Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
There is precedent for the proposition that the Crown has power to extinguish traditional title (587). But is such a power exercisable only with the consent of the titleholders (that is, akin to a right of pre-emption), or is it a power exercisable unilaterally without account of the traditional titleholders' interests? In what way is it different from the power in the Crown compulsorily to acquire any interest in land? Is it compensable? Although most authority appears to assume a power in the Crown to extinguish traditional title unilaterally, there is support for the proposition that consent is required. It is true that in St Catherine's Milling the Privy Council said (588) that the Indians' interest was "a personal and usufructuary right, dependent upon the good will of the Sovereign" and that it existed at the "pleasure of the sovereign". In that case however, the Indians' interest was held to arise from the Royal Proclamation of 1763. On the other hand, in Worcester v. Georgia Marshall C.J. said (589) that the Crown's title comprised "the exclusive right of purchasing such lands as the natives were willing to sell". And in The Queen v. Symonds Chapman J. said (590):
" Whatever may be the opinion of jurists as to the strength or weakness of the Native title ... it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers."
Furthermore, even assuming the power of extinguishment to be a power to act unilaterally, it is not easy to discern the basis for such a proposition. There are suggestions in decided cases that it may be a concomitant of an assertion of sovereignty (591). But to say that, with the acquisition of sovereignty, the Crown has the power to extinguish traditional title does not necessarily mean that such a power is any different from that with respect to other interests in land. The Crown has the power, subject to constitutional, statutory or common law restrictions, to terminate any subject' title to property by compulsorily acquiring it (592).
Another rationale for the special power of the Crown to extinguish traditional title appears to be that it is part of British colonial policy to protect the interests of indigenous inhabitants; that the Crown's power is the corollary of the general inalienability of title, which itself constituted a means of protecting aboriginal people from exploitation by settlers (593). That traditional title is generally inalienable may itself be open to debate (594). But, in any event, a principle of protection is hardly a basis for a unilateral power in the Crown, exercisable without consent. Moreover, inalienability of the title says nothing of the Crown's power or the nature of the title. Rather, it describes rights, or restrictions on rights, of settlers or other potential purchasers (595).
Finally, some cases suggest that a power to extinguish traditional title unilaterally is vested in the Crown as a result of an inherent quality of the title itself. This follows from characterisation of the title as "a personal and usufructuary right" as opposed to a proprietary right (596), the former being inherently weaker and more susceptible to extinguishment. As long ago as 1921 the Privy Council cautioned against attempting to define aboriginal rights to land by reference to the English law notion of estates. In Amodu Tijani , Viscount Haldane said (597):
" There is a tendency, operating at times unconsciously, to render [native] 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."
As discussed earlier, the specific nature of such a title can be understood only by reference to the traditional system of rules. An inquiry as to whether it is "personal" or "proprietary" ultimately is fruitless and certainly is unnecessarily complex. The warning in Amodu Tijani has been heeded in recent cases. For example, in Calder Judson J. said (598):
" [T]he fact is that when the settlers came, the Indians were there, organised in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a `personal or usufructuary right'."
Therefore, a conclusion that traditional title is in its nature "personal" or "proprietary" will not determine the power of the Crown to extinguish the title unilaterally.
As I have said, the plaintiffs did not contest the Crown's power to extinguish traditional title by clear and plain legislation. That concession was properly made, subject to a consideration of the implications that arise in the case of extinguishment without the consent of the titleholders. Where the legislation reveals a clear and plain intention to extinguish traditional title, it is effective to do so. In this regard traditional title does not stand in a special position, although the canon of construction referred to by Lord Atkinson in Central Control Board (Liquor Traffic) v. Cannon Brewery Company Limited (599) is of equal application:
" That canon is this: that an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms."
Application of this canon to traditional title may be found in several Canadian and American decisions (600).
It need hardly be said that where an executive act is relied upon to extinguish traditional title, the intention of the legislature that executive power should extend this far must likewise appear plainly and with clarity.
It follows that traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of the waste lands of the colony or Crown land. That is not to say that the legislature must identify with specificity particular interests to be extinguished if the legislative intention is otherwise clear (601). Even if a law deals specifically with land the subject of traditional title, it may take the form of a reservation or grant to trustees for the benefit of indigenous people and so be consistent with the continuance of title. These are all questions, the answers to which depend upon the terms of the legislation and any relevant circumstances. Where there has been an alienation of land by the Crown inimical to the continuance of traditional title, any remedy against the Crown may have been lost by the operation of limitation statutes. And nothing in this judgment should be taken to suggest that the titles of those to whom land has been alienated by the Crown may now be disturbed. Except in the context of the lease to the London Missionary Society and the lease granted over Dauer and Waier (to be discussed), that is not a matter the Court was asked to consider.