McNeil, Kent --- "Co - Existance 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
[1] [1994] HCA 24; (1996) 121 ALR 129.[2] [1992] HCA 23; (1992) 175 CLR 1.
[3] Equivalent legislation might not be valid in Canada because, since 1982, Aboriginal and treaty rights have been protected to some extent by the constitution: see infra n39.
[4] Eg see Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1, per Brennan J at 57, 64, 68; R v Van der Peet [1996] 4 CNLR 177, per Lamer CJ at 197–8.
[5] For a critique of the extinguishment by grant doctrine, see Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 AILR 181.
[6] [1992] HCA 23; (1992) 175 CLR 1, at 68. See reference to this passage by Kirby J in the Wik decision at 209–10.
[7] There appears to be an exception, however, where the grant imposed conditions which, if met, would result in inconsistency with native titleholders’ rights. In that situation, it is the factual fulfilment rather than the imposition of the conditions that extinguishes native title: see Wik Peoples v Queensland [1994] HCA 24; (1996) 121 ALR 129, per Gaudron J at 218, Gummow J at 296–7.
[8] Note that the Supreme Court of Canada has yet to clarify the relationship between specific rights and Aboriginal title: see R v Van der Peet [1996] 4 CNLR 177, R v Adams [1996] 4 CNLR 1, and R v Côtté [1996] 4 CNLR 26, commented on by Kent McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (forthcoming).
[9] Note that the Supreme Court of Canada has yet to clarify the relationship between specific rights and Aboriginal title: see R v Van der Peet [1996] 4 CNLR 177, R v Adams [1996] 4 CNLR 1, and R v Côtté [1996] 4 CNLR 26, commented on by Kent McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (forthcoming).
[12] (1993) 104 DLR (4th) 470 (BCCA).
[13] The Court relied on s 88 of the Indian Act, RSC 1985, c I–5, which shields treaty rights from provincial laws of general application, but which otherwise makes such laws applicable to Indians in the provinces, with certain exceptions.
[14] [1990] 3 CNLR 127, at 156.
[15] Ibid, at 157–8.
[16] Ibid, at 156.
[17] See also Claxton v Saanichton Marina Ltd [1989] 3 CNLR 46 (BCCA), where it was held that a treaty right to fish in a specific location prevailed over and invalidated a Crown grant to the defendant of a licence to construct a marina in the same location. This decision is consistent with Sioui, as the Court in Claxton concluded that the defendant’s development would infringe the treaty right, whereas in Sioui the grant of rights of exclusive possession to landowners was not viewed as a violation of the treaty rights. For an insightful commentary on Claxton, see Hamar Foster, ‘The Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title’ (1989) 23 UBCLR 629.
[18] 20 & 21 Geo. V, c 26 (UK).
[19] Ibid, para 12 of the
Alberta agreement.
[20] [1996] 2 CNLR 77, at 95.
[21] Ibid.
[22] Ibid, at 96.
[23] Ibid, at 102.
[24] Ibid.
[25] Ibid.
[26] Note, however, that a new trial was ordered in his case to determine whether or not the provincial legislation infringing his right to hunt could be justified: see ibid, 103–13.
[27] Cory J simply described the lands as ‘privately owned’, but in the Alberta Court of Appeal, [1993] 3 CNLR 143, at 145, Kerans JA made clear that the interests held were fee simple estates.
[28] Ibid, at 96–7.
[29] As a comparison of Sioui and Badger reveals, in each situation it will depend on how the particular treaty is interpreted. See also R v Bartleman (1984) 12 DLR (4th) 73 (BCCA), at 92, where Lambert JA for a unanimous Court held that a treaty right ‘to hunt over the unoccupied lands’ continued on lands that had been granted to private landowners by the Crown, as long as ‘the particular form of hunting that is being undertaken does not interfere with the actual use and enjoyment of the land by the owner or occupier.’ Significantly, the Bartleman case arose in British Columbia where the NRTAs do not apply. Moreover, it was relied on by Cory J in Badger, [1996] 2 CNLR 77, at 101.
[30] See text accompanying n 6, supra.
[31] For a convincing argument that the Crown did enter into a treaty with the Aborigines in Tasmania, see Henry Reynolds, Fate of a Free People , (Ringwood, Vic.: Penguin Books, 1995).
[32] See Simon v R [1986] 1 CNLR 153 (SCC), at 166–7, where Dickson J (as he then was) found that a treaty right to hunt had been an Aboriginal right before the treaty was signed.
[33] Eg see R v Sparrow [1990] 3 CNLR 160 (SCC); R v Adams [1996] 4 CNLR 1 (SCC); R v Côté [1996] 4 CNLR 26 (SCC).
[34] [1996] 2 CNLR 77, at 96.
[35] By a Royal Charter issued in 1670, reproduced in E E Rich, ed., Minutes of the Hudson’s Bay Company 1671–1674 (Toronto: Champlain Society, 1942), 131–48.
[36] See also Hamlet of Baker Lake v Minister of Indian Affairs [1980] 1 FC 518 (FC).
[37] This is further confirmed by Rupert’s Land and North–Western Territory Order, 23 June 1870, in RSC 1985, App. II, No. 9. The Order imposed an obligation on Canada to settle Aboriginal land claims in the territory granted to the Hudson’s Bay Company in 1670: see Kent McNeil, Native Claims in Rupert’s Land and the North–Western Territory: Canada’s Constitutional Obligations (Saskatoon: University of Saskatchewan Native Law Centre, 1982).
[38] (1993) 104 DLR (4th) 470 at 459, 495.
[39] On April 17, 1982, the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (UK) 1982, c 11, came into force. As s35(1) of that Act provided existing Aboriginal and treaty rights with constitutional protection by recognising and affirming them, they can no longer be extinguished unilaterally by or pursuant to legislation: see R v Van der Peet [1996] 4 CNLR 177 (SCC), per Lamer CJ at 193.
[40] The clear and plain test for legislative extinguishment was accepted by the Supreme Court of Canada in R v Sparrow [1990] 3 CNLR 160, at 174–5, and adopted by the High Court of Australia in Mabo [No. 2][1992] HCA 23; , (1992) 175 CLR 1, especially per Brennan J at 64.
[41] Note that Macfarlane JA was speaking hypothetically, as he did not refer to any such legislation. In fact, he expressed the opinion that after British Columbia joined Canada in 1871 the province lacked the constitutional authority to extinguish Aboriginal rights by legislation, as those rights came within exclusive federal jurisdiction: (1993) 104 DLR (4th) 470, at 533–9; see also per Lambert JA (dissenting on other grounds) at 679–81. Moreover, unless specifically directed at Aboriginal rights (which would make it discriminatory: eg see Mabo v Queensland [No.1] (1988) 166 CLR 186 (HC)), legislation permitting the extinguishment of Aboriginal rights by the creation of inconsistent interests in land would allow the Crown to extinguish other landholders’ rights in the same way. Such legislation would encounter the strong interpretive presumption against the taking of property, especially without compensation: eg see The Commonwealth v Hazeldell Ltd. [1918] HCA 75; (1918) 25 CLR 552 (HC), per Griffith CJ and Rich J at 563; Attorney–General v De Keyser’s Royal Hotel [1920] UKHL 1; [1920] AC 508 (HL), per Lord Atkinson at 542, Lord Parmoor at 576, 579; Colonial Sugar Refining Co. v Melbourne Harbour Trust Commissioners [1927] UKPCHCA 1; (1927) 38 CLR 547 (PC), at 559.
[42] (1993) 104 DLR (4th) 470, at 525.
[43] Ibid.
[44] Ibid, at 532.
[45] Ibid; see also at 535. Note that the issue of compatibility of fee simple estates and Aboriginal rights was not directly before the Court, as the Gitksan and Wet’suwet’en’s claim excluded privately–held fee simple lands which had been granted prior to the commencement of their action; instead, they claimed damages from the provincial Crown for wrongful alienation of those lands: see ibid, at 531.
[46] Ibid, at 524.
[47] See especially the quotation accompanying n47, supra.
[48] Note that ‘co–existence’ was not the term Lambert JA employed to describe situations where Aboriginal rights and non–Aboriginal interests exist concurrently as a matter of law. Instead, he seems to have regarded that term as more applicable in the context of political compromise: see ibid, at 746.
[49] Ibid, at 670.
[50] Ibid, at 671–2; see also 737–8. Note that Lambert JA expressly disagreed with Brennan J’s opinion in Mabo [No. 2][1992] HCA 23; , (1992) 175 CLR 1, at 68, that ‘[a] Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title.’ Lambert JA remarked at 672 ‘that Mr. Justice Brennan’s proposition that the effect of the grant is enough to extinguish aboriginal title and rights even if the intention is not clear and plain, is contrary to the test enunciated in Sparrow’. I would add that it also appears to conflict with Brennan J’s own adoption of the clear and plain test: see supra, n40.
[51] (1993) 104 DLR (4th) 470, at 670.
[52] Ibid, at 753.