>Some thoughts regarding the implications of the Mabo decision
>while waiting for the Minister of Aboriginal Affairs to reply.
>Does the creation of title, under the Aboriginal Land Rights
>(N.T.) Act 1976, over areas of unalienated Crown land which are
>also subject to Native title, extinguish that Native title?
>1. A direct approach - a clear and plain intention to do so.
>Brennan J (Mabo decision page 53) says "... the exercise of a
>power to extinguish native title must reveal a clear and plain
>intention to do so, whether the action be taken by the Legislature
>or by the Executive."
>"This requirement," he continues "which flows from the seriousness
>of the consequences to indigenous inhabitants of extinguishing
>their traditional rights and interests in land, has been
>repeatedly emphasised by courts dealing with the extinguishment of
>the native title of Indian bands in North America."
[some comments deleted]
I am interested in this comment in particular,
>The rights of indigenous people in North America have been on a
>different footing from those of Australia's First People since the
>outset of European colonisation in both places.
>Prior to the European invasion of America there had been a lengthy
>debate regarding the rights of non-Christian peoples - and this
>included the rights of these people to their own country. The
>subsequent attempts to legitimise the European takeover of other
>people's countries made some degree of effort to acknowledge the
>rights of indigenous people. The starting point is different.
>Australia was, and remains, the great exception in terms of
>recognising these rights. The indecent haste with which England
>sought to postpone the collapse of its unstable way of life by
>raiding the resource base of Australian First People resulted in
>such subtle distinctions being put to one side for the time being.
>Time is now up.
I agree that the time for 'commonwealth' states such as canada and australia to
abandon the concept that aboriginal people's rights to lands can be extinguished
is now. To paraphrase justice Brennan in Mabo, the concept of extinguishment
is "false and unacceptable in our society." at p27 referring to "The theory
that the indigenous inhabitiants of a 'settled colony had no proprietary
interest in the land." Brennan didn't reject this insidious idea but I don't
believe that a theory of extinguishment of aboriginal rights, supported by a
legal test, can stand under the Brennan moral argument either.
I have recently studied the Mabo decision in light of an earlier (1991)
decision by the supreme court of british coloumbia which was made without
respect to the Gitksan and Wet'suwet'en people who brought the action to the
court. They were asking for a declaration of what should be obvious - similar
to the claim made by the Murray Islanders in Mabo - an acknowledgement by the
court that they were on their land, as they always had been and that the
relationship though changed since contact was real and important and a greater
interest in the land than any other.
The result was grave. chief justice McEachern ruled that all but the most
minimal aboriginal rights did not continue on the false premise, (even
according to earlier land claim decisions that he was bound to follow) that
by indicating an interest in colonizing the province, aboriginal rights were
extinguished.
I will follow this up at a later time. I wanted to point out, for the moment,
that the australian courts have no monopoly on racist results. The BC case,
Delgamuukw is currectly on appeal and the decision is expected this summer.
My current project is to suggest a new test, one of attachment that must be
disproved in order for the crown to make their claim to greater rights over
1st Nations lands.
I would be interested in any comments.
-Brian Hill, bthill@ac.dal.ca
[ Bruce Reyburn (reyburn@peg.pegasus.oz.au) has sent me an essay entitled
"First Law; Life equals People plus Country." - which I will be placing
into the NATIVE-L filelist archives at TAMVM1, along with more material
from Roland Leitner on the ongoing Lubicon situation, and a United
Nations document from Michele Lord entitled the "Draft Declaration on
the Rights of Indigenous Peoples, within the next several days. --Gary ]