Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
Relevant authority has dealt with the question of proof of the existence of traditional title in different ways. In English and Australian decisions two requirements have emerged: that the interests said to constitute title be proprietary and that they be part of a certain kind of system of rules. Both of these requirements are apparent in In re Southern Rhodesia . There the Privy Council said (551), in relation to the question whether the rights of the Matabele and Mashonas (the indigenous inhabitants of what became Southern Rhodesia) survived annexation:
"[I]t was necessary that the argument should go to the length of showing that the rights, whatever they exactly were, belonged to the category of rights of private property ...
The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them....On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own."
The Court concluded that "the position of the natives of Southern Rhodesia ... approximate[s] rather to the lower than to the higher limit" (552).
Thus traditional title was said to depend on proof of something akin to a private proprietary right emanating from a "civilised society". The Court did not spell out what "institutions or ... legal ideas" were necessary to constitute such a society but it is clear that approximation to British society would suffice. The passage implies the possibility of "conceptions of rights and duties" which, because of their nature (determined by their source), do not amount to traditional title. There may be a system of rules, but not such as to attract the notion of traditional title at common law. The distinction echoes that said to exist between law and custom.
In Milirrpum Blackburn J. concluded (553) that no positive doctrine of "communal native title" existed at common law at the time of annexation. So he did not need to deal with proof of title. But, in order to answer submissions made to him, his Honour went on to consider that question. Based on those submissions, he said that communal native title involved proof that the aboriginal interests said to comprise the title were "capable of recognition" and that they were "proprietary" (554). In answering the first question, whether the interests were capable of recognition, Blackburn J. quoted (555) the passage from In re Southern Rhodesia noted earlier in this judgment and then heeded comments made by Viscount Haldane for the Privy Council in Amodu Tijani (556):
"[I]n interpreting the native title to [the] land ... [t]here is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely."
Blackburn J. then considered the distinction made by the Privy Council in In re Southern Rhodesia , leaving open the question whether assessment according to such a scale may be possible, and said (557):
"[T]he social rules and customs of the plaintiffs cannot possibly be dismissed as lying on the other side of an unbridgeable gulf. The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which ... was remarkably free from the vagaries of personal whim or influence. If ever a system could be called `a government of laws, and not of men', it is that shown in the evidence before me."
Thus, his Honour recognised the system before him as a system of law (558). However, on the other requirement of proof, that the aboriginal interests be proprietary, the plaintiffs failed. Blackburn J. held that the clan's relationship with the land was not proprietary because it failed to satisfy the essential elements of a proprietary interest under the common law, those elements being: the right to use or enjoy, the right to exclude others and the right to alienate (559).
North American courts have taken a different approach to the question of proof of the existence of traditional title. One of the leading discussions in this regard is to be found in Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development. There Mahoney J. concluded (560), after an examination of Canadian and United States authority and a reference to Milirrpum:
" The elements which the plaintiffs must prove to establish an aboriginal title cognisable at common law are:
1. That they and their ancestors were members of an organised society.
2. That the organised society occupied the specific territory over which they assert the aboriginal title.
3. That the occupation was to the exclusion of other organised societies.
4. That the occupation was an established fact at the time sovereignty was asserted by England."
Hamlet of Baker Lake and like authority may be analysed in the following way. Ultimately, traditional title has a common law existence because the common law recognises the survival of traditional interests and operates to protect them. Proof of existence, therefore, is a threshold question. The content of the interests protected is that which already exists traditionally; the substance of the interests is irrelevant to the threshold question. Moreover, it would defeat the purpose of recognition and protection if only those existing rights and duties which were the same as, or which approximated to, those under English law could comprise traditional title; such a criterion is irrelevant to the purpose of protection. Furthermore, the problem which arises where, for example, the evidence of the claimed traditional right is so vague that there is doubt that it existed, or exists, is different. That is an evidentiary problem and the criterion for dealing with it is not the claimed right's similarity to, difference from, or even incomprehensibility at, common law. Therefore, inquiries into the nature of traditional title are essentially irrelevant (561).A determination that a traditional right or duty amounts to a proprietary interest, however that is defined, will not reveal the existence or non-existence of traditional title, except in so far as it indicates that reasonably coherent rights and duties were, and are, exercised in an area of land.
The same criticism can be directed at a requirement which distinguishes between types of society. In the end such a criterion is concerned with the kind of traditional right or duty, the distinguishing feature being its source. It presupposes the possibility that rights and duties will not constitute a title even though they are coherent, existent and underlie a functioning society. Therefore, apart from a prohibition against discriminatory treatment of some indigenous societies, an inquiry into the kind of society from which rights and duties emanate is irrelevant to the existence of title, because it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilised in a way determined by that society. There must, of course, be a society sufficiently organised to create and sustain rights and duties, but there is no separate requirement to prove the kind of society, beyond proof that presence on land was part of a functioning system. It follows from this discussion that requirements that aboriginal interests be proprietary or part of a certain kind of system of rules are not relevant to proof of traditional title.
In general the approach taken in the North American authority is to be preferred. So, what is required to prove title?
The requirements of proof of traditional title are a function of the protection the title provides (562). It is the fact of the presence of indigenous inhabitants on acquired land which preclude proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connection with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title (563). Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.