Self-government and the inalienability of aboriginal title.

• Author: McNeil, Kent
• Position: Canada

Aboriginal title to land, as defined by the courts, has a number of sui generis aspects. Prominent among these is its inalienability, other than by surrender to the Crown. Two explanations are usually given for this: the need to protect Aboriginal peoples from exploitation by unscrupulous European settlers, and the incapacity of the settlers to obtain title to land otherwise than by Crown grant.

While acknowledging that the need for protection of Aboriginal lands was important historically, this article argues that it is paternalistic to rely on this explanation for inalienability today. The incapacity of settlers is a more satisfactory rationale for inalienability, both theoretically and doctrinally. However, instead of basing that incapacity on the legally and historically flawed view that settlers can only acquire lands from the Crown, this article presents an explanation that is based on the nature of Aboriginal rifle itself.

Aboriginal title is communal, and entails decision-making authority vested in the Aboriginal nation that holds it. This authority, it is argued, is governmental in nature. It can therefore only be acquired by a political entity that has equivalent decision-making capacity, such as another Aboriginal nation or the Crown. As subjects of the Crown, British settlers have always lacked the capacity to acquire a title that has a governmental dimension. Explained in this way, inalienability only prevents Aboriginal nations from transferring Aboriginal title itself to private purchasers. It should not preclude the creation of lesser private interests by Aboriginal nations, as long as they retain their Aboriginal title. As a result, inalienability should not be an impediment to the economic development of Aboriginal title lands.

Le titre foncier autochtone, tel que defini par les tribunaux, possede un certain nombre d'aspects sui genaris. Parmi eux se trouve son caractere inalienable, autre que par cession a la Couronne. Deux explications sont habituellement avancees relativement a cette particularite: le besoin de proteger les peuples autochtones de l'exploitation par certains colonisateurs europeens malhonnetes, et l'incapacite de ces derniers d'obtenir un titre foncier autrement clue par une concession de la Couronne.

Tout en reconnaissant l'importance historique du besoin de proteger les terres autochtones, cet article affirrne qu'il est aujourd'hui paternaliste de se baser sur cette explication pour justifier leur caractere inalienable. L'incapacite des colonisateurs offre un raisonnement beaucoup plus satisfaisant a cet egard, et ce tant au niveau theorique que doctrinal. Cependant, plutot que de baser cette incapacite sur l'idee-legalement et historiquement fausse--selon laquelle les colonisateurs ne pouvaient acquerir de titre foncier que par la Couronne, cet article presente une explication basee sur la nature meme du titre foncier autochtone.

Le titre foncier autochtone est de nature communautaire, impliquant une autorite decisionnelle investie dans la nation autochtone qui le detient. Cette autorite, affirme-t-on, est de nature gouvernementale. Elle ne peut donc etre acquise que par une entite politique ayant une capacite decisionnelle equivalente, tel qu'une autre nation autochtone ou la Couronne. Or, a titre de sujets de la couronne, les colonisateurs anglais ont toujours manque cette capacite d'acquerir un titre foncier ayant cette dimension gouvernementale. Expliquee de cette maniere, l'inalienabilite empecherait seulement les nations autochtones de transferer les titres fonciers a des acheteurs prives. Cela ne devrait donc pas ecarter la creation d'interets prives moindres par les nations autochtones, dans la mesure cependant ou elles conservent leur titre foncier. Par consequent, le caractere inalienable de leur titre ne devrait pas gener le developpement economique des territoires autochtones.

Introduction I. The Protection Rationale II. Incapacity of Settlers and the Political Aspect of Aboriginal Title A. Jurisprudential Explanations B. Constitutional History and Political Theory C. Chief Justice Marshall and the Doctrine of Discovery D. Inalienability and Economic Development Conclusion Introduction

The inalienability of Aboriginal title, other than by surrender to the Crown, is a central tenet of the common law. This rule has been affirmed repeatedly by courts in leading decisions in Canada, (1) Australia, (2) and New Zealand. (3) Indian title has also been held to be inalienable in the United States, (4) where after the American Revolution it could only be extinguished by the federal government. (5) But what is the basis for this restriction on alienation? Did it originate from British colonial policy that was eventually incorporated into the common law, or are there more fundamental doctrinal or theoretical justifications for it?

When the rule against alienation of Aboriginal title is traced back to the original British colonies in North America, one discovers considerable confusion over the validity of private purchases of Indian lands. (6) In the American colonies, the matter was initially dealt with by locally enacted legislation. (7) By at least the middle of the eighteenth century, the imperial government in Westminster had adopted a policy forbidding these purchases, expression of which can be found in instructions to various colonial governors. (8) This policy was applied generally across British North America by the Royal Proclamation of 1763. (8)

Although judges have often referred to the Royal Proclamation when affirming the inalienability of Aboriginal title, (10) it is nonetheless clear that a common law basis for the rule exists as well. In Johnson v. M' Intosh, the leading American case on the issue, Chief Justice Marshall gave three reasons for holding private purchases of Indian lands to be invalid, the last and apparently least important of which was a violation of the Royal Proclamation. (11) In Delgamuukw, the Supreme Court of Canada repeated the standard view that Aboriginal title is inalienable other than by surrender to the Crown, without reference to the Royal Proclamation in that context. (12) In Australia, where the Royal Proclamation does not apply, the High Court in Mabo accepted without question that Native title (as Aboriginal title is called there) cannot be transferred out of the Indigenous community to which it pertains. (13) In New Zealand, the 1840 Treaty of Waitangi between the Maori chiefs and Britain assured the Crown of a right of pre-emption of Maori lands; nevertheless, the Supreme Court held in Symonds that the common law would have prevented sealers from acquiring those lands directly. (14)

Given that the general prohibition against alienation of Aboriginal, Indian, Native, and Maori title has a common law basis, it is worth considering legal justifications for the rule. As we shall see, two rationales are usually given: first, the need to protect Indigenous peoples from unscrupulous European settlers, and second, the incapacity of the settlers to acquire lands other than by Crown grant. (15) It will be argued that the first rationale is derived from a British colonial policy that, whatever its justification historically, is paternalistic and acts as an impediment to the economic development of Indigenous lands today. However, the second rationale is rooted in principle and has the potential to contribute to our understanding of the relationship between Indigenous land rights and self-government. Moreover, this rationale can be used to provide jurisdictional space for Indigenous peoples to rely on their own laws to govern the alienability of land rights within their territories, thereby facilitating the economic development of their lands without surrendering them to the Crown. The second rationale will be the main focus of this article, but first let us briefly consider the protection rationale.

1. The Protection Rationale

   There can be no doubt that part of the motivation behind the British North American policy of prohibiting private purchases of Indian lands was the protection of Indian nations. The Royal Proclamation stated expressly that the reason why only the Crown could purchase Indian lands was that "great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians." (16) The proclamation also stated that it was

   just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having being ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. (17) The protection of the Indian nations from frauds and abuses therefore went hand in hand with the Crown's interests, in particular the security of its North American colonies. (18)

   Canadian case law has accepted the protection explanation for the inalienability of Aboriginal rifle. For example, in Guerin, Dickson J. said that the provision in the Indian Act (19) for surrender of reserve lands to the Crown goes back to the Royal Proclamation, confirming the "historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties" (20) In Canadian Pacific v. Paul, a unanimous Court said that "[t]his feature of inalienability was adopted as a protective measure for the Indian population lest they be persuaded into improvident transactions" (21) Similarly, in Mitchell v. Peguis Indian Band, La Forest J. said that

   legislative restraints on the alienability of Indian lands are but the continuation of a policy that has shaped the dealings between the Indians and the European settlers since the time of the...