The Extinguishment of Aboriginal Rights and Interests - A Comparative Study of Australian and Canadian Law

STRUCTURE

I. Introduction

II. Extinguishment of Aboriginal Rights under Canadian Law
1. Common Law
a) Calder v Attorney-General (British Columbia)
aa) History of the Case
bb) Findings of the Case
b) R v Sparrow
aa) History of the Case
bb) Findings of the Case
c) Delgamuukw v British Columbia (1997)
aa) History of the Case
bb) Findings of the Case
2. Legislation
3. Summary of the Extinguishment of Aboriginal Rights under Canadian Law

III. Extinguishment of Native Title under Australian Law
1. Common Law
a) Mabo v Queensland
aa) History of the Cases
bb) Findings of the Cases
b) Wik Peoples v Queensland (1996)
aa) History of the Case
bb) Findings of the Case
c) Fejo v Northern Territory (1998)
aa) History of the Case
bb) Findings of the Case
d) Western Australia v Ward (2002)
aa) History of the Case
bb) Findings of the Case
e) Summary of the Common Law in Australia
2. Legislation
3. Summary of the Extinguishment of Native Title under Australian Law

IV. Conclusion

BIBLIOGRAPHY

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2. Case Law

St. Catherine’s Milling and Lumber Company v R (1888) 14 Law Reports Appeal Cases 46

Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

Calder v A-G (British Columbia) (1973) 34 DLR (3d) 145

Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513

Mabo v Queensland (1988) 166 CLR 186

R v Sparrow [1990] 1 SCR 1075

Mabo v Queensland (No 2) (1992) 175 CLR 1

Delgamuukw v British Columbia et al (1993) 104 DLR (4th) 470 (British Columbia Court of Appeal)

Western Australia v Commonwealth (1995) 183 CLR 373

Van der Peet (1996) 137 DLR (4th) 289

R v Gladstone (1996) 137 DLR (4th) 648

Wik Peoples v Queensland (1996) 187 CLR 1

Delgamuukw v British Columbia [1997] 3 SCR 1010 (Canada Supreme Court)

Fejo v Northern Territory (1998) 195 CLR 96

Yanner v Eaton (1999) 201 CLR 351

Western Australia v Ward (2002) 191 ALR 1

Wilson v Anderson (2002) 190 ALR 313

3. Legislation

Royal Proclamation of 7 October, 1763, http://www.solon.org/Constitutions/Canada/English/ PreConfederation/rp_1763.html

Canadian Constitution Act, 1867

Australian Land Act 1910 (Cth)

Canadian Fisheries Act 1970

Australian Racial Discrimination Act 1975 (Cth)

Canadian Constitution Act 1982 (Charter of Rights and Freedoms)

Queensland Coast Islands Declaratory Act 1985

Australian Native Title Act 1993 (Cth)

I. Introduction

“Extinguished is a Latin word. Something is inflamed or on fire, and it is put out. Silenced.

It means to blot out of existence. To totally do away with; to annihilate, cut off, bring to an end. To kill.

The word is related to extinct. That which has ceased to burn or shine. Vanished. Without progressive succession. Having no living representative. There is a vast emptiness.”^[1]

The forementioned statement is a quote from Leslie Hall Pinder, a lawyer who represented the claimants in the famous Canadian aboriginal land rights case of Delgamuukw v British Columbia^[2]. It is part of a speech Pinder delivered to the British Columbia Library Association Annual General Meeting in April 1991 after the judgment of first instance was handed down by Chief Justice McEachern.

The quote introduces the reader to extinguishment, especially the extinguishment of aboriginal rights and interests and thus to the topic of this research paper. This essay concentrates on two countries: Australia and Canada, and compares their law in relation to extinguishment of aboriginal rights and interests. First, it examines how these two countries approach the subject. Then, the paper draws a conclusion as to the question of similarities and differences between Australian and Canadian law.

II. Extinguishment of Aboriginal Rights under Canadian Law

In Canada, the term aboriginal rights describes the connection of Aboriginal people with the land ranging from practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right up to aboriginal title as a right to land itself^[3]. The latter encompasses the “right to use the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, cultures and traditions which are integral to distinctive aboriginal cultures”^[4].

History shows that in Canada the principle applied that “indigenous citizens of newly acquired dominions do not automatically loose their property”^[5]. The aboriginal rights can be diminished by general legislation but as long as the ruler does not extinguish them through an intentional act, they still stand^[6]. The Royal Proclamation issued on October 7, 1763 read:

“And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.”^[7]

The British Government entered into treaties and agreements with the Aborigines to acquire their interests in land in reward of compensation and rights^[8], a policy which was sustained by several cases, the first of which was St. Catherine’s Milling and Lumber Company v R^[9].

Regarding Canadian courts, aboriginal rights had been of an issue for a long time as well^[10].

Aboriginal rights in Canada were expressly recognised in particular by Justice Hall in Calder v Attorney-General (British Columbia)^[11]. He held that Justice Blackburn in the Australian case Millirrpum v Nabalco Pty Ltd totally misunderstood the cited authorities when saying that “there is no principle of communal native title”^[12].

To sum up, to this day, Canada has been concerned with aboriginal rights and their recognition for over 150 years. Hence, Canadian courts have had a long time to make up their mind in relation to the extinguishment of these indigenous rights and interests. I will now examine the test adopted with regard to the dispossession of Aboriginals and the requirements. In order to do so, it will be necessary to consider the leading cases. Then, the legislation on this issue shall briefly be presented.

1. Common Law

a) Calder v Attorney-General (British Columbia)

aa) History of the Case

In Calder v Attorney-General (British Columbia), the appellants sued on their own and on behalf of the Nishga Indian Tribe for a declaration that their aboriginal title has never been extinguished. The territory in question consisted of 1,000 square miles in and around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal, all situated in north-western British Columbia^[13]. The Crown made several grants on this land (fee simple, rights of pre-emption, mineral and mining rights, petroleum permits, forestry rights and titles and tree farm licenses) although the majority of the area remained by this time unalienated^[14]. In relation to the land in question, the Nishga Indian Tribe had never entered in any treaty or contract with the Crown^[15]. Hence, these Aborigines did not live “under British protection and were outside the scope of the [Royal] Proclamation”^[16].

The applicants instituted court proceedings. Their claim was dismissed by both Justice Gould in the first instance and the British Columbia Court of Appeal wherefore they appealed to the Supreme Court of Canada.

bb) Findings of the Case

The Supreme Court found that aboriginal rights can be extinguished by “specific legislation in accordance with the law”^[17] if the intention of the Sovereign with regard to this extinguishment is “clear and plain”^[18]. Before Confederation, the provinces were recognized as having this power to extinguish. But now, this legislative authority is vested in the Federal Government due to s 91(24) of the Canadian Constitution Act, 1867^[19].

The Court further held that express words effecting the extinguishment authorize the dispossession of Aboriginals without compensation^[20].

After the Supreme Court of Canada introduced the ‘clear and plain intention’ approach as a requirement for the extinguishment of aboriginal rights, this test settled in Canadian Law. It was confirmed in a series of cases, the first of which was Hamlet of Baker Lake v Minister of Indian Affairs^[21].

b) R v Sparrow

aa) History of the Case

In R v Sparrow^[22], the appellant who was charged with an offence under the Canadian Fisheries Act 1970 defended the charge on the basis that his action was allowed with regard to aboriginal rights which he was exercising at the time^[23].

The appellant was convicted by the trial judge on first instance and by the British Columbia Court of Appeal at second instance. He then appealed to the Supreme Court of Canada^[24].

bb) Findings of the Case

The Supreme Court of Canada affirmed the clear and plain intention test^[25]. It further specified that it is necessary to distinguish between laws which extinguish aboriginal rights, and those which do not have this effect but merely regulate them. The Court found that the Fisheries Act 1970 fell into the latter category wherefore the aboriginal rights still existed^[26].

Moreover, Sparrow was the first opportunity for the Supreme Court of Canada to deal with ss 25 and 35 of the Canadian Constitution Act, 1982, the Charter of Rights and Freedoms^[27]. The Court held that existing aboriginal rights (i. e. those rights that were not extinguished prior to 1982) received Constitutional protection by s 35 of the Charter of Rights and Freedoms^[28].

In 1996, two judgments dealt with the extinguishment of aboriginal rights and again confirmed the clear and plain intention approach. The cases were: R v Van der Peet^[29] and R v Gladstone^[30]. In Van der Peet, the Supreme Court of Canada, moreover, stated it always had been a general principle that aboriginal rights can only be extinguished “by solemn treaty with due compensation”^[31].

c) Delgamuukw v British Columbia

Although Delgamuukw v British Columbia is a very recent decision, it can be described as the landmark case in Canada. The case dealt extensively with aboriginal rights and therefore is able to provide a full picture of Canadian common law on this issue.

aa) History of the Case

The applicants in Delgamuukw all were Gitksan or Wet’suwet’en hereditary chiefs. They claimed on their own behalf and on behalf of their ‘Houses’ land rights and self-government in their traditional territories which are located in British Columbia^[32].

The action was dismissed at first by the trial judge Chief Justice McEachern^[33] and then by the British Columbia Court of Appeal^[34]. Afterwards, the plaintiffs appealed to the Supreme Court of Canada.

The issue of the applicable test to extinguish aboriginal rights was considered in depth both by the British Columbia Court of Appeal and the Supreme Court of Canada. Therefore, it is necessary to consider both judgments.

[...]

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^[1] Leslie Hall Pinder, The Carriers of No: After the Land Claims Trial, (2nd ed, 1994) 9.

^[2] This case will be presented later.

^[3] Delgamuukw v British Columbia [1997] 3 SCR 1010 at 1094 (Lamer CJ) (Canada Supreme Court) (‘Delgamuukw’).

^[4] Delgamuukw [1997] 3 SCR 1010 at 1083-1084 (Lamer CJ) (Canada Supreme Court).

^[5] Michael Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (1993), p. 41.

^[6] Ibid.

^[7] Royal Proclamation of 7 October, 1763, <http://www.solon.org/Constitutions/Canada/English/PreConfedera-tion/rp_1763.html>.

^[8] Michael Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (1993), p. 46; Kent McNeil, ‘Co-existence of indigenous and non-indigenous land rights: Australia and Canada compared in light of the Wik decision’, Indigenous Law Bulletin (1997) 4 (5) 4 at 4; Richard Bartlett, ‘The Different Approach to Native Title in Canada’, Australian Law Librarian (2001) 9(1) 32 at 33; Stephen Herne, ‘An Outline of Native Title Law in Australia, With a Brief Comparison to Native Title in USA, Canada and New Zealand’, Australian Law Librarian (2001) 9(1) 8 at 10.

^[9] (1888) 14 Law Reports Appeal Cases 46 at 60.

^[10] Stephen Herne, ‘An Outline of Native Title Law in Australia, With a Brief Comparison to Native Title in USA, Canada and New Zealand’, Australian Law Librarian (2001) 9(1) 8 at 10.

^[11] (1973) 34 DLR (3d) 145, 169, 173, 218 (Hall J) (‘ Calder ’).

^[12] Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 223 (Blackburn J).

^[13] Calder (1973) 34 DLR (3d) 145, 149 (Judson J).

^[14] Ibid.

^[15] Ibid; Calder (1973) 34 DLR (3d) 145, 168 (Hall J).

^[16] Calder (1973) 34 DLR (3d) 145, 154 (Judson J).

^[17] Calder (1973) 34 DLR (3d) 145, 174, 208 (Hall J).

^[18] Calder (1973) 34 DLR (3d) 145, 210 (Hall J).

^[19] Calder (1973) 34 DLR (3d) 145 at 155 (Judson J).

^[20] Calder (1973) 34 DLR (3d) 145, 173 (Hall J).

^[21] (1979) 107 DLR (3d) 513 at 550-552 (Mahoney J) (Federal Court).

^[22] [1990] 1 SCR 1075 (‘Sparrow’).

^[23] Sparrow [1990] 1 SCR 1075 at 1083 (Dickson CJ).

^[24] Sparrow [1990] 1 SCR 1075 at 1083-1084 (Dickson CJ).

^[25] [1990] 1 SCR 1075 at 1099 (Dickson CJ with whom La Forest J concurred).

^[26] R v Sparrow [1990] 1 SCR 1075 at 1099 (Dickson CJ).

^[27] Section 25 of the Charter of Rights and Freedoms reads:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including any rights or freedoms that have been recognized by the Royal Proclamation of 7, 1763; and any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Section 35 of the Charter of Rights and Freedoms reads:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

^[28] R v Sparrow [1990] 1 SCR 1075 at 1091 (Dickson CJ).

^[29] (1996) 137 DLR (4th) 289 at 385 (McLachlin J) (‘Van der Peet’).

^[30] (1996) 137 DLR (4th) 648 at 663 (Lamer CJ).

^[31] (1996) 137 DLR (4th) 289 at 382 (McLachlin J).

^[32] Delgamuukw [1997] 3 SCR 1010 at 1010 at 1028 (Lamer CJ) (Supreme Court of Canada).

^[33] Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 481 (Macfarlane JA) (British Columbia Court of Appeal); Delgamuukw [1997] 3 SCR 1010 at 1010 at 1012; Delgamuukw [1997] 3 SCR 1010 at 1026 (Lamer CJ).

^[34] Delgamuukw [1997] 3 SCR 1010 at 1010 at 1012.