Dick, Darren --- "Comprehending 'The Genius of the Common Law' - Native Title in Australia and Canada Compared Post-Delgamuukw" [1999] AUJlHRights 3; (1999) 5(1) Australian Journal of Human Rights 79
[*] BEc (Hons) LLB (Sydney). Legal Policy Officer, Australian Law Reform Commission. This article is written in a personal capacity. My thanks to Mr Michael Barnett, Dr Kathryn Cronin, Dr David Kinley and Professor Jeremy Webber for their comments on this article.
[1] Pearson N `An Australian history for all of us -- Address to the Chancellor's Club Dinner' University of Western Sydney 20 November 1996, in Aboriginal and Torres Strait Islander Social Justice Commissioner (1997) Fifth Report 1997 Human Rights and Equal Opportunities Commissioner, Sydney 6.
[2] Mabo v Queensland [No.2] (1992) 175 CLR 1 (Mabo (No.2)).
[3] Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1 (Wik).
[4] St Catherine's Milling and Lumber Co v R (1888) 14 App cas 46.
[5] Calder v Attorney-General of British Columbia (1973) 34 DLR (3D) 145.
[6] [1997] 3 SCR 1010 (Delgamuukw). The decision is also extracted at (1998) 3(1) Australian Indigenous Law Reporter 35.
[7] For a critique of the Bill see Australian Law Reform Commission Submission to the Senate Legal and Constitutional Legislation Committee inquiry into the constitutionality of the Native Title Amendment Bill 1997 (1997).
[8] R v Van der Peet [1996] 2 SCR 507 (Van der Peet); R v Gladstone [1996] 2 SCR 723 (Gladstone); R v N.T.C Smokehouse [1996] 2 SCR 672.
[9] (1971) 17 FLR 141 (NT SC).
[10] Ibid 244-45.
[11] Calder v Attorney-General of British Columbia (1973) 34 DLR (3D) 145.
[12] Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (Delgamuukw (BCCA)).
[13] This fact was described by W.H.Tanner in 1968 as "the great Australian silence": See O'Donoghue L `Ending the despair' (1992) 51 Australian Journal of Public Administration 212, 215.
[14] Webber J argues that indigenous rights in Canada are best understood as originating in `the practical interaction between colonists and indigenous peoples during the first decades of contact' whereas the recognition of native title in Australia is based on moral reflection or regret over the historical treatment of indigenous people: Webber J `The jurisprudence of regret: The search for standards of justice in Mabo' 17(3) Sydney Law Review 1 at 7-8, 10.
[15] For example, in accordance with the Royal Proclamation of 1763 and s 91(24) of the Constitution Act 1867.
[16] For recent developments see Ivanitz M `The Emperor has no clothes: Canadian Comprehensive Claims and their relevance to Australia' Australian Institute of Aboriginal and Torres Strait Islander Studies -- Regional Agreements Paper No.4 (1997).
[17] Constitution Act, RSC 1982, s 35(1).
[18] One commentator has noted that an effect of the constitutional protection of Aboriginal rights under s 35(1) in Canada may be that a legislative response to Aboriginal rights such as the Native Title Act 1993 (Cth) model could lack constitutional authority in Canada: McNeil K `Co-existence of indigenous and non-indigenous land rights: Australia and Canada compared in light of the Wik decision' [1997] IndigLawB 77; (1997) 4(5) Indigenous Law Bulletin 4 at 4.
[19] R v Sparrow [1990] 1 SCR 1025 (Sparrow).
[20] For a comparison of the application of the test in Canada, the United States and Australia see Dorsett S, `"Clear and Plain Intention" Extinguishment of Native Title in Australia and Canada post-Wik' [1997] GriffLawRw 4; (1997) 6 Griffith Law Review 96.
[21] See citations given in note 8.
[22] This fiduciary obligation is discussed below in relation to the Sparrow infringement and justification test.
[23] Van der Peet, 544 (Lamer CJ).
[24] Ibid, 545.
[25] Ibid, 550.
[26] For example, the appellant's claim in Van der Peet that the protected right in question was a right to exchange fish for money or other goods was not accepted by the Court on the basis that the appellant's characterisation of the right as `significant' was not sufficient to demonstrate that the right was integral to a distinctive culture.
[27] See the separate dissenting judgments of Justices L'Heureux-Dube and McLachlin in Van der Peet and the following commentators: Rotman L, `Creating a still-life out of dynamic objects: Rights reductionism at the Supreme Court of Canada' (1997) 36 Alberta Law Review 1; McNeil K, `Aboriginal Title and Aboriginal rights: What's the connection?' (1997) 36 Alberta Law Review 117; Gray J, `O Canada! Van der Peet as guidance on the construction of Native title rights' [1997] AUIndigLawRpr 10; (1997) 2 Australian Indigenous Law Reporter 18; Borrows J, `The Trickster: Integral to a distinctive culture' (1997) 8(2) Constitutional Forum 27.
[28] Rotman, ibid, 2.
[29] R v Pamajewon [1996] 2 SCR 821 (Pamajewon). See also the specificity with which the Court defines the aboriginal right in question in Gladstone.
[30] She also argues that the `integral to a distinctive culture' test is too categorical in that it is an `all or nothing' approach with no limitations on the right once it has been characterised and established.
[31] Van der Peet, 596 (L'Heureux-Dube J). Instead L'Heureux-Dube J favoured a more abstract approach that focuses on the protection of the distinctive cultures of which aboriginal rights are a manifestation, rather than a focus on particular practices. On this basis, those practices, customs and traditions which would be protected are those which are sufficiently significant and fundamental to the culture and social organisation of the aboriginal group in question: above, pp 593-95. Contrast this with note 27.
[32] Ibid 596.
[33] Delgamuukw, para 138 (Lamer CJ (Cory and Major JJ concurring)).
[34] Wik, 126-27 (Toohey J ).
[35] Mason v Tritton (1994) 34 NSWLR 572 (NSWCA), 575, 582 (Kirby P); Sutton v Derschaw (1995) 82 A Crim R 318, 324 (Heenan J).
[36] The recognition of traditional activities such as fishing and hunting in s 211 is limited to the purpose of exempting those activities from prosecution. It does not, for example, extend to preventing future acts taking place in that area in a manner that is inconsistent with the traditional right: Richard Bartlett `Native title and fishing rights' (1996) 1 Australian Indigenous Law Reporter 365, 380.
[38] Delgamuukw, para 111 (Lamer CJ).
[39] As with native title in Australia, aboriginal title is inalienable to third parties, can only be surrendered to the Crown, arises from the prior occupation of Canada by aboriginal peoples, and is held communally by the aboriginal group. Ibid paras 111, 125.
[40] Ibid, para 127.
[41] Ibid, para 129.
[42] Ibid, para 130.
[43] Ibid, para 132.
[44] For example, consider whether the claimants in Pamajewon would have been able to make out their claimed right to regulate gambling activities on their reserve lands if they had been able to demonstrate a claim to aboriginal title or whether casino activities would be found to destroy the groups special relationship with the land.
[45] Delgamuukw, para 145 (Lamer CJ).
[46] Ibid, para 153.
[47] Ibid, para 156. For example, trespass by other groups or the presence of those groups by permission only may reinforce rather than negate proof that the claimant group occupied the land with exclusivity: para 157.
[48] Ibid, para 158.
[49] Ibid, para 159.
[50] Bartlett R, `The content and proof of native title: Delgamuukw v Queen in right of British Columbia" [1998] IndigLawB 19; (1998) 4(9) Indigenous Law Bulletin 17, 18.
[51] Pheasant B, `Yorta Yorta deserve oral victory: QC' The Australian Financial Review (Sydney), 5 May 1998, 9.
[52] Above n 9.
[53] Ibid 774 (Lamer CJ).
[54] Delgamuukw, para 165 (Lamer CJ).
[55] Ibid.
[56] R v Guerin [1984] 2 SCR 335.
[57] R v Taylor and Williams (1981) 34 O.R (2d) 360, 367 (MacKinnon CJ).
[58] Sparrow, 1108 (Dickson CJ and La Forest J).
[59] R v Nikal [1996] 1 SCR 1013.
[60] Delgamuukw ,paras 167-69 (Lamer CJ).
[61] See for example Toohey J in Mabo (No.2), 158-160.
[62] Mabo (No.2), 58 (Brennan J).
[63] Van der Peet, 546 (Lamer CJ).
[64] Pre-contact in the case of Aboriginal rights other than Aboriginal title in Canada.
[65] Mabo (No.2), 51-2 (Brennan J), 86 (Deane and Gaudron JJ), 184-92 (Toohey J).
[66] Gray, `O Canada! Van Der Peet as guidance on the construction of Native Title Rights' (1997) 2 AJHR, 34.
[67] Mason v Tritton (1994) 34 NSWLR 572.
[68] Ibid, 584 (Kirby P), 598 (Priestley JA). This approach was affirmed by Justice Heenan in Sutton v Derschaw, as above n36. The Court also relied upon the reasoning in Mabo (No.2) and Sparrow in holding that regulation of a claimed native title right is not sufficient to manifest an intention to extinguish that right.
[69] Mason, 574 (Gleeson CJ). See also Bartlett R, above n37, 369.
[70] Dillon v Davies (Unreported, Supreme Court of Tasmania, Underwood J, 20 May 1998). See also Sutton v Derschaw, as above.
[71] Dillon v Davies, above pp4-5 (Underwood J).
[72] Ibid 6-7 (italics added).
[73] Kent McNeil has extensively critiqued the judgments of Brennan J and Deane and Gaudron JJ, and argued that the Court took a pragmatic approach to the issue of extinguishment and went against the overwhelming weight of authority by deciding that native title could be unilaterally extinguished by the Executive, by inconsistent grant or appropriation, prior to the enactment of the Racial Discrimination Act 1975: McNeil K, `Racial discrimination and unilateral extinguishment of native title' (1996) 1 Australian Indigenous Law Reporter 181, 219-220. See also Erica-Irene Daes United Nations Sub-Commission on the prevention of discrimination and protection of minorities -- Working Paper on Indigenous peoples and their relationship to land, extracted at (1997) 2 Australian Indigenous Law Reporter 564, para 24 at 568.
[74] Delgamuukw (BCCA), 672 (Lambert JA).
[75] Mabo (No.2), 49-50 (Brennan J).
[76] Wik, 126 (Toohey J).
[77] Note that while not dissenting in the case, Lambert JA's reasoning is of the minority of the Court.
[78] An example is the Queensland Coast Islands Declaratory Act 1985 (Qld), which was found unconstitutional in Mabo v State of Queensland (No.1) (1988) 83 ALR 14.
[79] Delgamuukw (BCCA), 668 (Lambert JA).
[80] Wik, 126 (Toohey J).
[81] [1995] HCA 47; (1995) 183 CLR 373, 422.
[82] Wik, 126 (Toohey J), 249 ( Kirby J), 185 (Gummow J).
[83] Bartlett R `The Wik decision and implications for resource development' (1997) 16 Australian Mining and Petroleum Law Journal 27, 29. Note the use of the term `expropriation' rather than `extinguishment'.
[84] Ibid 27.
[85] This is in circumstances of implicit extinguishment. The test for explicit extinguishment and extinguishment by treaty is strictly legal.
[86] R v Sioui [1990] 1 SCR 1025. See also McNeil, above n19, 4.
[87] R v Badger [1996] 1 SCR 771.
[89] McNeil, above n19, 7.
[90] Above, n13.
[91] Ibid 532, 535 (MacFarlane JA). The Supreme Court on appeal did not consider this aspect of the decision.
[92] Wik, 27-28 ( Brennan CJ), 83 ( Toohey J), 87 ( Gaudron J), 148 (Gummow J), 210 (Kirby J).
[93] Wik, 123-24 (Gaudron J), 168 ( Gummow J).
[94] Attorney-General's Legal Practice Legal Implications of the High Court decision in The Wik Peoples v Queensland -- Current Advice (1997), para 11.
[95] [1998] 119 FCA (27 February 1998), O'Loughlin J (`Jim Fego').
[96] Note that the Native Title Amendment Bill 1997 (Cth) seeks to allow claims over historical freehold land under proposed new ss44A, 44B.
[97] A High Court appeal of this case commenced in June 1998.
[98] Delgamuukw (BCCA), 670 (Lambert JA) italics added. Consider also the reasoning of the Supreme Court in Sparrow on the effect of regulation of an aboriginal right.
[99] Mineralogy Pty Ltd v NNTT [1997] 1404 FCA (Carr J, 10 December 1997). See also Stephen L `Extinguishment, revival and Mineralogy' (1998) 3 Native Title News 88.
[100] Ibid.
[101] Bartlett, `The Wik decision and implications for resource development' (1997) 16 AMPLJ 27.
[102] Yarmirr v Northern Territory (`Croker Island') (Unreported, Federal Court of Australia, Olney J, 6 July 1998, Ref: [1998] 777 FCA).
[103] Ibid para 65.
[104] Ibid para 85.
[105] Ibid para 87.
[106] In the context of this case it must be noted, however, that while the evidence was not accepted as establishing a right to exclusive possession, Olney J rejected that anyone could have exclusive rights over the sea in any case due to Australia's international obligations in this regard: Ibid, paras 132 -- 135.
[107] Fejo v Northern Territory (`Fejo')(Unreported, High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 10 September 1998. Ref: [1998] HCA 58).
[108] Ibid, para 45 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[109] Ibid, para 46.
[110] Ibid, para 111, (Kirby J).
[111] Ibid, para 112. Such a standard was also invoked by the main judgment of the Court.