To What Extent, If Any, Does Possession Support Aboriginal Rights To Ownership?

To what extent, if any, does possession support aboriginal claims to ownership of land?

Introduction

The colonisation of territory by foreign powers has historically raised controversial questions regarding ownership, in particular the ownership rights of inhabitants native to the land. The issue of possession is especially relevant to these ownership disputes, as it has been identified by the courts as a determining factor when considering Aboriginal claims to ownership of land.

A: Classification

i) Colonisation

It is important to recognise the historical background against which Aboriginal claims to ownership have arisen. Colonisation by foreign powers has traditionally been achieved through two distinct methods - conquering and settlement. Conquering involves the colonisation of an inhabited territory, whereas settlement relates to uninhabited land. This distinction has a crucial legal importance - where a territory has been conquered, the existing legal system remains in place and pre-existing rights are recognised, to the extent that these does not conflict with the legal system of the conquering power. With settlement land is 'terra nullius' (uninhabited), and the legal system of the settling power is automatically applied to the territory. An extended doctrine of terra nullius has been applied in both the US and Australia, where the inhabitants were considered so low in the social scale that the land was practically uninhabited, and thus the law was applied as though the land has been settled, not conquered. This had significance where the colonising power was England, as English property law was governed by the doctrine of tenure, where the Crown had title to all of the territory.

ii) Possession

Carol Rose has suggested that possession occurs when someone has either given notice to the world or is being rewarded for useful labour. Furthermore, she says that the owner must continue to communicate this possession otherwise the property can be adversely possessed by another who communicates their possession of the land. Communication is established, amongst other things, by a 'text' that is accessible to others. However, a crucial element of this is that the 'text' is relative to the body of people who access it - thus in native title cases the 'text' of the Aboriginal claim to possession will not meet the same standards as the common law 'text' of possession. In order to examine this in more detail it is necessary to observe how native title has been treated in three jurisdictions - the US, Canada and Australia.

B: Aboriginal Rights in North America

i) Johnson v M'Intosh (1823)

1) The Facts

Johnson concerned an action of ejectment (recovering land from a trespasser) in Illinois. The plaintiff held a lease of land purchased the land from Piankeshaw Indians in 1775. The defendant, M'Intosh, claimed he had obtained the same land from a US government patent in 1818 - a form of title allowing the recipient to claim ownership of land.

2) The Decision

The plaintiffs had three relevant contentions in their plea. Firstly, that they were owners of the land at the time the 1775 deed was executed. Secondly that the British proclamation in 1763 did not affect this right because the Indians were not British subjects, and that even if they were they were proprietors of the soil and could not have their rights excluded by a government act. Thirdly, that the 1763 proclamation had no application because the land had been conquered and not settled, and since there was an existing legal system, the English law had no application.

Conversely, the defendants argued it was settled law that Indians had been denied recognition as independent communities having permanent and alienable property in the soil. They proposed that discovery is the foundation of European title defeating any native proprietary rights. They went on to say that the US, having been under the English dominion was no longer sovereign, and that Johnson and Graham had, at best, taken the land according to the laws and customs of the Piankeshaw Indians which had no legal value. The Indian rights were limited to usufruct and inhabit, with no power of alienation.

The District Court found for the defendant, holding the Piankeshaw Indians were unable to convey the land since they only had possession and not title. This was upheld by the US Supreme Court.

3) What was the nature of the native title?

Giving the opinion of the court, Marshal CJ held that title was entirely dependant on the law of the nation residing over the lands. Whilst the Indians had possession the Europeans had title and thus the power to grant title to others, which was only subject to the Indian right to occupancy. Marshall gave a brief account of the European conquest of the US, stating that each nation, including the Crown, had asserted themselves and recognised the doctrine of discovery. Marshall said that after the War of Independence the US government inherited this right and thus had an exclusive power to extinguish it. There was a direct link between the power of the Crown and power of the US government, and consequentially there could be no absolute and beneficial Indian ownership.

C: Aboriginal Rights in Canada

i) Delgamuukw v British Columbia (1997)

1) The Facts

Delgamuukw concerned a dispute over 58,000 square kilometres of land in Northwestern British Columbia, Canada, over which two Aboriginal groups claimed ownership and jurisdiction. The dispute concerned what the content of Aboriginal title was, how it was protected and what was required for its proof.

2) The Decision

Giving judgment, Lamer CJ said that Aboriginal title confers a right to use land for a variety of activities which do not necessarily have to relate to traditional practices, customs and traditions, which are parasitic on the underlying title itself. Lamer CJ said that Aboriginal title was a sui generis, distinct from a fee simple, subject to certain limitations such as a restriction on using the land for a purpose that was irreconcilable with the nature of the attachment.

Lamer CJ then gave three dimensions that gave Aboriginal title its sui generis label. Firstly, land held under Aboriginal title was inalienable, a personal right that could be equal to proprietary rights. Secondly, Aboriginal title arose from prior occupation of the land before the British asserted sovereignty. This prior occupation had a dual function: i) The common law recognised this occupancy as the proof of the possession; ii) It demonstrated that the common law recognised the Aboriginal systems of law. Thirdly, Aboriginal title had to be held communally - it was a collective right.

3) What was the nature of the native title?

Lamer CJ was willing to accept Aboriginal title and Aboriginal rights as being proprietary in nature, since the development of the law meant that this was not a determining factor. What Lamer CJ considered more important was distinguishing between Aboriginal title (which gives a right to the land itself) and Aboriginal rights (which are parasitic on the underlying title). Furthermore, Lamer CJ placed the rights the law recognised along a spectrum depending on their connection with the land. Lamer CJ's Aboriginal rights spectrum is crucial in determining whether or not possession can amount or contribute to title. At one end of the spectrum, Lamer CJ held that the where the Aboriginal rights are merely the customs, traditions and practices of the Aboriginal group, occupation and use of land would be insufficient to amount to title. In the middle of the spectrum was an activity that must take place on land specifically, which if it related to the land itself may, depending on the facts, give rise to a site-specific right. At the other end of the spectrum lies Aboriginal title itself, which confers the right to the land itself and represents the strongest connection to the land.

Further to this, Lamer CJ held that there is a test for proof of Aboriginal title, where three things must be asserted: i) the land is occupied prior to sovereignty; ii) if the land is currently occupied, there must be proof of continuity of occupation since before sovereignty was claimed; iii) at the time of sovereignty, the occupation must have been exclusive. Thus it is submitted that in Canadian Law possession plays a significant role in establishing title.

4) Does the native title amount to ownership?

Delgamuukw is an authority for the proposition that possession can give rise to a claim of native title over land. However, this is qualified by the requirements that the land must also be inalienable, that the claim, even if brought by an individual, must be based on a communal right, and that the use of the land cannot be irreconcilable with the nature of the attachment.

Given the strict conditions under which native title is granted in Delgamuukw, it is difficult to argue that this is 'ownership' of land in the way the common law sees ownership. The requirement of inalienability and restrictions on what activities can be carried out on the land particularly show this distinction.

D: Aboriginal Rights in Australia

i) Milirrpum v Nabalco (1971)

1) The Facts

Nabalco was granted a forty-two-year mineral lease by the Australian Government in 1971 in respect of the Gove Peninsula, located in the Northern Territory of Australia. A number of different Aboriginal tribes brought an action against Nabalco, claiming they had property rights in the land in question that would be infringed by Nabalco's activities there. The Aboriginal tribes argued that they had pre-existing rights in the land from before annexation by the Crown, and that these had not been validly terminated by the Crown, and hence still existed and were enforceable against Nabalco.

2) The Decision

The Aboriginal tribes had to establish two things in order for their claim to succeed. Initially, they had to show that at the time of annexation pre-existing Aboriginal property rights were binding on the Crown unless validly terminated. As well as this, the Aboriginal tribes had to prove that at the time of annexation their ancestors had a relationship with the land capable of recognition by the common law as a proprietary relationship.

Giving judgment, Blackburn J dismissed the claims brought by the Aboriginal tribes. He said the rights of native inhabitants were extinguished when annexation occurred. In his reasoning, Blackburn J said that, following Cooper v Stuart, an extended doctrine of 'terra nullius' applied here, despite factual evidence to the contrary. Furthermore, Blackburn J proposed that it was generally accepted that the Crown could lawfully extinguish pre-existing rights without expressly claiming to do so - in other words it happened automatically. Thus in the eyes of the law, neither the pre-existing rights nor the continued possession of the land by the native inhabitants had any valid status after the land was acquired by the Crown.

3) What was the nature of the native title?

The nature of the native title was a matter of some ambiguity. At the outset, Blackburn J said that the nature of native title was not proprietary. The difficulty is that he also rejected a number of the government's arguments that supported this conclusion. In his opinion, the government failed to establish that there was no legal system in the Aboriginal tribes, failed to show the Aboriginal tribes were not a definable community and failed to show there was insufficient certainty with regards to the territory in question, all of which suggested the Native title could be proprietary.

Crucially, Blackburn J went on to say that there were three property rights missing - a right to alienate the rights, a right to use and enjoy the property and a right to exclude others. Clarke and Kohler have disputed whether or not these three characteristics are necessary for rights to be considered proprietary. Blackburn J went on to say that the Aboriginal tribes only made economic use of the land in a very limited sense, and so could not use and enjoy the land in any meaningful sense. Again, Clarke and Kohler have proposed this is a narrow interpretation of ownership, comparing the Aboriginal relationship with the land to the European relationship with religious property and areas such as nature reserves.

Blackburn J's analysis found that there was no proprietary interest here and thus the possession of the land by the Aboriginal tribes did not give rise to ownership.

ii) Mabo v Queensland (No 2) (1992)

1) The Facts

The claimants, the Meriam Indians, inhabited the Murray Islands. Their use of the land differed in several important ways from that of the Gove Peninsula Indians in Milirrpum. The Meriam Indians cultivated their land and lived in settled villages. Furthermore, their land had been annexed to the Crown via a different process and at a different time to the Gove Peninsula Indians.

2) The Decision

Given the distinction in facts between Milirrpum and Mabo, it has been submitted by Clarke and Kohler that the court could have distinguished the present case from previous matters and decided for the claimants without overruling any previous authority, as was also recognised by Brennan J.

In fact the court chose to overrule Milirrpum and uphold the Meriam Indians' claim. The extended doctrine of terra nullius was rejected, on the grounds that the application of Cooper v Stuart in Milirrpum was based on a false assumption of the status of the native inhabitants. The rights of native inhabitants survived annexation, bar to the extent that they had been extinguished.

3) When can native rights be extinguished?

In Mabo, the court gave four situations in which native rights could be extinguished - express extinguishment, implied extinguishment, abandonment and surrender (but not alienation). It was agreed by all members of the majority that an express declaration by the state would extinguish native rights. The issue of implied extinguishment was harder to resolve.

As a starting point, all of the majority (bar Toohey J) accepted that if the Crown took inconsistent property rights for itself or granted inconsistent property rights to others, this would extinguish Aboriginal rights.

A bare majority said that this was lawful. A minority (Deane and Gaudron JJ) did not agree, stating that whilst the Crown had the power to extinguish the Aboriginal rights they did not have the right to, and that where this happened it would give rise to a claim in compensation.

Because a characteristic of the Aboriginal interest in the land is that the group claiming it must have a "close connection" with the land itself, the court held that if the connection was lost or the last member of the group died their right would be extinguished. Lastly, the court were unanimous in their opinion that Aboriginal rights could be surrendered back to the government but could not be alienated to anyone outside of the tribe.

4) What is the nature of native title?

Brennan J defined native title in the following way:

"Native title has its origins in, and is given its content by the traditional laws [of] the indigenous inhabitants.ascertained as a matter of fact by reference to those laws and customs".

The content of native title was given three further characteristics by Brennan J. Firstly, native title is deemed wholly inalienable - only members of the tribe that inhabited the territory at the time of annexation are able to claim native title. Secondly, if the connection with the territory (through abandonment or death of the last member) is lost then the native title will be extinguished. Thirdly, native title is flexible and can either change to reflect the changing social conditions of an Aboriginal tribe or even be exchanged for other rights, including private property rights.

Only a minority of the judges in Mabo (No 2) were prepared to accept the nature of the right was proprietary. Brennan J was willing to say it was, but this view was not shared by Deane J, Gaudron J or Dawson J.

5) Does native title amount to ownership?

It is submitted that in Australia native title does not amount the common law interpretation of full beneficial ownership. It is a sui generis right - a personal, not a proprietary right that is subject to strict limitations. These limitations, especially inalienability and abandonment, are incompatible with the common law recognition of ownership, and whilst possession is an important factor in establishing native title it does not confer ownership as well. It has been submitted by Dorsett that this should be viewed as a possessory right analogous to ownership.

E: Problems with possession as a requirement of native title

i) Implied Extinguishment

Even if land is unused or vacant, a Crown grant can extinguish native title in it, giving the holder exclusive possession legally, even if factually this is not the case. Thus whilst possession of land is important in establishing whether Native title exists, it is not important in regard to whether it can be extinguished.

ii) Lack of Possession

Since possession of land is crucial in determining whether there is an Aboriginal interest in it, this excludes claims from Aboriginal groups that have been forced away from their lands. The Aboriginal tribes are also precluded from entering the land and trying to claim ownership through adverse possession, since, as a matter of fact, there is no one for the tribe to adversely possess against (e.g. if the land is vacant or unused).

iii) Recognizing Native Title at Law

The Native Title Act 1993, enacted in Australia after Mabo (No 2), attempted to give a statutory definition of Native Title and to give it legislative protection. However in respect of helping Aboriginal claims of ownership it has been largely ineffective, with no successful claims being brought through the court since its enactment, suggesting that previous possession of the land has been insufficient to validly claim ownership of the land.

F: Conclusion

There has not been a unified legal approach with respect to Native Title and it's effect on ownership. It is submitted that the Canadian method of using a spectrum to establish to what extent native rights amount to native title is to be preferred. Possession, whilst being a determinative factor in establishing native title, does little to further the Aboriginal claims to ownership, as demonstrated by the Australian jurisprudence, affording little more than a personal right that can have similar effects to proprietary rights but without having this status.