Delgamu’ukw, Mabo, and Ysleta: Native Title in Canada, Australia, and the United States A conference sponsored by Socio-Legal Studies (RUSLS) at The University of Calgary, 18-20 September 2003 ABSTRACTS OF PRESENTATIONS Brian Ballantyne: “Beyond native title in Yukon and Nunavut” Since 2001 and over the course of six journeys, I have visited nine First Nations in Yukon and three Inuit communities in Nunavut. These visits, in conjunction with documentary and oral evidence, have revealed that land claims agreements are a necessary, but not a sufficient, condition to ensure that native title has some meaning in northern Canada. What follows negotiated agreements must include capacity building among local communities, as well as the development of mechanisms - such as rudimentary yet appropriate systems of registering rights in land – that allow First Nations and the Inuit to benefit from such rights. Paul Chartrand: “Canada’s Aboriginal rights regime: a ’race’ for identification and recognition?” Canada, built upon the lands of historic Aboriginal nations, has long had an ‘Indian policy’ to eliminate Aboriginal people, mostly by assimilation into the general population. The policy has resulted in significant dismemberment and disintegration of Aboriginal societal institutions. Aboriginal people lobbied for changes in a process of national Constitutional reform which led to s.35 of the Constitution Act 1982. This provision recognizes and affirms the rights of ‘the aboriginal peoples of Canada’, and expressly includes the Indian, Inuit and Metis peoples. Who are these peoples? The presentation will discuss ‘recognition’ policy in Canada and the United States, the concept of ‘race’, political and legal arguments pertaining to identification and definition, and social and political effects of the recent Constitutional recognition of Aboriginal rights. Tony Hall: "The American Empire and Aboriginal Title" The United States-led invasion of Iraq raises a range of fundamental issues in international law. Among the many questions that could be posed are the following: How did the occupation of Iraq by U.S. and British forces affect the sovereign title of Iraqi citizens to their own ancestral lands? Was the old title extinguished through an act of conquest? Or did the indigenous title from the preoccupation Iraqi polity survive the "regime change" now underway in that country? This paper will address these questions by drawing on the history of the concept and treatment of Aboriginal title, especially during the era when the United States emerged from a civil war in British North America. Among the ideas which clashed in this conflict, and in the subsequent War of 1812, were two very different notions about the status of Indigenous peoples and Aboriginal title in the ordering of international relations. The makers of the United States opposed the military might of the British Empire and Tecumseh's Indian Confederacy largely to push aside imperial and Aboriginal obstacles to western expansion. In so doing, they set patterns and precedents on a range of issues that are again becoming prominent in global geopolitics as the U.S. government addresses, from a position of great military and economic power, the status to be afforded to many Indigenous peoples, including the diverse populations of Iraq, the Kurds, and the Palestinians. Doug Harris: "Legal Geographies and Aboriginal Rights" From the allotment of Indian reserves in the nineteenth century to the recognition of Aboriginal rights in the late twentieth century, Canadian governments and courts have defined indigenous access to land and resources in geographic terms. Indigenous claims to land and resources are similarly territorial; they are not unlimited, but defined geographically, most often by the extent of a traditional territory. In their rulings on Indian reserves allotted outside a treaty framework, Canadian courts have specifically addressed the territorial nature of government policy in the reserve allotment process, and in most cases defined the boundaries in a manner that minimizes the geographical scope of reserves. In their rulings on Aboriginal rights, however, Canadian courts have generally ignored indigenous territoriality, defining the rights broadly in the first instance and then restricting them by other means. This paper explores the territorial nature of indigenous claims, their recognition in Canadian courts, and the consequences of this recognition (or lack of recognition) in the development of Aboriginal rights and title doctrine. Kenichi Matsui: "Waterpower Development and Indian Water Rights in Western Canada and Western United States in the Twentieth Century" Although scholars recently have examined the effect of hydroelectric dams on Native communities in late twentieth century North America, their studies have largely centered on Indian land rights and cultural damages, and have paid scant attention to Aboriginal water rights issues regarding waterpower developments before World War II. In this paper, by focusing on the three hydroelectric dam constructions on the Stoney Reserve from 1907 to 1938, and how they influenced construction of later dams in Western Canada, I argue that Aboriginal water rights became highly contentious political and economic issues among federal officials, entrepreneurs, and Native people. Comparing these developments with those in the western United States, we can then examine how Native leaders refined their bargaining strategy and gained the political recognition of their rights. Kent McNeil: "The Sources and Content of Indigenous Land Rights in Canada and Australia: A Critical Comparison" There can be no doubt that the content of Indigenous land rights is heavily influenced, if not determined, by the source of those rights. This has been confirmed by the very significant decisions on Indigenous land rights delivered by the Supreme Court of Canada and the High Court of Australia over the past 12 years. This paper will critically assess the divergent approaches to Indigenous land rights by the Supreme Court of Canada and the High Court of Australia. It will suggest that the Australian approach is deeply flawed because it imposes an overly-onerous burden of proof on Indigenous peoples, places judges in the difficult position of having to decide what rights arise from systems of law that are outside their cultural experience, and produces unjust results. The Canadian approach, while deficient in some ways, is preferable because it makes it easier to prove Aboriginal title and does not limit its content to traditional uses of the land. Jim Miller: "The Place and Pace of Settlement: Factors Influencing Aboriginal Land Claims" Where and when European immigrants arrived in Canada profoundly influenced the map of Aboriginal land claims. Certainly this has been true of the North American West in the nineteenth and twentieth centuries. The timing of immigration and settlement in the Canadian West has been a major reason why there have been few comprehensive (Aboriginal title) claims in the Prairies, though most claims in British Columbia have been based on unextinguished Aboriginal title. Prairies claims have been specific, or “lawful obligation”, claims. While the place and pace of settlement have been important factors governing the type and distribution of claims, they were not the only influences at work, as the contrast between the U.S. and Canadian Wests illustrates. Imperial policy, economic relations, and Native resistance were strong forces in the Canadian West, while the factors relevant to the U.S. were the relatively large numbers of non-Natives in the region, the substantial military presence, and the relative absence of Metis. Nicolas Peterson: "Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land" Prior to 1966 no land was owned by Australian Aboriginal people because they were the original inhabitants. Now they hold about eighteen percent of the continent. Most of this land is held under statutory law but since 1992 there has been the possibility of holding land under native title. This paper will compare and contrast the relative merits of the two ways of recognising Aboriginal prior ownership in the context of the broader political economy of the recognition of Aboriginal land rights. Arthur Ray: "Ethnohistory on trial: Facts, Theories, and Evidence in land claims in North America: From the United States Indian Claims Cases to Delgamuukw" The establishment of the Indians Claims Commission [ICC] by the United States Congress in 1946 marked the beginning of the modern Aboriginal and treaty rights claims era. The commission acted as a catalyst for the development of a multi-sourced and interdisciplinary approach to Native history in North America that became known as ethnohistory. From the early 1950s, the development of ethnohistory has been strongly influenced by research undertaken for claims purposes; in turn, this applied ethnohistory has had an impact on the development of case law and adjudication procedures. In this paper I will show how research undertaken for early ICC claims shaped the subsequent development of ethnohistory and, as a result, strongly influenced the evidence and interpretations that experts presented in the Delgamuukw trial over thirty years later. Bruce Rigsby: "Expert Evidence and the Yorta Yorta Appeal Decision" In its 2002 Yorta Yorta Appeal Decision, the High Court of Australia elaborated the evidential requirements mandated by the Native Title Act 1993 (amended in 1998), disappointing many people who saw more promise and potential in the Mabo No. 2 decision for the recognition of native title rights and interests in the contemporary situation. This paper discusses the new evidential requirements and place them in the context of the history of anthropological and sociological theory. There is irony in the appreciation that the classical method of participant-observation in anthropology offers strong evidence, yet may not be possible to put into practice freely in the highly charged social and political situations of land claims. Jacinta Ruru: "Claiming Native Title in the Foreshore and Seabed: Putting Ngati Apa into a Comparative Delgam'ukw and Mabo Context" In New Zealand, on 19 June 2003, our Court of Appeal released its most significant decision on native title. It indicated, to the horror of the Government and the public majority, that Maori should be allowed the opportunity to prove customary ownership of our foreshore and seabed. country. Described as a "tsunami", the decision has polarised the The Government, in its attempt to find a win-win solution, has announced it will legislate to ensure that Maori never hold exclusive title in the foreshore and seabed. Facing an inevitable redefinition of native title, the decision of the Court of Appeal, and the Government's reaction to it, will be discussed in a comparative Delgam'ukw and Mabo context. Rebecca Tsosie: "Native Land Claims in the United States: Reparative Justice or Extinguishment of Liability?" This paper will focus on several contemporary case studies litigating Native title in the United States courts to examine the central norms behind recognition of aboriginal land claims. It will engage the political, legal, social and moral implications of the Alabama-Coushatta case and similar land title cases, to examine the motivations behind the federal government's recognition of Native land titles, as well as the constructions of Native sovereignty and property advocated by the Native litigants. The paper will situate this discussion within a framework of domestic law, but will probe the implications of international human rights law on these constructions. The thesis of the paper will focus on whether recognition of Native land claims in the United States is an attempt to respond to themes of reparative justice, or whether it is a mechanism to extinguish the government's liability for past and continuing wrongs. Haijo Westra: "A Natural Law View of Native Sovereignty and Ownership of the Land: Alonzo de la Vera Cruz, De dominio (Mexico, 1553-4) Compared with Delgamuukw" The little-known and only recently rediscovered Neo-Latin treatise De dominio by the Spanish Augustinian and first professor of the University of Mexico, Alonso de la Vera Cruz, provides a defense of native sovereignty and ownership of the land by a close observer only decades after the Conquest. A student of Vitoria and a friend of Las Casas, Alonso applied the principles of natural and international law to defend the native community’s dominion against the Conquistadores whose every claim he sets out to disprove. Basically, their lands had been unjustly acquired, and they are bound to give full restitution; sovereignty resides in the native community. The passage of time and the length of illegal occupation do not attenuate the original injustice: rightful property is inalienable. Alonso’s arguments on behalf of the populus novi mundi seem intended to preclude a claim of prescription for all of the Americas. This radical treatise, never printed in its time, may explain why Alonso was recalled to justify himself before the Council of the Indies. It also helps to explain why natural law is considered a dangerous doctrine in North America. A comparison with the common law principles at work in Delgamuukw demonstrates that the concepts of full and just dominion and the inalienability of rightful ownership are essential to native title and self-government -– and their attenuation -- in Canada. David Yarrow: "Playing with the False Dichotomy of Title and Jurisdiction: The Failure to Recognize Indigenous Jurisdiction as an Element of Native Title in Australia and Canada" Despite their frequent use of United States authorities in native title cases, Canadian and Australian courts have uniformly ignored the ‘domestic dependant nation’ doctrine which is the basis of a qualified recognition of Indigenous sovereignty in the United States. Colonial period justifications for the acquisition of sovereignty in Canada and Australia were deeply entwined with those curtailing the extent of Indigenous property rights. Both relied on deprecating portrayals of Indigenous social organization. When compared with analogous British rules of property and jurisdiction, both relied upon hyper extended renderings of British law. Although contemporary native title jurisprudence in Australia and Canada has departed significantly from colonial period norms and premises in their treatment of Indigenous property interests, the same cannot be said for the recognition of Indigenous jurisdiction. A critical assessment of both Mabo, Delgamu’ukw and other relevant cases reveals the persistence of colonial understandings of the nature of Indigenous jurisdiction.