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.