History, Law and Aboriginal Title

In the closing decades of the twentieth century indigenous peoples in the Anglophone settler societies of Australia, Canada and New Zealand made headlines as they drew attention to the dispossession they had suffered as a result of British colonization. The seizing of territory on the frontiers of settlement by British colonizers had been at the heart of these settler nations which had come to regard colonization as just and to treat the dispossession of the indigenous peoples as a fait accompli. However, indigenous peoples were now demanding the return of lands, or reparations for their loss, couching their claims in the legal and political language of rights. In 1987 the American historian Patricia Nelson Limerick observed in respect of the United States: ‘In the second half of the twentieth century, every major issue from “frontier” history reappeared in the courts or in Congress’.¹ What was true of the United States was even truer of Australia, Canada and New Zealand. In the 1970s and 1980s indigenous tribes in these common-law jurisdictions took to the courts a string of cases regarding land, and many of these resulted in the recognition of aboriginal title. As Paul McHugh remarks in his recent account of this development, common-law aboriginal title was ‘the proverbial idea whose time had come’ (Aboriginal Title, p.5).

The dramatic rise of aboriginal title was underpinned by the research of a group of Australian, Canadian and New Zealand scholars working in a range of disciplines, including history. Beginning in the mid 1970s, these women and men developed historical and legal arguments in support of common-law aboriginal title, explaining why aboriginal rights in land had been repudiated in the past and expounding reasons why they should have been, and occasionally had been, respected at the time. The common law, McHugh points out, works to pinpoint and articulate what he calls ‘the golden thread of its own continuity’. This disposition tends to render the past in terms of the concepts and categories of the present. Much of McHugh’s invaluable study seeks to show, in his words, ‘how that golden thread was pulled from the fabric of its own past and how that golden thread stitched the patches, the wide assortment of material from the imperial and legal pasts, into the doctrinal drape of common law aboriginal title’ (pp. 69–70).

In the Canadian case, the legal scholar Brian Slattery led the way in merging law and history to provide a genealogy for what he cast as the doctrine of aboriginal title.² He sought to demonstrate that this doctrine was manifest in key imperial pronouncements, most importantly the British government’s Royal Proclamation of 1763, and that its principles influenced case law and the way Crown (or government) officials managed land in Canada in the late eighteenth century. As McHugh points out, Slattery’s thesis made it possible to see aboriginal title as not simply a set of legal rules that had been assembled from a mass of rather disjointed legal precedents but as a property right that had been historically validated by virtue of it having grown from Canadian soil. In McHugh’s summary of this argument, ‘[s]ince the...