations to control potential conflicts over exploration, conflicts over trade and the colonisation of non-Christian and non-European peoples and the confiscation of their lands. As far back as approximately the 5th Century ad the Roman Catholic Church began establishing the idea of an universal papal jurisdiction that placed an obligation on the church to create an universal Christian Commonwealth.5 This culminated in the concept of a justified holy war led by Christians to enforce the churchâs vision of truth on infidels. Pope Innocent iv saw crusading Christians invading infidel lands as just wars which were based on the legal authority of Christians to dispossess non-Christians of their sovereignty and property. To be considered civilised a country had to be Christian and Christians refused to recognise the rights of non-Christians to remain free of Christian dominion (Muldoon 1979, 109). Francisco Vitoria, the Spanish kingsâ adviser, regarded as one of the first international law writers of note, held the view that Spain in defending the faith was waging lawful and just wars against Indigenous peoples and in such way justified a Christian nationâs conquest (Hanke 1949, 17â20).
England initially became heavily involved in the doctrine of discovery at the advent of the 15th Century. When Henry viii broke with the Catholic Church in 1529 he was compelled to seek alternate grounds to papal authority in his desire to claim Ireland. His daughter, Queen Mary, a Catholic relied on a papal bull to justify her ownership of Ireland and this culminated in Pope Paul iv issuing a bull nominating Mary as monarch of Ireland. Elizabeth I, Maryâs successor, who was a Protestant, did not seek to rely on a papal bull to claim Ireland. In 1603 she commenced a war of conquest against Ireland after the English parliament had re-established the Church of England in Ireland and
England added to the doctrine of discovery the element of actual occupancy and possession to establish its claims to title by discovery. This England applied to its dealings with Spain and Portugal arguing that first discovery cannot confer property and that consequently England could colonise any lands where European countries were not in possession. Another important element of the doctrine of discovery introduced by England was the principle of terra nullius. In previous centuries, large portions of the globe were either uninhabited or unclaimed, or inhabited by communities characterised as unorganised primitive or uncivilised by European states. Such territory was designated as terra nullius, land belonging to no one, which could be acquired by means of discovery in the 15th and 16th centuries, and thereafter by means of occupation. Terra nullius was also seen to apply to areas that were populated by inhabitants who were not members of the then family of nations and thus not subject to international law. Terra nullius implied that European countries did not recognise the property rights of non-civilised peoples to the lands they occupied. Consequently, European countries regarded South and North America (and later Australasia) as vacant land, vacuum domicilium, available for taking from the Indigenous peoples even if they were occupying and using the land (Reynolds 1987, 173). This brief but necessary excursus on the doctrine of discovery has been undertaken as the doctrine featured prominently in the Australian High Court case Mabo (no. 2) v Queensland (1992) and in similar cases in Canada, New Zealand and elsewhere. It will be seen that according to the courts, the doctrine was not just an obscure historical relic that could be easily corrected. The doctrine needed to be addressed and if need be eliminated from modern day life.
The Mabo (no. 2) decision in Australian context was seen to be revolutionary. No other legal event in Australia since federation had a greater impact and led to so much academic and jurisprudential debate (Marks and McDonell 1996; Fitzpatrick 2002; Loos 1997). Few cases can ever have commanded such sustained national attention in Australia itself and it created sensational responses in fraternal jurisdictions. Mabo (no. 2) led to landmark judgments elsewhere. Mabo (no. 2)âs views of terra nullius and the rights of Indigenous peoples to their traditional land lay at the heart of the legal revisionism that swept through various countries which over the centuries were the products of Anglo colonisation. As Mabo (no. 2) is the focus of this chapter it is to this case we now turn after giving a brief insight into the Canadian Supreme Court case Calder et al. v Attorney-General of British Columbia (1973) which is recognised to be the prelude to Mabo (no. 2).
3 Calder et al. v Attorney-General of British Columbia
Before Mabo (no. 2) is dissected it is necessary to turn to the Calder case. The relevance of discussing the case, decided 12 years prior to Mabo (no. 2) at this stage will soon be evident. The significance of the Calder case is what was said regarding the doctrine of discovery and the concept of Aboriginal title.
The proposition accepted by the Courts below that after conquest or discovery the native peoples have no rights at all except those subsequently granted or recognised by the conqueror or discoverer was wholly wrong. There is a wealth of jurisprudence affirming common law recognition of aboriginal rights to possession and enjoyment to lands of aborigines analogous to the Nishga situation.
Calder et al. v Attorney-General of British Columbia, 315
[T]he fact is that when the settlers came, the Indians were there, organised in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means (â¦). What they are asserting in this action is that they had the right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished.
Ibid, 328
Justice Hall in the same vein held: âWhat emerges from the evidence is that the Nishgas in fact are and were from time immemorial a distinctive culture entity with concepts of ownership indigenous to their culture and capable of articulation under the common lawâ (Ibid, 375).
The action by the Nishga was unsuccessful on a procedural ground â the necessity of a fiat to implead the Crown â but six of the seven judges accepted the argument that Aboriginal title can exist in principle. Three judges regarded that the title of the Nishga people over their traditional territory had been extinguished, while three believed that their Aboriginal title remained.
The importance of the Calder case is the fact that it breathed life into the Aboriginal title debate due to the above quoted comments of some of the judges. Calder became a catalyst for the development of Aboriginal rights to traditional lands. The Canadian Supreme Court rejected the notion of the innate superiority of European nations and an ethnocentric perspective that assumed that Aboriginal peoples were too primitive to be recognised as sovereign nations and that consequently North America was terra nullius. Calder rejected the approach reflecting the centuries-old premise that North America was legally vacant land when the settlers came (Hoehn 2012, 150). Calder was the breakthrough decision that introduced the distinct perception that the time had come for a court-generated jurisprudential basis for Aboriginal rights which culminated in Mabo (no. 2).
Despite Aboriginal peoples in Canada, Australia and New Zealand attempting to assert their rights to obtain legal recognition of their customary rights over their traditional lands and natural resources during the second half of the 20th century, the courts were loath to become involved. The courts clearly did not wish to intervene in government â Aboriginal peoplesâ disputes. The experience of the Aboriginal peoples regarding possible litigation was that it was
It is important to keep in mind that the Calder and Mabo (no. 2) cases must be seen against the background of the Civil Rights era. The Civil Rights movement created an instant human rights discourse with the Universal Declaration of Human Rights,7 the International Covenant on Civil and Political Rights (iccpr),8 the International Covenant on Economic, Social and Cultural Rights (icescr)9 and the International Convention on the Elimination of All Forms of Racial Discrimination (icerd)10 being the benchmarks. This resulted in a wider international and national rights-consciousness which filtered into national legal systems in various ways.
4 Mabo (no. 2) v Queensland
Before Mabo (no. 2) is discussed in detail, Mabo (no. 1) v Queensland (1998) must be briefly referred to. The Queensland government faced with the proceedings that were to culminate in Mabo (no. 2) attempted to pass the Queensland Coast Islands Declaratory Act (1985) which was designed to pre-empt those proceedings. The Act was designed to extinguish whatever rights Eddie Mabo and his Meriam people might have held under their traditional customary law. This State legislation also purported to operate retrospectively to 1872 when Queensland annexed the Meriam islands without compensation. Mabo and his people submitted that this measure violated the Racial Discrimination Act (1975) and Article 5 of icerd. They argued that the 1985 Queensland Act denied them equality before the law, the enjoyment of the right to own property and presented the arbitrary deprivation of these rights. The High Court by a narrow 4â3 majority agreed and rendered
Mabo (no. 2) was decided by the High Court of Australia (hca) in 1992 after a decade of litigation. Eddie Koiki Mabo was a Torres Strait Islander who submitted that the Meriam people in the Murray Islands had a system of land ownership before European colonisation. Torres Strait is an area of islands situated in the north of Australia between Cape York and Papua New Guinea. It is culturally a distinct geographical area whose inhabitants have close links with Papua New Guinea as well as Australian Aboriginal peoples. It was initially colonised during the 1860s and annexed to Queensland in 1872. European settlers saw the inhabitants as gardeners, fisherman and hunters rather than occupiers. After Australian federation, jurisdiction over the Torres Strait Islands was shared between Queensland and the Australian Commonwealth. In the first half of the 20th century, Queensland established a dual system of local government.11
Mabo (together with David Passi and James Rice) sought a declaration from the hca that the Crownâs dominion over their Murray Island home was subject to (1) their local custom, (2) their original native (Aboriginal) ownership, and (3) their actual possession, use and enjoyment of the islands. Phrased differently one might say they sought common law recognition of their traditional native (Aboriginal) title.
The order of the court by Justice Brennan was that (with exceptions for specific areas)12 the Meriam people were entitled against the whole world to the possession, occupation, use and enjoyment of the Murray Islands. The court recognised native title but not Aboriginal sovereignty. This order is a succinct summary of the decision which consists of a 200 plus page judgment. Chief Justice Mason and Justice McHugh agreed. Justice Brennanâs judgment represented the minimal position of the majority. Justices Deane, Gauldron and Toohey went further in certain respects. Justice Dawson dissented. Mabo (no. 2) was a legal revolution (Bartlett 1993; McRae et al. 2003, 231). McHugh (2011, 91) states that Mabo (no. 2) made an impact like no legal event since federation. Responses ranged from jubilant to highly critical. Conservatives saw it as an example of judicial legislation. Progressives maintained that it did not go far enough. In essence the High Courtâs order was based on exclusive
Much has been written on Mabo (no. 2) and it has been meticulously analysed and dissected from every jurisprudential and academic point of view (Webber 1995; Gregory 1992; Keon-Cohen 2000). It is not within the ambit of this chapter to embark on such an endeavour. What will be focussed on is firstly the main thrust of the decision and thereafter itâs far reaching influence in Australia and elsewhere.
What was Mabo and his fellow islanders confronted with when seeking a declaration that they held traditional Aboriginal or native title to the lands and waters in the Murray Islands of the Torres Straits that had not been extinguished by colonisation? In 1889 the Privy Council in Cooper v Stuart (1889) held that the colony of New South Wales (which eventually become part of the Commonwealth of Australia) had not being acquired by conquest, but had consisted of a tract of territory, practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British Dominions. Subsequent Australian decisions such as Milirrpum v Nabalco Pty Ltd and the Commonwealth of Australia (1971) and Coe v Commonwealth of Australia (1979) confirmed this view. This view in effect was that the doctrine of terra nullius ensured a total rejection of Indigenous law by the Australian legal system. Although Australia had been inhabited for some 40,000 years by an Aboriginal population with its own system of laws, cultures and customs, the British colonial office treated Australia in 1778 as uninhabited and without institutions or laws (Reynolds 1996). Early decisions such as R v Murrell (1836), R v Neddy Monkey (1861) and R v Cobby (1883) saw the Aboriginal peoples as having no laws, or laws that were too barbaric to be recognised by a civilised legal system, or unable to survive European contact. This view of terra nullius at the time of the Mabo (no. 2) litigation was accepted as a legal basis for Australiaâs colonisation. Notwithstanding 40,000 years habitation by Indigenous peoples, Australian law did not recognise native/Aboriginal land rights unless these rights were created by state or territory legislation. Where did this legal blind spot related to Aboriginal peoples emanate from? Why were any legal rights of Aboriginal peoples ignored by the common law? One explanation relates to the clear lack of guidance from the Colonial Office given to governor Arthur Phillip when he arrived with the First Fleet in 1788. He was simply instructed to âconciliate the aboriginesâ (Bottomley and Bronitt 2012, 124) but to otherwise leave them alone. That may be one of the reasons why the colonists deemed Australia to be terra nullius and legally available for settlement. It could be that this view emanated from William Blackstoneâs Commentaries on the Laws of England who held the view that if âan uninhabited country be discovered
From the early 1800s it became clear that the terra nullius doctrine would be invoked by Australian courts to deny Aboriginal title to the land with the courts seizing on the fact that Aboriginal peoples lacked any recognisable system of land tenure and did not engage in the cultivation of land. Whatever the status of terra nullius at the time of first contact, it is clear that over the course of the 19th century the designation of Australia as terra nullius became conventional wisdom. It was only in 1980 when Mabo and his fellow claimants commenced proceedings against the State of Queensland and the Commonwealth, that Australian courts were required to determine whether customs and traditions incorporating rights to, and interest in, land delivered enforceable property rights under the common law. The Mabo litigation lasted for 10 years and resulted in two separate decisions of the Full Court of the High Court. In Mabo (no. 2) which was handed down on 3 June 1992, the court held by a six to one majority that the Australian common law did recognise the pre-existing rights of the Indigenous peoples.13
The High Court in Mabo (no. 2), in a nutshell, held that native (Aboriginal) title to land survived the Crownâs acquisition of sovereignty and radical title. That the rights and privileges conferred by native title were unaffected by the Crownâs acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power. Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the Indigenous peoples who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the Indigenous peoples and the land remains. Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an Indigenous people is extinguished if the clan or group ceases to acknowledge those laws and (as far as practicable) to observe those customs or loses its connection with the land or on the death of the last of the members of the group or clan. Native title can be surrendered to the Crown voluntarily. If native title to any parcel of land is extinguished, the Crown becomes the absolute beneficial owner.
According to [the line of cases which denied the existence of native title] (â¦) the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic substance which the land provides, vested the land [in the Crown] (â¦) without any right to compensation and made the indigenous inhabitants intruders in their own homes (â¦). Judged by any civilised standard, such a law is unjust (â¦).
Mabo (no. 2) v Queensland, para. 28
Justice Brennanâs approach was that the theory that the Indigenous inhabitants of a settled colony had no proprietary interest in the land depended on a discriminatory denigration of Indigenous inhabitants, their social organisation and customs. He stated that it was imperative in the modern world that the Australian common law should not be frozen in an age of racial discrimination. He saw the doctrine of terra nullius by which the rights and interests of Indigenous inhabitants were treated as non-existent was based on a policy which had no place in the contemporary Australian legal system.
[W]hen the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.14
Ibid., para.60
He emphasised that native title had its origin in and was given content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory.
Ibid., para.56
Far from being ordinary, however, the circumstances of the present case make it unique. [The doctrine of terra nullius together with the denial of native title] provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgement of, and retreat from, those past injustices (â¦). The lands of this continent were not terra nullius (â¦).
[W]e are conscious of the fact that, in those parts of the judgment which deal with the dispossession of Australian Aborigines, we have used language and expressed conclusions which some may think to be unusually emotive for a judgment in this Court. We have not done that in order to trespass into the area of assessment or attribution of moral guilt. (â¦) [T]he reason which has led us to [use] unrestrained language is that the full facts of that dispossession are of critical importance to [the legal propositions].
Ibid., para.78
They strongly rejected the propositions that the continent was for legal purposes unoccupied and that the unqualified legal and beneficial ownerships of all the lands of the continent vested in the Crown (Ibid., para.53).
Justice Brennan â Justices Mason and Mc Hugh concurring â was of the view that Australian common law would perpetuate an injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the Indigenous inhabitants of Australia as people too low in the scale of social organisation to be acknowledged as possessing rights and interest in land (Ibid., para. 63). He held further that the dispossession of the Indigenous inhabitants of Australia was the result of the recurrent exercise of a paramount power to exclude the Indigenous inhabitants from their traditional lands as a colonial settlement expanded and land was granted to the colonists.
Justice Dawson, the sole dissenting judge, was of the view that it was the prerogative of parliament to overthrow a long-accepted principle. He held that despite the fact that the previous legal regime was insensitive, a new policy is a matter for the government and not the courts (Ibid., para. 48). That it would
Whatever differences of opinion there have been among jurists, the state practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organisation were not regarded as terra nullius.
Western Sahara Advisory Opinion, 39
They thereby repudiated the Privy Council decision of Cooper v Stuart (1889) and the subsequent Australian decisions Milirrpum v Nabalco Pty Ltd and the Commonwealth of Australia (1971) and Coe v Commonwealth of Australia (1979) to the effect that Indigenous laws were incapable of recognition because they lacked the essential elements which define a proprietorial interest known to the Australian legal system â a view which held sway until it was rejected by Mabo (no. 2).
The same Justice Dawson who dissented in Mabo (no. 2), stated in Western Australia v Commonwealth (1995), decided three years after Mabo (no. 2), that no good purpose would be achieved if he continued the same line of reasoning as he followed in his Mabo (no. 2) dissent (Western Australia v Commonwealth, 493). That he would consequently now follow the reasoning of the majority in Mabo (no. 2).
5 The Native Title Act
Some five months after Mabo (no. 2) the prime minister Michael Keating announced his intention to seek Commonwealth legislation to give effect to the judgment. The process followed was complicated.15 Legislation was deemed essential for three reasons: to validate titles issued since 1975 which were probably invalid under the Racial Discrimination Act (1975); to create a legislative process that would allow mining and other developments on native title land and to identify with certainty which land was subject to native title. To Aboriginal leaders,
The eventual passage of the Native Title Act (nta) which was passed by the federal parliament in December 1993 was the result of intense consultation, conflict and compromise. An important event in this process was the so-called âRedfern Addressâ by prime minister Keating where he reiterated forcefully the courtâs sense of injustice by specifically arguing that Mabo (no. 2) is an historic decision: â[W]e can make it an historic turning point, the basis of a new relationship between indigenous and non-Aboriginal Australians (â¦) there is nothing to fear or to lose in the recognition of historical truthâ (Keating 1992).
Another important event in the build-up towards the nta was the âAboriginal Peace Planâ16 wherein Aboriginal representatives presented the prime minister with their own proposal for a just settlement relating to Aboriginal rights in return for the acceptance of certain principles outlined in the plan. This magnanimous gesture got the negotiations, which were getting bogged down, on track again and opened the path towards what became the nta.
The nta consists of many features and similar to the process leading up to it is complicated. The focus of this chapter is more on the revolutionary findings of Mabo (no. 2) and the impact of these findings in Australia and elsewhere. The gist of the nta will however be set out as it is the product of Mabo (no. 2) and the Act does resonate in other jurisdictions.
- (1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
- (a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Straits Islanders; and
- (b)the Aboriginal peoples or Torres Straits Islanders, by those laws and customs, have a connection with the land or waters; and
- c)the rights and interests are recognised by the common law of Australia.
- (2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing rights and interests.
A meaningful exposition of the Yorta Yorta case would entail a lengthy discussion and this has adequately been done elsewhere (McIntyre 2003; Young 2008). Put succinctly, the court held that under Australian law native title requires both a present possession and a present connection. There should be a present day entitlement under the traditional law and custom related to the particular land holding the historical association. âTraditionalâ refers to that body of law and customs acknowledged and observed by the ancestors of the
Although the High Court judgment in Yorta Yorta emphasised the necessity of establishing a narrative of continuous connection at all points of time from sovereignty to the present, contrary views have been expressed. Earlier in Members of the Yorta Yorta Aboriginal Community v The State of Victoria (2001), Chief Justice Black of the Full Court of the Federal Court recognised that there is an alternative approach which does not require such a comprehensive continuous correspondence between the past and the present. He favoured a more general inquiry starting from the present that emphasised oral traditions. From this vantage point he suggested that the inquiry into continuity was likely to involve a consideration of events over a lengthy period of time. This view of Chief Justice Black found favour in the minority judgments of Justices Kirby and Gaudon in the High Court Yorta Yorta case of 2002 where they held that as a matter of ordinary usage, the word âtraditionalâ does not necessarily signify a rigid adherence to past practices. Rather, they held, it ordinarily signifies that that which it describes has been handed down from generation to generation often by word of mouth.
What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledged and observe those laws and customs.
Yorta Yorta, para. 114
Akiba v Queensland (no 3) (2010) however crystallised a move towards greater moderation in the treatment of native title (Brennan 2015). The Akiba decision of the Federal Court restored some optimism about achieving some of Mabo (no. 2)âs potential, following on decisions that frustrated the Mabo (no. 2) decision. After the Yorta Yorta High Court decision, the test for continuity was in many instances applied literally and lacked realism. There were also variations as to the meaning of the maintenance of a traditional connection with the land.
[k]nowledge of the areas when coupled with the deep and transmitted sea knowledge that many of them possess, is itself a potent indication of connection, and continuing connection at that, to their marine estates â the more so because under their laws and customs they have, and do exercise, traditional rights to use and forage there (â¦).
Akiba v Queensland (no 3), para. 649
The Akiba saga is important in the development of native title in that it recognised the right to access, remain in and use the relevant marine areas and the right to access those areasâ resources and take them for any purpose. Hereby native title rights with a commercial character were recognised. The Akiba litigation should encourage courts to approach the characterisation of native title rights and the definition of their content in a less restrictive manner and move away from the over-specification so evident in the earlier decisions. The Akiba decisions have modernised native title and by emphasising the notion of its commercial use they should unlock greater economic potential for native title holders.
6 Mabo (no. 2)âs Impact on Australia: A Brief Overview
Mabo (no. 2) has been embraced on many fronts and has been an important source of support for legislatures and policy makers â in Australia and elsewhere. The impact of the decision is not only due to the decision in favour of the Aboriginal peoples, it is also traceable to the historical narratives articulated in the reasoning of the majority of the court. The decision unarguably advanced justice for Aboriginal Australians by providing a compelling moral case which not only emphasised but led to meaningful steps to remedy the many past wrongs inflicted by the denial of native title over two centuries. As seen above not long after Keatingâs âRedfern Addressâ the federal parliament enacted the nta which specifically incorporated the basic principles of Mabo (no. 2). The nta came into effect 18 months after Mabo (no. 2) and has been pivotal in facilitating the formal legal recognition of native title claims. It was fortunate that the federal government was supportive of the Mabo (no. 2) decision. Mabo (no. 2) was a clear example of a court using a rare opportunity to do justice on a large scale following on a history of profound injustice. Aboriginal peoples have been transformed into meaningful legal actors who have become
Mabo (no. 2) introduced a new post-colonial and uniquely Australian narrative into the understanding of property law. This new narrative decoupled the concept of sovereignty from land ownership. It brought into being the notion of the Crownâs radical title burdened by pre-existing native title. Mabo (no. 2) affirmed traditional law and custom as a source of property rights.
There can be no doubt that native title registration and related land rights legislation have delivered âtitleâ, or legally enforceable rights, to substantial areas of land and waters throughout Australia. It would be remiss however not to acknowledge that native title is not âtitleâ in the same sense as freehold title. Determinations of native title recognise the rights and interests that the relevant Aboriginal peoples have under their traditional laws and customs. Those rights and interest need not be the same as, or analogous to, the indices of real property tenures. As Justice Toohey pointed out in Mabo (no. 2) the use of the term âtitleâ is artificial and capable of misleading although it is a convenient expression to use particularly as recognised by the law of Australia (Mabo (no. 2), para. 9). From a demographic point of view most Aboriginal Australians will not benefit directly from native title legislation. The reason being that most Aboriginal peoples live in the cities and regional areas where little, if any, land is available to claim under native title or land rights legislation. This fact led to much criticism of Mabo (no. 2) immediately after the decision amongst the Aboriginal communities who had expected more. As far as Aboriginal communities were concerned no more than a third of them lived in rural areas, and of these very few lived in the isolated areas so necessary to attract the cover of Mabo (no. 2). Many in the Aboriginal community saw Mabo (no. 2) merely recognising a meagre form of rights over land. It is clear from some judgments of the High Court such as Western Australia v Ward (2002) and the Yorta Yorta decisions that some Aboriginal groups will find it difficult to demonstrate that their relationship with their traditional lands meets the standard of proof required for a determination that native title exists.18 This was envisaged by the preamble to the nta which states inter alia that â[i]t is important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interestsâ.
A way of measuring the extent to which Mabo (no. 2) has been embraced is to compare current attitudes towards native title with highly critical and
The reconciliatory effect of Mabo (no. 2) was decidedly strengthened due to Justice Bennan holding that Queenslandâs initial efforts to argue that the common law could rely on Crown sovereignty and the doctrine of terra nullius to deny Maboâs Aboriginal rights was unjust. Further that Queenslandâs approach would destroy the equality of all Australians before the law (Mabo no. (2), para. 63). The success of Mabo (no. 2) has alerted Aboriginal peoples to the possibility of redress through legal means. This is illustrated by various cases which came before the courts in the late 1990s and early 2000s, notably the Cubillo v Commonwealth (2000)19 case seeking compensation for Aboriginal peoples removed from their families as children (Clark 2001). Cubillo is decidedly a product of the discourse generated by Mabo (no. 2) which has also become a platform for dramatic changes in the late 20th century national histories of Canada and New Zealand where similar shockwaves as these created by Mabo (no. 2) in Australia were experienced (McHugh 2011, 95).
7 Canada
Judicial recognition of native title in Australia was a massive legal and political event which had major consequences in fraternal jurisdictions which had all emanated from British colonialism. Canada in the latter part of the 20th century acknowledged the initial discriminatory mobilisation of colonial governmental power against their Aboriginal peoples. Canada accepted that the colonial structure of government led to a widespread belief in the collective inferiority of Aboriginal peoples and was inconsistent with equal protection of
- (1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.
- (2)In the Act âaboriginal peoples of Canadaâ includes the Indian, Inuit and Métis peoples of Canada.
- (3)For greater certainty, in subsection (1) âtreaty rightsâ includes rights that now exist by way of land claims agreements or may be so acquired.
- (4)Notwithstanding any other provisions in the Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
[T]he doctrine of aboriginal rights exists, and is recognised and affirmed by [Section] 35(1) because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.
R v Van der Peet, para. 30
In the Van der Peet case, the Supreme Court of Canada also clarified the relationship between Aboriginal title and Aboriginal rights. Chief Justice Lamer for the majority affirmed that âaboriginal title is a sub-category of aboriginal rights which deals solely with claims of rights to landâ (Ibid., para. 74; emphasis added). As noted by Thomas Isaac (2006, 2), Aboriginal rights are the legal
Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies.
Delgamuukw v British Columbia, para. 111
He continued to state that Aboriginal title is the special legal interest that Aboriginal peoples possess in lands based on their historic occupation and relationship to those lands. It is a right to the land itself. Aboriginal title is also a burden on the Crownâs underlying title to the land. Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes and those purposes may not be irreconcilable with the nature of the Aboriginal groupâs attachment to that land (Ibid., para. 117).21
Van der Peet and Delgamuukw affirmed the jurisprudential framework of Aboriginal rights and Aboriginal title underlying Section 35(1), a framework empowered by Section 52(1) of the Constitution Act 1982.22 Seen holistically, the Supreme Court of Canada affirmed the existence of Aboriginal title in Calder, reaffirmed it in Guerin v The Queen (1984) where it held that the interest of Aboriginal peoples in land was a pre-existing legal right (Guerin, 379) and expanded the understanding of the concept in the Van der Peet and Delgamuukw cases. This brief overview (Henderson 2006, 228) of decisions
The influence of the Calder case, decided in 1973, on Mabo (no. 2) can not be underestimated. Lawyers from the two countries exchanged views and arguments. Calder became a catalyst for Mabo (no. 2) which in turn became a catalyst for the Van der Peet and Delgamuukw cases. It is thus not inopportune to return to Calder to get a fuller appreciation of its immense influence.
Calder vs Attorney-General (1973) was a landmark in a long struggle of the Nishga of British Columbia for recognition of their rights to the Nass Valley. The Nishga applied for a declaration that Aboriginal title to their asserted traditional lands continued to exist and had in no way been extinguished. In Calder the plaintiffs for the first time presented to the Canadian courts the theory that they had the right to continue to live on their lands as their forefathers had lived and this right had never been extinguished. Their action was unsuccessful on a procedural ground but the case breathed life into the Aboriginal title debate due to the comments of the various judges. Justice Judson concluded that âthe fact is that when the settlers came, the Indians were there, organised in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a âpersonal or usufructuary rightââ (Calder, 328). This characterisation of Aboriginal title became of lasting significance because it placed the source of Aboriginal title in the common law and framed it as an interest in land and not merely as a personal interest. Justice Hall (together with Justices Spence and Lasking) held that the Aboriginal title of the Nishga had not been extinguished and that in common law, possession itself was proof of ownership and unchallenged possession is admitted (Ibid., 368). He described Aboriginal title as a claim for an âequitable titleâ (Ibid., 352). Justice Hall held that the Crown bore the onus of proving that it had extinguished the title of the Nishga â which it had not done (Ibid., 401).
The courtâs view in Calder that Aboriginal title had a collective dimension in the sense that it was communal in nature implies that there was prior occupancy by the Aboriginal society and that there initially was some form of government regulating the communal Aboriginal title. After the Calder case the federal government reversed its stance on Indigenous title towards which it had previously been dismissive of.23
In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.
Mabo (no. 2), para. 29
In the Van der Peet case, the Supreme Court of Canada held that an Aboriginal claimant to an Aboriginal right must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the Aboriginal society of which he or she is part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the societyâs distinctive culture. It must be demonstrated that the practice, custom or tradition was one of the things which made the culture of the society distinctive â that it was one of the things that truly made the society what it was. A practical way of looking at this problem, the court held, is to ask whether, without this practice, custom or tradition, the culture in question would be fundamentally altered or other then that what it was. To put the question affirmatively, one
[W]hen the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.
Ibid., para. 66
The Van der Peet court held that the phrase âexisting aboriginal rightsâ in Section 35(1) of the Canadian Constitution must be interpreted flexibly so as to permit their evolution over time.
In the Delgamuukw case, the Supreme Court of Canada was once again confronted with applying and interpreting the guarantee of existing Aboriginal rights found in Section 35(1) of the Canadian Constitution. The court accepted that conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, the court held, an Aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to Aboriginal title. What was required in addition, however, is continuity between present and pre-sovereignty occupation, because the relevant time for determination of Aboriginal title was at the time of sovereignty. There was no need, the court held, to establish an unbroken chain of continuity between present and prior occupation. The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonisers to recognise Aboriginal title. To impose the requirement of continuity too strictly, the court held, would risk undermining the very purposes of Section 35(1) by perpetuating the historical injustice suffered by
The nature and content of Aboriginal title in Canada can be summed up as follows: (i) The source and content of Aboriginal title is the occupation of the relevant land prior to colonisation; (ii) Aboriginal title is proprietary in nature and stands on equal footing with other proprietary rights; (iii) it enjoys constitutional protection; (iv) the content of Aboriginal title includes the right to exclusive use and occupation of land; (v) use of the land that is irreconcilable with the nature of the original attachment to land that is the basis of the Aboriginal title is prohibited and this gives Aboriginal title a sui generis nature; (vi) Aboriginal title is a communal right and is not vested in individuals; (vii) Aboriginal title is defined at the time when the coloniser asserted jurisdiction over the territory and (viii) the test for identifying the Aboriginal rights recognised and affirmed by Section 35(1) of the Constitution must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must aim at identifying the practices, traditions and customs central to the Aboriginal societies that existed in North America prior to contact with the colonisers.
It is interesting to note that the Mabo case was influenced by Canadaâs Calder case of 1973. Lawyers from the two countries exchanged views and arguments. Justice Blackburn cited the Court of Appeal decision in the
Knafla 2000, 3Calder case in denying title in Milirrpum v Nabalco Pty Ltd, but the [High Court of Australia] cited the [Supreme Court of Canada] in overruling Blackburnâs judgment as âwholly wrongâ in Mabo (no. 2). Conversely, when the [Supreme Court of Canada] decided the Delgamuukw case on appeal, it cited Mabo (no. 2).
8 New Zealand
Since colonisation the ability of the Indigenous people of New Zealand (i.e. MÄori) to maintain their relationship with their environment has been under threat. To the MÄori, the environment is personified with a life force that views all things, including human beings, as interrelated. It is the environment that gives the MÄori their spiritual, cultural and political and economic identity. Extensive traditional laws exist that centre on ensuring this natural balance. The MÄori see their survival as being, inter alia, dependent on the sea. The sea is a source of food; it links past generations with future generations through the passing of knowledge and traditions and it provides a geographical link to the world order. The indivisible entity of land and water makes the MÄori who they are (Ruru 2010, 185â201). The British settlers who colonised New Zealand, however, had a different way of seeing the world. They saw human beings as being separate from nature and having dominion over it. According to them, nature could be exclusively owned and relied on for economic ends. To the MÄori the beach, foreshore and seabed are special. Land under or bordering the sea should be freely accessible and not subject to exclusive private ownership.
These two worldviews were bound to clash especially the views on the ownership relating to the landscape separating the high water mark from tidal land and the seabed. These two worldviews encapsulate the controversy relating to customary ownership of the foreshore and seabed which dominated the native title debate in New Zealand for many years. This controversy culminated in the New Zealand Court of Appealâs decision Ngati Apa v Attorney General (2003). To the great surprise of the government and the majority of public opinion, Ngati Apa unanimously held that the MÄori should be allowed the opportunity to prove, in the courts, customary ownership of the foreshore and seabed. The judicial recognition of possible MÄori aboriginal title property rights around the coastline caused similar shockwaves in New Zealand as Mabo (no. 2) had in Australia 10 years earlier. This set in motion a classic legal battle between common law and statute laws; between the courts and the legislature. The
All land in New Zealand was initially customary land. This was held by Chief Justice Elias in Ngati Apa who stated that customary land was property in existence when the colonial government was established by the Crown in 1840 (Ngati Apa, 651). The Treaty of Waitangi of 1840 between British and MÄori representatives did not create, alter or extinguish this situation (McHugh 1997). The treaty merely gave the British Crown the right to govern and MÄori chiefs retained control over their own affairs and were seen to be British citizens. The Crown was granted the right of pre-emption to purchase MÄori land. The Treaty of Waitangi introduced English common law into New Zealand and ensured the continuation of MÄori property rights in their customary lands despite a change of sovereignty. This was reiterated in R v Symonds (1847) where it was held that MÄori customary interests were to be respected and not to be extinguished in times of peace without their consent.
In the 1860s, the government, in an attempt to convert property owned by the MÄori to settler-owned property, established a Native Land Court (now named the MÄori Land Court). MÄori were now entitled to apply to this court for a fee simple title that would effectively alter the status of MÄori customary land to MÄori freehold land. Once freehold title was issued the MÄori were encouraged to alienate their land to the settlers. The intention of the Native Lands Acts of 1862 and 1865, which introduced inter alia the above Native Land Court, was to assimilate as closely as possible ownership of land in New Zealand to that in British law. However, in 1887 Chief Justice Prendergast in Wi Parata v the Bishop of Wellington (1877) held that the doctrine of native title had no application in New Zealand because there were no laws or rights in property existing before 1840 because the MÄori were âprimitive barbariansâ (Wi Parata, 72â78). That, consequently, the government must acquit itself as best it may regarding native property rights and be the sole arbiter of its own justice. The Privy Council in 1901 disapproved of the Wi Parata case in Nireaha Tamaki v Baker (1901) on the basis that it was too late in the day for an argument to be made that native title had no application. Wi Parata, however, resonated in New Zealandâs courts for many years and particularly came to the fore in 1963 in Re the Ninety Mile Beach
Above laid the table for Ngati Apa. The Re the Ninety Mile Beach decision reasoned that the transmutation into MÄori freehold land of customary land bordering the sea extinguished any customary Aboriginal interest over the foreshore or seabed. The court accepted a general supposition that once landward Aboriginal title disappeared, so did that below the high water mark. This reasoning was augmented by a general belief that the title to the foreshore and seabed vested in the Crown under its prerogative with no qualifications.
The various legal implications raised in Re the Ninety Mile Beach landed up in the High Court in Re Marlborough Sounds Foreshore and Seabed (2002) where it held that the foreshore and seabed are not MÄori customary land but Crown land. This was not an unanimous decision and led to Ngati Apa where the full bench of the Court of Appeal came to an unanimous decision that the MÄori Land Court, if the evidence warrants it, has the jurisdiction to investigate and determine whether the foreshore and seabed are MÄori customary land and protected by native title. In Ngati Apa the Court of Appeal reiterated the 1901 Privy Council Nireaha Tamaki decision that the Wi Parata decision was wrong in law and overruled the Re the Ninety Mile Beach case. The Court of Appeal defined the foreshore and seabed as âlandâ and held that simply stating that the foreshore and seabed are, and always have been, vested in the Crown is not sufficient to constitute plain intent to extinguish native title in the foreshore and seabed.
The Supreme Court of Canada has had occasion recently to consider the content of customary property interests in that country. It has recognised that, according to the custom on which such rights are based, they may extend from usufructuary rights to exclusive ownership with incidents equivalent to those recognised by fee simple title.
Ibid., 656
The New Zealand Court of Appeal in Ngati Apa extended this reasoning to land under water. Native title, the Court of Appeal held, can exist in regard to land under water and can exist to the extent of exclusive ownership akin to a fee simple title. Not wishing to declare that such land does in reality exist in New Zealand, the Court of Appeal held that the MÄori should not be prevented from bringing an application of this nature to the MÄori Land Court. The presumption of Crown ownership of the beach, foreshore and seabed was effectively displaced by the presumption in favour of the common law doctrine of native title.
Public and political reaction to Ngati Apa was unprecedented leading to legislation such as the 2004 Foreshore and Seabed Act (fsa) which attempted to ameliorate the effects of the Ngati Apa decision. This in turn led to heavy MÄori hostility and attempts to repeal the fsa which again were almost as controversial as the fsa itself. Developments after the fsa have been incisively discussed elsewhere (Brookfield 2005; Charters and Erueti 2007; Ruru 2004; McHugh 2004) and for our purposes need not be repeated here.
9
The courts in Australia, Canada and New Zealand in recognising Aboriginal title of the Indigenous inhabitants gave a legal basis to their Indigenous peoplesâ claims to the use and occupation of lands they occupied since pre-colonisation. The court decisions represented vital moments in the history of the relations between these states and their Indigenous peoples. The courts took legal cognisance of Indigenous peoplesâ customary rights over lands and natural resources. The major breakthrough was Mabo (no. 2). Its imprint was clearly illustrated in Malaysia, South Africa, Botswana, Belize and in a decision of the African Commission on Human and Peoplesâ Rights regarding land rights of an Indigenous community in Kenya. Mabo (no. 2) found resonance in these jurisdictions due to specific concurring references to it by the courts. Due to space constraints these jurisdictions will not be discussed in any depth but merely to indicate the lasting influence of Mabo (no. 2). It is important to note that all the following jurisdictions come from a similar colonial background as Australia.
9.1 Malaysia
In Sarawak, a state of the Federation of Malaysia, the Indigenous Orang Asli of the Malay Peninsula have no specific constitutional protection of their property rights besides Article 13 of the Constitution which declares that no person shall be deprived of property save in accordance with the law and adequate compensation must be paid for compulsory acquisition. The courts have however attempted to recognise the land rights of the Orang Asli through balancing common law, statutory law and the provisions of the Constitution. The Malaysian Federal Court in Superintendent of Lands & Surveys, Miri Division and Government of Sarawak v Madeli bin Salleh (2007) explicitly endorsed the doctrine of the customary property rights of Orang Asli in Sarawak in holding that the common law doctrine of customary property rights as enunciated in Mabo (no. 2) and the Calder case reflected the legal position with regard to native title throughout the British Commonwealth (Superintendent of Lands & Surveys, para 19).27 This case recognising the common law foundation of Indigenous customary rights relating to land is extremely important in Malaysian context
9.2 South Africa
The concept of Aboriginal title has a strong appeal to Indigenous peoples in the southern portion of Africa who were displaced by colonialism. A classic example in South Africa is that of the Richtersveld community where the litigation developed into David versus Goliath proportions.
To understand the importance of the case, a brief background must be set out. The Richtersveld forms part of a larger area known as Namaqualand, and is situated south of the Garib (Orange) River in the Northern Cape Province. Two groups of Indigenous peoples originally inhabited the area long before the Dutch colonisation of the Cape from 1652 onwards. The (pastoralist) Khoi Khoi and the (hunter-gatherer) San peoples moved about in nomadic fashion according to the seasons and the rainfall. By the 19th century, the groups had merged. Others who came to the area, in particular some white trekboere (itinerant farmers) and the so-called basters (people of mixed descent, mainly from white fathers and San or Khoi mothers), were also incorporated into the group. The people of this new formation are sometimes referred to as Khoisan or Nama.
An important development was that southern Namaqualand in its entirety (including the Richtersveld) was placed under British rule through annexation in 1847 which followed on an Annexation Proclamation. From this point, the area was considered to be Crown land. Seventy years later (between 1925 and 1927), a rich deposit of diamonds was discovered in the area. By that time, the British colonial government had been replaced by a South African government. The South African government considered the land upon which the diamonds were discovered to be unalienated âCrown landâ due to the annexation thereof. Hence, they proclaimed alluvial diggings and awarded mining rights to various stakeholders. From this time on, the Richtersveld people were progressively denied access to the land they previously occupied. The ousting of these people was, for instance, effected by the erection of a fence in 1957; the creation of farms to act as buffers between the diamond-rich area and the rest of the territory occupied by the Richtersveld community; the creation of a reserve for the community and the establishment of the Alexander Bay Development Corporation which would hold most of the prospecting and mining rights. This corporation was state-owned. When it was eventually converted into a private stock company (Alexkor) the state remained the largest shareholder.
Section 2(d) of the Restitution of Land Rights Act 22 of 1994 states that a community or part of a community shall be entitled to restitution of a âright
The courts had to decide (i) whether the Richterveld community was a community, (ii) did they have any rights to the land, (iii) had they been dispossessed in their rights in land due to past racially discriminatory laws or practices.
The sca, on appeal, disagreed with the Land Claims Court holding that the customary practices of the community did disclose a âright in landâ for purposes of the Restitution of Land Rights Act 22 of 1994. The nature of this âright in landâ, the sca held, was that it was a customary law interest which had been present at the time of British annexation and had continued until the community were dispossessed in the 1920âs due to the discovery of diamonds. The substantive content of the interest, the sca held, âwas a right to exclusive beneficial occupation and use, akin to that held under common-law ownershipâ (Richtersveld Community and Others v Alexkor Ltd and Another 2003, para. 29; emphasis added). The sca defined the communityâs right to land as a right inhered in an Indigenous community which happened to be in exclusive occupation of land at a time when foreign settlers acquired sovereignty. This right in land, the sca held, rested on three factors: an origin in a pre-colonial system of Indigenous law; a communal nature which implies that the right vested in a group and not an individual; and the inalienability of the right to anyone except to the state. This right, the sca emphasised, must have existed at the time of colonisation and must have been maintained until the date of the claim action by the community under the Restitution of Land Rights Act 22 of 1994.
[t]he content of the right included the right to exclusive occupation and use of the subject land by members of the Community. The Community had the right to use its water, to use its land for grazing and hunting and
Alexkor Ltd and Another v The Richtersveld Community and Others, para. 62; emphasis added28to exploit its natural resources, above and beneath the surface. It follows therefore that prior to annexation the Richtersveld Community had a right of ownership in the subject land under indigenous law.
Because of the undisputed evidence on the mining activities of the community in the past such as working in copper and iron, the cc held that the communal ownership of the subject land included the communal ownership of the minerals and precious stones which vested in the community under âIndigenous lawâ. Regarding the question whether the dispossession was a result of past racially discriminatory laws or practices, the cc found that this was so and fell squarely within the scope of the Restitution of Land Rights Act 22 of 1994.
The cc took cognisance of the Calder, Mabo (no. 2), R van der Peet, Delgamuukw and Yorta Yorta cases referring to these cases as having similarly dealt, after the event, with injustices caused by dispossessions of land, or rights in land, from Indigenous inhabitants by later occupiers of the land in question (Alexkor Ltd and Another v The Richtersveld Community and Others, footnote 21). The cc saw nothing in the 1847 Annexation Proclamation or in the events preceding the annexation which suggested the extinguishment of the land rights of the Richtersveld community. The cc found that the change of sovereignty in 1847 did not disturb the property rights of the inhabitants. The cc concurred with the Privy Council in Adeyinka Oyekan (1957) where it held that native title to land need not be that of an individual, as in Britain, but may be that of a community (Adeyinka Oyekan and Others v Musendiku Adele, para. 402). The cc thus agreed with the sca that Indigenous rights in a conquered territory were recognised and protected after the acquisition of sovereignty. Consequently, the Richtersveld community were, as at 1847, in bona fide and beneficial occupation of the land without title deed. This all changed, held the cc, with the Precious Stones Act 44 of 1927 which referred to the land in question as state land which had not been alienated and was thus state owned. This Act however did not recognise the rights of the Richtersveld community who were at the time the owners of the land under Indigenous law. These rights were simply ignored, held the cc, as if the Richtersveld community had no rights in the land.
9.3 Botswana
Botswana, which became independent in 1966, was initially known as the Bechuanaland Protectorate which was established by Britain in 1885. In Sesana and Others v Attorney General (2006), the Basarwa, a group of San hunter-gatherers, commenced litigation protesting against their relocation in 2002 from the Central Kgalagadi Game Reserve which in 1961 had been proclaimed a game reserve. The game reserve was carved out of what in 1910 had been proclaimed as Crown land. The Basarwa sought to retain the right to remain on their traditional territory which was inside the proclaimed game reserve.
The court found that some of the Basarwa were descendants of people who had been resident in the Kgalagadi region before the game reserve was established in 1961. That they were by operation of the customary law in the area, in lawful occupation of the land prior to the creation of the Bechuanaland Protectorate by Britain in 1885. The High Court held that neither the 1910 proclamation nor the 1961 proclamation displaced the presumption of the legal continuity of the land rights of the Basarwa community.29 Justice Phumaphi acknowledged Mabo (no. 2) as a landmark case that set the trend for the application of the doctrine of Aboriginal title. Whilst not binding on the Botswana High Court, he held, Mabo (no. 2) offered a comparative perspective to a situation not much different from that before the court. He consequently found Mabo (no. 2) âquite persuasiveâ and held that the Basarwa had always possessed native title to the game reserve and that this title had not been extinguished. The Basarwa were thus in lawful occupation of their settlements (Sesana, para 92).30
The Sesana decision in effect reaffirmed the doctrine of Aboriginal (native) title in Botswana and arguably to similarly situated Indigenous peoples on the African continent. The court in effect acknowledged the applicability of the customary laws of Indigenous peoples in giving recognition and
9.4 Belize
Belize is a former British colony known as British Honduras. In Aurelio Cal et al. v The Attorney General of Belize and the Minister of Natural Resources and Environment (2007),31 Chief Justice Abdulai Conteh held that the Belize government had failed to protect and recognise the property rights of the Indigenous Maya in the lands they and their ancestors had traditionally used and occupied. This failure, the court held, was discriminatory and a violation of the Belize Constitution and indicative of a refusal to recognise the rights of the Maya people to their lands and resources in southern Belize based on longstanding use and occupancy. The Chief Justice relied on above Malaysian and South African authorities and emphasised Justice Brennanâs judgment in Mabo (no. 2). The matter returned to the courts as Maya Leaders Alliance and the Toledo Alcaldes Association on behalf of the Maya Villages of Toledo District and Others v Attorney General of Belize and Others (2010).32 Chief Justice Conteh reiterated the authorities he had earlier relied on relating to Aboriginal title and held that the doctrine of Aboriginal title had as an underlying presumption the legal continuity of tribal property rights. Further that change or acquisition of sovereignty does not displace the rights of the inhabitants to their lands (Maya Leaders Alliance, para. 118).
9.5 Kenya and the African Commission on Human and Peoplesâ Rights
In Kenya, a former British colony, there are approximately 42 ethnic groups. The history of land policies in Kenya has been one of exclusion, dispossession and pressure on the use and access to land. The High Court case William Yatich Sitetalia and Others v Baringo County Council (2002) concerned the removal of the pastoralist Endorois community from the environs of Lake Bogoria, their traditional territory, by the Kenya Wildlife Service to create a game reserve. The High Court held that the gazetting of the game reserve and compensations paid was conclusive against any claim. The High Court refused to recognise any Endorois communal title or right to their traditional lands. The High Court was of the view that there was no proper identity of the people affected by the setting aside of the land and was not prepared to see the Endorois as a community.
The Endorois submitted that they were a community of 60,000 people who had lived in the environs of Lake Bogoria for centuries and consequently had a right to property with regard to their ancestral land. They argued that for centuries they had constructed their homes, cultivated the land, enjoyed unchallenged rights to pasture, grazing and forest land and relied on the land to sustain their livelihoods around Lake Bogoria. In so doing, they argued, they had exercised an Indigenous form of land tenure. They argued further that even under colonial rule when the British claimed formal possession of their land, the colonial authorities recognised their right to occupy and use the land and its resources.
They relied on national court cases such as those of the Canadian Supreme Court in Calder, the High Court of Australia in Mabo (no. 2) and the South African Constitutional Court decision in Alexkor Ltd discussed above (Endorois Welfare Council, para. 94).
The Endorois further submitted that the protection accorded by Article 14 of the African Charter to the right of property includes Indigenous property rights. The Commission agreed with this approach holding that âthe first step in the protection of traditional African Communities is the acknowledgement that the rights, interests and benefits of such communities in their traditional lands constitute âpropertyâ under the Charterâ. This âright to propertyâ of members of the Endorois community, the Commission held further, is held âwithin the framework of a communal property systemâ (Ibid., paras. 187 and 196).
In conclusion, the Commission held: (1) traditional possession of land by Indigenous peoples has the equivalent effect as that of a state-granted
10 Conclusions
The chapter has attempted to set out a comparative jurisprudential history of a phenomenon called Aboriginal/Indigenous/native title generated in the Australian High Court case Mabo (no. 2) which also had a dramatic impact in previous Anglo colonised countries such as Canada, New Zealand, Malaysia, South Africa, Botswana, Belize and Kenya. It decidedly influenced the Inter-American Court of Human rights which evolved a version of Aboriginal title which, although based on international law, had clear and distinct echoes of the common law approach expanded on above (McHugh 2011, 234). National courts gave legal basis to Aboriginal peoplesâ claims to the use and occupation of lands they had occupied since pre-colonisation. Aboriginal peoples through landmark decisions of the courts were jolted out of the old paradigm of juridical exclusion into a new paradigm of juridical inclusion. Aboriginal peoples also found entry to negotiation rooms. Land claims suddenly became systemic. Aboriginal title, referred to as ânative titleâ in Mabo (no. 2), developed fresh offshoots in fraternal jurisdictions. Aboriginal peoples overnight became rights-bearing members of their respective legal systems. As seen by McHugh (2011, 1â24), there was a distinct feeling that the time had come for a court-generated jurisprudence of Aboriginal rights. Common law Aboriginal
No, I mean they couldnât possibly understand. They are knowledgeable people in their areas and about some things but they have no knowledge
quoted in curthoys, genovese and reilly 2008, 221about the Aboriginal way of life. They try to understand but they wonât ever really or fully understand who we are, you canât if you havenât lived itâ¦It is very hard to bridge that gap of understanding.
Chief Justice Lamer in the Van der Peet case acknowledged the fact that cultures change and called upon his colleagues to be flexible in determining what is genuinely Aboriginal (Van der Peet, para. 113). This request is more difficult that what it seems. Culture depends on many factors. Aboriginal culture depends on distinctive practices, customs and traditions seen holistically and considered apart from the practices, customs or traditions of any other culture. It is a claim that âthis tradition or custom makes the culture what it isâ (Ibid., para. 71). It would appear that this was precisely the approach adopted by Justice Brennan in Mabo (no. 2) where he observed that â[n]ative title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territoryâ (Mabo (no. 2), para. 64).
The term Aboriginal peoples has different nomenclatures in English. It is synonymous with the term Indigenous peoples. In this chapter I use these terms generically depending on the context. The terms Aboriginal and Indigenous can refer to the Aborigines of Australia, the First Nations of Canada, the MÄori of New Zealand and the Indigenous groups discussed elsewhere. Anaya (2004, 4) states that in modern terms âIndigenousâ refers broadly to living descendants of pre-invasion inhabitants now dominated by others. Indigenous peoples, he states, are culturally distinctive groups engulfed by settler societies born of the forces of empire and conquest. It is in this context that the terms Aboriginal peoples or Indigenous peoples are used in this chapter.
This work of McHugh is essential reading on Aboriginal title and proved invaluable to this chapter.
McHugh (2011) sets out the process in great detail. This chapter draws extensively on this authoritative and deeply insightful work.
United Nations General Assembly Resolution 217 A (iii) of 10 December 1948. The Declaration is available online at
United Nations General Assembly Resolution 2200 A (xxi) of 16 December 1966. The iccpr is available online at
United Nations General Assembly Resolution 2200 A (xxi) of 16 December 1966. The icescr is available online at
United Nations General Assembly Resolution 2106 (xx) of 21 December 1965. The icerd is available online at
In 1980, Calermo Wacando, a Torres Strait Islander, claimed sovereignty over the native Erub (Darnley) Island but his claim was rejected by the High Court of Australia in Wacando v Commonwealth (1981).
The Courtâs decision was tempered by holding that although the Meriam people had authority to possess and use the islands, Queensland had the right to extinguish the title as long as the State adhered to the laws of the Australian Commonwealth.
The terms Aboriginal and Indigenous as used in Mabo (no. 2) are synonymous with the terms Aboriginal and Indigenous as used in the Calder case.
This was quoted in the Canadian case of R v Van der Peet (1996, para. 63).
See McRae et al. (2003, 249) for details of the Aboriginal Peace Plan.
See also Gumana v Northern Territory (2005). In Gumana v Northern Territory of Australia (2007), the Full Court of the Federal Court held that exclusive right to the territorial sea could not be recognised by Australian law. This decision appears to be in contrast to the Akiba (2013) decision.
See also Trevorrow v State of South Australia (2007).
Here Justice Judsonâs words in the Calder case come to mind: âthe fact is that when the settlers came, the Indians were there (â¦)â.
Section 52(1) binds the political institutions of Canada and the courts empowered to enforce these Aboriginal rights.
In 1969 prime minister Pierre Trudeau said: â[W]e canât recognise aboriginal rights because no society can be built on historical âmight have beensââ (Allen 2013, 16).
The jurisprudential cross-pollination between Canada and Australia is illustrated by Justice Brennan in Mabo (no. 2) relying on Calder in holding that the recognition provided by native title is not absolute (Mabo (no. 2), 64). That while the courts have recognised that Aboriginal peoplesâ right to land survived colonisation, the state has power to divest those rights. Mabo (no. 2) also held that the Calder case offered strong support for the existence of native title at common law. (Ibid., 104â09) See also Arthur (2005, 15).
I am heavily indebted to McHugh (2011, 202â10) and Ruru (2010, 185â201) for the historical context referred to.
In Adong bin Kuwau and Ors v Kerajaan Negeri Johor and Anor (1997) the Johor High Court held that the Indigenous Jakun tribe had common law Aboriginal rights citing the Calder case as well as Mabo (no. 2).
For a more extensive discussion of the Constitutional Court case, see Mostert, 2002. 160â167; Patterson (2004).
Regarding the presumption of the legal continuity of the land rights of Indigenous peoples the court cited Re Southern Rhodesia (1910) and Amodu Tijani v The Secretary, Southern Provinces (1921). See Saugestad (2011).
The court held further that the Botswana governmentâs policy of refusing the Basarwa to enter the game reserve unless they were issued with permits amounted to an unlawful curtailment of their constitutional right to freedom of movement (Sesana, para. 162).
Organisation of African Unity, Resolution of the 18th Assembly of Heads of State and Government, 1 June 1981. The African Charter is available online at
In coming to its conclusion the Commission also approvingly referred to related decisions of the Inter-American Court of Human Rights such as Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001), Moiwana Community v. Suriname (2005) and Yakye Axa Indigenous Community v Paraguay (2005). Mayagna (Sumo) Awas Tingni Community was the first major recognition of Aboriginal land rights by an international adjudicative tribunal. The case is discussed extensively by Anaya and Grossman (2007). In the case of Yakye Axa Indigenous Community it was held that âgranting legal status makes operative previously existing rights of the indigenous communities who have exercised them historically (â¦) and the right to claim their traditional lands are recognised (â¦) to the community itselfâ (Yakye Axa Indigenous Community, para. 82).
In Haida Nation v British Columbia (2004), Chief Justice McLachlin held: âThe jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process (â¦) flowing from rights guaranteed by [Section] 35(1) of the Constitution Act, 1982â (Haida Nation v British Columbia, para. 32).
United Nations General Assembly Resolution A/Res/61/295 of 13 September 2007. undrip is extensively discussed in Hartley, Joffe and Preston (2010), and Barrie (2013). When undrip was passed, it was supported by 143 states. Four states (i.e. Australia, Canada, New Zealand and the United States) voted against it. These four states have subsequently endorsed undrip. The United Nations Declaration on the Rights of Indigenous Peoples is available online at
Bibliography
Allen, Edward. 2013. âReflections on the 40th anniversary of the Calder decisionâ. Northern Public Affairs 2(1): 14â 21.
Anaya, S. James. 2004. Indigenous Peoples in International Law. Oxford: Oxford University Press.
Anaya, S. James andClaudio Grossman. 2007. âThe Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoplesâ. Arizona Journal of International and Comparative Law 19(1): 1â 15.
Arthur, Ray. 2005. âConstructing and reconstructing Native history: a comparative look at the impact of Aboriginal and treaty rights claims in North America and Australiaâ. Native Studies Review 16(1): 15â 39.
Barrie, George. 2011. âThe Quest for Indigenous Land Rights intensifies: Mabo (No 2), Delgamuukw, Richtersveld and now the Endorois of Kenyaâ. Southern African Public Law 26(2): 497â 509.
Barrie, George. 2013. âThe United Nations Declaration on the Rights of Indigenous Peoples: Implications for Land Rights and Self-Determinationâ. Tydskrif vir die Suid-Afrikaanse Reg, Issue 2: 292â 305.
Barrie, George. 2018. âInternational Law and Indigenous People: Self-Determination, Development, Consent and Co-Managementâ. Comparative and International Law Journal of Southern Africa 51(2): 171â 84.
Bartlett, Richard. 1993. âMabo: Another Triumph for the Common Lawâ. Sydney Law Review 15(2): 178â 86.
Bartlett, Richard. 2003. âAn Obsession with Traditional Law and Customs Creates Difficulties Establishing Native Title Claims in the South: Yorta Yortaâ. The University of Western Australia Law Review 31(1): 35â 46.
Beukes, Margaret. 2010. âThe Recognition of Indigenous Peoples and their Rights as a People: An African Firstâ. South African Yearbook of International Law 35(1): 216â 38.
Blackstone, William. 1765. Commentaries on the Laws of England. Oxford: Clarendon Press.
Bottomley, Stephen andSimon Bronnit. 2012. Law in Context. Sydney: The Federation Press.
Brennan, Sean. 2015. âThe Significance of the Akiba Torres Strait Regional Sea Claim Caseâ. In Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, edited by Sean Brennan,Megan Davis,Brendan Edgeworth,Leon Terrill, 29â 43. Sydney: The Federation Press.
Brennan, Sean,Megan Davis,Brendan Edgeworth andLeon Terrill (eds). 2015. Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?. Sydney: The Federation Press.
Brennan, Sean. 2003. âNative Title in the High Court of Australia a decade after Maboâ. Public Law Review 14: 209â 218.
Brookfield, F. 2005. âMaori Claims and the âSpecialâ Juridical Nature of the Foreshore and Seabedâ. New Zealand Law Review 2: 179â 188.
Charters, Claire andAndrew Erueti (eds). 2007. MÄori Property Rights and the Foreshore and Seabed: The Last Frontier. Wellington: Victoria University Press.
Clarke, Jennifer. 2001. âCubillo v The Commonwealthâ. Melbourne University Law Review 25: 218â 294.
Curthoys, Ann,Ann Genovese andAlexander Reilly. 2008. Rights and Redemption: History, Law and Indigenous People. Sydney: University of New South Wales Press.
De Villiers, Bertus. 2000. âDemocratisation of conservation: community involvement in the management of national parksâ. Southern African Public Law 15(1): 176â 96.
Dugard, John. 2018. Dugardâs International Law. Claremont: Juta and Company Ltd.
Fitzpatrick, Peter. 2002. âNo Higher Duty. Mabo and the Failure of Legal Foundationâ. Law and Critique 13: 233â 52.
Gregory, Mark. 1992. âRewriting History: Mabo v Queensland: the decisionâ. Alternative Law Journal 17(4): 157â 61.
Hanke, Lewis. 1949. The Spanish Struggle for Justice in the Conquest of America. Philadelphia: University of Philadelphia Press.
Hartley, Jackie,Paul Joffe andJennifer Preston (eds). 2010. Realizing the UN Declaration on the Rights of Indigenous Peoples. Triumph, Hope, and Action. Saskatoon: Purich Publishing Ltd.
Henderson, James. 2006. First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society. Saskatoon: Native Law Centre â University of Saskatchewan.
Hoehn, Felix. 2012. Reconciling Sovereignties: Aboriginal Nations and Canada. Saskatoon:Native Law Centre â University of Saskatchewan.
Hughes, G. 1993. âThe High Court failed Nation with Mabo, Says Mining Chiefâ. The Australian : July 1, 1993, 1â 2.
Hunyor, Jonathon. 2015. âDancing with Strangers: Native Title and Australian Understandings of Race Discriminationâ. In Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? , edited by Sean Brennan,Megan Davis,Brendan Edgeworth,Leon Terrill, 99â 124. Sydney: The Federation Press.
Isaac, Thomas. 2004. Aboriginal Law: Commentary, Cases and Materials. Saskatoon: Purich Publishing Ltd.
Isaac, Thomas. 2006. Aboriginal Title. Saskatoon: Native Law Centre â University of Saskatchewan.
Kades, Eric. 2001. âHistory and Interpretation of the Great Case of Johnson v MâIntoshâ. Law and History Review 19(1): 67â 116.
Keating, Paul. 1992. âRedfern Addressâ. Land Rights News , December 2, 1.
Keon-Cohen, Bryan. 2000. âThe Mabo Litigation: A Personal and Procedural Accountâ. Melbourne University Law Review 24(3): 893â 951.
Knafla Louis. 2000. ââThis Is Our Landâ: Aboriginal Title at Customary and Common Law in Comparative Contextsâ. In Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand, edited by Louis Knafla andHaijo Westra, 1â 34. Vancouver: University of British Columbia Press.
Knafla, Louis andHaijo Westra (eds). 2010. Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand. Vancouver: University of British Columbia Press.
Loos, Noel. 1997. âEdward Koiki Mabo: The Journey to Native Titleâ. Journal of Australian Studies 21(54â55): 108â 19.
Marks, Gary andPaula McDonnell. 1996. âDebate and Public Opinion on Native Title in Australiaâ. International Journal of Public Opinion Research 8(1): 31â 50.
McHugh, Paul. 1997. âLaw, History and the Treaty of Waitangiâ. New Zealand Journal of History 31(1): 38â 57.
McHugh, Paul. 2004. âAboriginal Title in New Zealand: A Retrospect and Prospectâ. New Zealand Journal of Public International Law 2(2): 139â 202.
McHugh, Paul. 2011. Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights. Oxford: Oxford University Press.
McIntyre, Greg. 2003. âNative Title Rights after Yorta Yortaâ. James Cook University Law Review 9: 268â 330.
McRae, Heather,Garth Nettheim,Laura Beacroft andLuke McNamara (eds). 2003. Indigenous Legal Issues: Commentary and Materials. Pyrmont NSW: Lawbook Co.
Miller, Robert,Larissa Behrendt,Tracey Lindberg andJacinta Ruru (eds). 2010. Discovering Indigenous Lands. Oxford: Oxford University Press.
Mostert, Hanri. 2002. âThe Decision of the Land Claims Court in the Case of the Richtersveld Community: Promoting Reconciliation or Effecting Division?â. Tydskrif vir die Suid-Afrikaanse Reg, Issue 1: 160â 67.
Muldoon, James. 1979. Popes, Lawyers and Infidels. Philadelphia: University of Philadelphia Press.
Neate, Graeme. 1995. âDetermining Native Title Claims â Learning from Experience in Queensland and the Northern Territoryâ. The Australian Law Journal 69: 510â 39.
Newman, Dwight. 2014. Revisiting the Duty to Consult Aboriginal Peoples. Saskatoon: Purich Publishing Ltd.
Pagden, Anthony. 1995. Lords of all the World: Ideologies of Empire in Spain, Britain and France c. 1500 â c. 1880. New Haven: Yale University Press.
Patterson, Stephanie. 2004. âThe Foundations of Aboriginal Title in South Africa? The Richtersveld Community v Alexkor Ltd Decisionsâ. Indigenous Law Bulletin 18.
Pawlisch, Hans. 1985. Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism. Cambridge: Cambridge University Press.
Reynolds, Henry. 1987. The Law of the Land. Ringwood, Victoria: Penguin.
Reynolds, Henry. 1996. Aboriginal Sovereignty .Crows Nest, NSW: Allen and Unwin.
Rowse, Tim. 1993. âHow We Got a Native Title Actâ. The Australian Quarterly 65(4): 110â 32.
Ruru Jacinta. 2004. âA Politically Fuelled Tsunami: The Foreshore/Seabed Controversy in Aotearoa me te Wai Pounamu/New Zealandâ. The Journal of the Polynesian Society 113(1): 57â 72.
Ruru, Jacinta. 2010. âClaiming Native Title in the Foreshore and Seabedâ. In Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand , edited by Louis Knafla andHaijo Westra, 185â 201. Vancouver : University of British Columbia Press.
Russell, Peter. 2005. Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English â Settler Colonialism. Toronto: University of Toronto Press.
Saugestad, Sidsel. 2011. âImpact of International Mechanisms on Indigenous Rights in Botswanaâ. The International Journal of Human Rights 15(1): 37â 61.
Webber, Jeremy. 1995. âThe Jurisprudence of Regret: The Search for Standards of Justice in Maboâ. Sydney Law Review 17(1): 5â 28.
Wilkins, Kerry (ed). 2004. Advancing Aboriginal Claims: Visions/Strategies/Directions. Saskatoon: Purich Publishing Ltd .
Young, Simon. 2008. The Trouble with Tradition: Native Title and Cultural Change. Sydney: The Federation Press.
Case Law
Please refer to the list on pages viiiâxvi.