A. The Doctrine of Aboriginal Title

One of oldest and most established theories of aboriginal title to land is as a substantive right recognized at common law, where the title exists as a result of the legal effect given to pre-sovereignty native occupation of lands. Several commentatorsFootnote ¹⁰ have identified the theoretical foundations of this doctrine in the trilogy of cases that came before the United States Supreme Court in the first half of the nineteenth century.Footnote ¹¹ In all of them the leading judgments were given by Chief Justice John Marshall, and though at times his language was offensive and his philosophy objectionable, no one of these decisions can be examined in isolation. Instead, in the nine years that lay between them it is possible to trace an evolution in Marshall's approach, in which what emerged was a doctrine of Indian title that recognized the land rights of Native Americans.

In Johnson, the first of the trilogy, Marshall CJ acknowledged that Native Americans were ‘the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion.’Footnote ¹² This remarkable concession (coming almost 170 years before Australia's epiphany in Mabo) has been generally overlooked because of a skewed focus on other parts of the judgment and a failure to consider the doctrine as it evolved. One of the weaker aspects of Marshall's reasoning in Johnson lay in his treatment of the juridical basis of European settlement. Marshall stated that ‘discovery’ was the basis of the Crown's title, which was legitimated by the Royal Commissions and Charters.Footnote ¹³ He reasoned expansively that the ‘very grant of a charter is an assertion of the title of the crown … and the charter contains an actual grant of the soil, as well as of the powers of government’.Footnote ¹⁴ However, leading thinkers at the time were divided on the juridical effect of discovery,Footnote ¹⁵ and given the fierce European maritime rivalry that existed there were predictably competing views, encompassing both discovery and possession, which were invoked to legitimate the acquisition of territory.Footnote ¹⁶

Aside from the legal consequences of discovery, a more troubling aspect of Marshall's ruling in Johnson is his explanation for the non-consensual appropriation of native lands. Marshall based his conclusions on the established practice of the English government in acquiring territory on the American continent, pointing to the various Charters as evidence of the Crown's assumption of an exclusive power to appropriate lands in spite of the presence of the Indians thereon. After surveying various Charters issued by the English Crown, some from as far back as 1496 regarding discovery and taking possession of unknown lands, as well as others issued in the early 1600s relating specifically to taking possession of territories on the American continent, Marshall CJ observed: ‘Thus has our whole country been granted by the Crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees.’Footnote ¹⁷

As justification for this exercise of undiluted dominance, Marshall adverted to the level of civilization attained by native societies, stating that ‘the character and religion of [the continent's] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.’Footnote ¹⁸ For good measure, he also reiterated that the charters and commissions to which England traced its title authorized the discovery and possession of ‘such remote, heathen, and barbarous lands, as were not actually possessed by any Christian prince or people’.Footnote ¹⁹

Predictably, these aspects of Marshall's judgment have been heavily criticized, not the least for their scandalous racist underpinnings.Footnote ²⁰Johnson heralded a reduced status for native Americans in terms of their rights to land, both in the obvious sense that henceforth they could not freely alienate their land, as well as in the unacknowledged reality that the inexorable march of European settlement meant that they were often compelled to relinquish territory.Footnote ²¹

More damaging has been the legacy of this decision where viewed in isolation. The equivocation that permeates Marshall's reasoning—notably, for example, his acknowledgement of an ‘Indian right of occupancy’ simultaneously with a power in the discovering nation to ‘grant the soil, while yet in the possession of the natives’,Footnote ²² has spawned a conflicting jurisprudence. Like Biblical text this case has been invoked for entirely antagonistic purposes, both to reinforceFootnote ²³ and to denyFootnote ²⁴ the rights of Native Americans to land. Critics claim that it facilitated the judicial creation of rules regarding the extinguishment of aboriginal title, manifested most graphically in subsequent decisions that viewed extinguishment as raising political and not justiciable issues.Footnote ²⁵ Less harshly, Kent McNeil posits that it is because later judges have been unable to understand the interest described in Johnson, that of a ‘right of occupancy’, that they have denied aboriginal title its constitutionally protected status as a property right.Footnote ²⁶

These are not necessarily invalid critiques, particularly insofar as they acknowledge that the source of later judicial denials of aboriginal rights partly lay in a misunderstanding of the rationale in Johnson. Ultimately, an accurate understanding of the doctrine that emerged out of US Supreme Court in the early nineteenth century can only be had from a consideration of all three cases of the period on Indian title. Whatever equivocation exists in Johnson, one ineluctable fact is that consistently throughout these decisions the territorial rights of Native Americans were recognized. By the time Marshall delivered the judgment in Worcester, nine years after Johnson, this position was forcefully and unequivocally expressed:

Crucially, the source of this entitlement was grounded not in narrow common law doctrines relating to land, but instead in wider principles which derived both from the law of nationsFootnote ²⁸ and the practice and policy of the British crown towards its overseas possessions, dubbed an aspect of imperial constitutional law.Footnote ²⁹ The latter was a body of law that grew out of Crown policies and practices to govern various issues relating to Britain's expanding empire, such as the constitutional status of colonies, the legal parameters of the relationship between the Crown and its overseas possessions and legal rights of aboriginal peoples.Footnote ³⁰ Moreover, this embryonic Colonial law was not developed in isolation, but was shaped by the ‘inter-societal custom and law’ generated by the interaction of the native and settler societies.Footnote ³¹ According to Brian Slattery:

That this was indeed a ‘body of fundamental constitutional law’ is evident from its application outside the American context in other jurisdictions where settler populations came into contact with native societies. In New Zealand, for example, the rights of the indigenous population to their land obtained judicial recognition from as long ago as 1847, the court maintaining that such rights were ‘entitled to be respected’ and could not be extinguished without ‘the free consent of the Native occupiers’.Footnote ³³ Like his American counterpart, Chapman J sourced these native rights in the law of nations as well as in fundamental principles of British colonial law.Footnote ³⁴ In modern times, the Marshall decisions have been particularly influential in Canada, where they shaped a developing jurisprudence that recognized aboriginal rights to land at common law based on pre-sovereignty occupation.Footnote ³⁵

B. The Continuity Doctrine

While under the preceding doctrine indigenous rights obtain legal recognition under British colonial law, there is an even older doctrine by virtue of which indigenous rights are sourced directly through indigenous laws and customs themselves that survive the change in sovereignty. This source is more of a procedural device, referred to as ‘continuity’ principles. Simply put, this doctrine distinguishes between public and private rights: on the acquisition of territory the former pass to the new sovereign, whereas the latter are retained by the conquered peoples in the absence of any specific act of expropriation at the time of conquest. The roots of the continuity doctrine are of great antiquity, and where modern courts in Canada, Australia, Malaysia, Kenya, Belize and BotswanaFootnote ³⁶ have applied some version of it there was nothing novel or revolutionary involved. Instead, these courts were simply continuing a tradition that reaches all the way back to ancient conquests engaging Roman law.Footnote ³⁷

In more recent times, from the immediate aftermath of Columbus’ journeys onwards when a frenzied period of European expansion was unleashed, continuity principles gained renewed currency. During this period there was an accompanying explosion of intellectual debate surrounding the legitimacy of the conquest of indigenous Americans, much of which was premised on racist and self-serving theories that denied indigenous peoples any rights to their own lands.Footnote ³⁸ However, an influential body of opinion emerged at the same time challenging these views, most prominently in the work of the pioneering Dominican theologian Francisco de Vitoria who posited that natives were rational beings and that their lack of Christian faith was no justification for stripping them of their property. In a lecture entitled ‘On the Indians lately discovered’, Vitoria famously asserted that the Pope had no power over the Indians and could not grant away their lands; taking their possessions, he opined, ‘would be theft or robbery no less than if it were done to Christians’.Footnote ³⁹ Vitoria's theories helped to revolutionize the epistemology of indigenous rights, and his influence can be discerned in the writings of his contemporaries such as Dominic Soto and the famous Spanish missionary Las Casas, as well as in that of other commentators in subsequent centuries.Footnote ⁴⁰

Even more consistently than international law, the common law has long respected the continuity of private rightsFootnote ⁴¹ (as distinct from British colonial law that independently recognized the legality of indigenous occupancy). As far back as 1608 Coke CJ ruled that ‘if a King come to a Christian kingdom by conquest, seeing that he hath vitae et necis potestatem, he may at his pleasure alter and change the laws of that kingdom: but until he doth make an alteration of those laws the ancient laws of that kingdom remain.’Footnote ⁴²

Calvin's Case was followed in a number of other casesFootnote ⁴³ and by the mid-eighteenth century it had become well entrenched. In subsequent cases the principle was refined and expanded, generating an entire body of law concerning the consequences of sovereignty and the power of the Crown upon the acquisition of new territory. In summary, it was laid down that in settled colonies Englishmen ‘carried’ their laws with them, whereas in colonies acquired by conquest or cession local laws remained. These principles were eventually enshrined in Blackstone's highly influential Commentaries on the Laws of England.Footnote ⁴⁴

Thus by the end of the 19th century both international law and the common law recognized aboriginal rights in parallel and distinct ways, each source containing principles which anchor modern jurisprudence on the subject. Given this history, it is almost fanciful to suggest that a body of law relating to indigenous rights is now ‘emerging’, and it is even less credible to assert that Australian and Canadian courts have been mainly responsible for these developments. Further, as will be argued in the following sections, increased litigation regarding aboriginal rights within recent decades has not always developed the law on aboriginal title; indeed, in many instances its effect has been the opposite.

A. The Recognition Doctrine

Under the recognition doctrine a change in sovereignty is said to abrogate all existing rights, whether private or public, so the only interests in land retained by the existing population are those expressly recognized by the incoming sovereign. It purports a ‘radical discontinuity’ as a result of the change in sovereignty.Footnote ⁵² It is most closely associated with a narrow line of Indian cases,Footnote ⁵³ though it was recently applied in the first indigenous land rights case heard in the High Court of Guyana.Footnote ⁵⁴ However, given the drastic consequences of its application, the doctrine has long been regarded as legally and morally indefensible, out of step with logic as well as with prevailing authorities.Footnote ⁵⁵

B. Common Law Aboriginal Title

The doctrine of common law aboriginal title is of relatively recent origin. It owes its existence to Professor Kent McNeil, who theorized in his pioneering study that factual occupation of land by indigenous peoples is sufficient proof of legal possession which, in the absence of any other claim to or interest in the said land, entitles them to a proprietary title under basic tenets of English property law.Footnote ⁵⁶ A title through this method is anchored firmly in municipal law, for it relies on a presumption of English property law that factual occupation is proof of legal possession or ownership. This theory is therefore distinct from the doctrine associated with the Marshall Supreme Court under which pre-sovereignty occupation was accorded legal status by a combination of the law of Nations and Imperial constitutional law, which applied to a territorial acquisition irrespective of the introduction of the common law in its narrower sense.Footnote ⁵⁷ Thus an important difference between the two doctrines is that McNeil's thesis is grounded in domestic law, whereas Marshall's doctrine is an application of British colonial law.Footnote ⁵⁸

Another difference between the two theories is that while McNeil's is concerned with the present, the other looks to the past. Since the whole thrust of McNeil's approach is to place indigenous occupants of land in the same position as other (non-aboriginal) occupants, its principled application dispenses with the need to prove pre-sovereignty occupation. Indeed, McNeil himself makes this clear by stating: ‘Some of these problems [of proving continuous occupation since the acquisition of Crown sovereignty] can be avoided if the aboriginals who claim title are presently in occupation of the lands claimed by them. In that situation, they can rely on their own occupation and the common law presumption that occupiers of land have title to fee simple estates.’Footnote ⁵⁹ This is a crucial aspect of McNeil's theory apparently overlooked by Lamer CJC, who, by finding pre-sovereignty occupation to be relevant in light of a common law principle, has made its application more difficult.

C. The Detrimental Consequences of Indiscriminate Borrowing

How, then, did these distinct sources come to be lumped together in Lamer's judgment in Delgamuukw? If one were to search for the origins of this confusion, one would probably find an answer in the series of steps marking the transplantation of doctrines across divergent jurisdictions, thereafter cemented in the accompanying commentary. Prior to Delgamuukw, Canadian law recognized two sources of aboriginal title: the application of continuity principles,Footnote ⁶⁰ and the alternative of constitutional recognition as granted by the common law.Footnote ⁶¹ But by 1997, when the Canadian Supreme Court was faced with the appeal in Delgamuukw, McNeil's novel theory had just been applied by the Australian High Court in Mabo. The trouble was, however, that four separate concurring judgments were delivered in Mabo, so discerning a common position is not straightforward. In the judgment delivered by Toohey J, McNeil's theory was discussed closely, though as an alternative source of native title.Footnote ⁶² When the Canadian Supreme Court came to deal with this issue in Delgamuukw, it apparently overlooked the important fact that McNeil's theory had been developed as an alternative to the traditional doctrines which focused on historical occupation. This slippage was compounded when Lamer CJC juxtaposed two distinct sources in an obscure passage that did not explain their connection, if any.Footnote ⁶³ All this confusion was reinforced in Gilbert's analysis, which presented what had hitherto been distinct sources of aboriginal title as joint or interchangeable.

Laxity in the application of indigenous rights theories is undesirable for reasons beyond nostalgia for doctrinal purity. The source of entitlement directly influences the means of proof and determines the nature and scope of any resulting title. The choice of which doctrine to invoke is therefore one that must be made mindful of history and context. The alternative of taking a generic approach is to ignore limitations unique to each doctrine, which could then operate to defeat a land claim where circumstances differ in material respects.

The recognition doctrine, for example, which states that no pre-existing rights survived a transition of sovereignty except insofar as they were explicitly recognized and affirmed by the incoming Sovereign, would non-suit claimants if invoked in places where no land rights legislation exist. While this doctrine has obvious limitations, which renders it less likely to be relied on by indigenous peoples, other more popular sources as identified above are no less fraught.

A prime example is the continuity doctrine, which has tremendous evidential and conceptual difficulties, belying its current popularity. Applicants must establish a connection to the land claimed which existed at the time of sovereignty and continued thereafter up to the present.Footnote ⁶⁴ Given the early roots of colonization, this necessitates evidence of events and laws dating back hundreds of years, an enormously difficult burden for most aboriginal societies which lack written records. Any change in the colonial power—not an infrequent occurrence as territorial possessions changed hands routinely—amounted to discontinuity and could signal the loss of pre-existing rights. Indeed, early cases from around the Commonwealth floundered on this ground alone.Footnote ⁶⁵ Another difficulty posed by the continuity doctrine, as will be demonstrated below, relates to the identification of pre-existing laws.Footnote ⁶⁶

McNeil's doctrine, for all of its contemporariness, poses its own challenges. Because it involves the application of real property principles, it requires skilful navigation between the highly artificial English law and indigenous patterns of land use.Footnote ⁶⁷ English property law consists of intricate and arcane rules, starting with the fiction of original crown ownership of all lands. It has no experience of dealing with features of land use that are unique to aboriginal societies, such as their sacred, spiritual relationship with land, their concept of stewardship rather than ownership, their seasonal patterns of use and so on.Footnote ⁶⁸ In the past, many of these unique aspects of aboriginal land use confounded Western jurists and theorists, as embodied in the writings of Vattel whose utilitarian philosophy was invoked on occasion to justify the dispossession of migratory societies.Footnote ⁶⁹ These dangers are no less in the present, as evidenced by the convoluted application of this doctrine in Delgamuukw and the damaging influence that decision has in turn exerted.

In R v Marshall; R v Bernard, at issue were the rights of the Mi'kmaq to cut logs on what were described as Crown lands in Nova Scotia and New Brunswick. The current Chief Justice, McLachlin CJC, held that aboriginal title ‘is established by practices that indicate possession similar to that associated with title at common law’, which necessitated a process of ‘matching common law property rules to aboriginal practice’.Footnote ⁷⁰ In her exposition of common law property rules regarding legal possession, McLachlin CJC identified the requirements laid down in Delgamuukw for title as exclusive physical occupation of land.Footnote ⁷¹ Despite repeated lip-service to the need for sensitivity to aboriginal perspectives, McLachlin CJC appeared not to follow her own advice, for she held that ‘occasional entry and use [of land] is inconsistent with … the approach to aboriginal title which this court has consistently maintained’.Footnote ⁷² Applied to the facts of that case, it meant that the seasonal use made by the Mi'kmaq of the territory in question could not found aboriginal title, and their convictions were restored.

Since aboriginal peoples are known to pursue migratory lifestyles, and often use the resources on the land occasionally as opposed to cultivating it, McLachlin's test of occupation maximizes the difficulties of aboriginal societies in claiming title to territory historically used by them. Her approach which requires ‘matching’ common law rules to aboriginal practices is not an entirely unforeseeable development of Lamer's test in Delgamuukw, which attributed relevance of pre-sovereignty occupation to a rule of English property law. In the matching process later conducted by McLachlin CJC, aboriginal practices alien to Western values were marginalized, highlighting the pitfalls of thoughtless borrowing.Footnote ⁷³

These differences among various jurisdictions, particularly in the type (and consequences) of doctrines applied, make claims of a ‘unified’ doctrine of indigenous title unsustainable. To recap, in the course of the last 300 years colonial courts and their successors have recognized a variety of sources of aboriginal title. There is the doctrine of aboriginal title, which is a species of British colonial law and practice and which applied to a territory as a necessary incident of British sovereignty. This body of law recognized aboriginal rights, including pre-sovereignty native occupation of lands. There is the doctrine of continuity, by which indigenous rights to land are rooted in indigenous laws themselves, which are held to continue in a territory even after a change in political sovereignty. This doctrine is well established both at international law and under the common law. More recently, there is the doctrine of common law aboriginal title, which sources aboriginal rights to land in the domestic real property law, simply by applying the legal presumption that factual occupation of land gives rise to possession and ownership. Finally, there is the recognition doctrine, by which the only aboriginal rights recognized are those which have been explicitly granted by statute. However, as discussed above, each of these sources has limitations unique to its application, and an uninformed choice of one or the other could result in the denial of a land claim. It is for this reason more than any other that interpretations of a unified jurisprudence must be resisted.

A. Sources of Indigenous Rights

According to Gilbert, for the first time in legal history, under the doctrine of indigenous title courts have recognized the legal value of indigenous customary systems of land tenure. In support, he cites a succession of decisions from courts in Canada, South Africa, Malaysia, Kenya, Botswana, Belize and Australia.Footnote ⁷⁶ However, a closer look at the jurisprudence of some of these jurisdictions reveals considerable ambivalence on the subject of indigenous rights. One example is provided by the application of continuity principles as a source of native title in Australian jurisprudence since Mabo.

Since the doctrine of continuity operates to preserve pre-existing private rights (including rights of property) on a change of sovereignty, it necessarily follows that the ‘public lands’ which pass to an incoming sovereign during this process cannot include lands subject to pre-existing customary interests, as the latter are private in nature. However, the logic (and justice) of this conclusion has been denied in Australia, where legislation making provision for ‘waste land’ was interpreted as including lands subject to pre-existing customary interests. In Fejo v Northern Territory,Footnote ⁷⁷ the High Court held unanimously that a fee simple grant in 1882 had extinguished any native title interest in the land, as an estate in fee simple is equivalent to full ownership and is therefore incompatible with any other right or interest (unless the subsequent right or interest was granted by statute, the owner in fee simple or by a predecessor in title). Once extinguished, native title could not be revived when the land was resumed by the Crown.

The problem with this reasoning is that the grant in question had been made pursuant to section 8 of the Northern Territory Land Act 1872, which only empowered the Governor to make freehold and leasehold grants of ‘waste lands’. In construing this provision, the Chief Justice and five other Judges held in a single joint judgment that ‘The power to deal with waste lands in the Northern Territory (including the subject lands of the case) was to be found wholly within the 1872 Act. … That Act permitted the making of an unqualified grant of an estate in fee simple.’Footnote ⁷⁸ But this did not address the issue, for it failed to explain how the statutory provision could include lands subject to pre-existing aboriginal interests.

Rejecting an alternative submission of the appellants that the fee simple grant should be read as having been made subject to native title rights, the majority held that even though at common law a fee simple estate could be subject to other interests (easements and profits à prendre being obvious examples), this could not include native title rights as the latter owed their existence to a different body of law and traditions.Footnote ⁷⁹ In a separate concurring judgment, Kirby J echoed this point, adding that native title rights are ‘inherently fragile’ since they are dependent on a different legal system for protection.Footnote ⁸⁰ Arguably, this was a fine and ultimately irrelevant distinction, since native title rights had earlier been acknowledged by this very Court to be of a proprietary nature. Moreover, the common law has never made distinctions based on the source of property rights,Footnote ⁸¹ so there was no reason in principle why native title rights should be treated differently from an easement or other common law interest. In any case, the recognition of native title rights deemed necessary by the High Court had already been accorded,Footnote ⁸² so the Justices’ explanation was indefensible even upon its own terms.

In addition to its unpersuasive rationale, this ruling contravened Australian precedent of very recent origin. In Mabo, Justices Deane and Gaudron clearly held that in the absence of clear and unambiguous words, waste lands legislation could not be construed as extinguishing or denying native title.Footnote ⁸³ Justice Toohey was equally direct, saying: ‘traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of the waste lands of the colony or Crown land.’Footnote ⁸⁴ These are unequivocal statements, but they were ignored in Fejo.

What seems to have happened here was that after Mabo, presumably when the implications of the continuity doctrine began to register, the High Court sought to contain its initial exuberance by limiting the doctrine's scope. To do so, the judgment in Fejo distorted established common law principles relating to the continuity of private proprietary interests. This reversal mirrors precisely what occurred in Canada from the time of Delgamuukw in 1997 to Marshall and Bernard in 2005, creating the impression that in these countries enlightenment is closely followed by second thoughts, hence the subsequent judicial and legislative restrictions. Because of this ambivalence, characterizing the common law in either of these countries as a model is an assessment which cannot withstand rigorous scrutiny. This conclusion is reinforced when other aspects of aboriginal title jurisprudence are examined.

B. Proof of Indigenous Rights

Proving the existence of rights has always been a gruelling undertaking for indigenous peoples. Nowhere are these realities more graphically highlighted than in Australia and Canada. In Canada, as pointed out above, the test for proving aboriginal title has been rendered much more difficult, for the latest Supreme Court decision in Marshall and Bernard requires the assessment of indigenous use of the land from a Eurocentric standpoint. Since aboriginals never enclosed their territories or remained sedentary, establishing ‘exclusive use and occupation’ will make claimants less likely to succeed in proving aboriginal title.

The difficulties increase where aboriginal peoples claim free-standing rights in the land, as distinct from actual title. In Sparrow, an early case which examined the legality of a net length restriction contained in the appellant's Band food fishing licence, the Supreme Court held that aboriginal rights receiving constitutional protection were those that were already in existence at the time the Constitution came into effect (which was 1982). Moreover, the court held that the phrase ‘existing aboriginal rights’ had to be interpreted flexibly to take into account the evolution of aboriginal rights, so that rights could be ‘affirmed in a contemporary form rather than in their primeval simplicity and vigour’.Footnote ⁸⁵ By the following decade, however, this humane and culturally sensitive approach was all but abandoned when a series of cases arose in which aboriginal peoples asserted rights of a commercial nature. In the very Van der Peet decision cited above, the issue was whether the Sto:lo people had an aboriginal right to fish commercially, and the Supreme Court decided that in order to qualify as an aboriginal right the activity in question must be ‘an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.’Footnote ⁸⁶ As if this were not onerous enough, to qualify as a right the practice, custom or tradition must have existed at the time of contact with Europeans—long before either the British or the French asserted (much less acquired) sovereignty.

The genesis of this test is entirely unclear, violating as it does not only logic and humanity but precedent of very recent origin. Obvious problems are proving a practice existed so long ago and that it was ‘integral’ to the group's culture. What is highly doubtful is that anyone (and far less a judge, most likely of European descent) has the capacity to determine what was integral to an aboriginal society's culture some three or four hundred years ago; what is undeniably offensive is that the descendants of settlers have arrogated to themselves the power to do so. The Van der Peet test has been excoriated by commentators, with one of the most incisive critiques coming from scholars Russell Barsh and Youngblood Henderson who describe it as ‘philosophically hopeless and morally unjust’.Footnote ⁸⁷ The two make several insightful observations, pointing out first that centrality cannot be objectified, or reliably measured by outsiders; second, that centrality presumes the independence of cultural elements, whereas in reality cultural characteristics are often interdependent; and third, that centrality—assuming it exists—would not be static.

Thus in Canada, while Sparrow formulated a conciliatory standard with its frame of reference of 1982, this has been undone by Van der Peet. The latter not only makes it harder for any right to be established, it also renders it highly unlikely that the modern expression of past practices could ever qualify as an aboriginal right—as illustrated by a series of cases where aboriginal groups have claimed rights of a commercial nature.Footnote ⁸⁸

Similar travails have faced native title claimants in Australia in the post-Mabo era. In Mabo, it was the continuity doctrine which prevailed with a majority of the judges, the rationale for that decision being that the pre-existing rights of the indigenous inhabitants to the territory had survived the acquisition of sovereignty by the British crown.Footnote ⁸⁹ Replicating Mabo's success, however, has since proved to be an elusive undertaking.

Under the continuity doctrine what must be proven is occupation of the land claimed at the time the British crown asserted sovereignty.Footnote ⁹⁰ In most instances, this requires digging deep into the past, which modern aboriginal societies are often ill-equipped to do. The difficulty of this requirement is exacerbated by the fact that British assertions of sovereignty did not result in the crystallization of boundaries and the cementing of areas of aboriginal occupation. Quite the contrary, European invasion heralded tremendous upheavals in aboriginal societies, disrupting both their sites and manner of living. Thereafter, the perennial conflict for land and resources led to continuous fluidity in both European and aboriginal occupation. Thus, to require any modern aboriginal society to trace its present occupation of land to pre-sovereignty areas or patterns presents a task of Herculean proportions.

These concerns figure prominently in a decision of the Australian High Court in a claim brought by the Yorta Yorta Peoples for recognition of their native title to land and waters in northern Victoria and southern New South Wales. The applicants lost at every level of the Australian judiciary, their ultimate failure resulting from what the High Court viewed as the absence of proof of the continuity of their traditional laws and customs. The High Court held that the applicants had to show that pre-existing native laws and customs had actually survived to the present, for if the ‘normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist’.Footnote ⁹¹

As if that were not by itself a sufficiently onerous burden, the Court further stipulated that the pre-existing normative system could not give rise to rights and interests after the assertion of British sovereignty, for there could be no parallel law-making system after that event.Footnote ⁹² Thus the applicants were placed in the impossible situation of having to prove continued adherence to traditional laws and customs and the existence of the system which gave rise to them, though that system was expected to flourish in the intervening centuries without functioning. This was necessary since every other normative system in Australia became excluded by the monopolistic nature of British sovereignty. According to Sky Mykyta, commenting on this requirement, ‘the Court requires Indigenous peoples to acknowledge what it denies and to keep alive what it says cannot exist’.Footnote ⁹³

Another difficulty posed by the application of the continuity doctrine relates to the proof of pre-existing native laws and customs, in which native title is sourced.Footnote ⁹⁴ While the Mabo test has been dutifully echoed in a number of cases, most recently by the Belizean High Court,Footnote ⁹⁵ what it does not reveal is the difficulty of actually identifying those customary indigenous laws. Indeed, patently absent from the majority of cases that purport to give effect to pre-existing indigenous laws through the recognition of a customary land title is any informed discussion as to the existence and nature of those laws. Where courts make an attempt to articulate controlling principles, invariably this involves considerable guesswork, with detrimental results for indigenous applicants. Once again, the approach of the Australian High Court graphically illustrates these difficulties.

In Yorta Yorta, the High Court held that the forbears of the applicants had ceased to occupy their lands in accordance with traditional laws and customs. In so finding, the High Court relied on the determination of the trial judge, which was in turn based on historical accounts of aboriginal culture written by a White pastoralist. However, it has been widely acknowledged that those accounts were of doubtful credibility and reliability.Footnote ⁹⁶ This resulted in a rejection of the applicants’ claim that their observance of traditional laws and customs met the test of a present connection as required by the legislation. In this way, both historical and modern aboriginal perspectives were completely ignored. As Kirsten Anker has insightfully pointed out, the Court's interpretation of tradition and culture wholly misunderstood the nature of traditional laws and customs, and by substituting its own understanding and expectations of what these laws and customs constituted, it completely ignored the fact that the customs described by the applicants were simply the contemporary expression of pre-existing practices.Footnote ⁹⁷

Anker's view is reinforced by indigenous scholar and tribal Judge Zuni Cruz, who argues that historically, ‘external recognition’ of indigenous knowledge has not been ‘accurate, complete, fair or unbiased.’ Cruz further charges that the misrepresentation of indigenous laws has often been deliberate in the quest for assimilation of Indigenous peoples by states.Footnote ⁹⁸ At the most charitable, the evident inability of the Australian High Court to navigate certain procedural matters underlines how ill-equipped common law courts are in general to assess unconventional forms of evidence such as oral testimoniesFootnote ⁹⁹ and historical materials.Footnote ¹⁰⁰ Altogether, the Yorta Yorta proceedings reveal the dangers inherent in requiring a modern court to estimate pre-sovereignty laws and customs and then expecting its conceptions to be reflected in current practices among indigenous applicants through an unbroken chain of continuity. It often involves much speculation, where the perspectives of indigenous applicants are invariably marginalized in the interpretations placed either upon the past or the present. Allied to these concerns are the fundamental difficulties with any approach that places an inordinate emphasis on strict continuity, given the very nature of colonization that resulted in sometimes minor, but often significant, disruptions to indigenous modes and patterns of living.Footnote ¹⁰¹ As it has evolved in these jurisdictions, therefore, common law doctrines impose evidentially onerous and culturally insensitive requirements for proving the existence of rights. As long as these conditions remain, they should be unhesitatingly rejected by other courts as a model for a general legal theory on indigenous land rights.

C. Extinguishment of Indigenous Rights

Claims that a common law doctrine on indigenous title can be seen as a bridge between indigenous and non-indigenous cultures since the same weight is given to both systems of lawFootnote ¹⁰² are definitively exploded the moment one makes a connection between the strength of a title and its source. Notions of equality become impossible to maintain since pre-existing indigenous rights can be extinguished under rules of the common law system, which has always been unequivocal about its dominance.Footnote ¹⁰³ Naturally, the reverse does not hold true, so it is thus not credible to speak of the common law achieving (or even aiming for) reconciliation.

In the first place, if these systems were really weighted equally then pre-existing rights would not be subject to extinguishment by grants made under the common law. However, from the earliest times common law courts have insisted that sovereignty carried certain powers to extinguish pre-existing rights in the land. In Johnson v M'Intosh, Marshall CJ cautioned that ‘all our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.’Footnote ¹⁰⁴ Elsewhere, other common law courts have followed suit, so that, whatever the source by which indigenous rights are recognized, always present is an accompanying assertion of the Crown's overriding power to extinguish.Footnote ¹⁰⁵

Reinforcing the subordinate status of indigenous title is the manner in which the power to extinguish is exercised. Here again, the common law operates discriminatorily, treating rights sourced in indigenous laws differently (and less favourably) than those sourced in its own system. At common law property rights cannot be extinguished other than with appropriate legislative authority, and then only if the required standard is met.Footnote ¹⁰⁶ Since aboriginal title is a proprietary right, it ought to benefit from this protection. However, in Canada this principle has been desultorily applied,Footnote ¹⁰⁷ while in Australia it seems to have been completely rejected.

In Mabo, having found that native title survived the acquisition of sovereignty by the British crown, the Australian High Court next had to consider the effect of both legislation and executive acts in the years intervening since annexation of the territory. While it was held, incontestably, that ‘clear and plain’ legislation could suffice to extinguish native title, all the Judges were united in finding that this result could also be achieved by executive act under the crown's prerogative powers. Brennan J, who delivered the leading judgment, based this conclusion on the source of native title. He pointed out that the Crown cannot extinguish an interest validly granted by it without statutory authority, and that a statute will be construed, if possible, as not authorizing any impairment of an interest in land granted by the Crown. However, Brennan continued, since native title is not granted by the Crown no similar constraint exists preventing the Crown from extinguishing it without express statutory authority.Footnote ¹⁰⁸

Brennan J acted on this conclusion by finding that aboriginal rights had been denuded not by operation of law, but ‘by the exercise of sovereign authority over land exercised recurrently by governments’ over the course of the preceding 200 years of settlement.Footnote ¹⁰⁹ Executive acts in the early years of settlement in Australia occurred long before statutory authorization,Footnote ¹¹⁰ so such subjugation to executive pleasure confirms the inferior status of aboriginal interests in land in spite of their proprietary nature.

This approach is legally indefensible. Once it is accepted that native rights in land are of a proprietary nature recognized by the common law,Footnote ¹¹¹ it ought to follow naturally that such rights become clothed with all of the protections accorded to property by the said common law. Included among such protections is the hallowed constitutional principle that private property is not subject to arbitrary executive action. A corollary to this principle is that the Crown cannot commit acts of state against its own subjects, a protection that exists even in times of war.Footnote ¹¹² Thus, while the Sovereign can extinguish private rights, this power is exercisable only under the law, which requires valid, enabling legislative authorization.Footnote ¹¹³

Compounding the vulnerability of native title is the legal standard to be met for extinguishment to validly occur. The prevailing test is taken from the judgment of Douglas J in U.S. v Santa Fe Pacific Railroad, where the strength of ‘Indian’ rights was reaffirmed as a matter of political expediency. Douglas J pointed to the historic need for peaceable relations with Indians, which necessitated a policy of respect for the Indian right of occupancy.Footnote ¹¹⁴ He continued that it would take ‘plain and unambiguous language’ to deprive the Walapais of the benefits of that policy,Footnote ¹¹⁵ affirming robustly that ‘extinguishment of Indian title cannot be lightly implied, but doubtful expressions in acts relating to Indians, instead of being resolved in favour of the United States, are to be resolved in favour of the Indians.’Footnote ¹¹⁶ Despite some equivocation in the way this ruling was actually applied, Douglas J left an enduring legacy in this test that ‘plain and unambiguous language’ is required to effect the extinguishment of indigenous rights. It has since been followed widely among common law courts, styled ‘clear and plain language’ in its most common incarnation.Footnote ¹¹⁷

While this test should protect indigenous peoples from arbitrarily losing their rights to the land, since it articulates a standard that must be met by legislation, courts have projected ambiguity onto the test in order to validate confiscatory acts by the state. Thus in Canada there is a lack of consensus as to what actually constitutes ‘clear and plain’. At one extreme, liberal judges like L'Heureux-Dube interpret the expression strictly, requiring an explicit statement in the law to effect the extinguishment of an aboriginal right.Footnote ¹¹⁸ However, L'Heureux-Dube is in the minority, with the weight of opinion leaning towards a less protective standard. Typical is that espoused by the British Columbia courts, which interpret the test as sanctioning extinguishment by ‘unavoidable implication’.Footnote ¹¹⁹ The Supreme Court has not provided any clarification,Footnote ¹²⁰ so the effect of this uncertainty is to reinforce the fragility of aboriginal rights in Canada as recognition is simultaneously devalued by the ease with which extinguishment could possibly occur.

In Australia, while judges have paid lip-service to the same ‘clear and plain’ requirement,Footnote ¹²¹ the subsequent elaboration of what this entails strips it of any real efficacy. Brennan J accepted that a clear and plain intention was required in order to extinguish native title given the ‘seriousness of the consequences’ of such actions.Footnote ¹²² But having espoused this laudable position, he proceeded to rule that native title is extinguished by grants of inconsistent interests, such as fee simple estates and even leases.Footnote ¹²³ This could happen unintentionally, as it was the effect of a grant that was operative. Only what he termed ‘lesser interests’, such as authorities to prospect for minerals, would not have this effect.Footnote ¹²⁴ But it is simply a violation of the English language to state a ‘clear and plain’ intention is evinced by legislation whose unintentional effect is to extinguish native title. Moreover, fundamental common law principles which protect private property against arbitrary executive action have also been applied to native title rights. In Oyekan v Adele Lord Denning had this to say in relation to the right of a native ruler to remain in occupation of the official palace in Lagos, which had been ceded to the British crown:

Thus the approach espoused by Brennan J constituted a significant derailment of legal principle, which the remaining judgments in Mabo did little to deflect. Deane and Gaudron JJ in a joint judgment posited that native title is ‘merely a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land’, so that an inconsistent Crown grant would naturally take precedence.Footnote ¹²⁶ However, it is generally understood that the characterization of ‘personal’ in the context of native title simply refers to its inalienability, and does not imply that it is a non-proprietary interest.Footnote ¹²⁷ In any event, Justices Deane and Gaudron themselves had earlier accepted that pre-existing native interests with respect to land did not have to conform to common law concepts of tenure in order to gain recognition.Footnote ¹²⁸ This was a pointed rejection of Lord Sumner's reasoning in Re Southern Rhodesia Footnote ¹²⁹ in favour of a more enlightened approach, so it was quite inconsistent for them to conclude later that native rights in land constituted a lesser interest than one recognized by the common law.

Most problematic of all, however, was the additional ground advanced by Deane and Gaudron JJ that where aboriginal occupation was terminated by third parties, the ‘lack of effective challenge would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations’.Footnote ¹³⁰ Given Australia's notorious history of violent aboriginal dispossession,Footnote ¹³¹ upheld over centuries by the courts, it is highly unlikely that judicial avenues for the successful vindication of aboriginal rights were ever available, and that acquiescence or laches could amount in such circumstances to a valid defence. Ultimately, although Deane and Gaudron JJ took pains to establish the egregious nature of the wrongs suffered by Australian aboriginals, whose rights were therefore not ‘illusory’,Footnote ¹³² the Justices concluded by privileging Crown grants over native interests in spite of the acknowledged illegality of past executive acts.

In spite of the voluminous criticism of this aspect of the Mabo decision,Footnote ¹³³ the Australian High Court has not budged. In Wik Peoples v Queensland,Footnote ¹³⁴ for example, the High Court maintained that grants inconsistent with native title rights operated to extinguish the latter, with their point of departure being the factual one that pastoral leases did not grant inconsistent rights. Likewise in Western Australia v Ward the outcome of extinguishment by inconsistent grant was again endorsed by the High Court. This time around, the majority judgment stressed the need for identifying the rights and interests possessed under traditional laws and customs, and comparing these to the legal nature and incidents of the right granted.Footnote ¹³⁵ To the extent that the two were not inconsistent with each other they could co-exist, with native rights yielding to those subsequently granted. Insofar as the two were incompatible, however, native rights and interests would be extinguished by the inconsistent grant.Footnote ¹³⁶

Once it is accepted that indigenous rights are of a proprietary nature, and once it is accepted that these rights are recognized by the common law—two propositions for which there is copious authority—then they can only be terminated by lawful, constitutional means. Since the standard for so doing has long been settled as clear and plain statutory authorization, this necessarily precludes extinguishment by implication or by inconsistent grant and, more fundamentally, extinguishment by prerogative power. In Australia, despite all the rhetoric of recognition by the common law, indigenous rights and title remain in a vulnerable position, for these standard constitutional safeguards have been routinely ignored by the courts.