Examining Indigenous land rights across the globe
Jessie Murchie, Han (Tina) Meng and Keith Lu
October 1st, 2021
The Global Law Students Association and the International Student Liaison Portfolio would like to begin by acknowledging the Wurundjeri people of the Kulin Nation as the Traditional Owners of the land on which the University of Melbourne stands, and we respectfully recognise Elders past, present and emerging.
In today’s blogpost, we explore land rights as they pertain to the Indigenous communities across the jurisdictions of Australia, New Zealand, and Canada. Our aim in doing so is to highlight some areas of the law as they currently stand, and to explore some differences between the approaches. We recognise that our discussion is merely a beginning in addressing the deep-rooted issues that have arisen as a result of settler colonies, and our discussion is by no means exhaustive. We encourage you to find further information on the topic and have respectful conversations with those around you.
I Australia
Australian Governments have attempted to address issues arising from Aboriginal attachment to land largely through administrative means, with the judicial system only recognising a form of land ownership in recent history by fashioning the law of native title. This approach has been distinct from superior courts in other common law jurisdictions. For example, land acquisition legislation has been an ‘administrative’ attempt to ameliorate the problems arising from dispossession. Aboriginal heritage legislation helps protect culturally significant land from unwanted development and has been used to delay the Hindmarsh Island development in South Australia.
The Native Title Act 1993 (Cth) followed the High Court’s 1992 Mabo decision and provides for a right to negotiate over acts on land where native title has been claimed or found to exist, but does not provide a right of veto.[1] Justice Brennan pointed out that ‘Native title has its origins in and is given its content by the traditional laws and customs acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory.’[2] Moreover, joint management legislation reconciles nature conservation with Indigenous community development and land ownership. The Deed of Grant to Uluru National Park in 1986 made under the Commonwealth's Aboriginal Land Rights Act (Northern Territory) 1976 set the example for other joint management agreements.[3] Legislation in all these categories has led to 15 per cent of Australia being recognised as Aboriginal land. Reilly pointed out that ‘the main practical significance of Mabo was that it left open the possibility that to the extent Indigenous communities have survived dispossession from their land, they possess a title to the land based on their traditional laws and customs.’[4] In its 2005 concluding observations to Australia’s report under the International Convention on the Elimination of all forms of Radical Discrimination (‘ICERD’), the Committee on the Elimination of Radical Discrimination (‘CRED’) assessed the consequences of the standard of proof established in the Yorta v Yorta case. The Committee pointed out that the ‘high standard of proof’ requirement should be reviewed by the State Party, bearing in mind the nature of the relationship of Indigenous people to their land.[5] Overall, legislation is created by the Australian Governments to address the issues of land rights of Indigenous people, whereas the Indigenous title doctrine relies on a specific legal translation of history. Prior to the enactment of the Racial Discrimination Act (Cth), the courts recognised that titles granted by the Crown could potentially extinguish Indigenous titles if they were inconsistent with other titles granted by the Crown. Despite these inroads towards recognition and ownership, the procedures concerning extinguishment of native title continue to raise questions regarding the norms of equality and non-discrimination due to narrow interpretation and application of the land rights.[6]
II Canada
In Canada, Aboriginal Title is akin to possessory interest,[7] creating an exclusive right to the land, as opposed to Australia’s ‘bundle of rights’ view on Native Title.[8] Canadian Aboriginal Title is seen as a burden on the radical title of the Crown and gives rise to a fiduciary duty,[9] and has been recognised through treaties, case law, and is constitutionally protected. One of the earliest recognitions of land rights, the British Crown Proclamation of 1763, established that North American colonies could only acquire territory through treaty-making and negotiation with local Indigenous tribes.[10] It should still be noted that historically, despite this initiative, many areas were unrightfully taken from Canada’s native peoples.[11] In 1973, in the ground-breaking case of Calder v Attorney-General of British Columbia, rights were recognized for the first time by the Supreme Court, forming a starting point for the modern Aboriginal Title doctrine. This eventually led to the development of the ‘Comprehensive Land Claims Policy’ and the first modern treaty.[12] Since Calder, 25 modern treaties have been signed between the government and over 90 Indigenous communities.[13] These negotiations have provided for Indigenous ownership of over 600,000 square kilometres of land and increased certainty with respect to land rights.
The Canadian Constitution Act of 1982 provides constitutional protection of treaty rights.[14] Specifically, s 35 recognizes and affirms Indigenous rights, including Aboriginal Title, and rights to occupy and use the land and resources. While these reforms amount to necessary improvement, the protected treaties in question have not addressed all land concerns and many important negotiations are still underway and remain unresolved.
Aboriginal Title in Canada is established based on occupation of land prior to sovereignty,[15] and is ‘supported by the principle that a change in sovereignty does not in general affect the presumptive title of the inhabitants’.[16] The focus of the courts has been on occupation and possession as opposed to traditions and customs as seen in Australia.[17] Aboriginal law may be relied upon to determine if the requirement for occupation is met, allowing courts to look beyond physical occupation to more relevant patterns of land holding.[18] The aim of the courts has been to adopt a ‘culturally sensitive’ approach ‘based on the dual perspectives of the Aboriginal group in question […] and the common law notion of possession as a basis for title.’[19] While continuity of possession is required, present occupation may be used as evidence of pre-sovereign possession to acknowledge any potential disruption of possession stemming from the impact of colonisation. Imposing ‘the requirement of continuity too strictly would risk undermining the very purpose of s35(1) by perpetuating the historical injustice suffered by Aboriginal people as at the hands of colonisers who failed to respect aboriginal rights to land.’[20] It has been argued, more recently however, that cases like R v Marshall; R v Bernard,[21] have placed the burden of proof of possession so high as to make it exceedingly difficult for the criterion to be fulfilled.[22] In this case, the Supreme Court held that the criteria would only be fulfilled if the activity on the land was sufficiently regular and exclusive. Given that many North American Indigenous groups were nomadic, this has been argued to amount to a de facto denial of Aboriginal Title.[23]
The Canadian version of native title can only be extinguished with the consent of Indigenous peoples concerned, however it may also be infringed upon if the infringement in question is ‘in furtherance of a legislative objective that is compelling, substantial and consistent with the government’s fiduciary relationship.[24]
The Canadian government outwardly believes in cooperative and respectful discussion for resolving Indigenous land issues, and their treaty-making process has evolved to reflect ongoing engagement and dialogue.[25] Some still argue that despite these efforts, the government has continued to minimise and deny Indigenous rights, leading to long, drawn-out negotiations over land, as a lack of government policy in support of the existing legal duties has been overall quite ineffective.[26]
III New Zealand
In comparison to Australia, New Zealand has a greater focus on the use of treaties to address Indigenous land rights. In particular, the Treaty of Waitangi is of central importance to New Zealand’s political constitution and recognition of Indigenous rights. Signed by around 500 Māori chiefs and the British Crown in 1840, it is the nation’s founding document, and is said to have established a ‘bicultural foundation for New Zealand’.[27]
The government accepts that the Treaty gave sovereignty to the Crown, enabled Māori to keep chieftainship over resources while giving the Crown first rights to sales of land, and guaranteed Māori the rights of British citizens.[28] However, the differential meanings in the two accepted versions which were signed – the Māori and the English texts, meant that the signing parties had different understandings and expectations of its content.[29] This difference was partly due to the inability for certain English words to translate into the written Te Reo Māori, but also involved muddled motives.[30] In Article 1 of the treaty, the Māori text provides that Māori gave the Crown ‘kawanatanga’, the right to governance, whereas the English counterpart provides that Māori ‘cede’ to the British ‘absolutely and without reservation all the rights and powers of sovereignty’.[31] Furthermore, the Crown’s promise of guaranteeing Māori full chieftainship of their lands and property was found only in Article 2 of the Māori text, whereas the English version reduces this guarantee to ‘undisturbed possession’ of ‘lands, forests, fisheries and other properties’.[32] In 2015, the Waitangi Tribunal found the treaty not to be a cession of sovereignty as Crown had always claimed, and while this finding is not legally binding, it affirms the Māori position on self-determination.[33]
In 1877, it was ruled by Chief Justice Pandergast in Wi Parata v Bishop of Wellington that the Treaty was a ‘simple nullity’ and that Crown’s radical title was not subject to native title because Māori had no recognisable property system.[34] It was not until 1901, when Nireaha Tāmaki v Baker reversed this finding by ruling that it was ‘rather late in the day’ for New Zealand courts to adopt such a view, given the existence of several statutes to have referred to Māori custom. In 2003, the landmark case of Ngati Apa v Attorney-General held that, ‘The transfer of sovereignty did not affect customary property…they are interests preserved by the common law until extinguished in accordance with the law’.[35]
Despite its status as New Zealand’s founding document, the Treaty of Waitangi is not constitutionally entrenched. Furthermore, any rights purporting to be conferred by the Treaty cannot be enforced in the courts unless incorporated in municipal law.[36]
New Zealand Māori Council v Attorney-General was the first case to define the Treaty principles in some detail. It considered s 9 of the State Owned Enterprises Act 1986, which provides that ‘[n]othing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.’[37] Some of the Treaty principles identified by the court include the principle of partnership for Pākehā (European) and Māori to act towards the other reasonably and with good faith, that the government should make informed decisions, and that the Crown should remedy past grievances.[38] In relation to this last principle, the court provides that the Crown should grant some form of redress if recommended by the Waitangi Tribunal, unless there are reasonable grounds not to do so.
Set up by the Treaty of Waitangi Act 1975, the Waitangi Tribunal is a permanent commission of inquiry charged with investigating and making recommendations on claims brought by Māori, of statutory instruments, policies, or practices that are inconsistent with Treaty principles.[39] If the Tribunal finds a claim to be ‘well-founded’, it may recommend to the Crown that action be taken to compensate or prevent other persons from being affected in the future.[40]
An illustration of the use of the Treaty can be seen in the claim made by Rakihia Tau in filing the Ngāi Tahu tribe's land claims with the Waitangi Tribunal in 1986.[41] The Tribunal found the Crown to have acted unconscionably and in repeated breach of the Treaty. Further negotiations resulted in a Deed of Settlement signed by the Crown, providing compensation at $170 million and granting certain rights to sites of significance, as well as giving Ngāi Tahu management roles in conservation estate resources.[42] Furthermore, the enactment of the Ngāi Tahu Claims Settlement Act 1998 returned Aoraki (Mount Cook) to Ngāi Tahu in fee simple, in turn to be gifted back to the people of New Zealand.[43]
The Treaty of Waitangi is thus central to New Zealand’s political constitution, representing the ‘promise of two peoples to take the best possible care of each other’.[44] Its centrality is in stark contrast to the Australian approach, where no treaty has ever been made with Aboriginal and Torres Strait Islander Peoples. The Treaty’s continuous influence on New Zealand jurisprudence reflects a commitment beyond the symbolic, and towards a practical and operational relationship between Māori and the state.
There are many conceptual overlaps in various settler-state conceptions of Indigenous land rights. The reasoning behind the variation in resulting policy is an important study to continue and accelerate forward progress towards a more just system. While there is still large progress to be made on all fronts, in the immediate term Australia may find a useful reference in Canada and especially New Zealand’s treaty-centric Indigenous land rights law. Although far from perfect, both nations have implemented treaties that grant possessory native title rights rather than the bundle of rights approach implemented in Australian statute.
[1] https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/Background_Papers/bp9798/98Bp15?fbclid=IwAR1e6ymeWw0pOlaEIiogwytXDvnPACtmBDrALpIwA5lhfnHe1aK437lAZlc#Canada.
[2] Mabo v Queensland (No 2) (1992) 107 ALR 1, 58.
[3] A Chronology of state and federal legislation relating to land and resource rights can be found in: Australia. Human Rights and Equal Opportunity Commission. Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner. Fifth report. Sydney: Human Rights and Equal Opportunity Commission, 1997, pp. 21-75.
[4] A Reilly, ‘The Australian Experience of Aboriginal Title: Lessons for South Africa’ (2000) 16 SAJHR 512, 515.
[5] Concluding observations of the COmmittee on the Elimination of Radical Discrimination: Australia, UN Doc CRED/C/AUS/CO/14 (14 Apr 2005) para 17.
[6] https://www.jstor.org/stable/4498090.
[7] Native Title: ComHistorical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenouparisons with Common Law Jurisdictions [9.11] https://www.alrc.gov.au/publication/connection-to-country-review-of-the-native-title-act-1993-cth-alrc-report-126/9-native-title-comparisons-with-common-law-jurisdictions/canada-3/.
[8] K Gocke, ‘Protection and Realization of Indigenous Peoples’ Land Rights at the National and International Level’ (p. 99) https://www.gojil.eu/issues/51/51_article_goecke.pdf.
[9] Native Title: Comparisons with Common Law Jurisdictions [9.14] https://www.alrc.gov.au/publication/connection-to-country-review-of-the-native-title-act-1993-cth-alrc-report-126/9-native-title-comparisons-with-common-law-jurisdictions/canada-3/.
[10] ‘Pushed to the Edge: The Land Rights of Indigenous Peoples in Canada’ (p. 8) http://caid.ca/AmnIntLanRigInd2009.pdf.
[11] ‘Pushed to the Edge: The Land Rights of Indigenous Peoples in Canada’ (p. 8) http://caid.ca/AmnIntLanRigInd2009.pdf.
[12] Government of Canada, ‘Crown-Indigenous Relations and Northern Affairs Canada; Treaties, Agreements and Negotiations’ https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231.
[13] Government of Canada, ‘Crown-Indigenous Relations and Northern Affairs Canada; Treaties, Agreements and Negotiations’ https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231.
[14]Government of Canada, ‘Crown-Indigenous Relations and Northern Affairs Canada; Treaties, Agreements and Negotiations’ https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231.
[15] Calder v Attorney-General of British Columbia [1973] SCR 313.
[16] Guerin v The Queen [1984] 2 SCR 335.
[17] Native Title: Comparisons with Common Law Jurisdictions [9.15] https://www.alrc.gov.au/publication/connection-to-country-review-of-the-native-title-act-1993-cth-alrc-report-126/9-native-title-comparisons-with-common-law-jurisdictions/canada-3/.
[18] Delgamuukw v British Columbia [1997] 3 SCR 1010; Tsilhqot’in Nation v British Columbia 2014 SCC 44.
[19] Tsilhqot’in Nation v British Columbia 2014 SCC 44.
[20] Delgamuukw v British Columbia [1997] 3 SCR 1010; Tsilhqot’in Nation v British Columbia 2014 SCC 44.
[21] R v Marshall; R v Bernard [2005] 2 SCR 220 [67].
[22] K Gocke, ‘Protection and Realization of Indigenous Peoples’ Land Rights at the National and International Level’ (p. 104) https://www.gojil.eu/issues/51/51_article_goecke.pdf.
[23] K Gocke, ‘Protection and Realization of Indigenous Peoples’ Land Rights at the National and International Level’ (p. 104) https://www.gojil.eu/issues/51/51_article_goecke.pdf.
[24] K Gocke, ‘Protection and Realization of Indigenous Peoples’ Land Rights at the National and International Level’ (p. 100) https://www.gojil.eu/issues/51/51_article_goecke.pdf.
[25] https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231.
[26]‘Pushed to the Edge: The Land Rights of Indigenous Peoples in Canada’ (p. 2) http://caid.ca/AmnIntLanRigInd2009.pdf.
[27] New Zealand Human Rights Commission, ‘Human Rights in New Zealand’ (2010), 39.
[28] https://www.govt.nz/browse/history-culture-and-heritage/treaty-of-waitangi-claims/settling-historical-treaty-of-waitangi-claims/.
[29] ‘Explainer: the significance of the Treaty of Waitangi’ https://theconversation.com/explainer-the-significance-of-the-treaty-of-waitangi-110982.
[30] ‘The treaty today – What went wrong and what are we doing about it?’ https://www.nzgeo.com/stories/the-treaty-today-what-went-wrong-and-what-are-we-doing-about-it/.
[31] ‘Meaning of the Treaty’ https://waitangitribunal.govt.nz/treaty-of-waitangi/meaning-of-the-treaty/.
[32] ‘The treaty today – What went wrong and what are we doing about it?’ https://www.nzgeo.com/stories/the-treaty-today-what-went-wrong-and-what-are-we-doing-about-it/.
[33] ‘Why the Indigenous in New Zealand have fared better than those in Canada’
[34] Wi Parata v Bishop of Wellington (1877) 1 NZLRLC 14.
[35] Ngati Apa & Anor v. Attorney-General & Others (2003) 3 NZLR 643.
[36] Te Heuheu Tūkino v Aotea District Māori Land Board [1941] AC 308.
[37] Ibid.
[38] New Zealand Māori Council v Attorney-General (1987) 1 NZLR 641.
[39] Treaty of Waitangi Act s 6(1).
[40] Treaty of Waitangi Act s 6(3).
[41] ‘A long history of struggle: the Ngāi Tahu claim’ https://nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/ngai-tahu.
[42] Ibid.
[43] Ngāi Tahu Claims Settlement Act 1998.
[44] Bishop Manu Bennett, cited in Human Rights Commission, ‘Human Rights and the Treaty of Waitangi: te mana i Waitangi’ (2003).