Aboriginal or native title

Different forms of legal capture resulted from the manner in which, and the degree to which, indigenous customary law and property rights were accommodated by the colonial legal system. A variety of legal instruments were employed, including treaties, the doctrine of conquest and the occupation of territory supposed to be uninhabited or terra nullius. Under the socalled extended principle of terra nullius, inhabited land was considered open to settlement when the indigenous inhabitants were considered so uncivilised by European standards that they lacked the elementary forms of ‘political society’. This remains the accepted basis for the British claim to sovereignty over its Australian territories.⁷ In colonies where treaties were signed, these often allowed that aboriginal peoples would retain their lands along with their right to live according to their own laws and cultural institutions. However, even where there were no explicit treaties, the principles of British colonial constitutional law which had become established in the course of the seventeenth and eighteenth centuries guaranteed the survival of aboriginal customary law and property rights.⁸ Although the doctrine of aboriginal rights was an established body of unwritten law, the degree to which and manner in which these principles were implemented varied considerably from one colony to the next. In the United States, a strong concept of aboriginal title and a right to selfgovernment was laid down in a series of decisions by the Supreme Court, beginning with Johnson v.M’Intosh in 1823. Chief Justice Marshall relied upon the notion that ‘discovery’ gave exclusive underlying title to the European colonial state to argue that the rights of the original inhabitants to complete sovereignty were necessarily diminished. They could no longer enter into treaties with or sell land to anyone but the overriding sovereign. They did, however, retain the right to continue their traditional way of life and to exercise control over their own lands.⁹

The doctrine of aboriginal rights meant that the imposition of British sovereignty did not in and of itself adversely affect the property rights of aboriginal peoples. However, it was a consequence of the feudal doctrine of land tenure that, along with sovereignty, the Crown acquired the underlying or radical title to all land in the colony. This underlying title is the basis of the Crown’s power to grant or to extinguish property in land. Where the Crown chose not to exercise this power, the laws and customs of the aboriginal inhabitants could remain in force. The common-law doctrine of native title was, in effect, a mechanism through which the colonial legal system could recognise and protect aboriginal territory and customary law. Aboriginal or native title of this kind was recognised in New Zealand as early as 1847 and in Canada from 1888.¹⁰ Australia was a notable exception. Until the establishment of statutory land rights legislation in the 1970s, the legal capture of territory involved the total exclusion of

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indigenous law and custom. Before the historic 1992 judgment of the High Court in Mabo v. Queensland, there was no legal recognition of any rights to land other than those derived from the Crown.¹¹ This case involved a claim to ownership of land on the Murray Islands off the northern coast of Queensland. The majority judges affirmed for the first time that aboriginal or native title formed part of Australian common law. They drew attention to the distinction between radical or ultimate title and ownership, in order to separate property rights from the underlying title to land assumed by the Crown with the imposition of sovereignty, and in order to argue that the importation of English property law was not of itself an obstacle to the recognition of indigenous people’s pre-existing interests in land. As a result, a form of title to land grounded in the native law and custom which existed prior to colonisation could now be recognised and protected by the common law.

The Mabo decision appeared to many elements of Australian settler society to pose a serious threat to the moral as well as the legal basis of colonial rule. Because the introduction of native title into the Australian legal system threatened important interests by its effects on mining investment and pastoral property values, successive federal governments were impelled to undertake a secondary reterritorialisation by legislative means: a Native Title Act passed at the end of 1993 served to validate mining and pastoral leases, and to regulate the procedure by which native title claims could be made. Revisions to this legislation in 1998 had the effect of further limiting the scope for aboriginal land claims. The government’s response thus amounted to an attempt to reaffirm the integrity of a colonial society founded upon a primary reterritorialisation of aboriginal territory and a marginalisation of aboriginal cultures, laws and peoples. At the same time, statements by some of the judges and their supporters demonstrate the sense in which Mabo represented a profound shift in public attitudes towards the aboriginal population and previous ways in which they had been treated by the law and government.¹² The controversy which accompanied this decision also showed that the micropolitical attitudinal shift among the non-indigenous population was by no means universal. It was more a question of the opening up of a fissure within the social imaginary with respect to its colonial past and the treatment of the indigenous population. This could represent the beginning of a becomingindigenous of the social imaginary, a line of flight along which legal and social change is possible, or it could represent little more than a minor readjustment of the legal terms in which colonial capture was carried out.

In Deleuze and Guattari’s terms, the question is whether the introduction of native title jurisprudence into a colonial jurisdiction from which it had been excluded could be anything more than a partial or relative deterritorialisation of an antiquated and discriminatory system of legal capture. Could it carry the potential for a larger transformation of the colonial

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body politic or would it be all too readily subject to a definitive reterritorialisation within the framework of the existing nation-state?¹³ We should not be too quick to discount the deterritorialising power of new rights. Their effectivity in legal and constitutional space might be compared to that of those singular points which determine the shape of a curve in mathematics and which are themselves, by Deleuze’s account, the expression of a particular differential. Rights too are virtual singularities, the consequences of which are only actualised in specific court decisions, legislative enactments and the interactions between these.

Although the doctrine of aboriginal title had long been accepted in Canadian law, it had little impact on the relations between aboriginal communities and the state before the 1973 Supreme Court decision in Calder in 1973.¹⁴ Since then, this doctrine has been the site of a developing body of jurisprudence which has significantly altered the capacity of aboriginal peoples to reassert control over traditional territories and resources. Similar developments have occurred in Australia post Mabo, and in Aotearoa/ New Zealand, although the jurisprudence in that country is complicated by its relation to the 1840 Treaty of Waitangi and the Tribunal established in 1975 to hear claims under the terms of the Treaty. Prior to the revival of aboriginal title jurisprudence in Canada, the nature and scope of the legal right in question were uncertain. The 1887 case of St Catherine’s Milling and Lumber Company defined it as a mere ‘personal and usufructuary right, dependent on the good will of the sovereign’. In addition, the applicability of this legal right to aboriginal peoples tended to be judged in the light of nineteenth-century colonial assumptions about relative levels of civilisation and their implications for the existence of legally enforceable rights. An influential statement of this ‘barbarian principle’ was offered by the Privy Council in 1919 in the form of the opinion that

Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.¹⁵

The view that the indigenous inhabitants were barbarians without settled law had long been accepted in New South Wales as the basis for the refusal to recognise aboriginal customary law.¹⁶ Similar views were expressed by the trial judge in the 1991 case of Delgamuukw v. British Columbia, when he described aboriginal peoples at the time of first European contact as too primitive to have a form of law capable of recognition by the colonists.¹⁷ The rejection of these colonial assumptions in a series of

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landmark decisions that began with Calder in Canada and Mabo in Australia opened the way for a process of judicial and political elaboration of aboriginal property rights, the result of which has been to create new opportunities for enhanced economic and political autonomy on the part of indigenous peoples.

In Mabo v. Queensland (1992), the High Court of Australia explicitly rejected the ‘barbarian’ principle which had allowed the land to be treated as though it were terra nullius, both because it was based upon false assumptions about the nature of aboriginal society at the time of colonisation, and because it represented a discriminatory and racist judgment about the nature of aboriginal society which could no longer be tolerated. The Court found that rights to the use of land in accordance with traditional law and custom could be recognised and protected, at least where these rights had not been extinguished by a valid exercise of the Crown’s prerogative. The Court also held that native title could be extinguished by the Crown without consent or compensation. Despite a rhetorical commitment to respect for the rights of the indigenous inhabitants, it was clear that the Court considered native title to be a lesser form of property subject to a number of important restrictions. In the appeal case of Delgamuukw v. British Columbia decided in 1997, the Canadian Supreme Court laid down guidelines for defining and proving aboriginal title. The Court rejected the idea that this was limited to traditional uses of land and resources in favour of a more robust conception of native title as encompassing

the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures…However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s aboriginal title.

(Delgamuukw 1998:86)

Although protected by Section 35 (1) of the Canadian Constitution Act of 1982, aboriginal title may still be overridden by the legislature acting in the broader national interest.

Even though it is no longer dependent on the good will of the sovereign, aboriginal or native title remains subject to a number of conditions which serve to protect the overarching sovereignty of the colonial state. In strictly legal terms, aboriginal or native title amounts to little more than a limited and relative deterritorialisation of the legal apparatus of capture of indigenous territory. In the terms of Deleuze and Guattari’s account of the modern state as a model of realisation of the capitalist axiomatic, native

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title jurisprudence amounts to the addition of an axiom to regulate the distinct but subordinate status of internally colonised peoples. At the same time, because of the manner in which native title implies reference to a body of indigenous law and custom, there is a sense in which the concept of native title has the potential to undermine the legal capture of aboriginal territory. The concept of aboriginal or native title was always a curious hybrid of indigenous and common law, which one commentator described as ‘an autonomous body of law that bridges the gulf between native systems of tenure and the European property systems applying in the settler communities. It overarches and embraces these systems, without forming part of them’ (Slattery 1987:745). The Australian High Court defined native title as straddling the border between the common law and systems of indigenous law in a manner which emphasised the inherent undecidability of this concept: ‘native title, though recognised by the common law, is not an institution of the common law’ (Bartlett 1993:42). Aboriginal lawyer Noel Pearson has suggested that native title should be understood as a ‘recognition concept’, by which he means a concept in terms of which one body of law recognises the other under certain conditions. As such, he argues, native title belongs to the space between two systems of law (Pearson 1997:154).

The consequences of this interpretation of the concept of native title are far-reaching. In jurisprudential terms, the concept of aboriginal or native title expresses a novel kind of right which opens up a smooth space in between indigenous and colonial law. The interpretation of native title as a recognition concept belonging to the space between the law of the coloniser and the law of the colonised affirms that we are dealing with two bodies of law in relation to the land, both of which claim to be final and absolute in their own terms. It implies that there would no longer be just one body of law which holds sway over the same territory but two or more ‘law ways’. In terms of Deleuze and Guattari’s concept of becoming, the recognition of native title involves a becoming-indigenous of the common law to the extent that it now protects a property right derived from indigenous law; and a becoming-common law of indigenous law to the extent that it now acquires the authority along with the jurisprudential limits of the common law doctrine of native title. In terms of their concept of capture, the recognition of native title is a partial deterritorialisation of the legal apparatus of capture by means of a refusal of its primary stage: the establishment of a uniform space of comparison and appropriation. It amounts to the assertion of an irreducible difference where before there had only been a uniform legal space of alienated or unalienated Crown land. In this manner, aboriginal or native title gives effect to the absolute deterritorialisation of the judicial apparatus of colonial capture.

In effect, the legal recognition of indigenous law and custom returns to the fundamental jurisprudential problem of colonisation and rewrites the

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terms of that event. It opens up the possibility of a reconfiguration of the constitutional form of the colonial polity and the emergence of a different solution to the problem of the colonial nation-state. To the extent that aboriginal law would constitute distinct internal limits to the authority and jurisdiction of the common law, there would no longer be a unique locus of sovereign power. Sovereignty itself was not an issue in the Mabo case and the decision bears only upon what follows from the acquisition of sovereignty by the Crown. The judges were careful to avoid the issue and to reaffirm the common-law doctrine that the extension of sovereignty to a new territory was an ‘act of state’ that was immune to challenge in municipal courts. Nevertheless, the judgment creates a degree of uncertainty with regard to the legitimacy of the British claim to have acquired sovereignty over land that was ‘desert and uninhabited’. To the extent that the argument of the majority judges rejected the common-law equivalent of the extended terra nullius doctrine—the ‘absence of law’ or ‘barbarian’ principle—the case poses an implicit challenge to the official doctrine that Australia was settled rather than conquered. As a number of commentators have pointed out, if the High Court accepts the prior existence of aboriginal customary law and interests in land for the purposes of the common law, then it seems committed to the view that prior indigenous societies were ‘sovereign’ in the sense that they saw themselves as ruled by a law that was absolute and subject to no higher authority (Patton 1996d; Ivison 1997). Conversely, it is difficult to see the law as consistent when it rejects the barbarian principle for domestic purposes while relying upon it as the justification of its own authority. Henry Reynolds suggests that this is

the fundamental problem at the heart of Australian jurisprudence. The doctrine of the settled colony only works if there literally was no sovereignty—no recognisable political or legal organisation at all—before 1788. And that proposition can only survive if underpinned by nineteenth-century ideas about ‘primitive’ people.

(Reynolds 1996:13–14)

In a survey of the jurisprudence of aboriginal rights in Canada between the 1973 Calder case and the 1996 case of Van der Peet v. The Queen,¹⁸ Michael Asch argues that a similar contradiction emerges in recent Canadian jurisprudence:

The view that indigenous peoples were uncivilised at the time of settlement was repudiated in Calder, and to uphold it in order to explain state sovereignty is not only contradictory; it is also repugnant to contemporary values. The idea is ethnocentric and racist, a direct holdover from the colonial era…Yet the state has derived

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no thesis to supplant it; the government has chosen not to address it; and the court has chosen either to ignore it in the Calder era, or to define it away in Van der Peet.

(Asch 1999:441)

Although critical of the way in which the Supreme Court has sought to characterise aboriginal rights in a manner that excludes any associated political rights such as self-determination, Asch does not rule out the possibility that a more fundamental renegotiation of the political relationship between indigenous peoples and the state may yet take place. His argument that the opportunity to do so has not so far been taken up by the courts confirms the suggestion here that the concept of aboriginal title creates a jurisprudential smooth space which may develop in unexpected directions. To the extent that it is able to connect up with other lines along which the sovereignty of the colonial state is under challenge, and to avoid definitive conjugation and reterritorialisation, native title jurisprudence as it continues to develop in Australia and Canada is a machine of constitutional metamorphosis.

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Date: 2015-01-11; view: 680