Native title rights in natural resources: A comparative perspective of common law jurisprudence

Environmental and Planning Law Journal

Volumn 19, Issue 4, 2002, Pages 245-257

  Meyers, Gary D ^a  

^a MURDOCH UNIVERSITY   (Australia)

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EID: 84855562928     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (118)

1. Mabo v Queensland (No 2) 175 CLR 1 (1992) per Toohey at 178.
2. See: Calder v Attorney General of British Columbia 34 DLR 3d 145, 150-51 (1973)
3. th) 321, 335-36 (1985)
4. The Queen v Symonds [1847] NZPCC 387, 388-90
5. Eddie Mabo and Ors v State of Queensland 175 CLR 1 (1992).
6. Johnson v M'Intosh 21 US (8 Wheat) 543, 574 (1823) (emphasis added).
7. Johnson v M'Intosh 21 US (8 Wheat) 587 (1823) (emphasis added).
8. This constitutional status is jurisdictional not substantive. Article 1s 8 cl 3 of the US Constitution (the Commerce Clause) provides Congress with the exclusive power "[t]o regulate Commerce with foreign nations and among the several States and with the Indian Tribes". Thus, the Federal government possesses the exclusive power to regulate Indian affairs, however, this provision of the US Constitution confers no substantive rights to Indian Tribes.
9. Cherokee Nation v Georgia 30 US (5 Pet) 1, 17-20 (1831).
10. Cherokee Nation v Georgia 30 US (5 Pet) 17 (1831).
11. Worcester v Georgia 31 US (6 Pet) 515, 559 (1832).
12. Worcester v Georgia 31 US (6 Pet) 515, 559 (1832).
13. Worcester v Georgia 31 US (6 Pet) 561 (1832).
14. Worcester v Georgia.
15. V Deloria Jr and CM Lytle, American Indians, American Justice 33 (University of Texas Press, 1983).
16. See: GD Meyers and B Landau, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I 3/4 The US Experience (University of NSW Indigenous Law Centre 1998).
17. See US v Rogers 45 US (How) 567, 572 (1846)
18. S Dorsett and L Gooden, A GuIbide To Overseas Precedents Of Relevance To Native Title 8-13 (Native Title Research Unit, AIATSIS, 1998).
19. US v Wheeler 435 US 313, 322-23 (1978).
20. US v Wheeler 435 US 323 (1978).
21. rd edn) 3 (West Publishing Co 1993).
22. P McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, 1997).
23. Unlike North American treaties, the Waitangi Treaty neither transferred nor reserved any particular lands to the Maori. MC Blumm, "Native Fishing Rights and Environmental Protection in North America and New Zealand: A Comparative Analysis of Profits A Pendre and Habitat Servitudes, " 8 Wisc Intnl L J 1, 30 (1989).
24. See: GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 8-11 (University of NSW Indigenous Law Centre 1999).
25. MC Blumm, "Native Fishing Rights and Environmental Protection in North America and New Zealand: A Comparative Analysis of Profits A Pendre and Habitat Servitudes, " 8 Wisc Intnl L J 30 (1989).
26. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 8-11 (University of NSW Indigenous Law Centre 1999).
27. [1840-1932] NZPCC 387 (SC). This case challenged the legality of a Crown grant where the land had been acquired directly from the Maori during the period Governor Fitzroy waived the Crown's right of pre-emption. The Court of Appeal held that the right of the Crown to extinguish native title must be consistent with legal principles. Reference was made to the decisions of the Supreme Court of the United States under Chief Justice Marshall demonstrating "principles of the common law as applied and adopted from the earliest times by the colonial laws". Justice Chapman stated at 390 that: "Whatever may be the opinion of jurists as to the strength or weakness of native title it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers. But for their protection, and for the sake of humanity, the government is bound to maintain, and the courts to assert, the Queen's exclusive right to extinguish it. It follows in solemnly guaranteeing the Native title, and in securing what is called the Queen's pre-emptive right, the Treaty of Waitangi, confirmed by the Charter of the Colony, does not assert in doctrine or in practice any thing new or unsettled".
28. R v Symonds, [1840-1932] NZPCC 387 at 388-91.
29. See: Re Lundon and Whitaker Claims (1872) NZCA 41 at 49 in which Justice Chapman notes, "[t]he Crown is bound both by the common law of England and by its own solemn engagements [ie, the Treaty of Waitangi], to a full recognition of Native proprietary right. Whatever the extent of that right by established Native custom appears to be, the Crown is bound to accept it".
30. [1878] 3 NZ Jur 72.
31. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 12 (University of NSW Indigenous Law Centre 1999).
32. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 12-14 (University of NSW Indigenous Law Centre 1999).
33. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 14-15 (University of NSW Indigenous Law Centre 1999).
34. See generally ET Durie "A Judge's Eye View of the Waitangi Tribunal, " paper presented at conference on Indigenous Peoples: Rights, Lands Resources, Autonomy International Symposium and Trade Show, Vancouver, Canada (March 20-22, 1996).
35. [1986] 1 NZLR 682.
36. F Hackshaw "Nineteenth Century Notions of Aboriginal Title and their Influence on the Interpretation of the Treaty of Waitangi" 92-120 in IH Kawharu, Waitangi: Maori and Pakeha Perspectives (Oxford University Press, 1989).
37. [1987] NZLR 641.
38. New Zealand Maori Council v Attorney-General, [1987] NZLR 641 at 664.
39. Also: Te Runanga o Wharekauri Rekohu Inc v Attorney General [1993] 2 NZLR 301, 306 in which the court notes that the continuance of native title gives rise to a fiduciary duty or constructive trust to secure those rights
40. Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553, 560-the court notes that the requisite protection of Maori rights is not served by mere consultation regarding activities which may affect those rights, but requires more active measures.
41. [1994] 2 NZLR 20.
42. Te Runanganui o Te Ika Whenua Inc Society v Atto rney General, [1994] 2 NZLR 23-24.
43. See: DG Smith, Canadian Indians and the Law: Selected Documents, 1663-1972 xiv-xv (McClelland and Stewart Ltd, 1975). Smith notes at xv that: "this sovereignty was not without substantial qualifications. While sovereign powers in their own right in many respects, Indian tribes and nations were nevertheless 'under Royal protection'".
44. See: Royal Commission on Aboriginal Peoples, Vol 1 Looking Forward Looking Back 161-73 (Canadian Communications Group-Publishing, 1996).
45. St Catherine's Milling and Lumber Co v The Queen [1889] 13 SCR 577.
46. Calder v Attorney General of British Columbia 34 DLR (3d) 145 (1973).
47. Calder v Attorney General of British Columbia 34 DLR (3d) 160 (1973).
48. th) 321 (1985).
49. th) 339-44 (1985).
50. GD Meyers, "Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada, " 10 UCLA J Env L & Pol'y 67, 109-10 (1991-92).
51. th) 385, 411-17 (1990)
52. GD Meyers, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights of Self Government, Part II--Defining the Content of Aboriginal Rights in Canada 14-15 (University of New South Wales Indigenous Law Centre 1999).
53. Delgamuukw v British Columbia (1998) 1 CNLR 1.
54. Delgamuukw v British Columbia (1998) 1 CNLR 67.
55. Delgamuukw v British Columbia (1998) 1 CNLR 80-81.
56. Delgamuukw v British Columbia (1998) 1 CNLR 80.
57. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 32-37 (University of NSW Indigenous Law Centre 1999).
58. Cherokee Nation v Georgia 30 US at 17
59. Calder v Attorney General of British Columbia 30 DLR (3d) at 160
60. Delgamuukw (1998) 1 CNLR at 58-59
61. Te Runanganui [1994] 2 NZLR at 23-24.
62. See: CF Wilkinson, American Indians, Time and the Law 15 (Yale University Press 1987)
63. US v Winans 198 US 371, 381 (1905)
64. Washington v Washington State Commercial Fishing Vessel Ass'n 443 US 658, 678 (1979).
65. MC Blumm, "Native Fishing Rights and Environmental Protection in North America and New Zealand: A Comparative Analysis of Profits A Pendre and Habitat Servitudes, " 8 Wisc Intnl L J 30 (1989) and text regarding similar interpretation of the Treaty of Waitangi.
66. GD Meyers, "Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada, " 10 UCLA J Env L & Pol'y 94 and 102-03 (1991-92).
67. th) at 395-96.
68. See generally: Meyers and GD Meyers and B Landau, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I 3/4 The US Experience (University of NSW Indigenous Law Centre 1998).
69. th) 385, 411-17 (1990)
70. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 8-11 (University of NSW Indigenous Law Centre 1999).
71. See: Cherokee Nation v Georgia 30 US at 17
72. Calder v Attorney General of British Columbia 30 DLR (3d) at 160
73. New Zealand Maori Council v Attorney General [1987] 1 NZLR at 644.
74. th) 32-34 (1990)
75. Re: the US, GD Meyers and B Landau, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I 3/4 The US Experience 11 (University of NSW Indigenous Law Centre 1998).
76. Re: New Zealand, see GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 27-34 (University of NSW Indigenous Law Centre 1999).
77. Congress has enacted a number of Tribes as States (TAS) provisions which authorise Tribes to enforce pollution control statutes reservation-wide. See for example, Clean Air Act, 42 USC No 7601 (West 1995)
78. Clean Water Act, 33 USC No 1377 (West Supp 1998)
79. Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC No 9626 (West 1995)
80. Safe Drinking Water Act, 42 USC No 300j-11 (West 1991)
81. th Cir 1985) which affirms EPA's decision to refuse to allow state of Washington to apply its hazardous waste regulations to the activities of all persons, Indians and non-Indians, in Indian Country even though RCRA has no TAS provision authorizing Tribes to develop and implement their own hazardous waste management programs). appears to be similarly structured.
82. th) 29-30 (1990)
83. Seg (1998) 1 CNLR at 57.
84. See: GD Meyers, "The Content of Native Title: Questions for the Miriuwung Gajerrong Appeal, " 2 (No 7) Land, Rights, Laws: Issues of Native Title 1, 4-6 (Nov, 2000).
85. See generally, GD Meyers, Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada, " 10 UCLA J Env L & Pol'y 67, 109-10 (1991-92).
86. See: Montana v United States, 450 US 544 (1981)
87. Brendale v Confederated Tribes and Bands of the Yakima Nation, 492 US 408 (1989)
88. GD Meyers and B Landau, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I 3/4 The US Experience 9-10 and 33-34 (University of NSW Indigenous Law Centre 1998).
89. See GD Meyers and B Landau, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I 3/4 The US Experience 11-12 (University of NSW Indigenous Law Centre 1998).
90. GD Meyers and B Landau, Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self Government Part I 3/4 The US Experience 32 (University of NSW Indigenous Law Centre 1998).
91. th) 34-37 (1990)
92. See: JJ Borrows and LI Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary 673-742 (Butterworths Canada Ltd, 1998).
93. One US commentator has extensively explored the theoretical and jurisprudential rationale for encompassing management rights within the ambit of native title rights of access and use to shared natural resources off native title lands. See generally: E Goodman, "Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Co-management as a Reserved Right, " 30 (2) Env L 279 (2000).
94. See: Delgamuukw, (1998) 1 CNLR at 79
95. Te Runanga o Tuamarere v Northland Regional Council (1996) NZRMA 77
96. th) 39-40 (1990)
97. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 40-41 (University of NSW Indigenous Law Centre 1999).
98. GD Meyers and CM Cowan, Environmental And Natural Resources Management By The Maori In New Zealand 286-90 (University of NSW Indigenous Law Centre 1999).
99. Meyer, "GD Meyers, "Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada, " 10 UCLA J Env L & Pol'y 98 and 111 (1991-92).
100. MC Blumm, "Native Fishing Rights and Environmental Protection in North America and New Zealand: A Comparative Analysis of Profits A Pendre and Habitat Servitudes, " 8 Wisc Intnl L J 1, 30 (1989).
101. Mabo (No 2) 175 CLR per Brennan at 52.
102. Mabo (No 2) 175 CLR per Brennan at 51-52.
103. Mabo (No 2) 175 CLR per Deane and Gaudron at 86.
104. Mabo (No 2) 175 CLR per Toohey at 184-88.
105. Mabo (No 2) 175 CLR per Brennan at 64-65.
106. Mabo (No 2) 175 CLR per Deane and Gaudron at 111.
107. State of Western Australia v Commonwealth 183 CLR 373, 422-34 (1995). This case, also known as the Native Title Act case rejected a challenge by Western Australia to the constitutionality of the Native Title Act 1993 (Cth) and declared invalid Western Australia's initial legislative land rights scheme.
108. The Wik People v State of Queensland 187 CLR 1 (1996).
109. Yanner v Eaton 168 ALR 1(High Court of Australia) (1999). Similarly, the Full Federal Court has also held that native title rights may extend offshore and that neither assertions of sovereignty to territorial waters nor regulation of resource access rights will fully extinguish those offshore rights. See: Commonwealth v Yarmirr 168 ALR 426 (1999).
110. Fejo v Northern Territory of Australia 195 CLR 96 (1998).
111. Wik 187 CLR per Toohey at 30-31, per Gaudron at 166-67, per Gummow at 204, and per Kirby at 242-43 and 250.
112. Mabo (No 2) 175 CLR at 70; native title hunting and fishing rights are also acknowledged in the Native Title Act 1993, as amended, 1998 (Cth).
113. Yanner v Eaton 168 ALR 1(High Court of Australia) (1999). Similarly, the Full Federal Court has also held that native title rights may extend offshore and that neither assertions of sovereignty to territorial waters nor regulation of resource access rights will fully extinguish those offshore rights. See: Commonwealth v Yarmirr 168 ALR 426 (1999).
114. Commonwealth v Yarmirr / Yarmirr v Northern Territoryr 2001 HCA 56 (11/10/2001).
115. Yanner v Eaton 168 ALR 1(High Court of Australia) (1999). Similarly, the Full Federal Court has also held that native title rights may extend offshore and that neither assertions of sovereignty to territorial waters nor regulation of resource access rights will fully extinguish those offshore rights. See: Commonwealth v Yarmirr 168 ALR 426 (1999).
116. See generally, K McNeil, Common Law Aboriginal Title (Clarendon Press-Oxford, 1989).
117. Western Australia v Ward (2000) 170 ALR 159m affirming in part and reversing in part, Ward and Ors v State of Western Australia and Ors (1998) 159 ALR 483.
118. For a discussion of the principal differences in the two opinions, see generally, The Content of Native Title, GD Meyers, "The Content of Native Title: Questions for the Miriuwung Gajerrong Appeal, " 2 (No 7) Land, Rights, Laws: Issues of Native Title 1, 4-6 (Nov, 2000).