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University of New South Wales Law Journal Student Series |
LESSONS FROM CANADA: A COMPARATIVE ANALYSIS OF CANADIAN ABORIGINAL TITLE AND AUSTRALIA’S FUTURE ACTS REGIME
ALEXANDER MOWBRAY
Australia is subject to over 639 native title determinations and 100 outstanding native title claims,[1] together covering more than 64% of Australia’s land mass.[2] In October 2021, the final report of the parliamentary inquiry into the destruction of Indigenous heritage sites at Juukan Gorge, ‘A Way Forward’, recommended a review of the Native Title Act 1993 (Cth) (‘NTA’)[3], to address inequalities in the negotiating position of Aboriginal and Torres Strait Islanders under the future acts regime.[4] As will be expanded, future acts describe acts that ‘affect’ native title rights.[5] The Australian Law Reform Commission (‘ALRC’) has since been asked to commence an inquiry into the regime,[6] with one frame of reference being how it compares with ‘any relevant international approaches’.[7]
Australia and Canada are two countries with comparable colonial histories, grappling with the need to protect and recognise Indigenous land rights in the modern world. This article responds to the calls of the Juukan Gorge Report, and seeks to compare the future acts regime with Canadian Aboriginal title (‘Aboriginal title’) protections against infringements, as a ‘relevant’ comparator with respect to ‘impacting acts’.[8]
Aboriginal title and the NTA have developed through fundamentally different legal and historical frameworks. This has led to differing legal processes and procedural rights, with Aboriginal title having legal rules that are less defined, with much wider conceptual considerations, a higher overall level of protection, and as a result, a differing role within society. To meaningfully compare these regimes, sufficient context of the role of Aboriginal title within the broader framework of Canadian Indigenous land rights is required. As a result, this article will first contextualise Aboriginal title alongside treaty and other land rights within Canada, before outlining the protections of Aboriginal title both at the pre-proof stage (see below) through the duty to consult and accommodate, and the full rights of Aboriginal title once established. These protections will then be compared to the protections of the NTA future acts regime, focusing on the right to negotiate.
In doing so, this article seeks to contribute to a long history of comparative literature in the field of Indigenous land rights between Australia and Canada, including within Mabo v Queensland [No 2] (‘Mabo [No 2]’) itself.[9] Notably, the ALRC’s previous review of the NTA in 2015 compared these two jurisdictions with respect to recognition and proof of title.[10] Additionally, Guttman’s 2005 article conducted a similar comparison between the future acts regime and Aboriginal title, however Guttman’s analysis was limited to the ‘pre-proof’ protections of Aboriginal title, being the procedural protections afforded prior to formal recognition of title, but after its assertion.[11] This article builds upon this literature in consideration of the developments in Canadian Aboriginal title and native title operations over the past two decades, with the additional frame of reference created by the Juukan Gorge Inquiry.
Furthermore, both native title and Aboriginal title fit within a broader framework of Indigenous land rights. In addition to native title in Australia, there also exists specific Indigenous land rights regimes in each of the states except Western Australia.[12] Notably, the state legislation that provides the highest level of protection is the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which requires consent of the land council before the granting of a right to mine.[13] Protection over Indigenous land and heritage sites are also governed by legislation both on the federal and state level.[14] Each of these legislative frameworks influence the scope of rights and negotiating positions of Indigenous communities on lands protected by these alternative frameworks, however a more in depth analysis of these regimes is beyond the scope of this article.
Aboriginal title similarly sits within a substantially different landscape of Indigenous land rights in Canada. As will be explored in Part II, Aboriginal title, unlike native title, has developed through the courts within the common law, and is constitutionally protected. As in Australia, Canadian common law describes the law developed through the courts without statute. This is contrasted to native title, which was also originally recognised in the common law in Mabo [No 2], however due to the substantially weaker common law native title rights recognised, was quickly legislated through the NTA to ‘significantly supplement’ the common law protections.[15] Native title is thus primarily the subject of statute. Aboriginal title is chosen as a ‘relevant’ comparator to native title as it shares the characteristics of operating in the absence of formalised treaty, and is recognised as a burden upon crown title that existed pre-sovereignty and has not been extinguished.
Notably, in both the Canadian and Australian Indigenous land rights, agreements between Indigenous groups and either government or third party proponents are a common way that impacting acts are allowed. This is why the negotiating positions of native title parties are the subject of the Juukan Gorge Recommendation. As O’Faircheallaigh concludes, legislative regimes play a significant role in the variation of outcomes of negotiated agreements, although also notes the relevance of other economic and political factors.[16] As a result, this article recognises the role of agreements under both the NTA and Aboriginal title for impacting acts, however limits its analysis to the legal frameworks within which these negotiations occur and agreements are made.
Finally, the goal of the NTA is to ensure native title parties can fully enjoy their rights and interest, whilst balancing these requirements with the community need for certainty and enforceability, in a way that further advances the process of reconciliation.[17] As such, this article considers these factors of rights protection, certainty and enforceability as relevant considerations when comparing the differing protections of Aboriginal title and native title.
Ultimately, it is seen that a comparison of Aboriginal title and the related duty to consult and accommodate with the NTA’s future acts regime, as two systems that have developed in fundamentally different legal frameworks, reveal the following:
1. The Canadian duty to consult and accommodate adopts a spectrum of procedural rights approach to proposed infringements, contrasted with the NTA’s approach to define rights based upon the category of an act. In doing so, native title adds comparable certainty for proponents and the community, as illustrated by the implications of the Canadian approach, but also call into question the nature of the categorical approach as failing
to appropriately protect claimants’ rights.
2. Unlike Canada, the NTA’s approach in providing consistent rights before and after proof of title, provided a registration test is met, is undoubtedly a strength of the native title system. This both provides increasing certainty and a protection that is sensitive to the special character of native title rights. However, this finding is also a reflection of the significantly lesser protections native title provides with respect to future acts compared to
Aboriginal title.
3. One significant difference between the two systems is the timeframe of negotiations. Aboriginal title consultations and negotiations regularly span decades, whereas under the right to negotiate within the NTA, for the specific acts where it applies, parties can apply for an arbitral determination after only six months of negotiation. This approach again increases certainty and efficiency, but likely adds to the pressure for proponents to reach an agreement in a way that prejudices native title claimants, whilst calling into question the ability for legitimate consultation to occur within six months.
4. The Canadian experience in Aboriginal title protections being enforceable only in the courts, illustrates the utility and effectiveness of the National Native Title Tribunal (‘NNTT’) as a specialised decision maker, created by statute. This comparative efficiency assists in defining native title rights with respect to future acts in a way that substantially promotes certainty, efficiency and enforceability for all parties.
5. Finally, the imposition of future act requirements upon proponents, as compared with the requirements of Aboriginal title being duties owed by government alone are consistent with Aboriginal title being public law, rather than the ‘quasi-private’ realm within which the NTA future acts operates. As a result, Aboriginal title imposes a wider range of factors for the Crown to consider when imposing upon Aboriginal title, including reconciliation. This has led to comparatively higher protections of Aboriginal title, and allowed Aboriginal title to have a greater impact on Indigenous rights more broadly within society, as will be illustrated through its relationship with negotiations and modern treaties.
As a complex and differing framework to Australian native title, contextualisation of the role of Aboriginal title within the Canadian Indigenous legal landscape is necessary before it can be meaningfully compared with the future acts regime. Aboriginal title has developed through case law since the 1970s. As mentioned above, Aboriginal title sits alongside treaty rights and other land rights created under statute, particularly through the Indian Act 1876. Furthermore, Aboriginal title differs significantly from native title due to its development through common law rather than statute, and its constitutional protection.
Unlike Australia, ‘historic treaties’ were entered into between the Crown and Indigenous groups between the 18th century and the early 20th century, covering nearly 50% of modern Canada.[18] Much of the legal and treaty relationship between the British Crown and First Nations in Canada has developed through the Royal Proclamation of 1763, as the basis for North American governance following Britain’s seven-year war with France.[19] Amongst other things, the proclamation delineated the existing colonies from the ‘Indian Territories’, and required that First Nations people not be “molested or disturbed”, and that their land not be taken without consent.[20]
Many of these treaties contained clauses concerning the surrender of land. Of note are the numbered ‘Territorial Treaties’ entered into after the 1870s, within which First Nations agreed to share their land down to the top six inches of soil, in return for various benefits such as education, healthcare and other assistance.[21] These have controversially been interpreted to have amounted to the cession of land and any Aboriginal title claim to the British Crown in return for these treaty rights.[22]
Other treaties also exist on Canada’s east coast that did not include cession of land rights. Unlike the territorial treaties, these treaties did not extinguish Aboriginal rights,[23] and it is likely that if proven, Aboriginal title could be established upon these lands.[24]
Treaty making ceased following a political shift beginning in 1923 until the emergence of modern treaties in the 1970s, considered below. This meant there were various parts of Canada where territorial treaties were never signed, including most of British Columbia, Quebec and the Far North.[25] As a result, most Aboriginal title issues arise in these areas, where no prior agreement governs the relationship between the Crown and First Nations.
Indigenous land rights are also afforded to Canadian First Nations through the creation and operation of reserves.[26] The Indian Act is the federal legislation that governs matters pertaining to ‘Indian Status’, bands and Indian reserves, that operate in the relationship between First Nations and the Canadian government.[27] Indian reserves are tracts of land set aside by the Canadian government for the exclusive use of an ‘Indian Band’, under which only Indian band members have the right to live on the land.[28] Whilst reserve lands are not owned by the Indigenous communities, they are held on trust by the Canadian government for the bands. Furthermore, reserve lands are subject only to federal legislation and not provincial legislation.
Across Canada, there are over 3,394 reserves, set aside for more than 600 First Nations.[29] Reserve lands similarly sit outside of Aboriginal title, and do provide a strong form of land rights to Indigenous groups, however they are limited by their size, covering only 0.36% of Canada’s land mass.[30]
It is within this historical framework that Aboriginal title emerged. Aboriginal title was first recognised in Canadian law in the 1973 case of Calder v Attorney-General of British Columbia (‘Calder’), [31] where the Court recognised that Aboriginal title could exist, as a legal right to the land based upon the occupation of traditional territories pre-sovereignty.
The legal framework of Aboriginal title was further impacted by the enactment of schedule B to the Canada Act 1982 (UK) (‘Constitution Act 1982’).[32] Section 35(1) broadly stated that ‘the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed’,[33] but did not further define what ‘Aboriginal rights’ were, or what ‘hereby affirmed’ meant. This vagueness ultimately left it to the courts to fill in what these rights were. Aboriginal rights have since been recognised to include a wide spectrum of rights based upon practices, customs and traditions that existed pre-sovereignty. Examples of these rights include the right to hunt or fish as in R v Sparrow (‘Sparrow’),[34] and whilst there has yet to be a Supreme Court decision expressly recognising the right to self-government, many First Nations argue that such a right exists. [35] Aboriginal title falls within the scope of Aboriginal rights, and has been described as the ‘highest form of Aboriginal rights’.[36] This constitutional enshrinement of Aboriginal title rights is significant because it means the provincial and federal governments are not able to infringe it without changing the constitution, requiring a constitutional conference.[37] To some extent, this is why Aboriginal title has not been legislated, as legislation could not detract from the high level of protection awarded by Aboriginal title or other Indigenous rights.
Subsequently, in 1990, the Supreme Court of Canada held in the case of Sparrow, that section 35 protected all proven Aboriginal rights that had not been extinguished prior to 1982 and imposed a fiduciary duty on the Crown with respect to those rights.[38] Prior to this, fiduciary relationships were confined to private law, where a party either by contract or statute had an obligation to act for the benefit of another because of a special relationship of trust. This case and Guerin v The Queen[39] extended the concept of a fiduciary duty to the relationship between the Crown and Indigenous peoples with respect to Aboriginal rights and title interests.[40]
Following this, in 1997, the case of Delgamuukw v British Columbia (‘Delgamuukw’)[41] established that Aboriginal title was different to other Aboriginal rights, given it was a right to the land itself, clarifying the nature of Aboriginal title as encompassing the right to exclusive use and occupation of the land, including for both non-traditional and traditional purposes.[42] This includes the right to decide how the land is to be used, the right of enjoyment and occupation, of possession, to economically benefit from the land, and the right to pro-actively use and manage the land.[43] Aboriginal title is recognised where: i) the land was occupied prior to Crown sovereignty; ii) if present occupation is relied upon as proof of pre-sovereignty occupation, there must be a continuity between present and pre-sovereignty occupation; and iii) at sovereignty, occupation was exclusive.[44]
However, it was also found that Aboriginal title was limited in that it cannot be used in a manner that is irreconcilable with the First Nations attachment to the land,[45] and is inalienable except via surrender to the Crown.[46]
Haida Nation v British Columbia (Minister of Forests) (‘Haida Nation’) further developed the law in relation to the Crown’s duties prior to the establishment of Aboriginal title, after the assertion of such title.[47] This duty exists in the Crown’s duty to consult and accommodate Indigenous peoples. The scope of these protections will be further explored in Part III.
It was not until the case of Tsilhqot’in Nation v British Columbia (‘Tsilhqot’in’) in 2014 that there was a formal recognition of Aboriginal title. [48] This remains the only case to do so. Tsilhqot’in adopted the above test in Delgamuukw in that the possession must be sufficient, continuous and exclusive.[49] Tsilhqot’in also further developed and clarified the protection afforded under Aboriginal title both before and after proof of title, which are the subjects of Part III and IV.
Tsilhqot’in was a monumental case in the context of Aboriginal title. Similarly to Mabo [No 2], the Court declared that ‘terra nullius never applied in Canada’, and has been described as a great step toward reconciliation.[50] Despite this, the case and Aboriginal title more broadly is also subject to much criticism. Borrows has argued that the two limitations of Aboriginal title outlined above, in addition to its ability to be justifiably infringed (described below), amongst other reasons, have continued to uphold the racist doctrine of terra nullius.[51] Such critiques undoubtedly have affected the political response to Aboriginal title more broadly, and are relevant to the response of Modern treaties and power of Aboriginal title considered below.
Immediately following the determination of Calder in 1973, the government commenced a new wave of treaty making, known as ‘Modern Treaties’. This policy aims to negotiate modern treaties on land without a pre-existing land cession, where Aboriginal title may exist. This renewed process illustrates the political significance that Calder and Aboriginal title had. Only six years prior to Calder, the Canadian government had proposed the controversial ‘White Paper’ to abolish the Indian Act, placing First Nations on the same footing as other ethnic groups.[52] Famously, Prime Minister Pierre Trudeau after the Calder decision stated, ‘maybe you [First Nations] have more rights than we thought’.[53]
Since 1976, Canada has signed 26 comprehensive land claims, covering approximately 30% of Canada’s land mass.[54] One example is the Nisga’a Final Agreement Act, which included the group the subject of the Calder decision. This agreement was entered in 1999, 24 years after the Calder case. Within this agreement, the Nisga’a were recognised as having the right to self-government with authority to make laws over their land.[55]
The relationship between Aboriginal title and modern treaties is complex. In British Columbia, there are 65 First Nations in the modern treaty negotiation process representing just over half of all Indian Act bands. Thirty-five of these are ‘actively negotiating’, having progressed negotiations in the past 12 months, and 28 are not currently negotiating.[56] Additionally, a report from 2013 found that under the treaty framework, the average time for negotiating a modern treaty is 18 years.[57] It is clear that the treaty process is slow, and Aboriginal title has the important role of upholding indigenous land rights during this process.
A prominent and heavily criticised feature of these agreements are provisions through which Indigenous groups surrender any claim for Aboriginal title in return for treaty rights.[58] Morales suggests nations are being asked to ‘negotiate away’ much of their lands to which they have Aboriginal title.[59] As such, some nations have preferred their Aboriginal title protections over a modern treaty. In other cases, due to the uncertainty of Aboriginal title proof and protections, particularly in relation to self-government, many bands have instead elected for modern treaties to ‘negotiate the terms of self-government’ as a preference over relying upon their asserted Aboriginal title rights.[60] As a result, Aboriginal title has the integral role of protecting indigenous land rights both whilst treaties are negotiated, whilst also providing an alternative to modern treaty rights altogether.
There arise several fundamental differences in the development and operation of Aboriginal title when comparing it to native title. Native title in Australia has been regulated by statute through the NTA since its enactment in 1993 in circumstances where the common law provided too little protection. Aboriginal rights and title have developed through the common law, equity and its constitutional enshrinement. One such consequence is that the level of protection under the NTA is primarily a legislative and political decision, whereas under Aboriginal title it is left to the courts as the interpretation of common law and constitutional rights. As will be seen, these fundamental differences are key in considering the differing operations of native title and Aboriginal title with respect to future acts.
The first framework to consider with respect to infringements of Aboriginal, is the Crown’s duty to consult and accommodate, which operates prior to recognition of Aboriginal title.
As was mentioned, there has been only one determination of Aboriginal title, in the case of Tsilhqot’in.[61] This is compared to over 639 determinations over native title in Australia.[62] As a result, the duties and obligations that arise for the Crown over land that has asserted, but not established Aboriginal title, are currently the main protections for asserted Indigenous land rights where not extinguished by treaty or otherwise. Such an approach facilitates and encourages negotiations between the Crown and First Nations,[63] whilst ensuring the rights (albeit reduced rights than would exist under an Aboriginal title determination) are protected.
The government’s duty to consult and accommodate is grounded in the ‘honour of the Crown’, and section 35 of the Constitution.[64]
The honour of the crown is a doctrine that has developed through the common law based originally on the Royal Proclamation,[65] requiring that the Crown act honourably when dealing with Indigenous peoples.[66] Where Aboriginal rights are asserted but not yet determined, a fiduciary duty does not arise between the Crown and the First Nation, as it does under proven Aboriginal title (discussed below), however there does arise a duty to consult, and if necessary, accommodate the asserted Aboriginal title claim.[67]
The duty to consult and accommodate has also been found to be protected by section 35(1) of the Constitution Act 1982.[68] In particular, the constitutional protection afforded within the duty to consult and accommodate aligns with the requirements of fair dealing and reconciliation which are consistent with the rights protected in section 35.
As established in the case of Haida Nation, the duty to consult and accommodate in relation to Aboriginal title arises when the Crown has knowledge, either real or constructive, of the potential existence of a credible Aboriginal right or title claim, and contemplates conduct that might adversely affect it.[69] This duty ultimately lies with the Crown, and cannot be delegated.[70] As will be discussed in greater detail, this is a contrast to the duties arising under the NTA primarily being imposed on proponents.
The scope and requirements of the duty to consult and accommodate lie on a spectrum that is proportionate to the apparent strength of the case supporting the existence of title, and the seriousness of the adverse effects by the purported government action on the asserted title.[71]
This includes a legal duty to negotiate in good faith and to make meaningful consultation. It has been suggested that where a claim appears weak, the duty may require the Crown to only provide notice to the First Nation and facilitate a discussion of issues that are raised.[72] Conversely, if a claim is strong, and the potential impacts of the Crown’s action on the asserted title of the First Nation is large, the duty will require a deeper level of consultation.[73] Whilst the level and specific nature of the duty will depend upon the circumstances, this may include formal inclusion in the decision making process, allowing the First Nation the opportunity to make written submissions, and to be provided reasons for the decision.[74]
The overarching question is what is required to maintain the honour of the Crown, with a legal duty to negotiate in good faith, and with a governing ethos of reconciliation between the Crown and Aboriginal peoples.[75] These broader conceptual considerations engaged with by the courts are a contrast to the considerations of the NTA future acts, which are limited to those in the statute.
Furthermore, Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) (‘Ktunaxa Nation’) set out a four-step guideline for the Crown in consultation:
1. Initiation of the consultation process which is triggered when the Crown has real or constructive knowledge of an Aboriginal right and contemplates conduct that may adversely affect it;
2. Determination of the level of consultation required, by reference to the strength of the prima facie claim and the significance of the potential adverse impact on the interest;
3. Appropriate consultation; and
4. If the consultation shows that accommodation is appropriate, accommodation of the claim pending final resolution of the underlying claim.[76]
One of the consequences of the spectrum of rights afforded by the duty to consult and accommodate is a level of uncertainty in determining what actions are needed to satisfy the requirements of the duty. Borrows suggests that despite the intention of the Court in Haida Nation to encourage negotiations between the Crown and Aboriginal groups to resolve potential infringements, the Court’s failure to clarify details of its applications has led to a flood of litigation.[77]
The more recent cases since Haida Nation have emphasised the nature of the duty to consult and accommodate as a right to a process, and not to a specific outcome, that does not amount to a veto power.[78] In the context of administrative or judicial appeal claims where this issue often arises, the controlling question is whether the level of consultation by the Crown has been ‘reasonable’ or ‘meaningful’ to maintain the honour of the Crown, with the other controlling concept being reconciliation.[79] For example, the recent British Columbia Supreme Court case of Coldwater Indian Band v Attorney-General of Canada emphasised that imposing a standard of perfection when assessing reasonableness or meaningfulness of Crown decisions, in assessing whether the duty to consult has been met, would create a veto power.[80] Furthermore, it was interpreted that the role of accommodation is to balance the concerns of Indigenous peoples against competing societal interests.[81] Such an approach appears to have taken a step back from the original operation of the duty to consult and accommodate, and may place the ‘doing of the’ impacting act as a starting point, as it is under the future acts right to negotiate, seen below.
Overall however, this approach is significantly different to the approach under the NTA, whereby the factors considered by the NNTT in determining whether a future act may proceed are fixed and interpreted from statute, rather than developed and applied by the court.
The current operation of the duty to consult and accommodate is illustrated by the recent Supreme Court Case of Ktunaxa Nation.[82] This case involved a judicial review of the British Columbia Minister for Forests, Lands and Natural Resource Operations that the duty to consult and accommodate had been met, following a breakdown in negotiations between the Ktunaxa Nation and the Crown.
After two decades of negotiations and consultations, within which the British Columbia government had agreed to reduce the footprint of the project by 60%, the Ktunaxa Nation assumed the position that appropriate accommodation was impossible.[83] The Ktunaxa asserted that the proposed ski resort was on the land at the heart of the ‘Qat’muk’, a sacred site that if impeded, would irrevocably impair their religious beliefs and practices.[84] Given the case was one of judicial review, the Court considered whether the minister could have reasonably concluded that the obligation to consult and accommodate had been met.[85] The Supreme Court emphasised the nature of the duty to consult and accommodate as procedural, and the role of accommodation as balancing the Aboriginal concerns reasonably with the potential impact of the asserted right with other societal interests. Given the two decades of consultation that had occurred, in addition to the accommodations made including reducing the footprint of the project, it was found that the minister had discharged the duty reasonably, and the proposed ski resort could proceed.[86]
The Ktunaxa Nation case demonstrates that the level of protection under the duty to consult and accommodate may have taken a step back since its inception, with an emphasis upon the procedural and non-substantive nature of the right. It clearly shows that where the duty has been complied with, the act can occur, with an underlying bias toward the doing of the act, similarly to the right to negotiate (see below). The case also demonstrates the substantial amount of time within which these consultations often occur to discharge the duty, spanning over two decades. Furthermore, the nature of the litigation through judicial review of an administrative decision is both costly and time consuming, a contrast to the NNTT illustrated below.
As noted, there has been only one judicial determination of Aboriginal title in the case of Tsilhqot’in. This case recognised approximately 1,900 square kilometres of land in British Columbia to the Tsilhqot’in Aboriginal title land.[87] Aboriginal title has also been recently voluntarily recognised by the British Columbian government through the Haida Nation Recognition Act 2023,[88] in conjunction with ongoing treaty negotiations.[89] The Haida title covers the entirety of Haida Gwaii, a series of islands north of Vancouver Island spanning 10,180 square kilometres.
As was noted above, the duty to consult and accommodate exists prior to an establishment of Aboriginal title. Once established, Aboriginal title grants a sui generis bundle of rights to the Indigenous group. With respect to future acts or developments on Aboriginal title land, Aboriginal title can only be infringed by consent, or if ‘justified’ in accordance with the requirements of section 35(1) of the Constitution, as set out in the case of Sparrow. In doing so, the rights of Aboriginal title once proven are much stronger than those pre-proof, providing both procedural and substantive protections, compared with the purely procedural protections of the duty to consult and accommodate. As will be seen, this differs from the NTA’s approach that provides consistent rights with respect to future acts both before and after recognition, provided a registration test is met.
Where consent cannot be obtained, the Crown may only infringe upon Aboriginal title if the infringement is ‘justified’.[90] To do so, section 35 of the Constitution requires the Crown to have (1) discharged its procedural duty to consult and accommodate, (2) ensure its actions are backed by a substantial and compelling public objective and (3) ensure that the governmental action is consistent with the Crown’s fiduciary obligation to the Indigenous group.[91] This test from Sparrow in relation to Aboriginal rights was adopted in Tsilhqot’in as being applicable to the land rights protected under Aboriginal title.[92]
The first step in the justification process for an infringement of Aboriginal title without consent is compliance with the procedural duty to consult and accommodate.[93] This requirement mirrors the duty as it exists pre-establishment of title which was discussed in Part III.
The substantial and compelling objective must progress a broader public goal and that of reconciliation with regard to both Aboriginal interests and the public objective.[94] Justice Lamer CJ suggested that some of the objectives that are consistent with this purpose are the ‘development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, the protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations’.[95]
Once it is established that a proposed government action progresses a substantial and compelling public objective, it must ensure that to do so is consistent with the Crown’s fiduciary duty granted in section 35 of the Constitution. This duty requires that the Crown act in a way that respects the communal nature of Aboriginal title, that is shared across current and future generations. As a result, the Crown cannot interfere with Aboriginal title in a way that would substantially deprive future generations of the benefits of the title.[96]
Furthermore, the duty imposes an obligation of proportionality whereby the incursion must be necessary to achieving the government’s goal with a rational connection, going no further than necessary to achieve it, and the public benefits must be proportional to the adverse effect to the Aboriginal Interest.[97]
If the proposed action can be justified in accordance with the Crown’s above duties, the Crown will be able to pursue the proposed action. As a result, Aboriginal title does not provide a veto power to Aboriginal communities, however does provide substantial protection against the land being used in a way that is adverse to their interests. As will be seen, this level of protection is significantly higher than any level of protection provided under the future acts regime.
Given Aboriginal title presently exists in only two areas and both were established relatively recently, there have been no court cases involving infringements upon Aboriginal title yet.
As mentioned, since the enactment of the NTA, over the past 31 years there have been a total of 639 determinations of native title and an outstanding 100 registered claims, covering over half of Australia’s land mass.[98] The NTA was enacted as a codification of native title and the implications of Mabo [No 2].[99] Unlike Aboriginal title, the NTA was subsequently enacted as statute to ‘significantly supplement’ the relatively weak inherent protections of native title provided through the common law.[100] As a result, the NTA was enacted with the competing goals of recognising and protecting native title, and rectifying the consequences of past injustices, with the community’s need for certainty and enforceability with respect to those acts potentially made invalid because of native title.[101] These political considerations closely resemble the judicial considerations of Aboriginal title mentioned above, namely as the controlling questions when determining the scope of the duty to consult and accommodate. This also means that unlike Aboriginal title, where the protections have been protected by the constitution and developed through the common law and equity, the NTA and its protections are within the control of the legislature and can be amended, as it was in 1998.[102]
The NTA provides for both full native title, and partial native title rights, that are rights falling short of exclusive possession. Partial extinguishment occurs to the extent that grants of rights or acts are inconsistent with the full native title rights.[103] This distinction is somewhat similar to that between Aboriginal title and Aboriginal rights. Interestingly however, the future act regime distinguishes between partial and full title, generally providing differing protections (with exceptions) between partial and complete native title. This is unlike the protections afforded to indigenous groups for infringements of proven Aboriginal title and Aboriginal rights, which are both subject to the same Sparrow test for justification.
The NTA provides that ‘future acts’, being acts affecting native title taking place after either 1 July 1993 for legislation and 1 January 1994 otherwise, are invalid, unless they are covered by one of the provisions of Division 3 of Part 2 of the NTA.[104] Unlike the Canadian system of Aboriginal title, the same procedural and substantive protections are afforded to native title claimants as title holders, once registered.[105]
There are 12 categories within which a future act may fall, with differing procedural protections afforded to the Native Title Claimants and holders (together, ‘native title parties’) depending upon the categorisation. The 12 categories are, in effect, listed in ascending order of procedural protection and range from future acts where procedures indicate an absence of native title, to acts that pass the freehold test.[106]
The highest of the procedural rights afforded to native title claimants is the duty to negotiate for proposed acts that create a right to mine, or for certain compulsory acquisitions.[107] This procedural protection will be focussed on in more detail, given it is the highest level of protection, and is the most commonly reviewed by the NNTT.[108]
This nature of procedural rights being dependent upon a category of the proposed act is significantly different from the protections of Aboriginal title pre-proof. Recall that the procedural protections under the duty to consult and accommodate in Aboriginal title are determined by reference to the level of impact upon the asserted title, and the strength of the claim of Aboriginal title. This differs to the native title protections which are consistent once a threshold test is met, and make no reference to either the strength of the asserted claim, or level of impact. The NTA’s approach shifts the role of arbitrators and courts to determining the category within which the act falls and applying the relevant statutory provision to the case, whereas the Canadian approach requires courts to apply broader first principles to determine the strength of the right, the level of impact and the associated level of protection.
As mentioned, an integral part of the future acts regime is the role of agreement making on native title lands, as a means of allowing for future acts to occur without having to comply with the requirements. These include Indigenous Land Use agreements, of which 1,499 have been registered with the Native Title Register (though not all relating to future acts),[109] and through consent determinations registered with the NNTT, of which there have been 268.[110] Section 31 of the NTA also allows for agreements to be made in the course of negotiations.[111]
A key difference from the protections of Aboriginal title is that once a native title claimant has a registered native title claim, they are entitled to the same procedural rights as if a determination in favour of native title had been made. Part 7 of the NTA outlines the requirements for registration, in which the registrar must register a claim if it satisfies the requirements of sections 190B and 190C.[112] These requirements include showing a prima facie case for native title, demonstrating there is an existing or prior physical connection to the land, and that title has not been extinguished.[113] This is significantly different to the duty to consult and accommodate being owed where there is a ‘credible claim’. Guttman suggests this operation of the duty to consult and accommodate sets a lower bar than the NTA registration test, affording procedural rights even where there is a relatively weak claim (considered further below).[114]
At the time of writing, there are currently 100 claims on the native title register that are registered, but have not yet been subject to a determination.[115] As such, these claims are afforded the same procedural rights as claims that have been proven and having title recognised.
The most substantial of the protections afforded to native title parties is contained in subdivision P of the future acts regime.[116] This subdivision applies to acts done by a state, federal or territory government which creates a right to mine, and to certain compulsory acquisitions of native title rights and interests, unless the ‘expedited procedure’ applies.[117]
The content of the right requires the government to first give notice of the act to the claimants, the NNTT, the public and the proposed grantee.[118] The negotiating parties, generally defined as the government, the proponent and the native title party (although the government can, and often is excluded by agreement), are required to negotiate in good faith, with a view to obtaining an agreement to either the doing of the act, or the doing of the act subject to conditions.[119]
This has been interpreted as requiring that ‘every reasonable effort’ has been made to secure the agreement.[120] This requires both a subjective obligation to act honestly, with no ulterior motive or purpose,[121] and to engage in negotiations that demonstrate a reasonableness of effort to negotiate and reach an agreement.[122] Courts have looked to specific indicia outlined in Western Australia v Taylor (‘Njamal’)[123], to assess the conduct of parties, specifically considering whether communication occurred in reasonable time, proposals were made with the view of reaching an agreement, and more generally whether the parties acted honestly and reasonably with a view to reaching an agreement.[124]
One notable feature of this language is that it requires both parties to negotiate toward the ‘doing of the act’ as a starting point. This is also in the context that in future act determinations brought before the NNTT, the act is allowed to occur in the vast majority of cases (discussed below). Bartlett has argued that such an approach undermines the process of negotiations,[125] placing native title Claimants at a disadvantage in negotiations. This is also significantly juxtaposed to some of the legislative Indigenous land rights such as those under the Aboriginal Land Rights (Northern Territory) Act within which Aboriginal groups have a right to veto exploration and mining grants.[126] This is consistent with a conclusion made by O’Faircheallaigh’s that agreements made under native title are comparatively weaker than those made under statutory regimes, which provide greater protections than native title.[127]
These considerations are significantly different to those duties placed on the Crown and interpreted by courts within the duty to consult and accommodate. Recall that the duty is governed by what is required to maintain the honour of the Crown, with a governing ethos of reconciliation. Comparatively, these considerations are much broader and more conceptual, as compared with the statutory and comparatively rigid considerations under the right to negotiate. They are also ultimately lesser than those provided by proven Aboriginal title. Although Aboriginal title does not amount to a complete veto power, the inability for the Crown to infringe upon Aboriginal title rights without breaching their fiduciary duty, and to comply with the procedural and public objective requirements provide a significantly higher level of protection than the purely procedural right to negotiate or any of the other protections under the future acts regime.
If no agreement is reached within six months, and the non-native title party has discharged its duty to negotiate in good faith, any party can apply to the NNTT for a determination.[128] The Tribunal then must determine that either the act must not be done, the act may be done, or the act may be done subject to conditions to be complied with.[129]
When making a determination, the NNTT must take into account each of the various criteria in section 39 of the NTA.[130] Amongst others, this includes consideration of the effect of the act on the enjoyment of native title rights and interests, their way of life, culture and traditions, the development of social, cultural and structures of any of those parties, sites of particular significance, the economic or other significance of the act to Australia and any public interest in the doing of the act.[131] Such considerations are similar to the role of a public objective and proportionality in Aboriginal title, however with the additional requirements of the Crown’s fiduciary duty, the protections of the right to negotiate amount to a clearly lower standard.
Under section 38(2) of the NTA, the Tribunal is limited in its findings in that it cannot make any findings as to the allocation of profits, any income derived or any things produced under the proposed act, in this case the granting of a right to mine. [132] These limitations do not apply to negotiations that are carried out under the right to negotiate, prior to a native title adjudication. O’Faircheallaigh has suggested that such limitations add pressure to native title groups in negotiations to reach an agreement, having a detrimental effect on their overall negotiating position.[133]
Of all NNTT future act determinations, it has been found that the act ‘may be done’ on 91 occasions, the act may be done subject to conditions on 17 occasions, and that the act must not be done on three occasions, with the last of such findings being in 2011.[134] Furthermore, on six occasions the tribunal found that the non-native title parties had failed to negotiate in good faith.[135] These statistics illustrate that in the vast majority of future act cases that proceed to a determination, the proposed act is allowed to proceed. This factor, combined with the duty to negotiate in good faith, having the parties negotiate to the ‘doing of the act’ as a starting point, and the allowance of a determination after only six months of negotiations, has been argued to amount to a ‘structural inequality’ in negotiating power of native title parties.[136] This structural inequality is undoubtedly one source of the ‘inequality of negotiating position’ of native title parties that is the subject of the ALRC inquiry.[137]
It is again relevant to note the fundamentally different frameworks within which these two regimes have developed. The common law and constitutional development of Aboriginal title with the statutory nature of the NTA has ultimately led to a range of similarities and differences that offer significant reflections and lessons for Australia. These differences highlight some of the strengths and weaknesses of both systems with respect to the extent that they increase enforceability and certainty for the community, protect Indigenous land rights and advance reconciliation.
The result is that recognised Aboriginal title grants deeper protections with respect to impacting acts than native title, with courts applying broader conceptual considerations when determining the right, granting differing procedural protections and mechanisms of enforcement, and ultimately having different societal roles more broadly.
One of the key differences between the duty to consult and accommodate and the right to negotiate is the differing scope of protections afforded to Indigenous groups. As illustrated, the procedural rights afforded to native title parties are determined by reference to the category within which the activity falls. Conversely, the level of consultation under the duty to consult and accommodate is open to significant variability as it lies on a spectrum, with the level of protection dependent upon the strength of the claim and the potential impact of the action. This has a range of effects on parties.
On one hand, the categorically prescribed requirements under the NTA provide significantly more certainty for both proponents and claimants as to the scope of the duty, noting disputes can arise regarding which category acts fall.[138] This is seen through the uncertainty in Canada, outlined by Borrows above as in leading to a flood of litigation. Similarly, Lavoie has suggested that such uncertainty, and the necessary cost of litigation to determine whether the duty has been met, has acted as a de facto veto power, or even elevating unproven Aboriginal rights beyond the actual underlying provable right.[139] This uncertainty is particularly problematic in actions that purport to infringe upon Aboriginal title across a range of First Nations, such as gas or energy pipelines.[140] On the other hand, the nature of some Indian Act bands electing for defined modern treaty rights over Aboriginal title suggest this uncertainty may also reduce the protections of title. As a result, it is apparent that there is significant uncertainty for both proponents and Aboriginal title claimants that appears a positive of the NTA’s categorical approach.
On the other hand, the duty to consult and accommodate remedies some of the structural issues that face native title claimants. Guttman argues that an advantage of the duty to consult being proportionate to the strength of the parties’ claim substantively defines the rights of the claimants in a way that is ‘actually proportionate’ to their rights, rather than the category within which the Act falls into as under the NTA.[141] This remains true for negotiations, however once a matter is referred to the tribunal for a determination, the factors of the effect of the action upon the enjoyment of the native title right does become relevant to some extent.[142] This factor is further exacerbated by the fact that the right to negotiate is confined to very limited circumstances, where other grants of rights that affect native title under the NTA are given a lesser right.
Ultimately, in lying on a spectrum of rights, the duty to consult and accommodate provides an alternative to the future acts regime that is not based upon a characterisation of an act, but rather the actual effect of the proposal upon the rights of Aboriginal title. Such an approach may assist in remedying the structural disadvantage that native title parties face in negotiations, but also increases uncertainty for both Indigenous groups and proponents as to the requirements of consultation.
As was canvassed above, under the NTA, once a native title group satisfies the registration test, they are afforded the same procedural rights as those subject to a determination of native title. This differs from the Canadian context where the duty to consult and accommodate for a pre-proof asserted Aboriginal title differs from the rights afforded to proven Aboriginal title.
On one hand, this offers a greater level of clarity under native title. It is also consistent with the inherent complexity of proving native title rights, and its nature as a recognition of an existing right, rather than the creation of a right. Specifically, both findings of native title and Aboriginal title are recognitions of rights that have always existed and continued to exist since sovereignty.[143] Consequently, there is a need to protect these rights before proven, given they may subsequently be found to have existed.
Hence, it appears a strength of the NTA in providing consistent protections to both native title claimants and holders. Whilst this is true, it is also likely a reflection on the substantially higher level of rights provided under Aboriginal title. There would be significant ramifications under Aboriginal title if all asserted Aboriginal title claims were immediately recognised and afforded the full and extensive scope of protections provided for under Aboriginal title, especially considering there is not a registration test as there is under the NTA.
Guttman also argues that the registration test under the NTA operates as a procedural barrier to the accrual of pre-proof rights,[144] which differs to Canada whereby asserted title must only be ‘credible’. Statistics over the last 20 years have found that 721 claimants have been denied from satisfying the registration test.[145] Despite this, however, native title has been found over a significant portion of Australia which is now protected by the future acts regime. As such, whilst Guttman’s argument remains relevant, it appears that the registration test has been met in the majority cases.
As a result, the NTA in providing for consistent procedural rights to asserted but not yet proven native title claims is an advantage of the Australian system both from a certainty and rights protection perspective. However, it is an approach that could not exist in Aboriginal title due to the significantly higher level of rights provided under recognised Aboriginal title.
Another ramification of the common-law nature of Aboriginal title with the statutory based NTA is that negotiations occur within a more fixed and rigid statutory framework. One such consequence is comparatively different timeframes within which negotiations occur. Again, this has a multiplicity of effects upon the operation of the duties.
Recall that under the right to negotiate, parties may apply for a determination by the NNTT after six months of negotiation provided their procedural duties have been complied with. In Canada, the processes of consultation and accommodation typically takes significantly longer than six months. For example, in the case of Musqueam Indian Band v British Columbia,[146] after a finding that the Crown had breached its duty to consult, the parties were ordered to a further two years of negotiation. Similarly, the timeframe of negotiations in the Ktunaxa Nation case being over two decades illustrate that negotiations under the Canadian framework are typically much longer than those under native title. Such longer time frames lead to added flexibility in negotiations. Furthermore, given the extremely complex subject matter of native title rights, the significant disparity in timeframes between these two systems call into question the ability for adequate negotiations to occur within six months. O’Faircheallaigh suggests that these extended timeframes reduce the pressure to reach agreements, especially given the NNTT is unable to make economic grants as can be made in negotiations,[147] and deepening the structural disadvantages faced by native title parties.
Related to the above two points, the Canadian experience illustrates the utility of the NNTT in Australia, a statutory tribunal, as a mechanism for efficiently and substantively determining the rights of the parties. For Aboriginal title claimants to enforce their rights under the duty to consult, they are required to bring court action collectively, incurring significant legal expenses, with substantial uncertainty for parties. Furthermore, these proceedings are often brought through judicial review of an administrative decision in the courts, incurring substantial legal fees. For example, the Ktunaxa Nation case spanned over five years from hearing to the final supreme court decision.[148]
The comparative volume of NNTT decisions illustrates its utility as a quick and relatively cheap way for parties to substantively determine their rights. To date, the NNTT has made 36,315 determinations as to future acts, whether those be final decisions, recognitions of agreements/consent determinations or intermediary steps.[149] It is difficult to compare this to the amount of outcomes in Canada for Aboriginal title, however given only 504 cases in BC have referred to Aboriginal title in any form since Calder, suggest it is clear that the number of determinations is far less.[150] These statistics clearly illustrate the utility of the NNTT as a comparatively quick and cheap means of substantively determining claimant rights and resolving disputes, without the need for court litigation in all cases. Such an approach significantly bolsters the certainty for both the community and native title parties in both the scope of protections and enforceability of their rights.
Finally, another difference between these two approaches to future acts that arises is to whom the duties are imposed. As outlined, the right to negotiate applies to the native title parties, being the native title group, proponents and the government, with an option for the government to be excluded with the parties’ consent.[151] Despite this, state governments are usually entirely absent from future act negotiations,[152] and it is unusual for the federal government to be involved.[153] Both Noel Pearson and O’Faircheallaigh have suggested that this has had a negative impact on the negotiating positions of native title groups.[154]
This limitation of negotiations to private parties has eroded the public law nature of native title and its associated political accountability, to instead be a quasi-private law, as law governing the relationship between private parties. This operation is consistent with the conclusions of Strelein and Tran, that the native case law and statute have restricted native title negotiations to the private sphere, and has failed to acknowledge the public nature of native title more broadly.[155] They argue that in doing so, limiting native title to the field of private law necessarily limits the extent to which native title can be a means of ‘transitional justice’ as being a medium through which Indigenous peoples can obtain greater levels of self-governance and decolonization more broadly.[156] Langton has further suggested that such an approach has been accompanied by a shift in focus toward ‘optimising native title payments’ and ‘maximising outcomes for native title benefits’, without consideration of the aspirations of Indigenous peoples.[157] This is also consistent with the status quo of the future acts regime being biased toward the ‘doing of the act’.
This is juxtaposed to the duties of consultation and accommodation, as well as the protections of proven Aboriginal title being imposed directly upon the Crown. Given these sources of law come from the common-law doctrine of the honour of the Crown, and section 35(1) of the Constitution Act 1982, Aboriginal title both pre-proof and once determined are placed more squarely within the realm of public law, as regulating the relationship between the Crown and Indigenous groups. The ability to have the honour of the Crown, a fiduciary duty and particularly reconciliation as relevant factors in determining the depth of consultation and accommodation that is required is one consequence. For example, the Supreme Court of Canada in the recent case of R v Desautel described a reconciliation that ‘looks back to the historic impact’ of the imposition of European colonisation, and looks forward to the establishment or restoration of an ‘ongoing, mutually respectful long-term relationship’.[158] Such considerations are clearly beyond the scope of what proponents can be expected to consider within a ‘quasi-private’ sphere.
Furthermore, the imposition of such duties as a matter of public law has greatly increased its strength of negotiations not only between proponents, but between government and Indigenous peoples through modern treaties. The outcomes and imposition of these modern treaty negotiations are of course complex, and informed by a wide variety of factors. However, the Canadian governments response to Calder with a renewed wave of treaty making, as agreements with the capacity for self-governance and self-determination, illustrate the political strength that Aboriginal title recognition provided to Indigenous communities. In doing so, Aboriginal title recognition has had a profound impact upon Indigenous land rights and reconciliation in Canada. To this extent, Aboriginal title, through its higher protection of rights in the public sphere and increased bargaining power with government as a result, has allowed it to become a ‘transitional justice mechanism’ toward self-government and autonomy in a way that reflects decolonization as envisioned by Stelein and Tran for native title.
Ultimately, as a ‘relevant comparator’, having developed in fundamentally different historical, political and legal frameworks, Aboriginal title protections against infringements compared with the NTA future acts regime offers some important revelations and lessons for Australia. Aboriginal title protections for infringements exist through principles developed in the common-law and the Canadian Constitution, whilst the NTA is a creature of statute, with protections set by parliament. Additionally, Aboriginal title has developed alongside a differing indigenous rights framework, alongside treaty and other statutory rights. This has ultimately resulted in differing approaches to the defining and formation of rights, with Canadian courts developing both the principles and tests of Aboriginal title that are often less defined with an overall higher level of protection, different mechanisms of enforcement, and a resulting different legal role of Aboriginal title more broadly. In the context of the Juukan Gorge Inquiry, this article illustrates the comparative effects that such frameworks have for both the rights of claimants and the community, and in turn, their resulting negotiating positions.
Such implications can be seen through the broader and undefined rights under the duty to consult and accommodate as lying on a spectrum, compared with the defined, categorical approach of the NTA. This comparison highlights the effect of these approaches on certainty, and rights protection for both native title partiers and society. Relatedly, the Australian experience in affording consistent rights before and after proof of title, is an approach that is sensitive to the special nature of native title rights. However, given proven Aboriginal title protections are much stronger than the procedural protections of future acts, a similar approach would be significantly more difficult to apply in Canada.
Additionally, the statute-based nature of the NTA has produced significantly different enforcement mechanisms and negotiation procedures. The use of the NNTT as a specialised tribunal for the resolution of disputes has allowed far greater certainty in defining the scope of native title rights across Australia. Its availability as an arbitrator mirrors the role of courts in Canada, however its ability to adjudicate a far greater volume of cases comparatively illustrates its utility as a fast, quick and cheap arbitrator particularly for future acts. Conversely, the extensively longer timeframes in the Canadian experience call into question the extent to which meaningful consultation can occur in the Australian context, which likely adds to the structural inequality that native title claimants face.
Finally, the constitutional status of Aboriginal title has allowed it to impose greater duties on the Crown, as compared with the NTA being largely restricted to proponents. This has allowed courts in Canada to more effectively deal with public law principles such as reconciliation in a pro-active and case specific way, compared with the quasi-private sphere within which Aboriginal title negotiations occur. This imposition of obligations on the government within a public sphere further bolsters the role of Aboriginal title within society more broadly, which can be used and leveraged as a means for achieving negotiated agreements with deeper rights, as demonstrated through the relationship between Aboriginal title and modern treaties.
[1] National Native Title Tribunal, ‘Statistics’, National Native Title Tribunal (Web Page, 11 October 2024) <https://www.nntt.gov.au/Pages/Statistics.aspx> (‘NNTT Statistics’).
[2] ‘Native Title Determinations and Claimant Applications’ National Native Title Tribunal (Map, 1 October 2024) <https://www.nntt.gov.au/Maps/Schedule_and_Determinations_map.pdf> (‘NNTT Map’).
[3] Native Title Act 1993 (Cth) (‘NTA’).
[4] Joint Standing Committee on Northern Australia, Parliament of the Commonwealth of Australia, A Way Forward (Final Report, October 2021), Recommendation 8, 27 (‘A Way Forward’).
[6] Australian Law Reform Commission, ‘Review of the Future Acts Regime’ Australian Government (Web Page, 4 June 2024) <https://www.alrc.gov.au/inquiry/review-of-the-future-acts-regime/>.
[7] Ibid [3].
[8] ‘Impacting acts’ describes both native title future acts and Aboriginal rights infringements collectively.
[9] [1992] HCA 23; (1992) 175 CLR 1, [14]–[22] (Deane and Gaudron JJ) (‘Mabo [No 2]’).
[10] Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Report No 126, 4 June 2015) Chapter 9.
[11] Daniel Guttman ‘Australian and Canadian Approaches to Native Title Pre-Proof’ [2005] AUIndigLawRpr 38; (2005) 9(3) Australian Indigenous Law Reporter 1.
[12] See, eg, Aboriginal Land Rights Act (Northern Territory) 1976 (Cth); Aboriginal Land Rights Act 1983 (NSW); Aboriginal Land Act 1991 (Qld); Aboriginal Lands Act 1995 (Tas); Traditional Owner Settlement Act 2010 (Vic).
[13] Aboriginal Land Rights (Northern Territory) Act 1976 (NT) s 40.
[14] See eg, Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
[15] NTA (n 3) preamble.
[16] Ciaran O’Faircheallaigh, Negotiations in the Indigenous World: Aboriginal people and the Extractive Industry in Australia and Canada (Routledge, 2015) ch 5 (‘Negotiations in the Indigenous World’).
[17] NTA (n 3) preamble.
[18] Crown-Indigenous Relations and Northern Affairs Canada, ‘250th Anniversary of the Royal Proclamation 1763’, Government of Canada (Web Page, 3 August 2016) <https://www.rcaanc-cirnac.gc.ca/eng/1370355181092/1607905122267>.
[19] Anthony Hall, ‘Royal Proclamation of 1763’, The Canadian Encyclopedia (Web Page, 30 August 2019) <https://www.thecanadianencyclopedia.ca/en/article/royal-proclamation-of-1763>.
[20] Crown-Indigenous Relations and Northern Affairs Canada (n 18).
[21] John J Borrows and Leonard I Rotman, Indigenous Legal Issues Cases, Materials and Commentary (LexisNexis Canada, 6th ed, 2022), 264.
[22] Grassy Narrows First Nation v Ontario (Natural Resources) 2014 SCC 48, [41]–[42].
[23] Bernard Roth, ‘Reconciling the Irreconcilable: Marjo Project Development in an Era of Evolving Section 35 Jurisprudence’ (2018) 2(83) Supreme Court Law Review 5.
[24] Robert Hamilton, ‘After Tsilhqot’In Nation: The Aboriginal Title Question in Canada’s Maritime Provinces’ (2016) 67 University of New Brunswick Law Journal 58, 59.
[25] Borrows and Rotman (n 21) 264.
[26] Indian Act, RSC 1876, c. I-5 (‘Indian Act’).
[27] Erin Hanson, ‘The Indian Act’, IndigenousFoundations.arts.ubs.ca (Web Page) <https://indigenousfoundations.arts.ubc.ca/the_indian_act/>.
[28] Robert Irwin, ‘Reserves in Canada’ The Canadian Encyclopedia (Web Page, 22 November 2022) <https://www.thecanadianencyclopedia.ca/en/article/aboriginal-reserves>.
[29] Ibid.
[30] Indigenous Awareness Canada, ‘What is the difference between a reserve and a reservation?’ Indigenous Awareness Canada (Web Page, 4 November 2024) <https://indigenousawarenesscanada.com/indigenous-awareness/what-is-the-difference-between-a-reserve-and-a-reservation/#:~:text=According%20to%20the%20Department's%20Indian,set%20aside%20as%20reserve%20status>.
[31] [1973] SCR 313, 401.
[32] Canada Act 1982 (UK) c 11sch B (‘Constitution Act 1982’).
[33] Ibid s 35(1).
[34] [1990] 1 SCR 1075 (‘Sparrow’).
[35] R v Sioui [1990] 1 SCR 1025; ‘What is Self-Government’ British Columbia Treaty Commission (Web Page, 2023) <https://bctreaty.ca/2023/02/21/what-is-self-government/#:~:text=Section%2035%20of%20the%20Constitution,to%20manage%20their%20own%20affairs>.
[36] Thomas Isaac, Aboriginal Law (Thomson Reuters, 5th Edition, 2016).
[37] See Constitution Act 1982 (n 32) s 38.
[38] Sparrow (n 34).
[39] Guerin v The Queen [1984] 2 SCR 335.
[40] Borrows and Rotman (n 21) 384.
[41] [1997] 3 SCR 1010 (‘Delgamuukw’).
[42] Ibid [117].
[43] Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257, [73] (Tsilhqot’in).
[44] Ibid [143].
[45] Ibid [125].
[46] Ibid [131].
[47] [2004] 3 SCR 511 (‘Haida Nation’).
[48] Tsilhqot’in (n 43) 73.
[49] Ibid [25].
[50] Ibid [69]; John Borrows ‘The Durability of Terra Nullius: Tsilhqot’in Nation v British Columbia (2015) 48(3) University of British Columbia Law Review 701, 703.
[51] Borrows (n 50) 727–40.
[52] Arthur Manuel and Ronald Derrickson, Unsettling Canada: A National Wakeup Call (Between the Lines, 2015) 29.
[53] Ibid 46.
[54] Borrows and Rotman (n 21) 352.
[55] Nisga’a Final Agreement Act, SBC 1999, c 2.
[56] British Columbia Treaty Commission, Annual Report 2023 (Report, 18 October 2023) <https://bctreaty.ca/wp-content/uploads/2023/10/BC-Treaty-Commission-Annual-Report-2023.pdf>.
[57] Aboriginal Affairs and Northern Development Canada, Evaluation of the Process for Negotiating Comprehensive Land Claims and Self-Government Agreements (Final Report, November 2013) 2 < https://www.rcaanc-cirnac.gc.ca/eng/1403794888717/1538048956147>.
[58] David Wright, ‘Federal Linear Energy Infrastructure Projects and the Rights of Indigenous Peoples: Current Legal Landscape and Emerging Developments’ (2018) 23(1) Review of Constitutional Studies, 175.
[59] Sarah Morales and Joshua Nichols, Reconciliation Beyond the Box: The UN Declaration and Plurinational Federalism in Canada (6 Degrees, 2018) 3.
[60] Ibid 14.
[61] ‘Aboriginal Title’, Centre for Constitutional Studies (Web Page, 9 September 2021) <https://www.constitutionalstudies.ca/2021/09/aboriginal-title/>.
[62] NNTT Statistics (n 1).
[63] Borrows and Rotman (n 21) 440.
[64] Haida Nation (n 47).
[65] Manitoba Metis Federation Inc v Canada (Attorney General) [2013] SCC 14, [65].
[66] Haida Nation (n 47) [17].
[67] Ibid [18].
[68] Ibid.
[69] Haida Nation (n 47) [37].
[70] Ibid [54].
[71] Ibid [39].
[72] Ibid [24].
[73] Ibid.
[74] Ibid [44].
[75] Ibid [45].
[76] Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) [2017] 2 SCR 386 (‘Ktunaxa Nation’).
[77] Borrows and Rotman (n 21) 440.
[78] Coldwater Indian Band v Attorney-General of Canada (2020) FCA 344, [53] (‘Coldwater’).
[79] Gitxaala v British Columbia (Chief Gold Commissioner) (2023) BCSC 1680, [8], [179], [182]–[185].
[80] Coldwater (n 78).
[81] Ibid.
[82] Ktunaxa Nation (n 76).
[83] Ibid [32].
[84] Ibid [26].
[85] Ibid [7], [76].
[86] Ibid [120].
[87] ‘Declared Title Area’, Tsilhqot’in National Government (Web Page, 2024) <https://tsilhqotin.ca/governance/declared-title-area/>.
[88] Haida Nation Recognition Act, SBC 2023, c-24, 1.
[89] ‘Agreement on Haida Aboriginal Title’, Government of British Columbia (Web Page, 2024) <https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/haida-nation-council-of/haida-title-agreement>.
[90] Tsilhqot’in (n 43) [6].
[91] Sparrow (n 34).
[92] Tsilhqot’in (n 43) [77].
[93] Ibid [5].
[94] Delgamuukw (n 41).
[95] Ibid [165] (emphasis added).
[96] Tsilhqot’in (n 43) [6].
[97] Ibid [87].
[98] NNTT Map (n 2).
[99] Margaret Carstens, ‘25 Years of Native Title: Mabo and Beyond’ (2019) 52(9) Laws and Politics in Africa, Asia and Latin America 224, 226.
[100] NTA (n 3) preamble.
[101] Ibid.
[102] See Native Title Amendment Act 1998 (Cth).
[103] Ibid s 23M; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1.
[104] NTA (n 3) s 24AA(2).
[105] Sharon Mascher, ‘Indigenous Land Rights in Australia: Lessons for a Canadian Northern Corridor’ Canadian Northern Corridor Special Series’, (2022) 15(33) School of Public Policy Publications Volume 1.
[106] NTA (n 3) ss 24FA–24NA.
[107] ‘Search Future Act Applications and Determinations’ National Native Title Tribunal (Search Engine, 12 November 2024) < https://www.nntt.gov.au/searchRegApps/FutureActs/Pages/default.aspx>.
[108] Federal Court of Australia, Annual Report 2023–2024 (Report, 30 September 2024) 104 <https://www.fedcourt.gov.au/__data/assets/pdf_file/0018/122652/Part5.pdf>.
[109] NNTT Statistics (n 1).
[110] Ibid.
[111] NTA (n 3) s 31(1).
[112] Ibid Part 7
[113] Ibid s 190B.
[114] Guttman (n 11) 6.
[115] NNTT Statistics (n 1).
[116] NTA (n 3) Part 2, Div 3, Subdiv P.
[117] Ibid s 26(1)(a), (c).
[118] Ibid s 29.
[119] Ibid s 31(b)(i)–(ii).
[120] Muccan Minerals Pty Ltd v Taylor [2014] NNTTA 74, [10]; Strickland v Minister for Lands for Western Australia [1998] FCA 868; (1998) 85 FCR 303 (‘Strickland’).
[121] Brownley v Western Australia [1999] FCA 1139; (1999) 95 FCR 152, [23].
[122] Strickland (n 120) [38].
[123] (1996) 34 FLR 211.
[124] Western Australia v Dimer [2000] NNTTA 290; (2000) 163 FLR 426, 441.
[125] Richard Bartlett, ‘Dispossession by the National Native Title Tribunal’ (1996) 26(1) Western Australia Law Review 108, 116.
[126] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
[127] O’Faircheallaigh, Negotiations in the Indigenous World (n 16).
[129] Ibid s 38(1)(a), (b), (c).
[132] Ibid s 38(2).
[133] Ciaran O’Faircheallaigh, ‘Aborigines, Mining Companies and the State in Contemporary Australia: A new Political Economy or “Business As Usual”?’ Australian Journal of Political Science 41(1) 1, 14 (‘Aborigines, Mining Companies and the State in Contemporary Australia’).
[134] ‘Search Future Act Applications and Determinations’ National Native Title Tribunal (Search Engine, 12 November 2024) < https://www.nntt.gov.au/searchRegApps/FutureActs/Pages/default.aspx>.
[135] Ibid.
[136] Xanthe K Waite, ‘Impacts of The Native Title Act 1993 (Cth) “Right To Negotiate” Provisions on Yindjibarndi Community Relationships And Dynamics: A Case Study’ (2024) 24(14) University of New South Wales Law Journal Student Series.
[137] A Way Forward (n 4) xxvii.
[138] See, eg, Harvey v Minister for Primary Industry and Resources (2024) 278 CLR 116.
[139] Malcolm Lavoie, Assessing the Duty to Consult (Fraser Institute, 2019).
[140] Ibid 13.
[141] Guttman (n 11) 12.
[143] Delgamuukw (n 41) [165]; Mabo [No 2] (n 9) [2] (Mason and McHugh), [83] Brennan).
[144] Guttman (n 11) 10.
[145] ‘Search Native Title Applications, Registration Decisions and Determinations’ National Native Title Tribunal (Search Engine, 12 November 2024) <https://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/default.aspx>.
[146] Musqueam Indian Band v British Columbia (Minister of Sustainable Resource Management) (2005) 251 DLR (4th) 717.
[147] O’Faircheallaigh, ‘Aborigines, Mining Companies and the State in Contemporary Australia’ (n 133) 14.
[148] Ktunaxa Nation (n 76) [9].
[149] ‘Search Future Act Applications and Determinations’ National Native Title Tribunal (Search Engine, 12 November 2024) <https://www.nntt.gov.au/searchRegApps/FutureActs/Pages/default.aspx>.
[150] ‘Search All Databases’ Canlii (Web Page, 12 November 2024) <https://www.canlii.org/en/#search/type=decision&jId=bc&ccType=courts&startDate=1975-01-01&endDate=2024-12-31&text=%22Aboriginal%20Title%22&includeSccJudgments=true&searchId=2024-11-08T21%3A35%3A03%3A201%2Fc83022a92a9c4add9f5c9aa94affa48e>.
[151] NTA (n 3) s 31.
[152] Lily O’Neill, ‘The Role of State Governments in Native Title Negotiations: A Tale of Two Agreements’ (2014/2015) 18(2) Australia Indigenous Law Review 29, 30.
[153] O’Faircheallaigh, Negotiations in the Indigenous World (n 16) 10 Cited in Ibid 31.
[154] Ibid 10; Noel Pearson, ‘Governments Should Keep out of Major Developments’ Courier-Mail (23 August 1997), cited in O’Neill (n 151) 31.
[155] Lisa Streilin and Tran Tran, ‘Building Indigenous Governance from Native Title: Moving away from “Fitting in” to Creating a Decolonised Space’ (2013) 18(1) Review of Constitutional Studies 19.
[156] Ibid 41.
[157] Marcia Langton, ‘The Mabo Lecture: Native Title, Poverty and Economic Development’ (Lecture, National Native Title Conference 2010, 3 June 2010), quoted in Streilin and Tran (n 155) 40.
[158] R v Desautel [2021] 1 SCR 533, [30].
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