McNeil, Kent --- "Co - Existance of Indigenous and Non - Indigenous Land Rights: Australia and Canada Compared in Light of the Wik Decision" [1997] IndigLawB 77; (1997) 4(5) Indigenous Law Bulletin 4

Co-Existance of Indigenous and Non-Indigenous Land Rights: Australia and Canada Compared in Light of the Wik Decision

By Kent McNeill

The decision of the High Court in Wik Peoples v Queensland[1] has produced almost as much controversy as Mabo v Queensland [No.2][2], prompting some politicians and commentators to allege that the Court went beyond its legitimate role in interpreting and applying the law. This is simply not so. The Wik decision is really a cautious step toward reconciling the pre–existing land rights of the indigenous peoples with the interests of non–indigenous Australians. By comparison, Canadian decisions which have dealt with potential conflicts between indigenous rights and other interests have gone much further. From the cases to be examined in this article, it will be seen that in Canada even a fee simple interest is not necessarily inconsistent with indigenous rights.

There are, of course, important differences between Canada and Australia where indigenous rights are concerned. In Canada, many Indian nations signed treaties with the Crown, setting out the rights of the parties. The treaties, however, were based on an understanding that the Indian signatories had Aboriginal rights (the common Canadian term for indigenous rights), including title to land, as well as more specific rights such as hunting and fishing rights. Moreover, in large areas of Canada, including most of British Columbia, the indigenous peoples did not sign treaties. Their Aboriginal rights therefore continued in much the same way as indigenous rights were found to continue in Australia in Mabo [No.2]. But unlike Australia, there has been no attempt in Canada to deal with these rights through broad legislation like the Native Title Act 1993 (Cth).[3] Instead, for the past twenty–four years it has been the policy of the Canadian government to negotiate regional agreements (known as land claims agreements) with the Aboriginal peoples who did not sign treaties. In reality, these agreements are simply modern–day treaties by another name. Like the earlier treaties, they are acknowledgments of the Aboriginal rights of the indigenous peoples who choose to enter into them.

The more important differences between Canada and Australia, therefore, relate to the manner in which governments have dealt with indigenous rights in the two countries. On fundamental legal issues such as the underlying basis for these rights, the High Court of Australia and the Supreme Court of Canada have tended to rely on one another in recent years, revealing a certain congruence in the development of this area of the law.[4] For this reason, and to place the Wik decision in a broader common law context, it is worthwhile to compare the way these courts have started to address the issue of co–existence of indigenous rights and other interests in land.

Co–existence in Wik and Mabo [No.2]

In the Wik decision a majority of the High Court held that native title would only be extinguished by a Crown grant to the extent that the rights conferred by the grant were inconsistent with the native titleholders’ rights. Actual exercise of the grantee’s rights would not be necessary to extinguish the native titleholders’ rights, as long as the two were legally inconsistent. So, in the Court’s view, a grant of a fee simple estate would necessarily extinguish native title, regardless of whether or not the grantee actually possessed and used the land, as that estate entails a perpetual right of exclusive possession.[5] However, a grant of a lesser interest, such as a pastoral lease, which does not entail a right of exclusive possession, might only extinguish those incidents of native title which were inconsistent with the rights granted. I say ‘might’ rather than ‘would’ extinguish because the majority left open the issue of whether the native titleholders’ rights, instead of being extinguished, would merely be suspended for the duration of the inconsistent rights. If merely suspended, they should survive the grant of a leasehold conferring exclusive possession, or even a life estate, to be revived when those interests come to an end.

As the Wik case involved private rights under pastoral leaseholds, the Court did not deal with the issue of inconsistency between native title rights and Crown appropriations of land for public purposes. However, Brennan J (as he then was) did address this issue in obiter in Mabo [No. 2], concluding that ‘reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished.’[6] There thus appears to be a distinction between Crown grants and Crown appropriations where inconsistency is concerned. In the case of grants, legal inconsistency between the rights granted and native titleholders’ rights is what matters,[7] whereas in the case of appropriations it is inconsistent use by the Crown that extinguishes native title. The explanation for treating Crown appropriations differently may be that the Crown, according to Mabo [No. 2], already has an underlying title and the power to extinguish native title by appropriation,[8] but until that is actually accomplished by putting the lands to inconsistent use there is no conflict between the Crown’s title and native title.

Canadian case law

In Canada, the issue of co–existence of private interests in land and Aboriginal rights has come up more often in the context of specific rights, such as hunting rights, than in the context of Aboriginal title[9]^, and has often involved treaties entered into between the indigenous peoples and the Crown. Due to space limitations, I am going to confine my discussion to three cases: R v Sioui,[10] R v Badger,[11] and Delgamuukw v British Columbia.[12]

In Sioui, the Hurons of Lorette in Quebec claimed that they had treaty rights to practise their rites and customs on lands within a provincial park, exempting them from provincial legislation regulating public use of the park. They did not claim any right to the land itself within the park. The Supreme Court of Canada upheld the claimed treaty rights, according them protection from the legislation.[13] On the issue of the territorial scope of the rights, Lamer J (as he then was), delivering the Court’s unanimous judgment, said that ‘the rights guaranteed by the treaty could be exercised over the entire territory frequented by the Hurons at the time [1760, when the treaty was signed], so long as the carrying on of the customs and rites is not incompatible with the particular use made by the Crown of this territory.[14] He arrived at this conclusion by interpreting the treaty in its historical context, taking into account the parties’ probable intentions and the necessity of reconciling their competing interests. So the right of the Crown to use these public lands would prevail over the Hurons’ right to practise their rites and customs because Lamer J concluded that this was what had been agreed to in 1760, not because the Crown’s rights were superior or paramount. Moreover, the Crown’s rights would prevail only in the event of actual inconsistency between its use of the land and the Hurons’ exercise of their rites and customs. On the facts, Lamer J did not find any such inconsistency.[15]

Although Sioui did not involve private rights to land, Lamer J opined that, in the event the Crown granted lands within the territory covered by the treaty, the right of the Hurons to practise their rites and customs on those lands would be lost. He wrote that the proposition that the Hurons could exercise their rights over the entire territory frequented by them in 1760 might ‘... lead one to suppose, a priori, that the Hurons could cut down trees and make fires on private property that had been part of the territory frequented by them at the time. With respect, I feel that adopting such a position would go beyond what General Murray [who signed the treaty on behalf of the Crown] intended.... The Court must choose from among the various possible interpretations of the common intention the one which best reconciles the Hurons’ interests and those of the conqueror.’[16]So once again, Lamer J’s conclusion on this issue was based on what had been agreed to in 1760, not on any inherent superiority of the rights of grantees of the Crown over the rights of the Hurons.[17]

The Supreme Court of Canada did address the issue of co–existence of private land rights and treaty rights in R v Badger, in the context of a treaty right to hunt in Alberta. That right had been given constitutional protection in modified form by the Constitution Act, 1930,[18] which enacted the Natural Resources Transfer Agreements (NRTAs) in Alberta, Manitoba and Saskatchewan. In those agreements, the provinces assured to the ‘Indians’ the right ‘of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.[19]

In Badger, the three accused were Indians who had been hunting for food on privately owned lands. One of the issues in the case was therefore whether they had ‘a right of access’ within the meaning of the NRTA for the purpose of hunting on those lands. To decide this issue, Cory J for the majority referred back to Treaty No. 8 (1899), upon which the accused relied, and found that it guaranteed their right to hunt throughout the territory surrendered by it, except on lands ‘required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.’[20] From this he concluded that, ‘if the privately owned land is not ‘required or taken up’ in the manner described in Treaty No. 8, it will be land to which the Indians had a right of access to hunt for food.’[21] Relying on evidence presented at trial, Cory J concluded that ‘in 1899 the Treaty No.8 Indians would have understood that land had been ‘required or taken up’ when it was being put to a use which was incompatible with the exercise of the right to hunt.’[22] He found this interpretation to be supported by oral promises made when the treaty was signed and by earlier case law. Moreover, this aspect of the right to hunt had not been modified by the NRTA. Cory J summed up this point in the following words:

‘Where lands are privately owned, it must be determined on a case–by–case basis whether they are ‘other lands’ to which Indians had a ‘right of access’ under the Treaty. If the lands are occupied, that is, put to visible use which is incompatible with hunting, Indians will not have a right of access. Conversely, if privately owned land is unoccupied and not put to visible use, Indians, pursuant to Treaty No. 8, will have a right of access in order to hunt for food.’[23]

Turning to the facts of the case, Cory J found that two of the accused had been hunting on land that was ‘visibly being used.’[24] However, the third, Ernest Ominayak, had been

‘... hunting on uncleared muskeg. No fences or signs were present. Nor were there any buildings located near the site of the kill. Although it was privately owned, it is apparent that this land was not being put to any visible use which would be incompatible with the Indian right to hunt for food. Accordingly, the geographical limitations upon the Treaty right to hunt for food did not preclude Mr. Ominayak from hunting upon this parcel of land.’[25]

Mr. Ominayak therefore had a right of access to this land for the purpose of hunting for food which brought him within the protection of the NRTA.[26]The Badger decision reveals that the treaty right to hunt continued on lands that were granted to private landowners in fee simple, no doubt after the treaty had been signed.[27] In other words, the grants did not extinguish the treaty right to hunt. The rights of the private landowners and the hunting right of the Indian signatories of the treaty are compatible and concurrent, but the treaty right will become unexercisable if the private landowners put their lands to visible use. So the landowners have the power to trump the right to hunt, but they cannot extinguish it because it will be revived if the lands cease to be put to visible use at a later time. This is apparent from the following passage in Cory J’s judgment:

‘The presence of abandoned buildings, then, would not necessarily signify to the Indians that land was taken up in a way which precluded hunting on them. Yet, it is dangerous to pursue this line of thinking too far. The abandonment of land may be temporary. Owners may return to reoccupy the land, to undertake maintenance, to inspect it or simply to enjoy it. How ‘unoccupied’ the land was at the relevant time will have to be explored on a case–by–case basis.’[28]

The right to hunt will therefore be suspended but not extinguished on privately owned lands that are put to visible use, and the presence and continuance of such use are questions of fact to be determined in each particular case.

Now it may be thought that the treaty right to hunt was not extinguished by Crown grants in Badger because that right was given constitutional protection in modified form by the NRTA, but that is not the correct explanation for its continuance. If the NRTA was responsible, then the treaty right would only continue on lands granted after the NRTA came into force in 1930. As there is no indication in Cory J’s judgment of when the lands in question were granted by the Crown, clearly it was irrelevant whether they were granted before or after 1930. If they were granted between 1899 when the treaty was signed and 1930, then the continuance of the treaty right must have been due to the treaty itself and not to the NRTA. This is significant because it means that the application of this aspect of the Badger decision is not limited to the three provinces covered by the NRTAs. Consequently, treaty rights to hunt and pursue other activities in other parts of Canada would not necessarily be extinguished by Crown grants of land to private persons.[29]To sum up the Sioui and Badger decisions on the co–existence of rights, Sioui reveals that treaty rights can be exercised on Crown lands in the treaty area as long as their exercise is not inconsistent with Crown use of the land. Inconsistency is a question of fact rather than law, so the Supreme Court clearly regarded the treaty rights and the Crown’s title as legally compatible. The Sioui decision is therefore consistent with Brennan J’s dictum in Mabo [No. 2] on the issue of co–existence of native title and Crown title.[30] Badger extended the concept of co–existence of rights to privately owned lands. Treaty rights can co–exist with a private landowner’s rights, and can be exercised as long as the landowner is not putting the lands to visible use. In each case, however, co–existence of the rights depends on interpretation of the treaty, and visible use is a question of fact to be determined on a case–by–case basis. The Badger approach is at variance with the approach taken by the majority in the Wik case, where the test applied where private interests in land were concerned was legal rather than factual inconsistency.

The relevance of the Sioui and Badger decisions to Australia may be questioned because they both involved treaty rights, and the Crown did not generally sign treaties with the indigenous peoples of Australia.[31] However, the treaty rights at issue in both those cases would have existed as Aboriginal rights prior to the signing of the treaties.[32] If Aboriginal rights that have been affirmed by a treaty can co–exist with other land rights, Aboriginal rights that have not been so affirmed should be capable of doing so as well. Where Crown lands are concerned, there is no doubt that this is what occurs.[33] Moreover, it appears from Cory J’s judgment in Badger that Aboriginal rights which have not been affirmed by treaty can also co–exist with rights derived from Crown grants. In his discussion of suspension of the treaty right to hunt while land was being put to visible use, he said this:

‘The Indians’ experience with the Hudson’s Bay Company was also relevant. Although that company had title to vast tracts of land, the Indians were not excluded from and in fact continued to hunt on these lands.’[34]

As the Hudson’s Bay Company had received title to those vast tracts of land by a Crown grant long before treaties were signed with the Indians who lived there,[35] their Aboriginal rights obviously continued to exist concurrently with the company’s rights.[36] Moreover, the fact that the Crown later signed land surrender treaties with some of the Aboriginal peoples who lived in the territory granted to the company reveals that the Crown did not think the grant extinguished Aboriginal land rights.[37]

The issue of co–existence of Aboriginal rights and private interests in land arose again in Delgamuukw v British Columbia. That case, which was argued on appeal before the Supreme Court of Canada on June 16 and 17 of this year, when judgment was reserved, involves a claim by the Gitksan and Wet’suwet’en Peoples in British Columbia to land rights and self–government in their traditional territories. As the issues involved in the case are too numerous and complex to receive comprehensive treatment here, I will confine my discussion to the portions of the judgments in the British Columbia Court of Appeal which relate to the issue of co–existence.

Macfarlane JA, Taggart JA concurring, wrote the main majority judgment, in which he dealt with co–existence under the heading ‘Extinguishment’. In his concurring judgment, Wallace JA did not address this matter specifically, but he did say that he agreed generally with Macfarlane JA and stated that, on the issue of extinguishment, he was ‘in complete agreement with the reasons and conclusions expressed by Mr. Justice Macfarlane’.[38]

Turning then to Macfarlane JA’s judgment, in his opinion Aboriginal rights could be extinguished prior to April 17, 1982,[39] without the consent of the Aboriginal peoples, by legislation or pursuant to legislation enacted by a constitutionally competent legislature, as long as the legislative intent to extinguish or authorise extinguishment was clearly and plainly expressed.[40] But even if legislation authorised extinguishment—for example, by enabling the Crown to create interests in land which were inconsistent with Aboriginal rights[41]—whether or not extinguishment actually occurred would ‘of necessity depend upon the nature of the Indian interest affected by the grant, and the nature of the grant itself.’[42] He put it this way:

‘Before concluding that it was intended that an aboriginal right be extinguished one must be satisfied that the intended consequences of the colonial legislation were such that the Indian interest in the land in question, and the interest authorised by the legislation, could not possibly co–exist. Again, if the consequence is only impairment of the exercise of the right it may follow that extinguishment ought not to be implied.’[43]

In other words, if at all possible a court should find that there is no inconsistency and therefore no extinguishment. Macfarlane JA elaborated as follows:

‘Two or more interests in land less than fee simple can co–exist. A right of way for power lines may be reconciled with an aboriginal right to hunt over the same land, although a wildlife reserve might be incompatible with such a right. Setting aside land as a park may be compatible with the exercise of certain aboriginal customs: R v Sioui [discussed supra].’[44]

But even in a situation where a fee simple interest was validly created, Macfarlane JA did not think that Aboriginal rights would necessarily be extinguished. The reason for this is that, unlike the High Court in Wik, Macfarlane JA did not limit co–existence to situations where there was no legal inconsistency between legislatively authorised interests and Aboriginal rights. For him, actual use of the land had to be taken into account as well. He wrote:

‘A fee simple grant of land does not necessarily exclude aboriginal use. Uncultivated, unfenced, vacant land held in fee simple does not necessarily preclude the exercise of hunting rights: R v Bartleman [see supra, n29]. On the other hand the building of a school on land usually occupied for aboriginal purposes will impair or suspend a right of occupation.’[45]

Macfarlane JA therefore envisaged the same kind of factual compatibility between Aboriginal and non–Aboriginal uses as Cory J found to exist in the Badger case.

Even in the event of a direct conflict between a private landowner’s use of the land and the exercise of Aboriginal rights, those rights would not necessarily be extinguished. The clear and plain test for extinguishment, as articulated by Macfarlane JA, means that extinguishment will occur only ‘if the only possible interpretation of the statute is that aboriginal rights were intended to be extinguished.[46] Unless the statute clearly provided that the Aboriginal rights would be extinguished in the event of inconsistent use, there would always be another option, namely suspension of the exercise of the rights for as long as the inconsistency existed. If, for example, a leasehold or a life estate was validly created, and the leaseholder or life tenant used the land in a way that was inconsistent with the exercise of Aboriginal rights, those rights would not necessarily be extinguished but could be suspended while the inconsistency lasted. Even where a fee simple estate was validly created, the exercise of Aboriginal rights might merely be suspended while the lands were being put to an inconsistent use.

To sum up Macfarlane JA’s views on co–existence, Aboriginal rights and other interests in land can co–exist where there is no legal inconsistency between them, as might occur where there is an Aboriginal right to hunt and a right of way for power lines over the same land. Where there is legal inconsistency, they can still co–exist until such time as the landowner actually uses the land in a manner inconsistent with the exercise of the Aboriginal rights. To this I would add that Macfarlane JA’s analysis, while not directly addressing the issue, lends credence to the argument that was made in Wik but left undecided by the High Court that Aboriginal rights could be suspended rather than extinguished for the duration of any inconsistency.[47]

Mr. Justice Lambert dissented in Delgamuukw on issues concerning Aboriginal title and self–government, but on the issue of co–existence of Aboriginal rights and other interests in land he expressed views similar to those of Macfarlane JA.[48] He wrote:

‘The fact that there is an inconsistency between the exercise of powers granted by legislation and the exercise of aboriginal rights does not extinguish the aboriginal rights to the extent of the inconsistency, nor does it necessarily suspend them, unless it is clear and plain from the legislation itself that those consequences had been made the subject of clear, plain and considered legislative intention.’[49]

So according to Lambert JA, legal inconsistency alone would not cause extinguishment unless the legislature itself clearly and plainly intended that result. Absent that intent, conflict in actual use could only lead to extinguishment if the conflict was permanent and the legislation gave priority to the non–Aboriginal interest.’[50] Where the inconsistency was temporary rather than permanent, instead of being extinguished the Aboriginal rights would merely be suspended. Moreover, Lambert JA clearly envisaged that Aboriginal rights could co–exist even with a fee simple interest.[51]

The fifth Delgamuukw judge, Mr. Justice Hutcheon, also dissented in part, but not on the issues of extinguishment and co–existence. On these issues, he expressed broad agreement with the judgments of Macfarlane and Lambert JJA.

Like Macfarlane and Lambert JJA, Hutcheon JA therefore appears to have been of the opinion that inconsistency involves conflict between the exercise of Aboriginal rights and actual use of the land by the Crown or its grantees. Creation of a fee simple estate by grant would not necessarily extinguish those rights, though Hutcheon JA left that issue open.[52]

Conclusions

A comparison of the Wik judgments with Canadian case law on the issue of co–existence of indigenous rights and other interests in land reveals that Canadian courts have gone much further than Wik in preserving those rights in the face of Crown grants. According to Wik, native title must give way to Crown grants of private interests. However, the majority decided that, where interests like pastoral leases that did not confer a right of exclusive possession were created by grant, native title would be preserved, but only to the extent that there was no legal inconsistency between the grantees’ rights and the native title.

In Canada, the courts have not decided that private interests created by grant prevail over Aboriginal rights as a general rule. From Sioui it appears that those interests can prevail over treaty rights, but in that particular case it would have been because that was the understanding of the parties who signed the treaty. Badger reveals that, even where there was such an understanding, the treaty rights can still co–exist with the rights of grantees— even if they have fee simple estates—as long as the grantees do not actually use their lands for purposes that are inconsistent with the exercise of the treaty rights. So unlike the High Court in Wik, the Supreme Court of Canada has applied a factual inconsistency rather than a legal inconsistency test, at least where treaty rights are concerned. Moreover, where factual inconsistency occurs, the Supreme Court has indicated that the rights will not be extinguished but merely suspended for as long as the inconsistency lasts.

In Delgamuukw, the British Columbia Court of Appeal dealt with the issue of co–existence of Aboriginal rights and the rights of grantees of the Crown. All the judges were of the opinion that the power of the Crown to override Aboriginal rights by grant would depend on a constitutionally competent legislature clearly and plainly conferring authority on the Crown to do that. But even where that authority had been given, issuance of a grant creating rights that were legally inconsistent with Aboriginal rights would not extinguish those rights. Instead, the Aboriginal rights could still be exercised until the grantee actually used the land in a manner that conflicted with the exercise of the Aboriginal rights. In that event, Lambert JA was of the view that the Aboriginal rights would be suspended rather than extinguished, and none of his colleagues expressed disagreement with him on that point. Moreover, Lambert JA’s view has since received strong support from Badger, where Cory J said that a treaty right (which in that instance reaffirmed a pre–existing Aboriginal right) would merely be suspended for the duration of inconsistent use of the land by a landowner who had a fee simple estate derived from a Crown grant.

It remains to be seen whether the Supreme Court of Canada will address the related issues of the efficacy of Crown grants of lands subject to Aboriginal rights, and the possible co–existence of private interests and Aboriginal rights, in its yet to be released judgment in Delgamuukw. As no specific grants were being questioned in that case, and no actual situations of potential co–existence were presented, the Supreme Court may well avoid these issues entirely, in its yet to be released judgment. However, the Court has already given a clear indication in Badger that even valid grants to private landowners will only suspend the rights of Aboriginal peoples in the event of actual inconsistent use. In light of that authority in particular, the High Court’s decision in Wik still lags behind Canadian jurisprudence on indigenous rights. Wik is not a radical departure from common law principles—instead, it is a cautious step towards applying some of those principles to acknowledge that indigenous and non–indigenous Australians alike have rights that can co–exist in a spirit of sharing and co–operation.

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[1] [1994] HCA 24; (1996) 121 ALR 129.

[2] [1992] HCA 23; (1992) 175 CLR 1.

[3] Equivalent legislation might not be valid in Canada because, since 1982, Aboriginal and treaty rights have been protected to some extent by the constitution: see infra n39.

[4] Eg see Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1, per Brennan J at 57, 64, 68; R v Van der Peet [1996] 4 CNLR 177, per Lamer CJ at 197–8.

[5] For a critique of the extinguishment by grant doctrine, see Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 AILR 181.

[6] [1992] HCA 23; (1992) 175 CLR 1, at 68. See reference to this passage by Kirby J in the Wik decision at 209–10.

[7] There appears to be an exception, however, where the grant imposed conditions which, if met, would result in inconsistency with native titleholders’ rights. In that situation, it is the factual fulfilment rather than the imposition of the conditions that extinguishes native title: see Wik Peoples v Queensland [1994] HCA 24; (1996) 121 ALR 129, per Gaudron J at 218, Gummow J at 296–7.

[8] Note that the Supreme Court of Canada has yet to clarify the relationship between specific rights and Aboriginal title: see R v Van der Peet [1996] 4 CNLR 177, R v Adams [1996] 4 CNLR 1, and R v Côtté [1996] 4 CNLR 26, commented on by Kent McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (forthcoming).

[9] Note that the Supreme Court of Canada has yet to clarify the relationship between specific rights and Aboriginal title: see R v Van der Peet [1996] 4 CNLR 177, R v Adams [1996] 4 CNLR 1, and R v Côtté [1996] 4 CNLR 26, commented on by Kent McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (forthcoming).

[10] [1990] 3 CNLR 127 (SCC).

[11] [1996] 2 CNLR 77 (SCC).

[12] (1993) 104 DLR (4th) 470 (BCCA).

[13] The Court relied on s 88 of the Indian Act, RSC 1985, c I–5, which shields treaty rights from provincial laws of general application, but which otherwise makes such laws applicable to Indians in the provinces, with certain exceptions.

[14] [1990] 3 CNLR 127, at 156.

[15] Ibid, at 157–8.

[16] Ibid, at 156.

[17] See also Claxton v Saanichton Marina Ltd [1989] 3 CNLR 46 (BCCA), where it was held that a treaty right to fish in a specific location prevailed over and invalidated a Crown grant to the defendant of a licence to construct a marina in the same location. This decision is consistent with Sioui, as the Court in Claxton concluded that the defendant’s development would infringe the treaty right, whereas in Sioui the grant of rights of exclusive possession to landowners was not viewed as a violation of the treaty rights. For an insightful commentary on Claxton, see Hamar Foster, ‘The Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title’ (1989) 23 UBCLR 629.

[18] 20 & 21 Geo. V, c 26 (UK).

[19] Ibid, para 12 of the

Alberta agreement.

[20] [1996] 2 CNLR 77, at 95.

[21] Ibid.

[22] Ibid, at 96.

[23] Ibid, at 102.

[24] Ibid.

[25] Ibid.

[26] Note, however, that a new trial was ordered in his case to determine whether or not the provincial legislation infringing his right to hunt could be justified: see ibid, 103–13.

[27] Cory J simply described the lands as ‘privately owned’, but in the Alberta Court of Appeal, [1993] 3 CNLR 143, at 145, Kerans JA made clear that the interests held were fee simple estates.

[28] Ibid, at 96–7.

[29] As a comparison of Sioui and Badger reveals, in each situation it will depend on how the particular treaty is interpreted. See also R v Bartleman (1984) 12 DLR (4th) 73 (BCCA), at 92, where Lambert JA for a unanimous Court held that a treaty right ‘to hunt over the unoccupied lands’ continued on lands that had been granted to private landowners by the Crown, as long as ‘the particular form of hunting that is being undertaken does not interfere with the actual use and enjoyment of the land by the owner or occupier.’ Significantly, the Bartleman case arose in British Columbia where the NRTAs do not apply. Moreover, it was relied on by Cory J in Badger, [1996] 2 CNLR 77, at 101.

[30] See text accompanying n 6, supra.

[31] For a convincing argument that the Crown did enter into a treaty with the Aborigines in Tasmania, see Henry Reynolds, Fate of a Free People , (Ringwood, Vic.: Penguin Books, 1995).

[32] See Simon v R [1986] 1 CNLR 153 (SCC), at 166–7, where Dickson J (as he then was) found that a treaty right to hunt had been an Aboriginal right before the treaty was signed.

[33] Eg see R v Sparrow [1990] 3 CNLR 160 (SCC); R v Adams [1996] 4 CNLR 1 (SCC); R v Côté [1996] 4 CNLR 26 (SCC).

[34] [1996] 2 CNLR 77, at 96.

[35] By a Royal Charter issued in 1670, reproduced in E E Rich, ed., Minutes of the Hudson’s Bay Company 1671–1674 (Toronto: Champlain Society, 1942), 131–48.

[36] See also Hamlet of Baker Lake v Minister of Indian Affairs [1980] 1 FC 518 (FC).

[37] This is further confirmed by Rupert’s Land and North–Western Territory Order, 23 June 1870, in RSC 1985, App. II, No. 9. The Order imposed an obligation on Canada to settle Aboriginal land claims in the territory granted to the Hudson’s Bay Company in 1670: see Kent McNeil, Native Claims in Rupert’s Land and the North–Western Territory: Canada’s Constitutional Obligations (Saskatoon: University of Saskatchewan Native Law Centre, 1982).

[38] (1993) 104 DLR (4th) 470 at 459, 495.

[39] On April 17, 1982, the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (UK) 1982, c 11, came into force. As s35(1) of that Act provided existing Aboriginal and treaty rights with constitutional protection by recognising and affirming them, they can no longer be extinguished unilaterally by or pursuant to legislation: see R v Van der Peet [1996] 4 CNLR 177 (SCC), per Lamer CJ at 193.

[40] The clear and plain test for legislative extinguishment was accepted by the Supreme Court of Canada in R v Sparrow [1990] 3 CNLR 160, at 174–5, and adopted by the High Court of Australia in Mabo [No. 2][1992] HCA 23; , (1992) 175 CLR 1, especially per Brennan J at 64.

[41] Note that Macfarlane JA was speaking hypothetically, as he did not refer to any such legislation. In fact, he expressed the opinion that after British Columbia joined Canada in 1871 the province lacked the constitutional authority to extinguish Aboriginal rights by legislation, as those rights came within exclusive federal jurisdiction: (1993) 104 DLR (4th) 470, at 533–9; see also per Lambert JA (dissenting on other grounds) at 679–81. Moreover, unless specifically directed at Aboriginal rights (which would make it discriminatory: eg see Mabo v Queensland [No.1] (1988) 166 CLR 186 (HC)), legislation permitting the extinguishment of Aboriginal rights by the creation of inconsistent interests in land would allow the Crown to extinguish other landholders’ rights in the same way. Such legislation would encounter the strong interpretive presumption against the taking of property, especially without compensation: eg see The Commonwealth v Hazeldell Ltd. [1918] HCA 75; (1918) 25 CLR 552 (HC), per Griffith CJ and Rich J at 563; Attorney–General v De Keyser’s Royal Hotel [1920] UKHL 1; [1920] AC 508 (HL), per Lord Atkinson at 542, Lord Parmoor at 576, 579; Colonial Sugar Refining Co. v Melbourne Harbour Trust Commissioners [1927] UKPCHCA 1; (1927) 38 CLR 547 (PC), at 559.

[42] (1993) 104 DLR (4th) 470, at 525.

[43] Ibid.

[44] Ibid, at 532.

[45] Ibid; see also at 535. Note that the issue of compatibility of fee simple estates and Aboriginal rights was not directly before the Court, as the Gitksan and Wet’suwet’en’s claim excluded privately–held fee simple lands which had been granted prior to the commencement of their action; instead, they claimed damages from the provincial Crown for wrongful alienation of those lands: see ibid, at 531.

[46] Ibid, at 524.

[47] See especially the quotation accompanying n47, supra.

[48] Note that ‘co–existence’ was not the term Lambert JA employed to describe situations where Aboriginal rights and non–Aboriginal interests exist concurrently as a matter of law. Instead, he seems to have regarded that term as more applicable in the context of political compromise: see ibid, at 746.

[49] Ibid, at 670.

[50] Ibid, at 671–2; see also 737–8. Note that Lambert JA expressly disagreed with Brennan J’s opinion in Mabo [No. 2][1992] HCA 23; , (1992) 175 CLR 1, at 68, that ‘[a] Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title.’ Lambert JA remarked at 672 ‘that Mr. Justice Brennan’s proposition that the effect of the grant is enough to extinguish aboriginal title and rights even if the intention is not clear and plain, is contrary to the test enunciated in Sparrow’. I would add that it also appears to conflict with Brennan J’s own adoption of the clear and plain test: see supra, n40.

[51] (1993) 104 DLR (4th) 470, at 670.

[52] Ibid, at 753.