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Melbourne University Law Review |
ANDREW LOKAN[*]
[Australia’s recent recognition of native title arises out of the moral and legal claims of its Aboriginal inhabitants. In order to develop a framework for reconciling such claims with countervailing interests, it is helpful to analyse three interrelated rationales that support recognition of Aboriginal rights. These are Aboriginal first possession of land, the need for substantive equality for Aborigines, and the need to preserve Aboriginal cultural identity. Recent Canadian Aboriginal rights jurisprudence is reviewed as a useful model for how doctrines can be further developed in accordance with these rationales, to provide for broader recognition of Aboriginal rights beyond native title per se, and to provide sophisticated balancing mechanisms to fashion compromises between Aboriginal and non-Aboriginal interests. While differences in the Canadian legal system preclude wholesale importation of these doctrines, there is both the potential and the need for Australian law to develop along analogous lines.]
In the last 30 years, and particularly since the landmark judgment of the High Court in Mabo v Queensland [No 2],[1] Australia has struggled to redefine its relationship with its indigenous peoples. In adopting doctrines developed in the United States of America, Canada, New Zealand and other common law countries, Australian common law has belatedly moved from its traditional denial of the legitimacy of claims by its original inhabitants[2] towards recognition of legally enforceable Aboriginal[3] rights.[4]
The predominant vehicle in this process of reassessment has been the common law doctrine of Aboriginal or native title. While much remains unclear about the precise definition and content of native title in Australian law (including the circumstances under which it may have lapsed[5] or may have been extinguished),[6] the core concept of a communal right, probably of a proprietary nature, based on traditional occupation or use by the claimants and grounded in Aboriginal custom, is firmly established.[7] The recognition of native title in Australia has been welcomed by many as long overdue, while others fear the potential destabilising effects of what they regard as a radical departure from the traditional approach.
Once the legitimacy of claims based on the prior occupancy of indigenous peoples is recognised, however, an extraordinary challenge is presented to the flexibility and imagination of the legal system. For recognition is only one part — and in some ways the easiest part — of the work that Aboriginal rights must do. Balancing these claims against the competing claims of non-indigenous interests — that is, reconciling Aboriginal claims with non-Aboriginal sovereignty, the history of non-indigenous settlement, the rights of non-Aboriginal landholders and the practical exigencies of modern life — is every bit as much a function of Aboriginal rights law as the initial recognition of such claims.
Understandably, the emphasis and rhetoric in Mabo are heavily slanted towards recognition, as befits its status as the ground-breaking, landmark case in the area in Australia. Wik, too, has been received as a decision which dramatically broadens the scope for recognition of native title, not least because it approximately doubles the area of Australia that is potentially subject to native title claims.[8] In fact, though Wik broadens the scope for recognition of native title, it also places a strong emphasis on coexistence and compromise between Aboriginal and non-Aboriginal interests.[9] Thus, it may be seen as marking the beginning of the development of a distinctly Australian approach to balancing Aboriginal rights with countervailing values. As the courts move beyond Mabo and Wik, however, to the processing of the hundreds of claims currently in the Native Title Act system,[10] and possibly to claims of a non-proprietary nature, they will face increasingly difficult questions as they attempt to give effect to the broad principles set out in those cases. Inevitably, given the intractability of the competing parties’ positions and the uncertainty surrounding their legal rights, the courts will be forced to give definition to Aboriginal rights in a way that fashions compromises of a markedly political nature.[11] Especially since Wik, the future of Aboriginal rights litigation seems to require the courts to make such judgments, with little (so far) to guide them in Australian law or history. In short, the courts can be expected to shift their emphasis further from recognition towards reconciliation.[12]
In this regard it may be particularly instructive to look at the experience of Canada, where native title per se forms only one strand in a broad tapestry of Aboriginal legal entitlements, including also a broader concept of common law Aboriginal rights (such as non-exclusive hunting and fishing rights and other rights arising from custom), a potential (but not yet judicially established) limited right to self-government, rights arising from the Crown’s fiduciary duty towards Aboriginal peoples, and treaty rights. Each of these alternative strands (except for treaty rights, which are historically inapplicable) has been put forward by proponents of Aboriginal rights in the Australian context,[13] and each has been the subject of judicial comment.[14] Each has, to some degree, the potential to be incorporated into Australian doctrine, and to the extent that this incorporation occurs, it is likely that Canadian law will provide an important source of precedent to the courts.
The Canadian experience is instructive for several reasons. It is a commonplace that with its similar history, common law heritage and institutions of government, Canada may offer the closest parallels to Australia in this area[15] — as is evident from the High Court’s extensive citation of Canadian authorities in recent cases (a process which is now also occurring in reverse).[16] Furthermore, the jurisprudence of Aboriginal rights has had much longer to mature in Canada, with basic recognition of such rights occurring in the Royal Proclamation of 1763[17] and the historical treaty process,[18] and in the modern era commencing with Calder v A-G of British Columbia[19] (the closest Canadian analogue to Mabo) in 1973. For this reason, Canadian law may be a predictor of the future shape of Australian law in this area. But perhaps most importantly, Canada has a long (if not always successful) history of accommodation of different peoples within its legal and political system through legal compromise,[20] eschewing grand principle in favour of pragmatic coexistence. Indeed, this tendency, while always apparent in the historical development of Aboriginal rights law in Canada, has become increasingly evident in recent decisions.[21] It is this penchant for compromise which may ultimately provide the most valuable models to Australian lawyers, judges, activists, politicians and other participants in the Aboriginal rights debate.[22]
This article will suggest that the Canadian law of Aboriginal rights, particularly in recent cases, has begun to develop sophisticated doctrines which are better adapted to achieving both the recognition and reconciliation functions than Australian law has been to date. Not only does the Canadian law more fully recognise the moral and legal claims of Canada’s indigenous peoples to a broad array of rights, it also allows for the development of a vocabulary of compromise of those rights with legitimate countervailing interests. To support this claim, the article will commence with an evaluation of the moral and legal claims to recognition of Aboriginal rights — that is, the underlying rationales that support Aboriginal rights, and some countervailing considerations which suggest limits on these rights. From this perspective, the article will turn to a detailed examination of recent Canadian jurisprudence to evaluate the extent to which it reflects these rationales and their limits. Lastly, the article will examine the implications of this jurisprudence for the possible future development of Australian law.
There are at least three interrelated rationales for recognising Aboriginal claims, each with its own complexities and qualifications.[23] First, and most obviously, Aboriginal rights flow in part from indigenous peoples’ ‘first possession’ of the lands they occupy or have occupied — a time-honoured source of rights under property law.[24] However, first possession does not fully account for the distinctive nature of Aboriginal claims as recognised by the courts in Australia or elsewhere. A second basis, which is sometimes explicit and sometimes only implicit in the authorities, is the right to equality.[25] A third basis, usually only implicit, is the right of Aborigines to assert, preserve and maintain their cultural identity.[26] Each of these rationales contributes to the case for recognition, and each has been significant in the development of the law in Australia and elsewhere. However, each also raises distinctive countervailing values, with corresponding implications for the law’s reconciliation function. They will now be considered in turn.
The most basic reason for recognising rights of indigenous peoples, in Australia and elsewhere, is that it was their land first. This is particularly central to the claim for recognition of native title, as distinct from other forms of Aboriginal rights. Indeed, ‘first possession’ is often regarded as the moral[27] and legal[28] cornerstone of all property rights. In a legal system which attaches a high level of privilege to claims based on prior possession, it would be surprising if this were not a key foundation of Aboriginal rights law.
There are problems, however, with treating first possession as the sole basis for recognition of Aboriginal rights, whether as a moral or a legal claim. As a moral argument, a claim based on simple priority in time contains a strong element of windfall. If the earth’s resources must ultimately be shared among all, there is little reason to reward exclusively those who, by accident of history, or in some cases by conquest and dispossession of their own, were in the favoured position of being able to claim them before subsequent claimants arrived. Rather, the moral argument must incorporate other considerations to be convincing.
For example, priority in time can gain moral force if it is taken to be a proxy for attachment to land — other things being equal, a person or group whose association with land goes back further in time is likely to regard it as a more significant part of their life or lives, and may have invested more in it emotionally or materially. However, this will not be true in every case, and in circumstances where it is not true (for example where another person or group has developed an equal or greater attachment to the land than the prior possessor(s)), it could be argued that priority in time should give way to other claims.[29]
Furthermore, recognition of priority of time as a moral basis for the assertion of rights may be qualified by a need for the prior claimant to have put the land to a socially beneficial use.[30] In a world of scarce resources, it may be regarded as immoral to exclude others from receiving the benefits of access to resources that are not being used.[31] Conversely, to claim rights over land in the first place may be regarded as limited by a need to leave ‘enough and as good’ land available for others to claim.[32] In these ways, concepts of a greater social good can qualify and limit the moral force of claims arising solely from first possession. This was precisely the way in which ‘first possession’ claims were historically used to justify displacement of Aborigines, and it is somewhat ironic to see the same arguments now put forward by proponents of Aboriginal rights.
The moral arguments for Aboriginal rights may well overcome these qualifications. Particularly in the forms that such qualifications have traditionally been articulated, by Locke, Vattel and other apologists for the claims of European settlers, they raise immediate objections of cultural bias. Yet if one analyses these objections, one is drawn away from reliance upon rights based on priority of possession, and into broader rationales for Aboriginal rights. For example, it may seem inherently implausible and discriminatory to suggest that the attachment to land of Aboriginal claimants would be less than that of subsequent European claimants. But this is at least partly because of what we know of Aboriginal cultural values, in which land may assume a high degree of cultural and spiritual significance,[33] and because of our desire to afford equal respect to those values, rather than being a direct function of priority in time. Likewise, the objection to Locke and Vattel’s views on Aboriginal claims to land is not that they were wrong on the need for land to be put to socially beneficial use,[34] but that they devalued Aboriginal culture in assuming that Aboriginal land use was not beneficial. These are arguments about cultural identity, and the need to give equal status to Aboriginal perspectives, they are not simply arguments about first possession.
Not surprisingly, first possession is also problematic as a sole legal foundation for Aboriginal rights. For this reason, it has never been the sole focus of common law Aboriginal rights doctrine, though the courts naturally refer to it in justifying their approach.[35] Rather, the standard approach of the courts in this area (even in the context of native title per se) has been to refer to the sui generis nature of Aboriginal interests in land,[36] which appears to draw on the other rationales for their recognition to a significant extent. Indeed, the closest that any judge of any court has come to adopting a pure first possession justification for native title is the acceptance of ‘possessory title’ as an alternative ground for the plaintiffs’ claim by Toohey J in Mabo,[37] drawing heavily from the writings of Kent McNeil.[38] As will be seen, even this approach must draw on the other rationales in some respects in order to have meaningful application to Aboriginal claims.
It is not that a legal claim based on first possession lacks strength. Property rights attaching to possession are, unless another person can show a superior title, theoretically equivalent in all respects to a title based on a Crown grant — a possessor is presumed to be seised of a fee simple estate.[39] As such, these rights are perhaps the highest-order rights known to private law, attracting the full range of proprietary remedies.[40] For centuries, the remedy for dispossession has normally been recovery of the land,[41] protecting the integrity of a possessor’s rights. Thus, to the extent that Aboriginal claimants can establish legal possession that predates Crown sovereignty and has not been lost since, their claims are unassailable. However, the law of possession has always operated on an individualistic and value-laden basis, with strict doctrinal controls on the powerful proprietary remedies. These controls have the potential to make the possession-based claims of Aborigines highly vulnerable.
The first significant control on property rights flowing from a claim of first possession is the need to establish ‘possession’ in the legal sense — that is, acts showing a sufficient assertion of physical dominion over the land, together with the requisite intent, to be the basis for the legal reward of property rights. This standard is inherently highly flexible, comprising value-based judgements about the desirability of clearly communicating claims to land, and the ‘efficient use’ of land as a resource.[42] Not surprisingly, in its most common modern form of the law of adverse possession, this branch of property law is riddled with inconsistencies, uncertainty and subjectivity.
Judges have readily admitted to the variability in the standard of acts (including acts from which intent is inferred) sufficient to constitute legal possession, but have rarely admitted to the value judgements behind this variability, attributing it instead to the variety of contexts in which such claims arise.[43] Clearly, however, such judgements are made. If application of this law has proved difficult in the historical common law context, where there was at least some broad consensus as to what constituted a clear signal of a proprietary claim and a desirable use of land (such as the construction of fences, cultivation of crops or grazing of animals), it is even more difficult to apply as a cross-cultural norm which balances both Aboriginal and non-Aboriginal perspectives.
If traditional precedents about fences, cultivation of crops or grazing of animals, and other signs of continuous ‘productive’ occupation of land[44] were applied, it is possible that many specific Aboriginal claims to prior possession of land, based only on the common law approach set out by McNeil, would fail. In Eurocentric terms, this would be because the claimants had not invested sufficient labour, or derived sufficient production, from the land to ‘deserve’ property rights in it.[45] For, in accordance with the moral arguments canvassed above, simple priority in time has never been sufficient to justify fully the award of property rights at common law.[46] Indeed, without the notions of just reward inherent in judgements about productive ‘possession’, priority in time is largely a matter of mere happenstance or fortuity.
It is of course possible (and, arguably, in the best traditions of the common law) to adapt the highly flexible law of possession to the ‘different circumstances’ of Aboriginal land use.[47] This analysis would point out that Aboriginal land use, while not coinciding with non-Aboriginal values, was highly adapted to Aboriginal survival and prosperity, and that signals as to rights to use land would have been clearly understood by other Aborigines, within the system of Aboriginal customary law. In these circumstances, precise demarcation of boundaries and individual exclusive control (so important to establishing property rights under the traditional common law system) might be less important than such matters as mutual respect for and recognition of access to sacred sites and scarce food resources. This approximates the position taken by Toohey J in Mabo. His Honour would allow native title to be based on traditional use of the land that was ‘meaningful’, understood ‘from the point of view of the members of the society’ — but would recognise no rights in those whose presence was ‘coincidental only or truly random, having no connection with or meaning in relation to a society’s economic, cultural or religious life.’[48] Likewise, in Delgamuukw the majority found that occupancy sufficient to support Aboriginal title should be based on both ‘the physical occupation of the land in question’ and ‘the pattern of land holdings under aboriginal law’, in keeping with what the court identified as the dual sources of Aboriginal title in the common law and the Aboriginal perspectives on land.[49]
To adopt this analysis, however, is to go beyond the pure ‘first possession’ rationale for recognising native title. If Aboriginal perspectives on appropriate and clearly-signalled land use do not coincide with non-Aboriginal perspectives, non-Aboriginal courts cannot be rewarding such use with property rights because they value that use per se. Rather, it is because they have other reasons for doing so. For example, it may be thought that it would be a denial of racial equality to fail to give legal effect to the Aboriginal perspective, or that it is necessary or desirable to recognise and preserve the different cultural norms of Aborigines. Inevitably, the courts are drawn into the other rationales in their effort to find cross-cultural norms.
A second significant control on claims based on first possession is the potential need for a claimant to show that such possession has been continuous as against the Crown, from a time predating Crown sovereignty. In a case where the Aboriginal claimants are currently in occupation of the land, since the Crown is not in possession, it ‘must prove its present title just like everyone else’[50] in order to prevail over the claimants. However, the Crown is in a special position when it comes to proving its title. First, it seems that the Crown’s radical title will ripen into a full proprietary title automatically upon the original possessors abandoning their possession, without the need for any assertive act on its part.[51] Second, once the Crown has acquired a full proprietary title it is generally in a privileged position when it comes to claims of adverse possession — in most Australian jurisdictions, for example, the Crown cannot lose its title by adverse possession.[52] The combined effect of these two rules is that a gap in possession may prove fatal to the Aboriginal occupants’ case. While technically the onus of proof may be on the Crown to prove a gap, in practical terms Aboriginal occupants could find that they are required to establish continuity of possession going back to annexation — for example, in a case where non-Aboriginal historical records raise the suggestion that there may have been such a gap.[53]
Outside of the Aboriginal context, proving continuous possession over a lengthy period would involve proof of an unbroken ‘chain of title’ between individuals, likely involving documentary evidence of transmission of title at the relevant times. But if this were required of native title claims, few (if any) would succeed. In many cases, no written records will exist, and individual claims to land may not have been recognised within Aboriginal customary law. Particularly as one goes back several generations, the evidence may be very patchy, and may consist largely of hearsay that in other contexts would possibly not be admissible under any recognised exception to the hearsay rule.[54]
Again, it is possible to attenuate the effects of these doctrines by adapting common law rules to the special circumstances of native title claims. The hearsay rule can be relaxed to make proof of Aboriginal land claims easier — for example, by admission of evidence of oral tradition.[55] Likewise, a rigid requirement of showing an individual chain of title can be avoided by treating native title as a communal right, so that it is necessary only to show membership in the relevant community, and not a specific individual chain of transmission of title from some prior possessor.[56] Even the need for continuity can be mitigated by allowing an inference of continuity to be drawn from present occupation,[57] or tolerating gaps provided the traditional connection of the Aboriginal occupants to the land is not severed.[58] Again, however, such adaptation requires some justification other than the mere fact of first possession, such as an equality-based argument and/or a recognition of the cultural significance of Aboriginal attachment to the land.[59]
The need for such adaptations, and for the incorporation of other considerations into the law of native title, may explain why a purely possession-based concept of native title has found little favour with the courts. Even where it has been accepted, it has not been in unqualified form. In Mabo, Toohey J commented that if possessory title were accepted as an alternative basis for the plaintiffs’ claim, the consequences would be ‘no more beneficial’ for the plaintiffs.[60] If this represents a proposition which is generally true, then the title is qualified in at least two respects. First, native title is uniquely vulnerable to extinguishment by the Crown.[61] Second, native title (as explained by other members of the High Court) is inalienable outside of the Aboriginal community from which it originates.[62] These qualifications, if they apply, are difficult to explain in terms of rights that should flow from prior possession. However, the second qualification at least is quite concordant with a view that protecting Aboriginal rights is justified by the cultural identity rationale. As noted above, recognition of land rights is, in part, a recognition of the heightened cultural significance that traditional lands may have for indigenous peoples,[63] and restrictions on alienation may be seen as reflecting this.[64] Also, preserving a land base is likely to be an essential part of preserving the cohesiveness of Aboriginal communities, which is in turn necessary to maintain living Aboriginal cultures. To permit unfettered alienation of such lands may substantially undercut this rationale.[65]
In sum, the first possession rationale for recognition of Aboriginal rights is an important one, but is not sufficient to explain their unique nature. Both as a moral and a legal claim, prior possession faces considerable areas of difficulty, and requires resort to other rationales to make it workable and comprehensible. By the same token, when it comes to balancing Aboriginal land rights against countervailing values, it is a mistake to think in purely proprietary terms. If the law is to fulfil its reconciliatory function, it must not focus solely on concepts of possession, ownership and title, but must consider more broadly the relationship between Aboriginal and non-Aboriginal communities. Furthermore, it is artificial to confine legally enforceable Aboriginal rights to land rights only. These points will be developed further below.
An additional support to the recognition of Aboriginal rights is supplied by the idea of equality. From an ‘equality rights’ perspective, attempts to deny the existence or continued vitality of Aboriginal rights are viewed as discriminatory. As with the first possession rationale, the right to equality is both a moral and a legal claim. Equality has been regarded as an essential component of justice since at least the time of Aristotle.[66] In modern times, equality rights are a feature of international human rights instruments such as the Charter of the United Nations,[67] the Universal Declaration of Human Rights,[68] the International Covenant on Civil and Political Rights,[69] and the International Convention on the Elimination of All Forms of Racial Discrimination,[70] and are incorporated into the domestic law of Australia,[71] Canada[72] and many other nations.
Equality rights have been invoked in support of Aboriginal rights both as a broad moral principle and as legal grounds to challenge particular government actions. For example, the doctrine of terra nullius (in its application to the denial of native title, though not in its application to the establishment of English sovereignty) was rejected as ‘unjust and discriminatory’ by the High Court in Mabo.[73] Likewise, Queensland’s attempt to forestall the ultimate result in Mabo by passing a statute retrospectively declaring the Murray Islands to have vested in the Crown upon annexation in 1859, and extinguishing any ‘other rights, interests and claims of any kind whatsoever’ in the Islands, was held by a majority of the High Court to have infringed the guarantee of equality before the law in s 10 of the Racial Discrimination Act.[74] On this analysis, native title is viewed as the equivalent of title derived from a Crown grant, and a common law rule or statutory provision which fails to treat them comparably must be a denial of equality. This analysis was extended to strike down the Western Australian Government’s attempt, in response to Mabo, to statutorily diminish native title rights but not other property holders’ rights, in Western Australia v Commonwealth.[75]
It will be immediately apparent that the concept of equality relied upon in these cases is not a strictly formal one. Indeed, a strictly formal analysis may yield the result that native title is not to be protected at all, as a distinctive and sui generis form of property right. Except to the extent that native title can be claimed pursuant to traditional property law doctrines of first possession, undiluted by any special considerations (a proposition that is fraught with doctrinal difficulties, as outlined above), the whole point of native title is that it is not the same in either its nature or its derivation as other titles known to the common law. It was this logic that led Wilson J (dissenting, with the concurrence of Dawson J) to reject the argument, in Mabo [No 1], that Queensland’s express legislative extinguishment of native title infringed the Racial Discrimination Act. As Wilson J noted, there was no (formal) inequality before the law in denying the plaintiffs’ native title, because by definition, ‘the plaintiffs were alone in the enjoyment of traditional rights’.[76]
Rather, for the concept of equality to have any relevance to the case for recognition of native title, it must be a substantive one. On this approach, native title must in some contexts be regarded as equivalent to non-native title, but in other contexts it must be conceded that it is different. For example, while a failure to recognise native title in circumstances where non-native title would have been recognised amounts to a denial of racial equality (an appeal to the ‘sameness’ of native title), in order for native title to be meaningful it must be treated as sui generis for other purposes, such as its communal basis, or the need to relax evidentiary rules and requirements of proof to make establishing native title a realistic possibility[77] (an appeal to the ‘difference’ of native title).[78]
In any particular context, however, whether to treat native title as the same or different requires one to refer to broader notions of justice between groups. That is, once one moves beyond the narrow and formal concept of equality in the sense of identical treatment, it becomes necessary to justify the criteria by which one can decide whether an appeal to sameness or to difference is merited. To apply ‘substantive equality’ here presents a challenge, because ‘equality’ loses its sharp, analytical focus once formal equality is abandoned as the guiding principle. In any particular case, one may generally determine whether individuals have been treated identically, without reference to any extrinsic considerations. (This does not, of course, mean that identical treatment is always fair.) On the other hand, to be able to conclude that sometimes ‘equality’ requires identical treatment, and at other times ‘equality’ requires different treatment, requires reference to considerations of justice or fairness that go beyond the particular case.[79] Articulating these considerations may be far from easy.
It is possible to give content to these broader notions of justice by taking an instrumentalist approach to equality — for example, to point out that present conditions in Aboriginal communities remain appalling, in terms of health, education, level of income, wealth and opportunity.[80] To a great extent, it is plausible to suppose that these conditions represent the continuing effects of past discriminatory treatment, such as racially-based denial of civil rights, denial of employment and education opportunities, forced removal from parents and communities, and racially-motivated dispossession and persecution. On this approach, it can be argued that it is justifiable to use native title as a vehicle to remedy the continuing effects of this past discrimination.[81] As long as Aborigines remain disadvantaged in socio-economic terms, and that disadvantage represents the continuing effects of past discrimination, the law can choose whether to treat native title as the same or different on the basis of which yields the more favourable result.
As with the ‘first possession’ rationale, however, there are problems in deciding how far this approach would extend. At what point, and in what way, do we decide that ‘equality’ is satisfied? A recognition of native title on ‘equal’ terms to Crown-derived title in 1788 may well have precluded non-Aboriginal settlement of Australia entirely. Does this mean that substantive equality now requires that all of Australia be given back? Or is the measure of equality to be found in comparing the amount or value of Aboriginal lands in comparison to non-Aboriginal lands? If Aborigines account for two per cent of Australia’s current population, does equality require (only) that Aboriginal-held land amount to two per cent of Australia’s land mass? Alternatively, should Aboriginal-held land be worth two per cent of the total value of all land in Australia? If so, which Aborigines should be able to claim the benefit of which land, and from whom? And by what measures would ‘value’ be calculated — the ‘market’ value of land in an exchange economy (arguably Eurocentric), or the ‘spiritual’ value of land in Aboriginal culture? Alternatively, are claims to native title only to be recognised up to the point where levels of income, wealth, and opportunity reflect those of the non-Aboriginal population? If so, what would be the position of a particular claimant or group of claimants (if any exist), who may happen to be above the national average in these areas?
Such questions about the legitimate extent of an instrumentalist approach to ‘equality’ are not often discussed. This may be in part because of the probability that on any measure of equality, Aborigines generally remain starkly disadvantaged in comparison to non-Aborigines, so there is little reason to worry about defining the ultimate goal. Moreover, in terms of analysing equality as a legal concept, the courts would find it difficult to admit to partaking in such an overtly political exercise as developing native title doctrine in such a way as to attempt to provide a partial remedy for the general socioeconomic disadvantage of Aborigines — particularly in light of the bitterness of debates surrounding measures or benefits available only to Aborigines. Nevertheless, there is an undercurrent of an instrumentalist approach in many decisions on Aboriginal rights — for example, in the approach of Toohey J to the requirements for establishing prior occupation in Mabo,[82] or in the well-established North American doctrine that treaties are to be construed liberally, in favour of the Aboriginal understanding of their terms.[83]
An instrumentalist approach to equality, however, does not fully explain the model of substantive equality invoked by judges in the Aboriginal rights context. When Brennan J describes the doctrine of terra nullius as ‘unjust and discriminatory’, he is not merely making the point that failure to recognise Aboriginal land rights in the past has left Aboriginal peoples in a position of present socioeconomic disadvantage. Rather, it is that the failure to give effect to Aboriginal law and custom (as manifested in rights to use and occupy their traditional lands) on the same terms as Anglo-Australian or other European law, is in itself discriminatory. What is postulated is that equality (or freedom from discrimination) in this context means equality of status between Aboriginal and non-Aboriginal law.[84]
Again, it is worth examining why a claim to equality of legal status should have force, apart from its possible use as an instrument to remedy disadvantage. Other sub-groups in society (freemasons? motorcycle gangs? academics?) cannot simply declare that they have their own code, based on law or custom, and claim legal recognition of that code on an equal basis to the law of the rest of society, including an exemption from the generally applicable law to the extent that this is necessary in providing such recognition. Clearly, there is something special about the Aboriginal claim to recognition of their laws and customs.
To some extent, the special nature of this Aboriginal claim may be based on the ‘first possession’ rationale set out above. Unlike other groups, Aborigines used and occupied land prior to the arrival of the now dominant culture. However, as set out above, this does not, in and of itself, provide a full moral or legal underpinning for recognition of a system of Aboriginal entitlements. To raise an obvious question, why should the pattern of land use of a present claimant’s distant ancestors be relevant to his or her claim now? The answer lies in part in the fact that Aborigines are seen not just as a random collection of individuals, linked only by common racial characteristics, but as belonging to cohesive cultural groups that deserve recognition and protection. Thus, the equality rationale blends inevitably with the ‘cultural identity’ rationale for recognising Aboriginal rights.
Further questions then arise as to what equality of status between Aboriginal and non-Aboriginal law means in this context. Obviously, land rights are not the only matter relevant to cultural identity, so the equality and cultural identity rationales point to recognition of rights beyond ‘native title’ per se. However, to recognise Aboriginal law as fully equivalent in all respects to non-Aboriginal law appears to amount to a rejection of Crown sovereignty, which is inconsistent with the axioms of common law.[85] A narrower (and still somewhat formalistic) approach, accepted in part by the High Court in Mabo, is to insist on identical treatment between Aboriginal laws and customs that existed when a new country was ‘settled’ by England, and the laws of a territory governed by another ‘civilised’ nation that existed when the territory was gained by England by conquest or cession.[86] Under the common law doctrine of reception, the laws of a conquered or ceded territory would remain in force unless and until they were altered by the conquering nation;[87] therefore, Aboriginal laws and custom (including, but not necessarily limited to, laws and customs relating to land) should likewise remain in force until altered. This, of course, involves the conclusions that Aboriginal societies were, for these purposes, the equivalent of conquered or ceded nations when settlement commenced, and that they have continued to function as such in their adherence to pre-settlement law and custom. Again, these conclusions are inextricably bound up with the rationale that effect should be given to Aboriginal rights because Aboriginal peoples possess a cultural identity that requires recognition and protection.
From a more philosophical viewpoint, another approach to equality of legal status has recently been put forward by Will Kymlicka.[88] Starting from the premise that a person’s ‘societal culture’ is central to his or her identity and self-realisation, Kymlicka asserts that the state should recognise special rights of indigenous peoples and other ‘national minorities’ to the extent necessary to remove or compensate for the ‘morally arbitrary disadvantages’ their members would suffer without such special rights, through not having ‘the same ability to live and work in their own language and culture that the members of majority cultures take for granted’.[89] This approach is potentially far broader than the High Court’s approach in Mabo, which relies on establishing an equivalence between the common law’s treatment of Aboriginals and treatment of the inhabitants of conquered or ceded territories of another ‘civilised’ society. Though justice may require such equivalence at a minimum, such equivalence does not ensure a just result, because the prior question of whether inhabitants of conquered or ceded territories were treated fairly by the common law is not answered. Kymlicka’s approach seeks to answer that prior question — fair treatment of national minorities requires that the state recognise and support their institutions and culture to the point where members of those minorities experience life on terms that are substantively equal to those enjoyed by members of the majority culture.
Again, this approach is indeterminate on the precise issues of how far differences of treatment between members of the majority and minority cultures are justified or required to achieve substantive equality — a point which Kymlicka recognises.[90] It appears, however, that his conception is an expansive one, comprising not just land rights but also ‘a wide range of self-government rights’ and support for minority institutions, as well as mechanisms to ensure that the interests of minority cultures are properly represented in national institutions.[91] This in turn depends on an examination of the merits of protecting cultural identity in itself, and thus this approach to equality also ultimately blends with the cultural identity rationale.
This third rationale for recognising Aboriginal rights is based on the perspective that Aboriginal societies are definable groups, with definable cultures, whose members have a moral and legal right to such legal recognition and protection as may be necessary to allow their culture to survive and flourish. This too is a rationale with deep philosophical and historical roots.
Kymlicka attempts to situate the case for recognising cultural identity within the broader liberal tradition of respect for individual autonomy and choice. Cultural identity is important because ‘[p]ut simply, freedom involves making choices amongst various options, and our societal culture not only provides these options, but also makes them meaningful to us.’[92] Moreover, membership in a societal culture appears to be integral to people’s self-identification and sense of dignity and self-respect.[93] This gives individuals a legitimate interest in protecting their culture. Yet cultures are not static and indestructible, and particularly in the case of minority cultures, they face the constant threat of being overwhelmed by majoritarian norms. For equality-based reasons as outlined above, as well as reasons based on historical considerations,[94] and to a lesser extent because cultural diversity is valuable in itself, states are justified in granting (or recognising) group-differentiated rights for members of minority cultures.[95] Kymlicka points out that respect for the collective rights of members of national minorities was very much a part of liberal thinking in the nineteenth and early twentieth centuries, though in more recent times liberalism has emphasised more abstract political rights.[96] Whatever the derivation and philosophical pedigree of the cultural identity rationale may be, it is clear that it is now well-established, and it may be observed that some of the more stable and successful empires in history have taken a pluralistic approach to their legal systems that is consonant with a broad recognition of this rationale. [97]
As a legal concept, the cultural identity rationale finds its most developed expression in international human rights standards (but is also at least implicit in the Aboriginal rights jurisprudence of common law countries).[98] The international human right of members of cultural minorities generally to protection within larger sovereign states can be traced back to the system of protection of national minorities under the League of Nations.[99] In the modern context, this right takes various forms. Least controversially, it requires at a minimum that members of a minority not be actively discriminated against, as part of the broader international human right to equality.[100] But the right goes further than freedom of minorities from discrimination, embracing also the right to ‘suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics’.[101] This right to cultural protection and preservation finds expression in article 27 of the International Covenant on Civil and Political Rights[102] and the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,[103] the former of which at least may be regarded as expressing a norm of customary international law.[104] Article 27 has been invoked by indigenous complainants on several occasions.[105]
Other international human rights instruments pertain specifically to indigenous peoples, in recognition of the argument that special considerations apply to indigenous rights.[106] These include the International Labour Organisation (‘ILO’) Indigenous and Tribal Populations Convention 1957 (No 107),[107] and the more recent ILO Indigenous and Tribal Peoples Convention 1989 (No 169),[108] which provides for rights of cultural integrity, land and resource rights, and non-discrimination against indigenous peoples.[109] More controversially, there is some support at international law for indigenous peoples having a ‘right of self-determination’. This right, recognised as inhering in all ‘peoples’ under the terms of the Charter of the United Nations,[110] is argued to apply to ethnically and culturally distinct indigenous minorities, despite the overarching claims to national sovereignty of the states which govern them. Recent international instruments which reflect the tension between indigenous claims to self-determination and state sovereignty include the ILO Convention No 169[111] and the Draft United Nations Declaration on the Rights of Indigenous Peoples,[112] which provides that ‘[i]ndigenous peoples have the right of self-determination’, by virtue of which ‘they freely determine their political status and freely pursue their economic, social and cultural development.’[113] The self-determination aspects of the ILO Convention No 169 and the Draft Declaration can, at their highest, only be described as ‘emergent’ customary law,[114] and it remains to be seen in what form and to what extent a right of self-determination might become established as a binding international law norm. Nevertheless, these instruments may represent the shape of future developments in the international human rights of indigenous peoples.[115]
The international law human right to recognition and preservation of cultural identity is not, of course, directly and automatically incorporated into domestic law (though international human rights norms are increasingly influential in shaping domestic law in Australia[116] and elsewhere[117]). In this respect, the third rationale, which finds its most obvious expression in international law, differs from the first two.[118] First possession is firmly embedded in the common law of property, while equality is reflected in human rights legislation such as the Racial Discrimination Act. Nevertheless, an examination of native title doctrine reveals that the cultural identity rationale is, at least implicitly, one that is strongly reflected in its content.
The most obvious example is the relationship between native title and Aboriginal custom. In insisting that native title owes its existence to Aboriginal customary law, and that rights under this customary law will be given effect in the common law courts, the Australian courts have sought to ensure the continuing vitality of one particular aspect of Aboriginal culture. Conversely, according to the lead judgment in Mabo, ‘when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs’, there is no longer any basis for claiming native title.[119] On these standards, Aboriginal groups that have maintained their cultural integrity are most likely to be rewarded with property rights, while those that have abandoned their cultural traditions (whether voluntarily or by force of assimilationist pressures) may suffer the penalty of non-recognition of land rights.[120]
Another example of the law’s concern with cultural identity is the communal basis of native title. Property law is generally highly individualistic and fragmented, yet in this area rights are primarily held at the level of the community[121] (though individual members may have derivative rights).[122] By defining native title rights primarily at the level of the community, native title doctrine reinforces the community’s identity. At a practical level, it further provides an incentive for the community to remain cohesive, since members who leave the community may lose their ability to enjoy the rights and benefits that are associated with membership. This is a marked departure from the individual basis of common law property rights in most other contexts.[123]
Less dramatically, but no less importantly, the rules of evidence and requirements of proof in the native title context have been adapted in a manner which suggests that the courts are attempting to fashion cross-cultural norms that take into account the cultural identity of Aboriginal claimants. Even without a statutory discretion to do so such as is contained in the Native Title Act, courts have shown some willingness to consider Aboriginal perspectives in admitting evidence.[124] Likewise, courts have repeatedly acknowledged that differences in cultural perspectives must be taken into account in meeting the requirements of proof of native title.[125]
Acknowledging that the law of native title is as much about preserving Aboriginal cultural identity as it is about remedying dispossession, or enhancing equality in an abstract sense, makes it easier to understand why it should be regarded as sui generis, and (at times) deserving of special treatment in its intersection with other branches of law such as the law of evidence or possession. If the purpose of this law is to allow specific aspects of Aboriginal culture to survive and flourish (against the assimilationist pressures of modern society), then some degree of differential treatment can surely be justified.[126] Moreover, the law’s apparently greater concern with more cohesive groups in remote areas, with stronger attachment to the land and greater adherence to custom, is perfectly rational despite the fact that such groups are the least dispossessed among Aborigines.
The countervailing values raised by the ‘cultural identity’ rationale are first, the equality claims of competing non-indigenous groups, and second, the potential threat to state sovereignty (ie majoritarian rule). Arguments raised by the first of these are familiar and well-rehearsed. Any time that a particular group or individual is given special status or treatment, there is perceived to be an equality-based claim (in the formal equality sense) by non-recipients. As far as the dominant non-indigenous culture is concerned, such claims can be answered by the contrast between the precarious position of the indigenous minority, which must constantly struggle to survive in a cohesive form, and the more secure position of the majority, whose culture is continually reflected, reproduced and reinforced in majoritarian institutions. Nevertheless, there is a hard-to-specify point at which the preservation and promotion of minority cultural identity at the expense of the majority becomes unjustifiable.[127]
The equality argument is more difficult with respect to other minorities who compete with indigenous groups for recognition. Here, the comparison between the legal recognition of Aboriginal custom and non-recognition of legal claims of other ethnic minorities requires particular justification. That justification can be found in part by referring back to the previous rationales. Unlike immigrant groups, Aborigines were in occupation of Australia prior to the arrival of the now-dominant culture, and this gives them a special claim related to the first possession rationale.[128] Moreover, any other minority that was similarly situated would have as strong a claim — for example, under the doctrines of the common law relating to reception of English law in conquered or ceded territories.[129]
The second countervailing value, that of state sovereignty, is intractably in conflict with the cultural identity rationale. Any legal recognition of Aboriginal custom will involve some dilution of the state’s power to determine and enforce norms, just as Aboriginal submission to state sovereignty (ie government by the majority, according to the majority’s norms) inherently qualifies the expression of Aboriginal identity. For this reason, while Aboriginal rights and native title may be grounded in part in Aboriginal custom, the legal acceptance of these rights is somewhat grudging and limited, and hedged by doctrinal devices designed to allow state sovereignty to be (re)asserted at critical moments. For example, the doctrine of extinguishment allows a residual power to the Crown to terminate custom-based native title at any time, subject to any applicable statutory or constitutional limits and possible rights of compensation.[130] More tellingly, it appears that even the initial recognition of custom-based native title may be conditional on the specific customs not infringing the core values of the majority — ie, not being ‘repugnant to natural justice, equity and good conscience’.[131] Yet despite the intractable nature of this conflict, pragmatic compromises may be reached between asserting state sovereignty and protecting Aboriginal identity (uneasy though such compromises may be), and this has historically been one of the functions of Aboriginal rights doctrine.
Once it is acknowledged that recognition of Aboriginal rights draws strength from each of the three interrelated rationales of first possession, equality and cultural identity, the limited nature and potentially somewhat misdirected focus of common law Aboriginal rights in Australian law emerges. Recognition of such rights has, to date, been arbitrarily confined to specific ‘private law’ rights to land, as opposed to a broader conception of Aboriginal rights which would embrace a wide range of Aboriginal custom, and would include a ‘public law’ component to regulate relations between Aboriginal groups and the state generally. The latter description, as will be seen, is a more accurate portrayal of the current Canadian law of Aboriginal rights.
It is not disputed that land rights are an obvious place to start in recognising Aboriginal rights. Unlike other areas which do not directly invoke the rationale of first possession, land rights draws on all three rationales, and may thereby represent the strongest case for recognition. However, persuasive arguments may be made for similar recognition (even if only in a more qualified form) of other customary laws.[132] From the perspective of the preservation of Aboriginal identity, customs and practices relating to (for example) hunting and fishing rights, marriage and separation, custody of children, adoption, authority within Aboriginal communities, and crime and punishment may be at least as important as land rights in defining the cultural entity that is to be recognised and protected. In this sense it is arbitrary to recognise native title without also recognising other Aboriginal customary law norms.
Moreover, even the relatively narrow conception of equality that has already found expression in Mabo would support a recognition of Aboriginal customary entitlements beyond those relating to land. The logic which compelled Brennan J to give recognition to native title — that is, the need to treat Aboriginal claims with respect to settled lands on a par with the claims to property rights of inhabitants of conquered or ceded lands — applies equally to the recognition of other customary law rights.[133] The doctrine of reception preserved all legal rights of the inhabitants of conquered or ceded lands unless or until such rights were superseded by English law, not just property rights.[134] If a distinction is to be made between Aboriginal customary law (other than land law) and the customary law of inhabitants of a conquered or ceded territory, some account needs to be given as to why this should be the case. And moving beyond the argument accepted by Brennan J in Mabo to the broader conceptions of equality and cultural identity outlined above, arguments may be made in support of wider-ranging recognition and support of Aboriginal practices, institutions and autonomy.
If a broader, generalised conception of Aboriginal rights is adopted, however, it becomes harder to maintain the position that common law Aboriginal rights are purely private in nature, and represent no challenge to state sovereignty. To the extent that recognition of Aboriginal custom marks out a space where otherwise applicable law will not intrude, it obviously represents a limited zone of Aboriginal sovereignty or ‘self-government’. And while limited recognition of customary land rights may be sanitised by regarding and defining such rights largely in private law terms, this may be more difficult in other areas where private ordering is not the norm. Thus, as the scope of Aboriginal rights is broadened and comes into more pronounced conflict with majority standards, it becomes more urgent to develop or adopt doctrines to reconcile such rights with the overarching sovereignty of the governing state. Much of the recent work of the Supreme Court of Canada has been in this area, for example in attempting to develop tests for which customary practices acquire the status of constitutionally-protected ‘aboriginal rights’,[135] the potential contours of a right to self-government,[136] and the nature of the fiduciary relationship between indigenous peoples and the Crown as a limit both to the scope of Aboriginal rights and to their curtailment by governments.[137]
It must be stressed that recognition of a broader concept of Aboriginal rights, including mechanisms for reconciling such rights with state sovereignty, does not necessarily entail recognising radically greater rights and privileges for all Aboriginal claimants. Indeed, in some respects it gives the parties and the courts a broader range of options, and facilitates compromise solutions. This alone would be a welcome development if it could be imported into the Australian context.
With this framework in mind, we will now turn to an examination of the recent Canadian trends.
The modern era in Canadian Aboriginal rights law commenced with the recognition of Aboriginal title based on the common law in Calder in 1973.[138] Like Mabo, Calder analysed the issue of common law Aboriginal rights in terms of specific rights to land arising from the prior occupation or possession of those lands.[139] However, prior to Calder Canadian courts had a lengthy history of recognising both Aboriginal title based on the Royal Proclamation of 1763, and a variety of entitlements (not necessarily connected or confined in their exercise to particular lands) negotiated as part of the historical treaty process. Unedifying and restrictive though much of the older jurisprudence may be, it provided precedents for a broader concept of Aboriginal rights, extending to such matters as hunting and fishing rights[140] and limited rights to government services in health and education.[141] Conceptually, the treaty process required that Indian signatories be viewed as having (at least initially) sovereign or quasi-sovereign status,[142] and from a practical point of view it required that ‘status’ Indians[143] subject to treaties maintain a basic level of administrative structure (band councils) to manage reserves and administer treaty benefits (though heavily regulated and subject to government supervision).[144]
In this context, claims to common law Aboriginal rights to hunt and fish, independently of Aboriginal title or treaty rights, were recognised by the Supreme Court of Canada in R v Derriksan[145] and R v Kruger,[146] though such rights were held to be subject to any validly-enacted applicable federal or provincial legislation. In the areas of marriage and adoption, Aboriginal customary law was also given limited recognition in areas left unregulated by statute,[147] or where statutes of general application could be interpreted as not applying to Aboriginal people.[148] However, since the constitutional entrenchment of ‘existing aboriginal and treaty rights’ in s 35 of the Constitution Act 1982, common law rights coming within the descriptive term ‘aboriginal rights’ (whether or not based on Aboriginal title) now prevail over inconsistent legislation, subject only to a test of justification.[149] This has given enormous impetus to the growth of the concept of Aboriginal rights.
In cases decided since the enactment of s 35, the courts have attempted to develop a general theory of what ‘aboriginal rights’ should comprise, and to articulate tests that govern both the circumstances in which such rights will be found to exist, and the ways in which they must be balanced with competing rights and interests. Sparrow, the first major case under s 35, involved the right of the appellant (a Musqueam Indian) to fish for salmon in the traditional Musqueam fishing areas, without complying with federal fishery regulations. The Supreme Court found that the appellant was exercising an ‘aboriginal right’ within the meaning of s 35, because the salmon fishery had always constituted ‘an integral part of [the Musqueam’s] distinctive culture’.[150] As such, this right prevailed over federal fishery regulations that could not be shown as necessary (in their application to Indians) to conserve fish stocks. Significantly, the ‘aboriginal right’ relied upon did not need to be based on any pre-existing or associated land claim, nor did the appellant need to demonstrate that the Musqueam were exclusive users of the salmon fishery.[151]
In the leading case, Van der Peet,[152] the Supreme Court of Canada affirmed that the ‘integral to a distinctive culture’ test was one which applied generally to all claims of Aboriginal rights,[153] and set out a list of factors to be considered in applying the test. These factors are as follows:
Under this test, Aboriginal rights, though they ‘arise from the prior occupation of land’, need not be confined to a specific location in their exercise,[164] nor need they relate specifically to use of land as such. Most litigation so far has focussed on hunting and fishing rights, which represent only a small extension from traditional proprietary concepts — indeed, rights that may have been regarded in the past as a form of ‘aboriginal title’ may now simply be described as ‘aboriginal rights’.[165] Such rights would generally be exercisable only in specific areas where they had been exercised in the past,[166] and relate to a use of land which is readily assimilable into traditional property law concepts.
However, in shifting the juristic basis for recognition of Aboriginal rights from property to custom (ie from the first possession claim to one more influenced by the cultural identity rationale) a wider range of claims has become possible. That range is, to date, relatively little exploited, though claims have been made that there is an Aboriginal right to conduct an on-reserve high-stakes gambling operation (unsuccessful),[167] to require that family status be defined according to Aboriginal custom rather than provincial regulation for the purposes of making a no-fault benefits insurance claim (successful),[168] and to confine those eligible to vote in Indian band elections to those resident on a reserve (unsuccessful).[169] It is likely, however, that with time a wide range of activities will be put forward as Aboriginal rights.
The potential breadth of the concept of Aboriginal rights requires the courts to give much more definition to the reconciliation function of Aboriginal rights law. This is achieved in various ways. First and foremost, in defining the activities that may come within the scope of the Aboriginal rights guarantee, it is necessary to relate the practice to the claimant’s Aboriginality.[170] Without such a relation, Aboriginal rights could be infinitely elastic. Thus, the ‘integral to the distinctive culture’ test attempts to identify the dividing line between matters of such significance to the cultural identity of indigenous peoples that they should be within the zone of privilege where laws of general application do not intrude, and those matters where the normal sovereignty of the Crown is undiluted.
It is amply evident from the terms in which the test is set out that this is an exercise which is designed to fulfil the function of reconciling Aboriginal claims with non-Aboriginal sovereignty. Some of the factors set out in Van der Peet, obviously, are explicitly designed not just to reconcile Aboriginal claims with competing values, but also to be seen to be doing so. This is stressed in the court’s explanation of the first factor, that of taking ‘into account the perspective of Aboriginal peoples themselves’.[171] As explained by Lamer CJ:
The definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system. It is possible, of course, that the Court could be said to be ‘reconciling’ the prior occupation of Canada by aboriginal peoples with Crown sovereignty through either a narrow or broad conception of aboriginal rights; the notion of ‘reconciliation’ does not, in the abstract, mandate a particular content for aboriginal rights. However, the only fair and just reconciliation is ... one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.[172]
Likewise, in explaining the need for ‘continuity’ between pre-contact practices and modern claims, and on the related question of the significance of post-contact European influences, the court appears to be searching explicitly for cross-cultural standards. To have given protection to Aboriginal claims only when they are related to Aboriginal customs in their ‘primeval simplicity and vigour’,[173] aside from making such claims extremely unlikely to succeed, would have denied the legitimacy of non-Aboriginal influence on Aboriginal culture — precisely the area in which common ground is most likely to be found. Conversely, by stressing that Aboriginal rights can evolve and can be influenced by majority culture without losing their legal status, the court has encouraged them to be defined and develop in ways which emphasise what they have in common with majority norms.[174]
A further example of the reconciliation function at play in these factors is their pronounced emphasis on particularisation of Aboriginal rights. Such rights are emphatically not of general application; rather, they depend on the customs of the particular group and must be adjudicated on a specific rather than general basis. Moreover, courts must identify ‘precisely’ the nature of the right being asserted in the individual case. This emphasis on particularity of Aboriginal rights does much to ensure that claims will not be far-reaching, and may incidentally preserve a zone of judicial discretion (through the judicial fact-finding process) by which claims can be managed and compromises found in individual cases.[175] This tendency is evident in the results of Van der Peet and two other companion cases which applied the ‘integral to a distinctive culture’ test to claims for an Aboriginal right to engage in commercial fishing. Based on the evidence and applying this highly particularised approach, the court found that the claim to an Aboriginal right to engage in fishing for commercial purposes was made out in respect of one of the cases, Gladstone, but not in the other two.[176]
The second major way in which the broadening of Aboriginal rights beyond claims of Aboriginal title emphasises the reconciliation function of the law is by allowing for intermediate claims. Aboriginal title in the sense of full proprietary ownership is notoriously difficult to establish in the courts. Indeed, it was reported in 1994 that ‘not a single square foot’ of Canadian territory had been found to be subject to Aboriginal ownership by a Canadian court.[177] By contrast, more limited and flexible Aboriginal rights such as non-exclusive hunting and fishing rights may be found by the courts even where the requirements of Aboriginal title are not made out.[178] The existence of an intermediate solution allows the courts to adopt a much more inclusive approach to Aboriginal rights that are accessible to Aboriginal peoples in long-settled areas as well as remote ones, and to define such rights in such a manner as to allow them to coexist with property rights of non-Aboriginal people.
Ironically, the shift in the juristic basis from possession to custom that underlies the broadening of Aboriginal rights has also had a pronounced effect on the development of the court’s conception of Aboriginal title. By distinguishing between the concepts of Aboriginal rights and Aboriginal title, the court has articulated a theory that different consequences should flow from the fact of first possession, than from the existence of customs and practices which define an Aboriginal culture. In this context, it may be regarded as rational to insist upon a finding of exclusive occupation as the dividing line between the two. By contrast, the High Court of Australia, which has so far largely adopted a private law, proprietary or quasi-proprietary framework for native title, appears to be struggling with the issues of whether and why exclusivity should be significant.[179] On the other hand, even with respect to Aboriginal title proper, the Canadian Supreme Court has placed the doctrine in a broader cross-cultural context which gives greater play to the cultural identity and equality rationales. According to the court, since the common law of Aboriginal title is not Anglo-Canadian law but cross-cultural law, the entire relevant legal framework must reflect cross-cultural content. Admissibility and interpretation of evidence, as a matter of the common law of Aboriginal title, must reflect both Aboriginal and non-Aboriginal perspectives.[180] Even exclusivity of occupation, that which separates Aboriginal title from other Aboriginal rights, must be assessed in light of Aboriginal perspectives as well as non-Aboriginal.[181] Thus, the traditions of the common law are reinterpreted in a matter which is arguably more conducive to reconciliation.
The third major way in which a broader concept of Aboriginal rights leads to a greater emphasis on the reconciliation function is by making it more necessary for the courts to develop mechanisms to balance Aboriginal rights against other values where they compete. This is particularly true where Aboriginal rights are given the status of constitutional rights, and thereby prima facie prevail over competing non-constitutional rights and interests as expressed in common law and legislation. As will be seen below, the primary mechanism of this nature has been developed in the context of the Crown’s fiduciary duty towards Aboriginal peoples.[182]
A shift in emphasis from the first possession rationale towards the cultural identity rationale inevitably also raises questions concerning the exercise of power over and within Aboriginal communities. As long as Aboriginal rights are conceived of wholly in proprietary terms, and provided that proprietary interests recognised are regarded as equivalent to non-indigenous interests, it is possible to define the zone of non-interference by the sovereign state as a matter of purely private law. If, for example, pre-contact land use was equated with possession under non-indigenous land law, and Aboriginal claimants were awarded a possessory fee simple on this basis, the successful claimants would in theory have exactly the same freedoms to use their lands as any other person establishing a possessory title. Subject to any valid, generally applicable laws, they would be permitted to use their land in whatever manner and for whatever purposes they wished.[183] A purely possession-based title, however, has never been the dominant approach of common law jurisdictions towards Aboriginal or native title. Rather, the nature and incidents of Aboriginal or native title must at some level take into account the customs on which the Aboriginal society is based.[184]
The approach accepted in Mabo is that the nature and content of native title are defined by Aboriginal customary law. In one sense, the result of this approach is that there must, by definition, be areas in which Aboriginal customary law supplants the non-Aboriginal law which would otherwise be applicable. At a minimum, customary law will govern the issue of the respective rights and entitlements of members of the Aboriginal community among themselves.[185] Aboriginal custom with respect to non-alienability of land has also been held to supplant the general rule that privately held land is to be freely alienable.[186] At least to this extent, then, some aspects of Aboriginal ‘self-government’ are inherent in the Australian High Court's recognition of native title. The scope for self-government is broadened further if a general approach is taken to recognition of customary Aboriginal rights, as has now occurred in Canada. As with native title, by definition there is a zone where Aboriginal custom supplants otherwise applicable non-Aboriginal law in every instance where an Aboriginal right is recognised. The question is how far the zone of Aboriginal self-government extends.
As discussed above, however, the foundation of Aboriginal rights on the value of protecting cultural identity runs directly into the countervailing value of acknowledging state sovereignty. Sovereignty may be viewed as a zero-sum game, and any concession to Aboriginal self-government must, at some level, represent a diminution of state sovereignty. For this reason, the treatment of claims to an inherent Aboriginal right to self-government in the Canadian courts has been extremely cautious and highly ambivalent.
An Aboriginal right to self-government at large, which appeared to be self-evident to Marshall CJ in 1832,[187] has not yet been judicially recognised by any Canadian court.[188] At the political level, the Canadian Federal Government has clearly articulated a policy of recognising self-government rights, though again with remarkably little definition of the scope of such rights. Constitutional entrenchment of the inherent right to self-government was a feature of the Government’s proposed ‘Charlottetown Accord’ of 1992.[189] While this initiative failed to win sufficient popular support in a referendum to be enacted, the current Federal Government subsequently released a policy paper clearly committing itself to Aboriginal self-government,[190] said to be an ‘inherent right’ under s 35 of the Constitution Act 1982. Most recently, the Royal Commission on Aboriginal Peoples, while concluding that s 35 does protect self-government as an inherent right, has recommended explicit recognition of self-government powers.[191]
The Supreme Court of Canada has not yet ruled on the issue of self-government, but has given very strong indications that it is likely to take an incremental and cautious approach if any such right is recognised. In Gardner, where the Aboriginal appellants asserted a right to conduct on-reserve commercial gambling free from provincial or federal regulation, the court explicitly reserved its judgment on whether any inherent right to self-government existed, but noted that if such a right did exist it would exist only as an outgrowth of the recognition of specific customs according to the tests set out in Van der Peet.[192] A robust and apparently unqualified argument that the Aboriginal claimants had ‘jurisdiction’ over unceded lands was made in Delgamuukw, but was rejected in the lower courts on the overwhelming authority and basic constitutional principle that parliamentary sovereignty, though divided between the provincial and federal jurisdictions, has always been plenary and supreme, at least until the enactment of the Constitution Act 1982.[193] Two dissenting judges in the Court of Appeal would have found an Aboriginal right to some degree of self-government, characterised as ‘rights of self government and self regulation’, but with very little definition as to what the content of those rights might be.[194] At the Supreme Court of Canada, the court ruled that errors of fact made by the trial judge had made it impossible to determine whether the claim for self-government had been made out. The court further noted that the lower courts had not had the benefit of the Supreme Court’s reasons in Gardner, with its admonition that self-government rights, if they existed, could not be framed ‘in excessively general terms’.[195] Also, neither the lower courts nor the parties had addressed ‘many of the difficult conceptual issues’ surrounding Aboriginal self-government, as reflected in the RCAP Report.[196] Accordingly, the issue would fall to be determined on the retrial.
It remains to be seen how far this incremental approach to self-government, if subsequently adopted by the Supreme Court, will extend. It seems unlikely that the approach foreshadowed by Gardner, whereby self-government is recognised only as an incident of recognition of specific customary rights and starting from the premise that no such rights will be recognised unless they meet the ‘integral to the distinctive culture’ test, will go as far as the American approach, which starts from the opposite premise that self-government is inherent (but in practice allows it be heavily qualified).[197] However far the right extends, it is clear that it will be subject to all of the balancing devices and tendencies towards reconciliation that are set out above. If there are any that fear the revolutionary or radical potential of the purported right to self-government as it is likely to develop in the Canadian courts, their concern would appear to be misplaced.
Yet another strand of the law of Aboriginal rights in Canada is the recognition of a fiduciary duty owed by the Crown towards Aboriginal peoples in certain circumstances. Such a duty, long a feature of American Aboriginal rights law,[198] has been recognised in Canada since Guerin.[199] As with the other strands of Aboriginal rights law, the fiduciary duty has both a recognition and a reconciliation function. Moreover, it is the latter function which is receiving the more pronounced emphasis in more recent decisions.
As initially recognised in Guerin, the fiduciary duty was predominantly a private law concept in character, though the basis on which it was said to arise by various members of the court left room for its development as a public law right. In that case the Musqueam Indian band had surrendered certain valuable reserve lands in Vancouver to the Crown in right of Canada, on the understanding that the lands surrendered would be leased on certain terms to a golf club. Without obtaining the band’s consent, the Crown proceeded to lease the lands on terms substantially less favourable to the band. In so doing the Crown was held to have breached its fiduciary duty towards the band, and was held to be liable for damages assessed at CAN$10 million.
According to Dickson J, writing for the majority, the fiduciary duty ‘has its roots in the concept of Aboriginal, native or Indian title’, but also, ‘depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.’[200] Since any dealings with the land, at least as between the band and third parties, would need to be by way of the Crown, holders of Aboriginal title who wished to alienate their land were at the mercy of the Crown’s discretion, which was set by majority to be ‘the hallmark of a fiduciary relation’.[201] In general terms, ‘where by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary’.[202] Relying specifically on s 18 of the Indian Act 1985[203] (which provided that reserves must be held by the Crown for the use and benefit of the bands for which they were set apart) and on the surrender provision of the Indian Act 1985[204] (which confirmed that the band’s interest could only be disposed of by surrender to the Crown), the majority held that the Crown became a fiduciary on accepting the surrender from the band.[205]
As set out in Guerin, the fiduciary obligation is primarily of a private law character, restricted to specific surrender situations in which the Crown acquires the discretionary power to affect adversely the surrendering party’s interests.[206] Nevertheless, even in this guise it may fulfill an important reconciliation function. As a source of rights it would typically be less far-ranging than Aboriginal title per se. It will arise in specific fact situations where the Crown has dealt with Indian assets in an inequitable manner, providing a potential remedy for a specific wrong, but generally without applying to vast areas of land or threatening third party rights. Moreover, as an equitable doctrine it allows for the remedial flexibility that is characteristic of the courts of equity. Potentially, this provides a further mechanism whereby the courts may fashion compromise solutions which balance competing interests on specific claims. For example, in Blueberry River the court held that the Crown had breached its fiduciary duty in dealing with land which had been surrendered by the appellant Indian bands.[207] The bands had surrendered reserve lands to the Crown in trust to sell or lease the land, to permit its eventual sale to returning veterans. The Department of Indian Affairs subsequently sold the land to the Director of Lands under the Veterans Lands Act 1942[208] and the lands were resold to returning veterans. The Department of Indian Affairs had a longstanding policy of reserving mineral rights for the benefit of the Indians in such transactions, but here inadvertently made an outright transfer to the Director. Oil was subsequently discovered under the surrendered lands. The court unanimously held that there had been no breach of fiduciary duty by the Crown in accepting the original surrender, which had been with the bands’ consent and agreement, but that the duty had been breached by the Department’s failure to reserve mineral rights in accordance with its usual policy.[209] It is noteworthy that the breach of duty found turns on a very particular fact situation, and the holding that the Crown had no duty to second-guess the bands’ decision to surrender (in retrospect, an unfortunate one) may be seen as limiting the scope of the duty in any asset-management situation in which the Crown obtains the Indians’ consent.[210]
More broadly, even a relatively restrictive doctrine of fiduciary obligation, having a predominantly private law character, may help to reconcile Aboriginal claims arising from prior occupation with Crown sovereignty. It is axiomatic to the doctrine of Aboriginal title that the Crown has the sovereign right, as an aspect of its radical title, to deal with land over which Aboriginal title exists.[211] However, without some legal mechanism for constraining the Crown’s power to deal with Aboriginal lands (even if only a right to compensation which may arise in particular fact situations), Aboriginal title lacks security.[212] A flexible doctrine which allows the courts to supervise Crown dealings with Aboriginal land enables the courts to preserve the integrity of Aboriginal interests while respecting the Crown’s ultimate sovereignty.
A more explicit public law aspect to the Crown’s fiduciary duty was established in cases following Guerin, again apparently influenced by US authorities. In R v Agawa,[213] the Ontario Court of Appeal expressly linked the Crown’s fiduciary duty to the well-established propositions that treaties and legislation affecting Indians were to be liberally construed in favour of the Indians, and that treaties were to be interpreted in light of the understanding that the Indian signatories to them would have had at the time. According to the court, in interpreting the terms of a treaty ‘the honour of a Crown is always involved and no appearance of “sharp dealing” should be sanctioned.’[214] Thus, in addition to being a mechanism for controlling the Crown’s exercise of discretion with respect to specific dealings with Indian property, the fiduciary duty was cast as a more general presumption that the Crown acts on behalf of Aboriginal peoples in all of its dealings with them.[215] While this doctrinal development was not necessary to support the canons of construction referred to above,[216] it does provide a basis of general application which obviates the need for any specific factual enquiry into the circumstances of the treaty making.[217] As such, it represents an important development in defining the overall relationship between Aboriginal peoples and the government.
Moreover, the generous and liberal approach to treaty interpretation which is in part supported by the extension of the fiduciary duty to the analysis of the treaty process, provides another striking example of the law’s reconciliation function. It is well documented that, in fact, the treaty process was severely compromised by the conflicting motives of the Imperial and later Canadian governments, which were under intense pressure to open up lands for settlement.[218] In fact, treaty benefits were small in comparison to what was being given up by the Indian parties, and the Crown’s conduct in treaty ‘negotiations’ appears at times to have been less than honourable.[219] The generous and liberal approach to treaty interpretation, while in some circumstances providing substantial benefits to particular claimants, also does much to legitimise the entire treaty-making process.[220] Absent such legitimation, there is a much greater danger that the treaty process would be vulnerable to attack as an immoral land-grab. Conversely, because the treaty process has been legitimised, attempts to argue that historical treaties should be ignored because of defects in their process or inequalities in their substance have been comprehensively rejected by the courts.[221]
The public law aspect of the Crown’s fiduciary duty was endorsed by the Supreme Court of Canada in 1990 with its decision in Sparrow,[222] in which the court first interpreted s 35 of the Constitution Act 1982. Building on its earlier decisions regarding the interpretation of treaties and statutory provisions designed to protect Indians, and adopting the approach of R v Agawa,[223] the court cited the fiduciary relationship in holding that prima facie s 35 was to be given a large and liberal construction in favour of Canada’s Aboriginal peoples:
In our opinion, Guerin, together with R v Taylor and Williams ... ground a general guiding principle for s 35(1). That is, the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.[224]
However, the court was clearly concerned about the implications of applying a large and liberal approach to s 35, without having a mechanism for holding that, in appropriate circumstances, the Aboriginal right would have to give way to countervailing considerations, and therefore held that rights found to exist under s 35 could be infringed by justified government regulation.[225] To explain its importation of a justification test into s 35, the court turned again to the Crown’s fiduciary duty:
There is no explicit language in the provision that authorizes this court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words ‘recognition and affirmation’ incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognised and affirmed are not absolute. Federal legislative powers continue ... These powers must, however, now be read together with s 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in Nowegijick ... and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by Guerin v The Queen.[226]
Here again, the emphasis on reconciliation is striking. On the one hand, the court endorses an expansive notion of the fiduciary duty which appears to encompass the entire relationship between the government and Aborigines. On the other hand, the fiduciary duty has also been turned around to become an instrument of legitimation of the infringement of constitutionally guaranteed Aboriginal rights.[227]
The public law aspect of the fiduciary duty has most recently been analysed and applied by the Supreme Court in Gladstone and Delgamuukw.[228] In Gladstone, the court found on the evidence that the appellant had established an Aboriginal right to fish for herring spawn on kelp on a commercial basis. This was based on evidence that barter or trade in herring spawn on kelp had formed a significant part of the pre-contact practices of the appellant’s ancestors. Prima facie, then, the appellant’s right to fish could not be curtailed or restricted by the Pacific Herring Fishery Regulations,[229] which he was accused of violating. Applying Sparrow, the court remitted the matter to trial for evidence on whether the applicable regulation might meet the test of justification. In the circumstances of this case, however, the test required only
that the government demonstrate that, in allocating the resource, it has taken account of the existence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users,
but foreseeing that this priority would be ‘something less than exclusivity’.[230]
The majority, speaking through Lamer CJ, frankly admitted that the content of this priority ‘must remain somewhat vague pending consideration of the government’s actions in specific cases’, referring to the flexibility which had been shown by the court in balancing constitutional rights with other competing interests under s 1 of the Canadian Charter of Rights and Freedoms.[231] Particular emphasis was placed on the competing objectives of ‘the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups’, with the Chief Justice making the following pointed observation:
In the right circumstances, such objectives are in the interest of all Canadians, and more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.[232]
It need hardly be pointed out that the court is engaging in an overtly political exercise in these circumstances, and that it is well aware of this fact.[233] Nevertheless, such a pragmatic and flexible approach is in keeping with the traditional development of Aboriginal rights doctrines in Canadian law.[234]
These themes were carried further in Delgamuukw, where the court explained how the justification test would apply to Aboriginal title.[235] According to the court, the test has two parts. First, the infringement of the Aboriginal right must be in furtherance of a ‘compelling and substantial’ legislative objective.[236] These are objectives which are directed at either the recognition of prior Aboriginal occupation, or the reconciliation of that occupation with Crown sovereignty; more typically the latter.[237] These objectives include conservation, the pursuit of economic and regional fairness, and a wide range of other typical government objectives. Second, the infringement must be consistent with the ‘special fiduciary relationship between the Crown and aboriginal peoples.’[238] The scrutiny with which government measures are analysed will be heavily dependent on the nature of the right asserted and the legal and factual context; for example, where as in Gladstone the claimants assert a right to a resource that would potentially exclude non-Aboriginal interests, it will be easier to justify a limitation of the right.[239] In the specific context of Aboriginal title, compelling and substantial objectives are said to include such diverse matters as
the development of agriculture, forestry, mining and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support these aims.[240]
This list is not meant to be exhaustive, and it is difficult to imagine a legitimate governmental objective that would not be included. As to whether the limitation on the right is consistent with the ‘special fiduciary relationship’, that will depend on such matters as whether the government, infringing Aboriginal title, has sought to accommodate and give priority to (in the Gladstone sense) Aboriginal interests; whether the Aboriginal group has been consulted; and whether compensation has been paid.[241]
The logic of the test for infringement of Aboriginal rights developed in Sparrow, Gladstone and Delgamuukw is not particularly compelling. Rather, it appears to have been developed as a politically necessary corollary to the broader approach to Aboriginal rights that has been adopted by the Supreme Court. Nevertheless, it does give the court the flexibility to assume a broad jurisdiction over almost the entire relationship between Aboriginal and non-Aboriginal peoples, and to ensure that reconciliation is not short-circuited either by exaggerated claims of the minority or the tendency of the majority to ignore all but its own interests. It is almost as if the court, having good historical grounds for doubting the bona fides and the political maturity of the parties, and arguably having been so authorised by the text of the Constitution, has put a part of the political process into a sort of court-supervised trusteeship.[242] Difficult questions will undoubtedly arise in future as to the degree of deference that the court should show to government measures, and the court, aware of this problem, is preserving a broad discretion in this regard. However, it seems plausible to suppose that the court's assumption of this jurisdiction will be helpful to the reconciliation process.
To summarise, in broadening its conception of Aboriginal rights beyond Aboriginal title to encompass recognition of other customary law rights, a potential limited right of self-government, and a fiduciary obligation owed by the Crown towards Aboriginal peoples, the Supreme Court of Canada has given greater effect to the rationales behind the recognition of Aboriginal rights. More importantly, it has developed these doctrines in such a way as to facilitate the reconciliation of Aboriginal claims with the competing interests which are engaged by their recognition. This has provided the parties to Aboriginal rights disputes with a much more developed framework for resolving such disputes than currently exists in Australia.
Broadly speaking, the rationales for the recognition of Aboriginal rights, and the countervailing values which they raise, are the same in Australia as in other common law jurisdictions. So too is the law’s function of creating a framework within which the moral claims of indigenous peoples to recognition of enforceable legal rights are reconciled with Crown sovereignty. However, there are significant differences in the architecture of the legal structure between these countries, particularly in the historical lack of a treaty process in Australia and the lack of constitutional entrenchment of Aboriginal rights. This raises the question of the extent to which these recent developments in Canadian law might be adopted in Australia.
The lack of a treaty process and of constitutional entrenchment of Aboriginal rights are not mere details. Those developments in Canada have provided the primary basis for the vitality of the cultural identity rationale, by focussing attention on the autonomy and Aboriginality (respectively) of Canada’s indigenous peoples. By contrast, in Australia the cultural identity rationale has remained an implicit value lurking in the background of native title law. Rights flowing from first possession are embedded in common law, and guaranteed by the Native Title Act. Equality rights are guaranteed by the Racial Discrimination Act. But without a strong independent basis for recognising and protecting Aboriginal cultural identity in its own right, Australian law remains something of a two-legged stool. Nevertheless, there may be scope for Australian common law to evolve in ways similar to the Canadian model.
It may well be possible to give legal recognition to Aboriginal rights in Australia that go beyond native title per se. However, such recognition (if it occurs) is likely to be much more limited than has been the case in Canada. This is because such Aboriginal rights derive much of their vitality in Canada from their constitutional status under s 35 of the Constitution Act 1982.[243] Nevertheless, they may still play a useful role.
The argument that common law Aboriginal rights can extend beyond native title is simply made. Clearly, the system of pre-contact Aboriginal customary law was not confined to proprietary rights.[244] Pre-contact Aboriginal societies can be assumed to have pervasively regulated the rights and obligations of their members through recognised customs. Where such customs and traditions have survived (whether or not in an evolved form) they can be given effect by the common law in the same manner, and for the same reasons, as customary native title. As noted above, the analysis offered in Mabo in support of recognising native title, that it was a denial of equality to fail to recognise Aboriginal customary law rights in circumstances where such rights would have been recognised for inhabitants of conquered or ceded lands, applies equally to support the initial recognition of non-proprietary rights.[245]
For example, hunting and fishing rights of a non-proprietary character could be recognised under this approach. An individual descendant of a group which used particular lands or waters for hunting and fishing purposes could continue to assert such a right (absent any consideration of abandonment or extinguishment) without needing to prove that his or her ancestors were recognised under Aboriginal customary law as exclusive users,[246] and without needing to show sufficient connection to the land to make out a claim for native title.[247] The Supreme Court of Canada recognised such common law claims in decisions prior to the enactment of s 35 of the Constitution Act 1982,[248] so there is no reason in principle why the Australian courts should not. Quasi-proprietary rights of this nature may overlap with concepts of native title, since it is not yet clear what the requirements of establishing native title will be,[249] but there may be less stringent requirements of proof for the former.[250]
However, while the case for initial recognition of other Aboriginal rights may be strong, it will be to little avail in circumstances where Aboriginal law or custom has clearly been supplanted by an exercise of Crown sovereignty, unless some means can be found to challenge the Crown’s action. Thus, in the pre-s 35 Canadian cases, it was held that common law Aboriginal hunting and fishing rights could not be raised as a defence to valid federal or provincial legislation.[251] On this approach, operation of Aboriginal rights would prima facie be confined to areas which have been left unregulated by statute since annexation (for example, a customary law claim in an area otherwise governed by contract or tort). Slightly greater leeway may be gained by reference to the doctrine of extinguishment, which requires evidence of a ‘clear and plain intention’ before legislation will be held to abrogate Aboriginal rights,[252] thus giving rise to possible arguments that statutes should be construed as not applying to limit Aboriginal rights. However, these arguments will likely succeed only where there is a textual or historical basis for distinguishing between the application of the provisions to Aboriginal and non-Aboriginal parties.[253]
There may also be some scope for asserting that Aboriginal rights prevail over inconsistent legislation or other government action under the Racial Discrimination Act. Native title has been held to be protected under the Racial Discrimination Act because it may be regarded as equivalent to property rights held by non-indigenous Australians.[254] Any legislative or executive action which purports to affect native title on a discriminatory basis is therefore subject to challenge. Other forms of Aboriginal rights may find protection if they can be characterised as a ‘human right or fundamental freedom’ within the meaning of s 9, or a ‘right’ within the meaning of s 10 of the Racial Discrimination Act. Both of these provisions incorporate by reference article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which sets out rights to ‘equality before the law’ in the enjoyment of rights such as ‘the right to marriage and choice of spouse’ and ‘the right to equal participation in cultural activities’. Moreover, the reference to art 5 rights in these sections does not purport to be exhaustive, so other ‘cultural’ rights that are protected under international law might be included.[255] Thus, for example, it may be argued that to deny recognition of Aboriginal customary law relating to marriage would infringe the Racial Discrimination Act, on the same logic as has already been applied to the denial of recognition of native title.[256]
While the development of this strand of Aboriginal rights law may be less dramatic than has been the case in Canada, at least at the absence of a constitutional recognition of Aboriginal rights, there is no reason in principle why such rights should not be recognised. As a practical matter, any development of Aboriginal rights falling outside the definition of native title would lose the procedural and substantive protections of the Native Title Act, and therefore such developments are less likely to be pursued with vigour by Aboriginal litigants and their advisors than land claims. However, any steps which may be taken in this direction by Australian courts would be welcomed for their potential in contributing to reconciliation of Aboriginal and non-Aboriginal interests. In particular, if the courts shift some of their focus to recognition of rights flowing from matters integral to the various distinctive Aboriginal cultures in Australia, and to balancing such rights with the interests of the majority, they are more likely to contribute to an accommodation between the competing moral claims of the Aboriginal minority and the non-Aboriginal majority. More pragmatically, they may also be more able to fashion compromises through recognising intermediate claims where native title per se is not established.
More fundamentally, if the above analysis is persuasive there are also strong arguments for entrenching Aboriginal rights in Australia’s Constitution, as has been proposed by the Council for Aboriginal Reconciliation,[257] or otherwise further securing general statutory recognition of Aboriginal customary law in areas outside of the native title context.[258] This would encourage the development and flourishing of doctrines that would give better effect to the rationales that are already implicit in Mabo and Wik, while allowing for their reconciliation with countervailing interests. In short, it is submitted that Australian Aboriginal rights law can and should overcome its current almost exclusive focus on private property law concepts.
It appears unlikely that any broad and general right to self-government, of the kind recognised in the United States by Marshall CJ in the early decades of the 19th century, will be recognised as part of the common law of Australia. Mabo’s emphatic statements about the establishment of Crown sovereignty, coupled with the holdings in the two Coe v Commonwealth cases, appear to leave little or no room for a claim of this nature.[259]
Nevertheless, there may be some scope for the incremental approach to self-government which appears likely to be favoured by the Supreme Court of Canada, if the Australian courts do adopt a broader recognition of common law Aboriginal rights as outlined above. For the concept of self-government to be meaningful, however, the recognition of Aboriginal law and custom must be able to supplant otherwise applicable laws of general application. As noted above, there may be some scope to achieve this through the Racial Discrimination Act, but that scope does not appear to be as broad as under s 35 of Canada’s Constitution Act 1982. If the possibility of judicial recognition of the right to self-government in Canada under s 35 can be said to be modest, its potential in Australia seems at present to be even more so.
Despite this, even the most limited judicial recognition of a potential right to self-government or self-management in discrete areas may be valuable to the reconciliation process. It further encourages Aboriginal communities to develop their own structures, and allows them to assert a legitimate interest in self-regulation and in their land claims negotiations. In the long-term, the types of agreements that will be recognised by all parties as legitimate and useful are those which give the Aboriginal parties the tools they need for their own economic and social development, and to maintain and strengthen their cultural identity. Self-government powers have been a major feature of recent land claims agreements in Canada,[260] and over time the same may become true of agreements in Australia.
There also appears to be no reason in principle why Australian courts should not recognise a fiduciary duty owed by the Crown towards Aboriginal people in some situations, at least in the private law sense described above. Without an equivalent to Canada’s s 35 of the Constitution Act 1982, it may be more difficult to extend the fiduciary duty in its public law aspects, but even here there may be some possibilities in Australian law.
In general terms, the hallmarks of a fiduciary relationship are regarded as being the same in Canadian and Australian law. That is, a fiduciary relationship arises where
Canada, as described above, has taken a further step of recognising a general fiduciary duty owed by the Crown to its Aboriginal peoples, based on their peculiar vulnerability to the Crown because of the right of pre-emption flowing from statute, the Royal Proclamation of 1763, and the general nature of Aboriginal title. However, the content of the fiduciary duty has been crafted with some care, to provide for a balancing of interests between the peculiar vulnerability of Aboriginal peoples and the practical realities of government.
It appears to be firmly established after Mabo that Aboriginal interests in land cannot be alienated outside of the Aboriginal system, except by means of surrender to the Crown.