The Protection of Indigenous Rights: Contemporary Canadian Comparisons

Research Paper 27 1999-2000

Larissa Behrendt
Consultant, Law and Bills Digest Group
27 June 2000

Contents

Major Issues
Introduction
Historical Background: Comparative Aspects

A Specific Constitutional Protection of Aboriginal and Treaty Rights
The Inherent Right to Self-Government Policy
Common Law Recognition of a Fiduciary Obligation owed by the Crown

Aboriginal Title: The Delgamuukw Case

Conclusions: The Applicability of Canadian Developments in Australia

Endnotes

Major Issues

By not specifically articulating rights in the Constitution, the framers left it to the Legislature to protect the rights of Australians.⁽¹⁾ The Constitutional amendment facilitated by the 1967 Referendum placed responsibility for the protection of the rights of Indigenous Australians firmly on the Federal Parliament.

Socioeconomic statistics show consistently that Indigenous Australians have poorer levels of health, lower levels of education, higher levels of unemployment and higher rates of poverty than their non-Aboriginal counterparts. The National Report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC)⁽²⁾ and the Human Rights and Equal Opportunity Commission's Bringing Them Home Report⁽³⁾ have emphasised the systemic nature of this disadvantage and placed these socioeconomic inequities in an historical context.

Given this socioeconomic disparity, it is of concern that Indigenous rights seem particularly vulnerable. The Committee on the Elimination of Racial Discrimination's recent findings that Australia is failing to meet its obligations under the Convention on the Elimination of All Forms of Racial Discrimination in relation to the Native Title Amendment Act 1998 (Cwlth) has increased scrutiny on Australia's human rights record.

Canada, with a comparable history of colonisation to that of Australia's, faces similar contemporary issues in relation to Aboriginal populations. As in Australia, Aboriginal peoples in Canada rank poorly on all socioeconomic indices, recognised by the Royal Commission on Aboriginal Peoples as being a systemic legacy of the colonisation of Indigenous communities.⁽⁴⁾ These similarities exist despite the treaty making process that occurred in parts of Canada that was not undertaken in Australia and the limited extent to which Indigenous sovereignty has been recognised in Canada.

There are four developments in Indigenous rights protection in Canada that provide useful points of comparison for Australian purposes, namely:

• a specific Constitutional protection of Aboriginal and treaty rights in s. 35(1) of the Constitution Act 1985
• an Inherent Right to Self-Government Policy that recognises and develops a process for achieving self-government in Aboriginal communities
• common law recognition of a fiduciary obligation owed by the Crown to Indigenous Peoples (Australian courts have not yet definitively decided whether a fiduciary obligation exists in relation to native title), and
• the Delgamuukw case, which articulated the content of Aboriginal title in a more expansive and culturally sensitive way than native title has been defined in Australia, even though the Supreme Court of Canada referred to the Mabo v. Queensland (No. 2)⁽⁵⁾ when making their conclusions on the parameters of Aboriginal title in Canada.

As Government policies appear to have so far been ineffective at changing socioeconomic disparities and Indigenous rights remain vulnerable to legislative erosion or extinguishment, new and visionary approaches to Indigenous rights protection and self-determination need to be considered. While to date, the legal provisions have not solved the disparity between the socioeconomic indices for Indigenous Canadians those of other Canadians, the Canadian experience in these areas provides possible paths that Australia could consider in protecting the recognised rights of Indigenous Australians.

Introduction

According to the Human Rights and Equal Opportunity Commission:

• 38 per cent of Indigenous families live in housing need as opposed to 17 per cent of the wider community. Indigenous families are 20 times more likely to be homeless than non- Aboriginal families
• Indigenous deaths from diabetes were 12 times greater than that of the general Australian population. 72 per cent of children in the Kimberley region under 5 years old are anaemic. The standard mortality rate for Indigenous women from cervical cancer is over 8 times that of their non-Aboriginal counterparts
• 60.6 per cent of Indigenous students leave school at 16 or younger
• In 1996, the median weekly income for Indigenous Australians was $218, compared to $294 for all Australians. Unemployment rates in 1994 were 10.5 per cent for the total population but were 38 per cent for Indigenous Australians.⁽⁶⁾

Government policies and programs aimed at altering these statistics and ensuring that Indigenous peoples enjoy the same standard of living as all other Australians have, to date, shown mediocre results. These socioeconomic disparities are coupled with instances in which Indigenous rights have been more susceptible to extinguishment than the rights of the broader community. Two instances of this vulnerability are:

• Parliament's overriding of the legislative protections in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwlth) was held to be a constitutionally valid legislative action in Kartinyeri v. Commonwealth⁽⁷⁾, and
• validation provisions which protect other titles while extinguishing native title interests in the Native Title Act 1993 (Cwlth) and the extended validation and confirmation of extinguishment provisions in the Native Title Amendment Act 1998 (Cwlth).⁽⁸⁾ The latter legislative action has brought condemnation by the Committee on the Elimination of Racial Discrimination as a breach of Australia's international human rights obligations.⁽⁹⁾

It is important to note that although, on the face of it, Canada provides a stronger common law, constitutional, legislative and political framework for Indigenous rights protection than Australia, these structures have not, to date, provided Aboriginal Canadians with socioeconomic conditions on par with those of all other Canadians. However, the following facets of the Canadian legal and political environment are provided as a list of comparative directions that, if adopted or adapted for the Australian situation, may provide a fresh perspective for viewing Indigenous rights protections.

Historical Background: Comparative Aspects

The term 'Aboriginal peoples' in Canada includes First Nations (formerly referred to as 'Indians'), the Inuit (formerly referred to as 'Eskimos'), and the Metis (the Aboriginal population that merged with the French and Scottish colonists). The Aboriginal population in Canada is 3.6 per cent of the total Canadian population.

Historical Overview

Prior to 1830 Aboriginal peoples in Canada were seen by the British as trading partners in the lucrative fur trade and as allies against the French and, later, the United States. The British realised that Indian support was essential for the establishment of their colonies in North America and sought to sign 'Friendship' or 'Peace' treaties and agreements with Aboriginal communities to ensure Indigenous loyalty against their French rivals. The military had control of the development of relations with Aboriginal peoples and was responsible for procuring treaties and agreements during this period.

Before 1830, British policy in relation to Aboriginal peoples was formulated in the Royal Proclamation of 1763. While the Royal Proclamation did not apply to the whole of the territory that is Canada today, it did expound policy in relation to purchasing lands from Aboriginal peoples and stated that Aboriginal land could only be purchased by the Crown:

In 1830, responsibility for 'Indian affairs' was passed to the British Indian Branch. The implementation of the Royal Proclamation had facilitated the setting aside of reserves for Aboriginal people, usually created by treaty or agreement with the First Nations community. The number of reserves increased as the Imperial Government sought to control the large numbers of settlers who began arriving in Canada after the War of Independence. In an attempt to further prevent the encroachment of white settlers onto Indian land, the Crowns Land Protection Act 1839 declared all 'Indian lands' to be Crown lands. Reserves for Aboriginal people in Canada were set aside in a larger scale than they were in Australia and many reserves were set up on the First Nation's traditional land. By comparison, in Australia, many Indigenous communities were moved away from their traditional land and reserve lands set aside in the colonial period have since been eroded.⁽¹⁰⁾

Jurisdiction over 'Indian' matters was handed to Canada in 1860. Section 91(24) of the Constitution Act 1867 affirmed the sole jurisdiction of the Federal Government over 'Indians, and Lands reserved for Indians.' The Provinces have no power under the Constitution to legislate on these matters but s. 8 of Indian Act 1985 provides that 'all laws of general application' passed by the Province apply to Indians. Laws such as traffic laws, welfare laws and environmental laws would fall into this category.

Laws relating to Indians were consolidated in the Indian Act 1876. It classed 'Indians' as 'minors'-similar to the 'wards of the State' status given to Indigenous Australians-and was predicated on a philosophy of assimilating Indians into broader Canadian communities. This aim of assimilation was implemented through a policy of removing Aboriginal children to Residential Schools, usually church-run education institutions, where Aboriginal children were taught European values and ideals.⁽¹¹⁾

Although the Act no longer entrenches subordinated status and assimilation goals, much of the subject matter of the Indian Act 1985 is the same as that covered by the earliest Act. It covers the:

• registration of persons to be Indians, the creation and maintenance of Indian Bands or Tribal Councils
• creation of reserves
• management of reserves
• management of First Nations money
• elections of Chiefs and Tribal Councils
• powers of Indian Bands or Tribal Councils, and
• taxation.

The Indian Act 1985 provides that land has to be surrendered by First Nations before the Crown can dispose of it. This is very different from practice in Australia where the Crown holds the radical title to all land except as it is encumbered by native title;⁽¹²⁾ it is free to extinguish native title, subject to the Racial Discrimination Act 1975 (Cwlth),⁽¹³⁾ without the consent of native title holders. The Indian Act 1985 also provides that Indian lands are exempt from taxes and have limited self-government. These provisions are reflective of the limited extent to which the sovereignty of Canadian Aboriginal communities is recognised and is a stark contrast to the lack of recognition of any sovereignty held by Indigenous Australians.⁽¹⁴⁾

Although some elements of the Indian Act 1985 seem radical when compared to the Australian situation, it is important to remember that it was propelled by the same paternalistic ideas and undercurrents of racial discrimination that legislation concerning Indigenous Australians was shaped by during the same periods. The more generous elements of the various Indian Acts have also not led to better socioeconomic conditions for Aboriginal Canadians.

In 1973, the Canadian Federal Government developed two processes to negotiate land rights: the Comprehensive Claims Process and the Specific Claims Process. The Comprehensive Claims Process is implemented where claims to Aboriginal title have not been addressed through treaty or agreement with the Aboriginal community. Sometimes these land claims are accompanied by claims for varying forms of self-government. The Nunavut Land Claims Agreement reached in 1993 provided 17 500 Inuit with 350 000 square kilometres in the North West Territories and provided for the establishment of the Nunavut, a distinct territory under its own government, as soon as possible; it came into being on 1 April, 1999. In addition, it provided for compensation of $1.17 billion over 14 years and gave the Inuit rights to resource royalties, hunting rights and the management of land and environment.⁽¹⁵⁾ The Specific Claims Process is implemented where First Nations feel that there is non-fulfilment of Indian treaties and lawful obligations or improper administration of lands and other assets under the Indian Act.

However, not all response to these Claims Processes has been positive. Many feel that these processes were developed without substantial consultation or input from the First Nations and are biased, unfair and inefficient with too much control being given to the Federal government. There is a large backlog of claims waiting to be determined and the process is costly and time-consuming.⁽¹⁶⁾

Comparing Canada and Australia

There are clear differences in the colonisation of Canada and that of Australia. The presence of the French in North America offered an incentive for the British to cement ties with Aboriginal Canadians through treaties and agreements in a way that was deemed unnecessary in the Australian context. The reserve systems and provisions of the Indian Act have offered land rights and limited recognition of sovereignty. Land rights have been relatively recently recognised in Australia, first by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth), then by State land rights legislation in various State jurisdictions.⁽¹⁷⁾ Native title was not recognised by common law until 1992.⁽¹⁸⁾ However, despite these different historical developments, the same ideologies shaped Canadian colonisation and legislation and the legacies of these policies bear a remarkable resemblance to those left in Australia. Both countries work with a common law system that often refers to and adopts the precedents of each other's jurisdiction. Government policies in both countries are designed to deal with the similar problems of relatively poor health, high unemployment, cyclical poverty and low levels of education faced by their Aboriginal populations. Too much emphasis can be placed on the signing of treaties as differentiating between the two jurisdictions. Often treaties only codified what were understood to be common law rights and there were many places in Canada where no treaties were signed, such as most of British Columbia. For these reasons, Canada offers Australian legislators and policy makers the most relevant of comparative situations.⁽¹⁹⁾

A Specific Constitutional Protection of Aboriginal and Treaty Rights

Aboriginal rights recognised by the common law, including native title interests, and rights derived from treaties have had constitutional protection in Canada since 1982.

Section 35(1) of the Constitution Act 1982 states that:

This section provides protection-'recognises and affirms'-to all Aboriginal rights, whether derived from common law or treaty, if they existed at the time this constitutional amendment was passed. Any rights or interests extinguished before that date have no constitutional protection. The Canadian courts have been careful to emphasise that the section does not create rights but only gives protection to those common law and treaty rights that existed at the passing of the Constitution Act 1982.⁽²⁰⁾

Protection under this constitutional provision is not absolute. The Canadian Supreme Court has developed a test that delineates the circumstances in which infringement of Aboriginal common law and treaty rights are permissible. In Sparrow v. The Queen,⁽²¹⁾ the court held that the protection offered by s. 35(1) could be overridden in certain circumstances, namely if the infringing Federal legislation could be 'justified'. The Supreme Court of Canada developed a two stage test in determining whether s. 35(1) rights could be infringed by Federal legislation. Often referred to as the Sparrow 'justification' test, it prescribes that:

• first, the Court consider whether Federal legislation interferes with an Aboriginal or treaty right
• second, if such interference is found, the Court must determine whether the infringement is justified'. This involves:

The Court has given guidance as to what circumstances would override the s. 35(1) protection. These include: development of agriculture, forestry , mining and hydro-electric power, general economic development, protection of the environment or endangered species, and the building of infrastructure.⁽²²⁾

The Inherent Right to Self-Government Policy

The policy document, Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government⁽²³⁾ was published in 1995. It recognises that self-government is an inherent right held by Aboriginal people that predates the 1982 Constitutional amendment and therefore attracts constitutional protection.⁽²⁴⁾ The Canadian Government has defined the right of self-government as follows:

The Federal Government emphasises its preference for negotiating the content and implications of the inherent right to self-government with Indigenous peoples at a community-based level, viewing litigation as a last resort. The Supreme Court of Canada has emphasised that the legislature, rather than the judiciary, is the appropriate arbiter of this matter.⁽²⁶⁾

The policy statement sets out the areas to be covered by negotiations. The policy lists:

• subject matters that constitute the inherent right to self-government. These matters are defined as being matters 'internal to the group, integral to its distinct aboriginal culture, and essential to its operation as a government or institution'. Included are marriage, education, health, adoption and child welfare. Aboriginal language, tradition and religion, social service, administration of Aboriginal laws, including the establishment of Aboriginal courts or tribunals and the creation of offences of the type normally created by local or regional governments for contravention of laws. Policing, land management, natural resource management, agriculture, hunting, fishing, trapping, management of public works, housing, local transportation, and the licensing, regulation and operation of businesses located on Aboriginal lands.⁽²⁷⁾
• subject matters considered by the Federal Government to be beyond the internal matters of the First Nations but which it has conceded are negotiable. These include matters such as divorce, labour/training, penitentiaries and parole, environmental protection, fisheries co-management, gaming, and emergency preparedness.⁽²⁸⁾
• subject matters considered to be outside of the inherent right to self-government. These include matters such as powers related to Canadian sovereignty, defence and external relations, management and regulation of the national economy, maintenance of national law and order and substantive criminal law, navigation and shipping, and postal services.⁽²⁹⁾

There are two other aspects of the inherent right to self-government policy that should be noted:

• The transformation of the Federal Government's obligations toward Aboriginal peoples: the Federal Government policy document asserts that as Aboriginal self-government develops, the obligations of the Crown to Aboriginal communities will transform and diminish.⁽³⁰⁾
• Bringing the Provinces into the negotiations: the process for negotiating the content of the inherent right to self-government envisages a clear role to be played by the Provincial governments.⁽³¹⁾ This is a clear move away from the Federal Government's exclusive jurisdiction over Aboriginal matters under s. 91(24) of the Constitution Act 1867. The inclusion of Provinces as third parties to the negotiations was claimed to be as a matter of practicality based on the transfer of natural resources from Federal to Provincial hands through various agreements and a 1930 constitutional amendment.⁽³²⁾ This tri-party negotiation is a very different relationship than the traditional treaty relationships between the First Nation and the Federal Government and reflects the change from Indian treaties being seen as agreements between two sovereigns to the treatment of such agreements as a matter internal to the Canadian state.⁽³³⁾

The Canadian experience illustrates that governments can recognise an inherent right to self-government and enter into meaningful negotiations with Aboriginal communities to implement it. This process is designed to produce forms of internal self-determination, i.e. greater autonomy within Canada. Although an Australian Federal Government policy of 'self-determination' led to the establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC),⁽³⁴⁾ it did not deliver community autonomy in the same manner and to the same extent as the Canadian inherent right to self-government policy promises. There has been no recognition of a right to self-government held by Indigenous Australians and their communities by the Australian Government.

Common Law Recognition of a Fiduciary Obligation owed by the Crown

Canadian common law recognises that the Crown owes a fiduciary obligation to Aboriginal people. The seed of this obligation lies in Regina v. St. Catherine's Milling and Lumber Co.⁽³⁵⁾ This 1885 case established the early parameters of an Aboriginal title. It noted that all vacant lands were vested in the Crown which had an exclusive right to grant them. Aboriginal peoples did not have the capacity to alienate their land or to confer title to those lands. Chancellor Boyd referred to a trust-like relationship between the Crown and Aboriginal people: reserves and proceeds of reserves, when surrendered or sold, were held by the Crown as Royal Trustee for the Indians. This was interpreted as defining the relationship between the Crown and Aboriginal peoples and their lands as 'a political trust of the highest order',⁽³⁶⁾ a doctrine that gave rise to no legal consequences.

A Fiduciary Obligation deriving from Native Title

The treatment of the relationship between the Crown and Aboriginal people as a political trust changed with the 1984 decision of the Supreme Court of Canada in Guerin v. The Queen.⁽³⁷⁾ As a British Columbian case, common law rather than treaty principles applied. In 1955, the Musqueam Indian Band approved a surrender, in trust, of some of its reserve in Vancouver by lease to a golf and country club. The transaction had been discussed with the Band but the Crown's agents concluded the lease on terms not authorised by the Indian Band and not beneficial to them. The true terms of the lease were not disclosed to the Musqueam until 1970. The Musqueam brought an action for breach of trust and the Supreme Court of Canada found in their favour.

Justice Dickson (with Justices Beetz, Chouinard and Lamer concurring) held that the Crown's obligations were not in the nature of a trust, but were 'trust-like'. The nature of Aboriginal title, i.e. the fact that it was inalienable except to the Crown, and the provisions of the Indian Act that give this feature of Aboriginal title legislative form⁽³⁸⁾ impose duties on the Crown which are enforceable by the courts. While the obligation does not amount to a trust in the private law sense, Justice Dickson described it as a fiduciary duty. He concluded that if the Crown breached this duty, it would be liable in the same way and to the same extent as if a trust were in effect.⁽³⁹⁾

Justice Wilson (with Justices Ritchie and MacIntyre concurring) held that the Crown did not generally hold reserve lands in trust for the Band but the Crown did hold the lands subject to a fiduciary duty to protect and preserve the Band's interests. She held that this derived from s. 18 of the Indian Act which prescribed that Indian reserve land was inalienable except to the Crown, a statutory entrenchment of the common law nature of Aboriginal title. Justice Wilson noted that the obligation has its roots in the Aboriginal title and that s. 18 mandates acknowledgment of the 'historic reality' that Aboriginal people have a beneficial interest in their reserves and that the Crown has a responsibility to protect that interest and make sure that any purpose to which reserve land is put will not interfere with it:

Thus, the Court found that the fiduciary obligation or trust-like relationship derives from the nature of the Aboriginal title, i.e. that the title is inalienable except to the Crown. This is so even when that common law feature has been entrenched in legislation. This is of particular interest in the Australian context. Native title in Australian law has this same feature but the Courts have to date recognised no such obligation owed by the Crown.

A Trust-like Relationship

The fiduciary concept was extended in the 1990 Sparrow decision, mentioned above.⁽⁴¹⁾ In Sparrow, the court held that s. 35(1) rights were not absolute rights but can be overridden in certain circumstances, namely if the infringing legislation can be 'justified' on the basis of a two-staged test. This is done by determining whether there is a valid legislative objective in the offending legislation and balancing that objective against this 'special trust-like relationship'. This relationship becomes an important element of the 'justification' test and comes into play in every judicial consideration of whether a right held by Aboriginal people can be infringed. This extends the Crown's obligations beyond the limited area of Aboriginal title to temper the Federal Government's ability to infringe Aboriginal and treaty rights.

The Development of a Duty to Consult

The obligations on the Crown that flow from the trust-like relationship have been extended by the judiciary, particularly to encompass a duty to consult with Aboriginal peoples:

• in R v. Jack,⁽⁴²⁾ the court held that there existed a duty to provide the Indian band with full information on conservation measures and their effect on the band, as well as a duty to inform itself of the fishing practices of the band and the band's views of the conservation measures
• this notion of consultation was extended that same year in R v. Noel.⁽⁴³⁾ In that case it was held that consultation requires the Government to carry out meaningful and reasonable discussions with the representatives of the Aboriginal people involved. The fact that the time frame for legislative action is short does not justify the Government pushing forward with the proposed regulation without proper consultation
• a further development in this notion of consultation occurred in R v. Nikal.⁽⁴⁴⁾ It emphasised that the concept of reasonableness is an integral part of the 'Sparrow justification test' and must also come into play in aspects of information and consultation. The need for the dissemination of information and a request for consultations cannot simply be denied by either party. The Court added that so long as every reasonable effort is made to inform and consult, such efforts would suffice to meet the justification requirement.

Although a fiduciary relationship was originally found in Guerin to derive from the fact that Aboriginal title is inalienable except to the Crown, the 'Sparrow justification' test has expanded the circumstances in which a 'special trust-like relationship' between the Crown and Aboriginal peoples is said to exist. Australian courts have not decided that a fiduciary obligation is owed by the Crown when dealing with native title interests⁽⁴⁵⁾ and there has been no acceptance of a more general trust-like relationship. Similarly, there has been no recognised duty to consult owed by the Government when infringing existing native title interests. In fact, the obligation to negotiate with native title holders has been eroded by the Native Title Amendment Act 1998 (Cwlth).⁽⁴⁶⁾

Aboriginal Title: The Delgamuukw Case⁽⁴⁷⁾

Delgamuukw v. British Columbia is considered to be the Canadian equivalent of Mabo v. Queensland (No. 2).⁽⁴⁸⁾ In fact, the Canadian Supreme Court relied on the Mabo case in its judgement, taking some of the better aspects of the Australian case. Delgamuukw v. British Columbia was brought by Gitksan and Wet'suwet'en hereditary chiefs, who claimed self-government and Aboriginal title to land in British Columbia. The claim was based on their historical use, traditional ownership, and a collection of oral histories ('adaawk') and dance ('kungax'). The Province of British Columbia sought a declaration that the plaintiffs had no right to or interest in and to the territory.

The issues before the Supreme Court of Canada of the most interest for Australia include:

• the importance of Aboriginal oral history, and
• the content of Aboriginal title, how it is protected by s. 35(1) of the Constitution Act 1982, and its proof.

The Importance of Aboriginal Oral History

The majority of the Court held that the factual findings of the trial judge could not stand because of his treatment of various kinds of oral history which ignored the rule in R v. Van der Peet⁽⁴⁹⁾ (1996) 2 S.C.R 507 where Chief Justice Lamer had stated:

In the Delgamuukw case, Chief Justice Lamer emphasised the need for flexibility when receiving evidence given by Aboriginal witnesses, especially in cases where rights are being asserted. He held that:

This emphasis is in stark contrast to developments in Australia. Although the Mabo case defined native title as deriving from the customs of Indigenous Peoples, rules of evidence are applied in relation to evidence of these practices. Lower Court judges have discretion on how to deal with Aboriginal oral evidence, and while this may be done in a sensitive manner in some instances, this is not always the case. The High Court has not yet made a pronouncement on this matter in the same way that the Canadian Supreme Court has.

The Content of Aboriginal Title

A majority of the Supreme Court of Canada found that Aboriginal title encompasses the right to exclusive use and occupation of traditional land. The exclusive right to use the land is not restricted to traditional practices, customs and traditions but incorporates modern day needs. These moden uses must not be irreconcilable with the nature of the group's attachment to that land; the community cannot put the land to use which would destroy its value. The Court found that Aboriginal title is sui generis, and therefore distinguished from other proprietary interests. It is inalienable except to the Crown and is held communally.

The Supreme Court of Canada declared that Aboriginal title is a right to the land itself, not just the right to continue a cultural practice, and this includes surface and sub-surface (mineral) rights. The Court distinguished between the right to perform a traditional practice and Aboriginal title. Chief Justice Lamer noted that Aboriginal rights fall along a spectrum: at one end are rights which are practices, customs and traditions integral to Aboriginal culture but are not sufficient to support title to land; in the middle is a site-specific right to engage in a particular activity even though title to land cannot be demonstrated; at the other end, is Aboriginal title, which confers more than the right to engage in site-specific activities.⁽⁵²⁾

The Court held that, since Aboriginal title at common law existed before 1982, it is protected by s. 35(1) of the Constitution Act 1982. The fiduciary duty must be satisfied by the involvement of Aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation, and in most cases this duty will be deeper than mere consultation. Fair compensation will ordinarily be required when Aboriginal title is infringed.

Proof of Aboriginal Title

Chief Justice Lamer and Justices Cory, McLachlin and Major held that to prove Aboriginal title:

• an Aboriginal group must establish that it occupied the lands in question at the time the Crown claimed sovereignty over the land
• both Aboriginal and common law perspectives should be taken into account in establishing proof of occupancy
• if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation. The fact that the nature of the occupation has changed would not preclude a claim for aboriginal title so long as connection is maintained
• at the time the British asserted/acquired sovereignty, occupation must have been exclusive. Joint title can arise out of shared exclusivity.

Justices La Forest and L'Heureux-Dube differed from the majority by stating that occupation need not be exclusive.

A Comparative Note

There are several aspects to Canadian Aboriginal title that are similar to native title as it was formulated by the High Court of Australia:

• it is inalienable except to the Crown
• it is sui generis and not equated with fee simple ownership
• it is held communally.

Aspects of Aboriginal title in Canada that differ radically from the Australian concept of native title are:

• modern uses are proof of Aboriginal title so long as they are not inconsistent with traditional uses
• when dealing with the Aboriginal title, the Crown owes the title holders a fiduciary obligation
• Aboriginal title is a right to the land itself, and includes rights to sub-surface minerals.

British Columbia's response to the Delgamuukw decision, articulated in the Ministry of Aboriginal Affairs' Consultation Guidelines,⁽⁵³⁾ was to develop the following principles for the recognition of Aboriginal title:

2. Establish the right: the Crown should establish whether an Aboriginal right exists in the area covered by the proposed Crown grant, tenure, authorisation or designation. This is ideally done through consultation with the Aboriginal peoples affected.

3. Determine whether Crown action would infringe on the right: if it is established that an Aboriginal right exists, the Crown should determine whether its actions would infringe upon that right.

4. Resolve matters of conflicting interest by negotiation: if the proposed Crown action and the Aboriginal right cannot co-exist, and if infringement would result from the proposed activity, negotiations should be carried out to resolve the conflicting interest. First Nations do not have a veto.

5. Attempt to justify infringement if it cannot be avoided: although the Provincial Government will attempt to avoid infringement either by ensuring the Government action and the Aboriginal right can co-exist, or by negotiating a settlement of any conflict, the Crown may wish, in some circumstances, to attempt to justify the infringement. An infringement requires careful legal analysis and may be justified in some cases, such as where it is necessary to conserve and soundly manage a natural resource or to ensure public safety.

This response to the recent recognition of an existing Aboriginal right is different from the response to the recognition of native title in Australia. In Canada, the Federal and Provincial Governments developed processes for discussing the content and implementation of newly recognised rights with the Aboriginal title holders. In Australia, the response to the Mabo case was legislation in the form of the Native Title Act 1993 (Cwlth) that, whilst seeking to set up a process to facilitate native title claims, extinguished native title interests by validating past acts and future acts that infringed native title interests. This Act was negotiated by treating Indigenous native title holders as only one of many interest groups rather than allowing them to be consulted in light of the fact that their title was vulnerable to extinguishment. The Native Title Amendment Act 1998 (Cwlth) was discussed and implemented with even less consultation with Indigenous interest holders.⁽⁵⁴⁾ While legislating further extinguishment of native title, this Act limited the circumstances in which negotiations with Aboriginal people will take place when their native title interests are to be affected by future dealings with native title land.

Conclusions: The Applicability of Canadian Developments in Australia

Australia's Constitution, by remaining mute on the issue of individual rights, designates the legislature as the appropriate branch of Government for responsibility for rights protection. This responsibility extends to the protection of Indigenous rights. As a disadvantaged socioeconomic and cultural minority, Aboriginal people pose difficult challenges to the Australian Government. In the light of these responsibilities and challenges, the Canadian experience with Indigenous rights protection may provide a useful point of reference for future policy and legislative directions. There are several ways in which the Canadian framework for and experience of Indigenous rights protection can be explored in the Australian context.

A Constitutional Protection

The Canadian experience shows that a specific Constitutional protection can offer safeguards for Indigenous rights, ensuring that they are not eroded by the whims of the legislature, but instead balanced against 'justified' Government purposes including development and environmental initiatives. In light of the recent results of the Republic Referendum in November 1999, a Constitutional entrenchment similar to that contained in s. 35(1) of the Constitution Act 1982 would be difficult to achieve both politically and practically. It is, however, a useful, long term goal. There are several options open for legislative consideration that would improve the protection of vulnerable Indigenous rights. One such alternative is the Constitutional entrenchment of a 'non-discrimination' clause which would allow for protection against racial discrimination but be less controversial because of its broader, non-specific character. Greater protection of Indigenous rights could be achieved by inserting a Bill of Rights into the Constitution. However, stronger protection of Indigenous rights could also be achieved by several non-Constitutional methods, namely, by passing a legislative Bill of Rights that included a non-discrimination clause.⁽⁵⁵⁾

Recognising an Inherent Right to Self-Government

Canada's experience with recognising the inherent right to self-government of Aboriginal peoples⁽⁵⁶⁾ has shown that greater autonomy within the State can effectively and practically be granted. Recognition of a broad range of matters that are suitable for Aboriginal self- government has not impeded development, growth or industry in Canada. The policy illustrates that Federal and Provincial Governments can enter into meaningful and productive dialogues with Indigenous communities that pave the way for greater Aboriginal self-sufficiency.

While Australian policy focuses on service delivery at a community level, it is not often linked with Indigenous aspirations of greater autonomy. Canada's implementation of the inherent right to self-government policy should be closely monitored to see how this increased political autonomy within Canada affects socioeconomic indices. It will also be useful for policy makers and legislators to observe the grass roots models for self-sufficiency and service provision that develop under this Canadian policy.

A Fiduciary Obligation

The recognition of a fiduciary obligation offers an important precedent for Australian common law. In the Mabo case, Justice Toohey, found that there was a fiduciary obligation based in Australian law. He relied on the broad interpretation of a 'fiduciary' given by Justice Mason in Hospital Products Ltd. v. United States Surgical Corp:⁽⁵⁷⁾

Justice Toohey went on to add:

Justice Toohey relied on the Canadian case law in Guerin that established a fiduciary duty from the fact that native title was inalienable except to the Crown. He noted the Court in Guerin also found the duty came from the statutory scheme under s. 18 of the Indian Act 1952 but that this came from the restricted alienability of Indian land, which echoed the common law. Justice Toohey held that the Crown's right to alienate the land of the plaintiffs in the Mabo case, and the plaintiffs rights to deal with their land was so limited, then this created a vulnerability that gave rise to a fiduciary obligation. He went on to say that:

Australian courts have rejected the notion that any obligation is owed by the Crown to Indigenous people on the basis of some general, historical 'trust-like' relationship. The existence of a fiduciary obligation in relation to the development of State and Federal government policies and actions that have led to the removal of Aboriginal children and allegations of genocide has been rejected firmly in Nulyarimma v. Thompson⁽⁶¹⁾ and Thorpe v. Commonwealth (No. 3).⁽⁶²⁾ In the latter case, Justice Kirby noted that while there was no general fiduciary obligation, no definitive answer had been given on whether such an obligation arises in relation to native title. He said:

Aspects of Aboriginal Title

It is unlikely that several aspects of the Aboriginal title as defined by the Supreme Court of Canada in the Delgamuukw case will have currency in the Australian context. Gaining title to the land itself and the rights to sub-surface minerals seems too conceptually different to the nature of native title as it was defined in the Mabo case. However, the Canadian experience offers two lessons that have particular saliency in dealings with native title. The emphasis that the Supreme Court of Canada placed on the need for flexible rules in relation to evidence given in native title claims offers advantages to Australian litigation if such a requirement were stressed here. It would allow the judiciary to better ascertain the scope of traditional laws, customs and practices that define the nature of a native title interest. This approach would also ensure that traditional Aboriginal people, particularly those for whom English is a second language, are given proper opportunity to provide the evidence necessary to articulate and establish their traditional customs.

The other aspect relating to the development of Aboriginal title in Canada that seems particularly useful to consider in the Australian context is the greater emphasis placed by the Crown on negotiation with title holders when recognition of their rights is expanded by the judiciary. The erosion of the duty to act in good faith in negotiations in Australia⁽⁶⁴⁾ lies in stark contrast to the negotiation processes in Canada that seek a discussion between Federal and Provincial Governments and Aboriginal people. Reintroducing a fair negotiation and consultation process with native title holders in Australia could be done by amending the Native Title Act 1993 to reintroduce a duty to negotiate in good faith and to expand the circumstances in which negotiation is required. Native title interests would also be better protected and strengthened by ensuring that all provisions were consistent with the Racial Discrimination Act 1975 and Australia's international obligations under the Convention on the Elimination of All Forms of Racial Discrimination.

Endnotes

2. See George Williams, Human Rights under the Australian Constitution, Oxford University Press, Oxford, Melbourne: 1999.

3. Royal Commission into Aboriginal Deaths in Custody. National Report: Overview and Recommendations, Australian Government Publishing Service, Canberra, 1991.

4. Human Rights and Equal Opportunity Commission (HREOC). Bringing Them Home: A Guide to the Findings and Recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from the Families, Human Rights and Equal Opportunities Commission, Sydney, 1997.

5. The Royal Commission on Aboriginal Peoples (RCAP) is available at http://www.inac.gc.ca/ch/rcap/index_e.html. Although the Australian RCIADIC had a specific focus, like the Canadian RACP, it looked at a broad range of factors that contribute to the factors that lead to the over-representation in the criminal justice systems. Both reports look at the socioeconomic statistics of the Aboriginal populations and look at the historical context for these interests. Both provide an exhaustive list of recommendations on changing policy, laws and practices than might begin to counter the systemic nature of Indigenous disadvantage. RCAP seems to have had a more pervasive impact than the RCIADIC. It is referred to in judicial decisions and legislative actions more often than its Australian counterpart.

6. Mabo v. Queensland (No.2) ( 1992) 175 CLR 1.

7. Source: Human Rights and Equal Opportunity Commission.

   See http://www.hreoc.gov.au/social justice/statistics/index.html.

   See also Australian Bureau of Statistics. 1996 Census of Population and Housing: Aboriginal and Torres Strait Islander People, ABS, Canberra, 1998.

8. Kartinyeri v. Commonwealth (1998) 195 CLR 337.

9. The Native Title Amendment Act 1998 (Cwlth) extinguished native title on many types of leasehold land, regardless of whether it is extinguished under common law. Schedule 4 of the 1998 Act contains a list of the kinds of leases that are deemed to grant exclusive possession and extinguish native title.

10. The Committee on the Elimination of Racial Discrimination has expressed concern about the compatibility of the Native Title Amendment Act 1998 (Cwlth) with Australia's obligation under the Convention on the Elimination of All Forms of Racial Discrimination on three occasions (March 1999, August 1999 and March 2000). In the most recent statement, the Committee said explicitly: '... the devolution of power to legislate over the 'future acts' regime has resulted in the drafting of state and territory legislation to establish detailed 'future acts' regimes which contain provisions reducing further the protection of the rights of native title claimants. ... Noting that the Commonwealth Senate rejected on 31 August 1999 one such regime, the Committee recommends that similarly close scrutiny continue to be given to any other proposed state and territory legislation to ensure that protection of the rights of indigenous peoples will not be reduced further.' (at para. 8) Committee was also concerned over the absence from Australian law of any entrenched guarantee against racial discrimination (at para. 6) (CERD/C/56/Misc.42/rev.3).

11. See Heather Goodall. Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770-1972, Allen & Unwin, Sydney, 1996 and Paul Havemann, ed., Indigenous Peoples Rights in Australia, Canada and New Zealand, Oxford University Press, Oxford, Melbourne, 1999.

12. The main difference between the removal policy in Canada and its counterpart in Australia was that in Canada children were not removed permanently from their families. While children boarded at the schools during the term, many retained contact with their parents and were returned home during recesses. However, the ideologies propelling the removal policies on both countries were identical.

13. The Crown holds what has been called "radical title" over lands on which Indigenous people hold native title. This is a legal conception that recognises that the Crown has ultimate title to any land and native title is a burden on the ultimate or "radical" title of the Crown.

14. The Federal Government is only confined by the Racial Discrimination Act 1975 to the extent that it wishes to be, having the power to override the legislation; States, however, are bound by the provisions.

15. For a more detailed explanation of the differences between Aboriginal sovereignty recognised in other jurisdictions, see Paul Havemann, ed., Indigenous Peoples' Rights in Australia, Canada and New Zealand, Oxford University Press, Oxford, Melbourne 1999.

16. A copy of the Nunavut Land Claims Agreement Act, 1993 is available at:
    http://canada2.justice.gc.ca/ftp/en/Laws/Chap/N/N-28.7.txt

17. See Michael Asche, 'From Calder to Van der Feet: Aboriginal Rights and Canadian Law, 1973-1996' in Paul Havemann, ed., Indigenous Peoples Rights in Australia, Canada and New Zealand. Oxford University Press, Oxford, Melbourne, 1999.

18. Including Aboriginal Land Rights Act 1983 (NSW); Aboriginal Lands Trust Act 1966 (SA) Maralinga Tjarutja Land Rights Act 1984 (SA); Pitjantjatjara Land Rights Act 1981 (SA). Reserves could be set up under Aboriginal Land Act 1991 (Qld); Torres Strait Islander Land Act 1991 (Qld); Aboriginal Lands Act 1995 (Tas); Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Vic). Western Australia made no legislative provision for land rights.

19. Mabo v. Queensland [No.2] (1992) 175 CLR 1.

20. New Zealand, though geographically close, is covered by the Treaty of Waitangi; Canada has some areas that were not affected by treaty and therefore developed common law approaches to Aboriginal rights. This gives Canadian comparisons more relevance.

21. See Supreme Court of Canada decisions in Sparrow v. The Queen (1990) 1 SCR. 1075, R. v. Badger (1996) I SCR. 771, and Delgamuukw v. British Columbia (1997) 3 SCR. 1010.

22. Sparrow v. The Queen (1990) 1 SCR. 1075.

23. As per Lamer CJ, and Cory, McLachlin and Major JJ. in Delgamuukw v. British Columbia (1997) 3 S.C.R. 1010.

24. Department of Indian and Northern Affairs. Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, Department of Indian and Northern Affairs, Ottawa, 1995.

25. ibid., at p. 3. 25.

26. id., at p. 3.

27. This was the approach emphasised by the Court when remitting the case back to trial in Delgamuukw v. British Columbia (1997) 3 SCR. 1010.

28. Department of Indian and Northern Affairs, Aboriginal Self-Government, op. cit., at pp. 5-6.

29. ibid., at p. 6.

30. ibid., at p. 7.

31. ibid., at p. 12.

32. ibid., at p. 23. The role of the Provinces as perceived by the Federal Government is set out in the policy document in 'Part III: Process Issues' under the heading of 'Establishment of Negotiation Process.' The policy notes that: 'Accordingly, the Government is prepared to enter into negotiations with duly mandated representatives of Aboriginal groups and the Provinces concerned, in order to establish mutually acceptable processes at the local, regional, treaty or provincial level.'

33. The Constitution Act 1930 entrenched the Natural Resource Transfer Agreements between the Federal Government of Canada and the Provinces of Manitoba, British Columbia, Alberta and Saskatchewan.

34. R v. Bob and White (1964) 50 DLR (2d) 613 confirmed the contemporary Canadian view that Indian treaties do not establish a relationship between two or more sovereign states. A United Nations report by Miguel Alfonso Martinez, Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations, noted this trend in treating agreements and treaties that were signed on the understanding that they were between sovereign nations as 'domestic' instruments. A copy of the report can be found at: http://www.puebloindio.org/study.htm.

35. See the Preamble of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cwlth) which, while equating self-determination with self-management, uses this as a philosophy supporting the establishment of the Aboriginal and Torres Strait Islander Commission:

    AND WHEREAS it is appropriate to further the aforementioned objective in a manner that is consistent with the aims of self-management and self-sufficiency for Aboriginal persons and Torres Strait Islanders.

36. Regina v. St. Catherine's Milling and Lumber Co. (1885) 10 OR 196.

37. id., 213. This decision was approved by the Privy Council in St. Catherine's Milling and Lumber Co. v. Regina (1888) 14 AC 46.

38. Guerin v. The Queen (1984)2 SCR 335

39. Section 18 of the Indian Act 1952 provided that reserves shall be held by her Majesty for the use of respective Bands for which they were set apart. Lands shall not be sold, alienated, leased or otherwise disposed of until they have been surrendered to the Crown by the Band.

    Section 18( 1) states that:

    Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

    This section remains in the Indian Act 1985.

40. Guerin v. The Queen (1984) 2 SCR 335, 390.

41. id., 349.

42. Sparrow v. The Queen (1990) 1 SCR 1075.

43. R v. Jack (1995) 16 BCLR (3d) 201 CA.

44. R v. Noel (1995) 4 CNLR 78.

45. R v. Nikal (1996) 1 SCR 1013.

46. As per Justice Kirby in Thorpe v. Commonwealth (No.3) (1997) 144 ALR 677 at 688.

47. The right to negotiate held by Aboriginal title holders was eroded in several ways by the Native Title Amendment Act 1998 (Cwlth). It reduces the circumstances in which the right to negotiate will apply. Next, it enables the States and Territories to replace the right to negotiate with their statutory schemes in relation to certain areas, for example, reserve land. Further, it is now more difficult for native title holders to satisfy the registration test and thus gain access to the right to negotiate. In addition, provisions in the original Act that provided for good faith negotiations by the government were omitted from the amended Act.

48. Delgamuukw v. British Columbia (1997) 3 SCR 1010.

49. Mabo v. Queensland (No.2) (1992) 175 CLR 1.

50. R v. Van der Peet (1996) 2 SCR 507.

51. ibid., at para. 68.

52. Delgamuukw v. British Columbia, op. cit., para. 87.

53. op. cit., para. 138.

54. This process is detailed in the policy document of the Ministry of Aboriginal Affairs, British Columbia. Consultation Guidelines. (September 1998). The guidelines are available at http://www.aaf.gov.bc.ca/aaf/consult.htm

55. See Frank Brennan, The Wik Debate: Its impact on Aborigines, Pastoralists and Miners, UNSW Press, Kensington, 1998.

56. For an articulate argument on the potential and possible implementation of a legislative Bill of Rights see George Williams, A Bill of Rights for Australia, UNSW Press, Kensington, 2000.

57. For an overview of the Inherent Right to Self-Government Policy, see pp. 6-7 above.

58. Hospital Products Ltd. v. United States Surgical Corp. (1984) 156 CLR 41.

59. id., 96-97.

60. Mabo v. Queensland (No.2) (1992) 175 CLR 1200

61. id., 203.

62. Nulyarimma v. Thompson (1999) FCA 119.

63. Thorpe v. Commonwealth (No.3) (1997) 144 ALR 677.

64. id., 688.

65. See footnote 46.