Asa Kowals-Rose | Blog for RFILP

Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand is a collection of ten papers by different authors about a multitude of issues related to native land rights in settler-colonial states. The book’s introduction, written by editor Louis A. Knafla, previews the material and provides a brief historical overview of indigenous-settler relations and aboriginal rights in the three theaters discussed in the book. The main text is split into two sections; the first broadly discusses the means by which aboriginal peoples have had their sovereignty and land rights extinguished, while the second details modern efforts to re-assert aboriginal title through judicial and legislative processes. To accommodate the length limit, this review will discuss in-depth on one article from each section.

Part one of the book is titled Sovereignty, Extinguishment, and Expropriation of Aboriginal Title. It contains the articles From the US Indian Claims Commission to Delgamuukw: Facts, Theories, and evidence in North American Land Claims, by Arthur Ray; Social Theory, Expert Evidence, and the Yorta Yorta Rights Appeal Decision, by Bruce Rigsby; Law’s Infidelity to Its Past: The Failure to Recognize Indigenous Jurisdiction in Australia and Canada, by David Yarrow; The Defense of Native Title and Dominion in Sixteenth-Century Mexico Compared with Delgamuukw, by Haijo Westra; and Beyond Aboriginal Title in Yukon: First Nations Land Registries, by Brian Ballantyne. This review will discuss David Yarrow’s piece.

Law’s Infidelity to Its Past contextualizes the issue of indigenous sovereignty by discussing different ways in which competing jurisdictions have been reconciled historically. Yarrow discusses legal pluralism in the early colonial period, specifically the relationship between feudal manorial courts and English common law. Under this system, lords of manors had jurisdiction over their serfs, while those occupying freehold land were subject to common law established throughout England. Yarrow contends that this system could have provided a model for legal pluralism in settler-colonies, but was ignored as a result of the English perception of indigenous peoples as racially inferior. In other words, that indigenous sovereignty was ignored out of racism, not an inability to reconcile different systems of law within a territory. Yarrow identifies the 1836 case R. v. Murrell, wherein the New South Wales Supreme Court claimed jurisdiction over a case involving two Aborigines, as a product of the legal singularity imposed by the English on their colonies. He compares this to the Quebec Act of 1774, which returned civil law in Quebec to what it had been under French rule. This decision reflected the Crown’s willingness to accommodate multiple legal systems, provided each was controlled by a “civilized” people. Yarrow points out that the initial extinguishment of aboriginal title was in part a result of the Crown using English common law to define land ownership. He contends that respect for aboriginal title is a key part of promoting indigenous sovereignty, and that that English legal history provides ample precedent for the kind of legal pluralism that would exist as a result.

Part two of the book is titled Native Land, Litigation, and Indigenous Rights. It contains the articles The “Race” for Recognition: Toward a Policy of Recognition of Aboriginal Peoples in Canada, by Paul L.A.H. Chartrand; The Sources and Content of Indigenous Land Rights in Australia and Canada: A Critical Comparison, by Kent McNeil; Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land, by Nicolas Peterson; Claiming Native Title in the Foreshore and Seabed, by Jacinta Ruru; and Waterpower Developments and Native Water Rights Struggles in the North American West in the Early Twentieth Century: A View from Three Stoney Nakoda Cases, by Kenichi Matsui. For section two, this review will discuss Nicolas Peterson’s piece.

Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land discusses some of the social, legal, and political aspects of the fight for indigenous rights in Australia. Peterson points to changing attitudes toward colonialism in the aftermath of World War II as a driver for international indigenous rights efforts. Part of this was the international reaction to Nazi aggression; Hitler’s attempt to establish a genocidal settler-state in Eastern Europe provoked increased sympathy for the plight of indigenous minorities in other countries. This era also saw self-determination become the basis for international law, helping to build support for indigenous sovereignty in addition to decolonization. Peterson details and critiques a number of Australian judicial and legislative actions taken in this context. One key piece of legislation he discusses is the Aboriginal Land Rights (Northern Territory) Act of 1976, which created a limited framework for pursuing aboriginal land claims in Australia’s Northern Territory. Peterson argues that, while the legislation was an important step in asserting aboriginal land rights, it did not do enough to enough to benefit the rights of aboriginals who had been alienated from their lands and communities for generations. He contends that further progress was made with the passage of the Native Title Act of 1993, which better established legal plurality where land rights were concerned. Peterson concludes that the complex nature of aboriginal land issues in Australia was exacerbated by the length of time between the initial extinguishment of aboriginal title and the modern campaign to re-assert it, since much of the aboriginal land in question was appropriated in the interim period.

The book’s conclusion, Power and Principle: State and Indigenous Relations across Time and Space, by Peter W. Hutchins, synthesizes the different works that comprise the book. He reiterates specific points raised in the different papers to form a coherent critical examination of the legal basis—or lack thereof—for the expropriation of aboriginal land, and how ideas surrounding that legality have changed over time. His conclusion is that English settler-colonialism was practiced with utter disregard for common law of the time; as the Crown’s primary concern in the matter was the ability to seize and control land, not preserve the integrity of the law. Peterson shares Walter Echo-Hawk’s view that the legal precedent established during the colonial era should be rooted out and be replaced with a legal system aimed at protecting indigenous culture and customs through a guarantee of indigenous sovereignty. He also makes an interesting connection between the ongoing campaigns to establish indigenous sovereignty and the Thirty Years War: Peterson expresses hopes that current efforts can establish for indigenous people the same respect for sovereignty that European nations achieved with the Peace of Westphalia in 1648.

In summation, Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand provides a comprehensive examination of indigenous sovereignty and land rights in the past and present. Length constraints prevent this review from doing the book justice, but it should suffice to say that it is a must-read for those interested in aboriginal title.