Negotiation and native title: why common law courts are not proper fora for determining native land title issues.

AuthorSchiveley, Geoffrey Robert

ABSTRACT

The displacement of indigenous populations is an obvious but often-overlooked consequence of worldwide European colonization. Until relatively recently, the rights of these groups have consistently been held to lower standards of protection than those of their colonizing counterparts, partly through the use of doctrines such as terra nullius. While earlier decades established the groundwork for recognition of these rights, in the 1990s native rights issues became of greater importance to both the international community and individual nations. Some of this heightened interest can be attributed to a series of high-profile common law court cases that provided native populations with favorable precedents to rely on for the first time in post-colonization history. The cases of Mabo v. Queensland in 1992, and Delgamuukw v. British Columbia in 1997, opened the floodgates in Australia and Canada, respectively, for indigenous populations to litigate claims to land titles that had been assumed settled for centuries.

This Note argues that, given the recent volatility of common taw court decisions in the area of native title, these common law courts are not the proper fora for resolving centuries-old disputes between native populations and settler societies. Rather, a series of negotiations seems much more appropriate due to the complexity of the issues and differing worldviews of the parties involved. First, this Note will use the words of Canadian and Australian scholars and indigenous leaders to emphasize the importance of native title issues to indigenous populations. Next, this Note will focus on the two landmark cases of Mabo and Delgamuukw to emphasize the level of complexity involved in resolving such issues and the importance of resolving those issues through a flexible, non-adversarial process. Finally, this Note will examine both the legal and extralegal features of common law court systems that create inherent constraints on their ability to deal with the problems raised by issues of native rights.

  1. INTRODUCTION

    To understand our law, our culture and our relationship to the physical and spiritual world, you must begin with the land. Everything about Aboriginal society is inextricably interwoven with, and connected to, the land. Culture is the land, the land and spirituality of Aboriginal people, our cultural beliefs or reason for existence is the land. You take that away and you take away our reason for existence. We have grown the land up. We are dancing, singing and painting for the land. We are celebrating the land. Removed from our lands, we are literally removed from ourselves.(1) Aboriginal(2) struggles for land rights and self-government are hardly new concepts. In many "settled" New World nations, natives' rights have been at issue for hundreds of years.(3) However, it is only recently that these rights have become a matter of both national struggle and public international debate. The 1990s have seen sweeping changes in the area of native land rights, and not all of them have been for the better.(4) These changes have occurred through a variety of means, including the legislative process, negotiated settlements, and the court system.

    The purposes of this Note are both to explain why the common law court system is an inadequate forum for determining native rights issues and to emphasize negotiation, of which legislation plays an inevitable role, as the proper alternative to litigation. This Note will focus on the issue of native title to land to provide the framework for these arguments. Part II of the Note will discuss reasons why land rights issues are of such importance to Aboriginal societies.

    Parts III and IV will discuss Australian and Canadian treatment of native title issues and native rights in general. An examination of these two countries are important for a variety of reasons, including their similarities as common law countries, their significant ties to the same colonial ruler (England), and the prominence of each country's native rights movement. Additionally, for reasons that will be discussed in more detail in this Note, the current political and legal state in each country easily lend themselves to a direct analysis of the benefits of negotiation over litigation in this area.

    Finally, Part V addresses specific factors favoring negotiation over litigation in the native rights context, drawing on specific examples from both Australia and Canada. These factors are split into legal and extralegal justifications, even though there is much overlap between the two areas. The current political climates in Australia and Canada make these nations prime candidates to consider the arguments set forth in this Note.

  2. WHY LAND RIGHTS?

    The basic assumption underlying the argument that native land rights claims need to be negotiated rather than litigated is that land rights are of great importance to indigenous populations. As the opening quotation to this Note emphasizes, many indigenous populations have a unique connection with their native lands. This connection almost invariably involves not just a physical element but strong spiritual and cultural ties as well.(5) In an oft-cited passage, Professor W.E.H. Stanner compared European and Aboriginal conceptions of land as follows:

    No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word Nome', warm and suggestive though it be, does not match the Aboriginal word that may mean `camp', `hearth', `country', `everlasting home', `totem place', `life source', `spirit centre' and much else all in one. Our word `land' is too spare and meagre.... The Aboriginal would speak of `earth' and used the word in a richly symbolic way to mean his `shoulder' or his `side'. I have seen an Aboriginal embrace the earth he walked on.(6) Aboriginal activist Galarrwuy Yunupingu also expressed the Aboriginal spiritual connection with the land in almost purely physical terms: "Getting the land back has been important because the land is part of us, we are one because of our relationship. There is nothing--no law, no person--that will separate our connection with land. Getting the land back has kept our spirits alive."(7)

    As a corollary to the fundamental connection many indigenous populations feel toward their native lands, establishing land rights is an important step toward achieving the ability of self-determination and self-government. Even if self-government is not the ultimate goal,(8) the rights to exclude others and to determine the most economical use of land, both integral parts of self-determination, are important facets of many indigenous populations' agendas. As longtime Aboriginal activist Lois O'Donoghue wrote, "In so many different contexts, control of land is both the reality and symbolism of self-determination. Land ownership and management are not just the keys to our cultural futures, but the keys to our economic emancipation."(9) The concern among many Aboriginal leaders is that any efforts toward self-determination will be undermined by a curtailment or removal of these land rights.(10)

    O'Donoghue's view that land rights are essential to "economic emancipation" indicates that economic factors also play a role in justifying the importance of land rights to indigenous populations.(11) The role that economics takes is twofold. Both the potential positive effects to indigenous people and the negative economic impact current land rights policy entails must be considered.

    Gaining and maintaining control of land provides indigenous populations with the economic base necessary to compete in the marketplace.(12) While all native people wish to recover lost lands because of the cultural and spiritual value they hold, many also recognize the practical economic interests inherent in the land. Mining, grazing, and timber operations represent big business on most Canadian and Australian native lands. If natives regained title to these lands, they alone would have the right to allow access to industrial and agricultural corporations.(13) Natives also possess sufficient knowledge of the market to be able to place a value on these business opportunities to those who would exploit them. As one commentator notes, "The ability for Aboriginal people to control access to, and use of, their country is the single most important factor in allowing them to negotiate effectively with the mining industry."(14)

    Additionally, because of their unique connection to the land as a spiritual and cultural center, denial of rights to that land creates an adverse economic effect on indigenous and European populations alike. Once native peoples are removed from their spiritual and cultural center, they tend to gravitate to urban areas "in an increased state of social dislocation and spiritual desolation."(15) The resulting economic and political effect on public welfare is "beyond quantification."(16)

    Finally, the entire native rights movement is based in part on the need for reparation of hundreds of years of moral wrongs.(17) European society relocated or decimated millions of native people, and the first step in doing so inevitably involved taking their native lands. The effects of these takings are still felt today, not only by dispossessed Aborigines, but also by the European societies that must support them through public welfare.(18) Returning at least part of those lands is therefore the necessary first step toward some measure of absolution.(19)

  3. AUSTRALIA

    1. History of Terra Nullius

      The Aboriginal(20) struggle for land rights in Australia has been defined by the common law doctrine of terra nullius. This is usually interpreted to mean "unoccupied land,"(21) or "no-man's land."(22) During the period of European colonization, three basic methods of acquiring colonial land were recognized--(1) persuading native populations to submit to the colonizer's rule, (2) purchasing some or all of the land from...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT