Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title

Alexander Craig is a freelance journalist in Lennoxville, Quebec.

A basic problem in Canada’s history, ever since it began to be settled by Europeans, remains in fact unsettled in large parts of the country. Whose land is it anyway? How is that decided? By which system?

Law, as some of us at times have ruefully to find out, has more to do with legal systems than with justice. Legal systems themselves have to do with the politics which led to their establishment, and that in turn has to do with history. Brian Slattery looks at the historical background of British settlement in four countries which “were originally inhabited solely by aboriginal peoples organized in relatively small-scale societies”: Canada, the United States, New Zealand, and Australia.

He looks above all at aboriginal land rights in Canada, of course, and does this by examining five distinct legal doctrines: he calls them: “a) the doctrine of a legal vacuum; b) the doctrine of radical discontinuity; e) the doctrine of continuity; d) the doctrine of common law dispossession; and e) the doctrine of aboriginal title.” Mr. Slattery regards the first four of these to be, in their different ways, much less important or substantial than the last, the doctrine of aboriginal title, which he considers to be “the most significant judicial attempt made so far to assess the legal effects on native lands rights of the advent of Europeans to North America, and, by extension, in New Zealand and Australia.” Accordingly he devotes most of his manuscript to that, and to the efforts made by Chief Justice John Marshall in the U.S. to bring the two conflicting worlds, conflicting in a legal as well as probably every other respect save belonging to humankind, together. In his conclusion, he shows how the new Canadian constitution rejects all other theses save for that of “existing aboriginal rights” and thus continues the tradition established by Marshall at the start of the last century.

Inasmuch as complex legal history can be succinctly expressed, Brian Slattery has done so. His book repays careful reading for those interested in what has become today of the “far-reaching and often ill-defined claims” that the British Crown made so long ago, to territories which at times were not even explored, let alone controlled.