Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
In contrast, one finds clear support in other judgements, including later judgement s of the Privy Council, for a less demanding and more flexible approach. In Amodu Tihani (180), their Lordships disparagingly referred to a "tendency, operating at times unconsciously, to render [native title to land] conceptually in terms which are appropriate only to systems which have grown up under English law". That tendency must, they said (181), be "held in check closely" since "[a]s a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with." Subsequently, having referred to a number of different types of "native title" to land, their Lordships said (182):
" The title, such as it is, may not be that of the individual, as in this country it nearly always is an some form, but may be that of a community. Such a community may have the possessory title the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right have progressed involves the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading."
It is important to note that the judgement in Amodu Tijani makes quite clear (183) that their Lordships saw the Indian claims to traditional homelands in Canada as providing the obvious example of the kind of traditional native title which was assumed to be recognised and protected under the law of a British Colony. They referred to the judgments in St. Catherine's Milling and Lumber Company v. The Queen (184) and Attorney-General for Quebec v. Attorney-General for Canada, (185) two cases dealing with the Indian claims, as explaining the relevant principles. The traditional native title involved in the St. Catherine's Milling Case was that of the Salteaux tribe of Ojibbeway Indians. The land, which was in the Province of Ontario, consisted of "a tract of country upwards of 50,000 square miles in extent" (186). It was largely uncultivated and the Indians' claim to it was as lands upon which they pursued "their avocations of hunting and fishing" (187). The claim was that of the whole tribe and was clearly seen by their Lordships as of a nature which did not conform to English notions of property. It provided an "illustration of the necessity for getting rid of the assumption that the ownership of land naturally breaks itself up into estates, conceived as creatures of inherent legal principle" (188). Under the law of the Province, it was to be recognised and protected as a right of occupation or user of the relevant land which "qualified" the "radical or final title" of the Sovereign (189).
In Adeyinka Oyekan v. Musendiku Adele (190), the Privy Council, while using the phrase "rights of property", clearly endorsed the more lenient approach adopted in Amodu Tijani to the kind of pre-existing native "rights" which are to be assumed to fully respected under the law of a new British territory. The courts will, their Lordships said (191), assume that the traditional interests of the native inhabitants are to be so respected "even though those interests are of a kind unknown to English law". That approach is supported by other authority (192) and by compelling considerations of justice. It should be accepted as correct.
On that approach, the pre-existing native interests with respect to land which were assumed by the common law to be recognised and fully respected under the law of a newly annexed British territory were not confined to interests which were analogous to common law concepts of estates in land or proprietary right. Nor were they confined by reference to a requirement that the existing local social organisation confirm, in its usages and its conceptions of rights and duties, to English or European modes or legal notions. To the contrary, the assumed recognition and protection extended to the kinds of traditional enjoyment or use of land which were referred to by the Privy Council in Amodu Tijani. As their Lordships made pain in that (193) and subsequent (194) cases, such as traditional interest would ordinarily be that of a community or group. It could, however, be that of an individual. It could relate to lands which were under actual cultivation or the lands which, like much of the lands involved in the Canadian cases to which their Lordships referred, were left uncultivated but which, under the law or custom observed in the territory, constituted traditional homelands or hunting grounds. What the common law required was that the interest under the local law or custom involve an established entitlement of an identified community, group or (rarely) individual to the occupational or use of particular land and that that entitlement to occupation or use be of sufficient significance to establish a locally recognised special relationship between the particular community, group or individual and that land. In the context of the Privy Council's insistence (195) that English concepts of property might be quite inappropriate and that all that was involved might be the possession of the common enjoyment of a usufruct (196), it is clear that such a traditional interest could result from the established and recognised occupation and use by a tribe or clan of particular land for purposes such as the obtaining of food (197).