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Aboriginal Rights And Grazing Leases In Australia

by Mary MacGregor

written 1997, published in Beef in B.C. October 97

Contests over aboriginal entitlement are not unique to British Columbia or Canada. Aboriginal people worldwide are insisting on having their rights defined and respected.

Aboriginal Rights In General - the Mabo Case

Australia has developed its aboriginal title law along similar, but not identical, lines as British Columbia.

In the 1992 case Mabo v. Queensland, the High Court of Australia (equivalent to the Supreme Court of Canada) decided that aboriginal title existed in Australia.

The Court’s description of aboriginal rights included elements similar to Canadian law. Aboriginal rights must be determined on a case-by-case basis. Different aboriginal groups have different aboriginal rights. The protection is for traditional practices: in Canada, they are those activities which were integral to the sustenance and culture of the group at the time of European contact. In Australia, the traditions, customs and practices of the aboriginal group are to be considered in identifying the protected rights. In Australia, though, the aboriginal group must have maintained a connection with the land in question, in order to continue to have those rights protected. To date, that is not a stated requirement in Canada.

Aboriginal Rights Over Grazing Leases - the Wik Peoples Case

In the 1996 case Wik Peoples v. Queensland, the High Court of Australia considered the extent to which a “pastoral lease” displaced aboriginal rights.

A.O. (Tony) Ferrers, a writer and lawyer who lives on the Gold Coast, Queensland, Australia, has described the case and the outcome in “Australia Calling: The Next Step” in The Advocate (July 1997) Vol 55, Part 4, page 557.

A “pastoral lease” is virtually identical to our grazing lease. It is a lease, granting the right of exclusive occupancy, over a large area of land, with the use of the land limited to livestock grazing.

The Australian judges split 4 to 3. The four judges in the majority decided that, despite the grant of exclusive occupancy in the lease document, aboriginal rights could continue on pastoral leases. Where there is conflict between the rights of the lease holder and the exercise of aboriginal rights, though, the rights of the lease holder have precedence.

One of the reasons that the majority of the judges decided that aboriginal rights had to continue to exist, was that the areas involved are “vast” and “remote from settled areas”. Over 40% of the Australian land mass is covered by pastoral leases. At least one judge differentiated between the degree of occupancy of a lease in a settled area, and the degree of occupancy of a pastoral lease.

Another reason that the majority of Australian judges decided that aboriginal rights continued, despite the grant of exclusive occupancy in the lease, was historical evidence from the 19th century. These historical documents showed that the British and Colonial authorities did not intend the leases to exclude the use of the lands by aborigines.

The three judges in the minority held to the terms of the written lease, and said that the grant of exclusive occupancy necessarily excluded use by others, including aborigines. They were concerned that allowing aboriginal rights to co-exist with the pastoral lease, overriding the plain terms of the lease and the grant of exclusive occupancy in the lease, undermines the whole system of land law in Australia.

Consistent Themes

The Australian and Canadian cases contain some similar themes:

• traditional practices are protected. In Canada, those traditional practices can be carried out using modern methods. In Australia, the practices are only protected if the aboriginal group has continued its connection with the land over which it makes a claim.
• the protected practices vary from aboriginal group to aboriginal group. What is protected in one instance may, or may not, be protected in another.
• because the legal decisions spell out only the criteria and method to determine the protected rights, and not the rights themselves (which vary), the decisions create more questions than answers.
• in Australia as in British Columbia, practical considerations require the parties to try and negotiate, with all of the problems negotiations entail. The only alternative is protracted and expensive litigation. But negotiations are problematic. First of all it is difficult to identify the correct aboriginal groups with which to negotiate. Second, it is not always clear who can speak for members of the aboriginal group so as to make a binding agreement in negotiations.
• on so-called “vacant Crown land”, i.e. land subject to forest and range tenures, aboriginal rights can be practised, must be accommodated, and may, in many circumstances, have priority over non-aboriginal activity (based on the Sparrow case).
• on deeded land, Canadian law to date (Badger case) is that aboriginal rights can be practised where there no visible incompatible land use, i.e. no indications that the land is owned and used.
• I am not aware of any Canadian cases involving grazing leases. My guess is that the rules will be the same as deeded land, in that a visible incompatible land use will mean that competing aboriginal rights cannot be practised.
• cases from both Australia and Canada indicate that the bundle of aboriginal rights can be opened up in a particular situation, so that competing aboriginal rights will not be permitted, but non-competing aboriginal rights will still be allowed to take place in the location in question.
• one final question from the Wik Peoples case is, in a situation where there is a conflict between the rights under the grazing lease and the aboriginal rights, so that the aboriginal rights cannot be practised, does this operate as an extinguishment of the rights? Or are they merely unenforceable for the time being?

Comment

The trends expressed in the Australian Mabo and Wik Peoples cases are echoed in Canada.

The British Columbia Delgamuukw case was argued in the Supreme Court of Canada in June, 1997. When the Court hands down its decision sometime over the next year, the law of aboriginal rights in British Columbia should have more certainty.

One of the lawyers who argued part of the case before the Supreme Court of Canada has said that the Court was specially interested in how aboriginal rights to land will co-exist with the rights of non-aboriginal people over the same land.

The outcome remains to be seen.

One of the distressing trends in the cases, both Canadian and Australian, is the willingness of the judges to believe that rural land is somehow different from land in cities with more evident human occupation, and that the rights of rural landowners should somehow be less because our use is less visible.

The judges seem to assume that the landowner’s right to control access to his deeded or leased land, should be watered down because the judges, like other urban people, do not understand and cannot discern our presence on that land. They almost go so far as to say that the quality of title should be different for land with a house on it, and rural land.

Our only answer is to use every opportunity to educate the “millions of registered voters” in cities about our use of the land. We need to challenge their assumption that, if there is no house on it, the land is not being “used”, and our rights as landowners should be “less”.

As one of the lawyers in the Wik Peoples case said, “…there is competition for resources on these lands.” That competition is no less real for being hard to see, and hard for city people to understand.