Introduction

Land Rights as State and Territory Business, 1960s–1972

In the 1960s, Aboriginal activism thrust the issue of Aboriginal land rights onto the national political agenda, paralleling and engaging with global movements for decolonization and land reform, as well as the civil rights movement in the United States (Cooms, Reference Cooms2012; Piccini, Reference Piccini2019). At that time, government policy toward Indigenous Peoples in Australia was largely left to the states. It was only in the territories where the Commonwealth maintained a role in Indigenous policy and administration matters, especially in the Northern Territory, where the Australian Government acted as a regional government (Sanders, Reference Sanders2013).

Indigenous land rights in the 1960s was seen as a matter for the states. In some parts of the country, Indigenous Peoples lived on (and were often confined to) specifically designated land “reserved” by state and territory governments for Indigenous use. But reserves existed only so long as it pleased settler governments: they could be and were often revoked by state governments, a denial of land that often provided the spark that ignited Aboriginal land rights movements. It was perhaps unsurprising then that the first legislative reforms in response to calls for Aboriginal land rights came from the states, and dealt with reserves, specifically in South Australia and Victoria.

Accordingly, the first statutory Aboriginal land rights scheme in Australia was introduced in 1966 by the newly elected South Australian Labor Government. Speaking on the passage of the legislation, Don Dunstan – a former non-Indigenous advocate for Aboriginal rights and newly appointed Minister of Aboriginal Affairs – acknowledged the harm and alienation Aboriginal peoples experienced due to colonial dispossession (Rowse, Reference Rowse2012). The Aboriginal Land Trust Act 1966 was aimed at reparative objectives, creating an organization controlled by Aboriginal peoples, tasked with holding and managing former Aboriginal reserves for the benefit of Aboriginal peoples.

However, Victoria became the first state to grant freehold title to communities themselves, allowing them to own their land outright. In Victoria, the revocation of Aboriginal reserves had long been a cause for Aboriginal organizing and activism (Broome, Reference Broome2005; Moore, Reference Moore and Peterson1981), with almost all of the 1,000 square kilometers of lands reserved for Aboriginal purposes revoked over the century prior to 1960. By 1960, only two Aboriginal reserves remained, at Lake Tyers and Framlingham, both home to small communities. The long-serving Bolte Liberal government had planned to revoke these final reserves over the course of the decade. However, the Black Power movement emerging in Victoria in 1960s under the auspices of the Aborigines’ Advancement League was able to successfully fight off these proposals. In 1970, the Bolte government passed idiosyncratic legislation – the Aboriginal Lands Act 1970 – to grant these two small parcels of land in a freehold title to these communities, in two separate trusts.

These early moves toward distinctive state responses to land rights coincided with a major shift in federal arrangements for Indigenous public policy that commenced after the 1967 Referendum. At the start of the 1960s, the six states were responsible for Indigenous policy within their borders, with the Commonwealth having played an equivalent role in the Northern Territory since 1911. Dissatisfaction with this federal allocation of responsibility had been developing throughout the 1920s and 1930s, with Aboriginal activists campaigning for rights and white “humanitarians” pushing for a federal takeover of Indigenous affairs (Davis & Williams, Reference Davis and Williams2021; Holland, Reference Holland2019). It ultimately took two attempts to see the constitution changed to this end, first as part of a failed overhaul of Commonwealth-state relations in 1944 (Fox, Reference Fox2008) and ultimately as part of a successful constitutional alteration referendum in 1967 (Davis & Williams, Reference Davis and Williams2021).

By the early 1970s, no land reform had been attempted by the Commonwealth, despite the expectations raised by the 1967 Referendum, and it seemed that the Coalition government had no intention of using its new constitutional rights or acting on the mandate of the referendum to do so. Events in the Northern Territory forced the hands of the Coalition government in its dying days. In 1971, a legal challenge by the Yirrkala people regarding the excision of their reserved land for a government-approved bauxite mine, against the asserted interests of the Yolngu people, was unsuccessful (see Nikolakis, Chapter 1, this book). Pressure mounted on the government for a statutory response to the failure of the legal system to provide for land rights. But on Australia Day in 1972, Prime Minister McMahon’s long-awaited announcement of the Coalition government’s new land rights policy was a bitter disappointment for campaigners. Not only did the McMahon government oppose the Yirrkala petition to stop this excision, but it also announced that it would not legislate Aboriginal land rights in the Northern Territory. The government instead supported leasing a limited amount of land, subject to application and ministerial approval. The government also continued some of the key features of authoritarian welfare regime and left the Northern Territory’s Aboriginal Affairs administration unchallenged (Dexter, Reference Dexter, Foley and Howell2015). This was despite significant momentum for change and some evident shift in the prevailing assimilation policy in southeastern Australia.

The Australian Labor Party (ALP), propelled by the “Yirrkala problem” in Arnhem Land and the Gurindji’s walk-off from Wave Hill, had begun developing a position on Aboriginal land rights in 1963. Their Aboriginal Affairs Committee recommended what became a forerunner of the land rights response and the land purchase fund we write more about below. While these changes were developing, including ALP conversations with the Commonwealth’s Council for Aboriginal Affairs (CAA), the three-member group appointed immediately after the 1967 Referendum to advise the Commonwealth’s new policy role, the conservative Liberal and National Country party government maintained an official policy of assimilation. Aboriginal land rights were nowhere on Coalition government’s agenda (Norman, Reference Norman2015).

Following Prime Minister McMahon’s 1972 Australia Day announcement of a much-promised new direction in Aboriginal Affairs, a group of young Aboriginal men, then living in and around Redfern, were compelled to drive overnight to Canberra. There in protest, they erected beach umbrellas and later tents and camped on the manicured lawns opposite the Australian Parliament, deploying a not unfamiliar form of Aboriginal housing: the “Tent Embassy” dramatically registered the effects of being made alien in one’s own country and announced a seismic shift in Aboriginal and Australian politics. Optimism for change following a referendum in 1967 – cast in terms of equal rights but in fact about giving the Commonwealth the power to make laws for Indigenous Peoples – was already characterized as the stuff of “fools and dreamers” (Walker, Reference Walker1969). Demands for Aboriginal rights from the far north to the southern island grew louder in response to the unfulfilled promise of 1967, and attracted a growing band of supporters in new networks of solidarity.

Although Prime Minister McMahon’s unsatisfying announcement related specifically to the Northern Territory, it mobilized Kooris and Murris in Redfern, Sydney, and catalyzed a national protest movement. Many thousands more over the coming months joined a growing appreciation of Aboriginal land rights, with unique local claims shaped by a history of colonialism and dispossession that began to conceptualize land rights variously as property, rights, and lore, and as central to the ability to exercise self-determination. The Tent Embassy protest first propelled the emergence of a shared land rights claim across very different political geographies and sparked a growing awareness among Australians of the demand for land rights.

Aboriginal peoples across tropical northern Australia encountered the invasion of their lands more than one hundred years later than in the southeast, and in different circumstances that saw a fragile co-existence over territory granted as pastoral leases. In the south, from the 1960s onwards, Aboriginal reserve land was under threat of revocation as “inclusion” – a version of assimilation was pursued that included the promise of town housing for Indigenous Peoples. In New South Wales (NSW) and elsewhere, the security of reserve lands, alongside the protection of sacred sites, was a leading concern for political organizing by Indigenous Peoples (Goodall, Reference Goodall2008). Placards from the Tent Embassy revealed an evident shift in the scope of land demands over the course of the few months between January 1972 and mid-1972. Over the course of several months, the demands for land rights connected over a much larger space and were imbued with claims of spiritual attachment captured by the phrase “Ningla-Ana,” we are “Hungry for our Land” (Cook & Goodall, Reference Cook and Goodall2013; Norman, Reference Norman2015). The new national politics eschewed the assimilation discourse that inhered in the 1967 referendum citizenship campaign in favor of cultural identity connected to land.

McMahon’s Liberal government met the new politics with violent disavowal. The police were repeatedly ordered to dismantle the Tent Embassy over the months that followed. Images of excessive numbers of police marching in formation across the front of the Parliament House, careering ambulances and police wagons, followed by a knock-down and drag-out mayhem, reached national audiences via the relatively new family ritual of viewing the evening news on television. Not a single lease promised by McMahon in his Australia Day address was delivered before the election.

Centralism Interrupted, 1972–1975

The Opposition Labor Party had long been more receptive to Aboriginal demands. Visiting the Tent Embassy, Gough Whitlam, the Leader of the Opposition, showed support for and comprehension of the new politics. At the November 1972 Labor Party policy launch, Whitlam announced his program to an already electrified Blacktown civic center audience. “A rightful place in this nation” was both Whitlam’s challenge and promise to a nation coming to terms with its colonial past, projecting its independent future, and reckoning with ancient peoples who not only refused to disappear but were contesting the legitimacy of government and the interests of capital accumulation.

The Whitlam Labor Opposition’s promises in Blacktown were radical and progressive – but they also represented a watering down of the national ambition of the Australian Labor Party platform. No doubt capitalizing on the national attention focused on the Northern Territory – not least by Aboriginal activists at the Tent Embassy – Whitlam promised that a system of land rights would be established in the Northern Territory should a Labor government be elected. Specifically, Whitlam promised legislation that would vest in Aboriginal communities in land “for aboriginal use and benefit a system of aboriginal tenure based on the traditional rights of clans and other tribal groups” (Whitlam, Reference Whitlam1972, p. 30). In doing so, Whitlam narrowed the national ambition of the Labor Party platform of 1971 and its promise of inalienable title and full mineral rights for all “Aboriginal communities that demonstrate a strong tribal structure” (Young, Reference Young1971, p. 31). Beyond the Commonwealth’s jurisdiction in the Northern Territory, Whitlam promised much less, the creation of an Aboriginal Land Fund, to acquire lands for “… significant continuing aboriginal communities” (Whitlam, Reference Whitlam1972).

Eleven days after Whitlam was elected as prime minister in December 1972, a commission of inquiry, known as the Woodward Commission, was announced to recommend ways to achieve Aboriginal land rights. The Whitlam government announced that it would legislate land rights first in the Northern Territory, where the Commonwealth was responsible for legislation and public administration prior to self-government in 1978. The Commonwealth was leading the way, not by centralist coercion but by example.

This contrasted with the Whitlam government’s approach to other questions of Indigenous public policy. There it was enacting a suite of reforms – including the establishment of the National Aboriginal Consultative Committee (NACC), the creation of a mechanism for Aboriginal organizations to form and pursue community social and economic aspirations, the creation of a separate department for Aboriginal Affairs, and the enactment of a legislative prohibition on racial discrimination – that amounted to an unprecedented Commonwealth intervention into Indigenous policy, previously a state domain (Bennett, Reference Bennett1988; Sanders, Reference Sanders2013). In quick time, the government, with the CAA, made significant changes in Aboriginal Affairs policy that had proven impossible under the previous government, comprised as it was of hostile bureaucrats and ministers who stubbornly refused to depart from assimilationism. That policy was swiftly abandoned in favor of so-called “self-determination.” The old Ministry for the Interior – that bastion of assimilation and authoritarian welfare, which held sway in the previous Cabinet – was abolished. Barrie Dexter from the CAA was installed as head of the new Department of Aboriginal Affairs, and Gordon Bryant appointed as the responsible minister. By 1975, the election promise of a legislative prohibition for discrimination on the grounds of race had been implemented through the enactment of the Racial Discrimination Act 1975. This Commonwealth leadership in Indigenous policy was part of Whitlam’s centralist approach to the question of federalism, described in his 1972 election speech as “a national endeavour to expand and equalise opportunities for all our people” (Whitlam, Reference Whitlam1972, p. 32).

In July 1974, the Whitlam Cabinet accepted most of the recommendations of the two reports produced by the Woodward Commission on land rights and issued drafting instructions for legislation affecting Aboriginal land claims in the Northern Territory. The first report (April 1973) had recommended the federal government set up a Central Land Council and a Northern Land Council in the Northern Territory, each to represent the distinct central and northern parts of the jurisdiction. The second report drew on submissions provided by the new land councils and provided a “blueprint” for an Aboriginal land rights regime in the Northern Territory. Among other things, the report recommended that:

• Reserve lands be returned to Aboriginal corporations (known as Land Trusts) in fee simple through an inalienable and/or perpetual form of land title.

• Regional Land Councils be established to support Land Trusts and to advance the interests of traditional owners.

• A process be established to allow Regional Land Councils to make claims based on traditional ties to “vacant” Crown lands.

• Land be acquired and returned to Aboriginal peoples by an Aboriginal Land Commission (with no cash compensation to be paid for Aboriginal peoples whose traditional lands cannot be returned).

• Development on Aboriginal land to take place only with the consent of the relevant Land Trust.

• Entry to Aboriginal land by settlers be regulated by a permit system.

• Minerals remain the property of the Crown, but traditional owners have the power to prevent mineral exploration on their lands.

• A royalty equivalent payment of 2.5 to 3.75 percent of the selling price of the mineral, less costs of treatment and transport, be paid to Aboriginal peoples through the Regional Land Councils.

Woodward’s second report essentially provided a roadmap for the implementation of Whitlam’s agenda promised in 1972 but recommended that full mineral rights remain with the Crown rather than Aboriginal landowners. While Woodward’s second report was welcomed in some circles, the newly formed NACC was disappointed by the narrow geographical scope of the government’s ambition. At its May 1974 meeting, the NACC resolved to reject Woodward’s second report and called for the government to establish Commissions for Land Rights in the six states, as well as offer cash compensation for those whose traditional lands could not be redeemed (Hiatt et al., Reference Hiatt, Luther, O’Donoghue and Stanley1976).

The Whitlam government’s land rights response was not entirely focused on the Northern Territory. By December 1974, Woodward’s recommendation regarding the purchase of pastoral leases was already on the way to implementation, delivering on a promise in Whitlam’s Reference Whitlam1972 Blacktown speech. Enacting the Aboriginal Land Fund Act 1974, the Commonwealth created a statutory authority with a budget of $5 million for ten years to purchase property on the market in the states and territories, which could then be held on behalf of traditional owners or Aboriginal groups with long-standing ties to the land (Palmer, Reference Palmer1988). Significantly, the Aboriginal Land Fund Commission had a national focus and responsibility that went beyond the Northern Territory.

Whitlam had expressed an intention to extend his centralist approach to national Aboriginal land rights legislation, but when his government was dismissed in 1975, the Aboriginal Land Rights Bill was yet to be passed by the Senate. While the Aboriginal Land Rights (Northern Territory) Act 1976, which implemented most of Woodward’s recommendations, was eventually passed in a somewhat watered-down form by the Fraser coalition government, the legislation was limited to the Northern Territory.

National Uniform Land Rights Betrayed: Labor’s “Practical Reconciliation with Federalism,” 1983–1992

As the Labor government prepared to contest the 1980 and 1983 elections, they responded to criticism of the Fraser government’s passivity by strengthening their policy platform on national land rights. The 1982 platform committed a future Labor government to “Grant land rights and compensation to Aboriginal and Islander communities, using the principles and recommendations of the Aboriginal Land Rights Commission (Woodward Report) as a basis for legislation” (McMullan, Reference McMullan1982, pp. 4–5). What was new was not just the promise of compensation, as advocated by the NACC some years earlier, but also the promised mechanism for achieving national land rights. While a Labor government would seek “complementary state or territory legislation” where this was not introduced, they would “use Commonwealth constitutional powers and legislation to achieve these objectives” (McMullan, Reference McMullan1982, p. 5), just as Whitlam had promised in Reference Whitlam1977 (Combe, Reference Combe1977; Whitlam, Reference Whitlam1977). With respect to the political flashpoint of mineral extraction on Aboriginal land, the Northern Territory model of an Aboriginal veto right and royalties paid to Aboriginal peoples was promised. However, out of recognition that the Aboriginal Land Rights Act 1983 (NSW) had granted ownership of most minerals to Aboriginal land holders, the Woodward principles were intended to place a floor, not a ceiling, on Aboriginal rights.

After winning the 1983 election, the Hawke Labor government faced the challenging task of delivering on this promise. The new minister of Aboriginal Affairs, Clyde Holding, argued that support for land rights assisted the nation in coming to terms with itself. Land rights recognition by the states, as Goot and Rowse (Reference Goot and Rowse2007) explained, was Holding’s response to the expected opposition to national land rights, an expression of the racist strain in Australian society. In practical terms, he interpreted the commitments in the Labor platform in two ways. First, he derived five principles which the Labor government recognized (Libby, Reference Libby1989):

1. 1. Aboriginal land was to be held under inalienable freehold title.

2. 2. Aboriginal sacred sites were to be protected.

3. 3. Aboriginal peoples were to have control of mining on their land.

4. 4. They were to have access to mining royalty equivalents.

5. 5. Compensation for lost land was to be negotiated between the federal government and Aboriginal peoples.

Minister Holding’s strategy involved drafting federal legislation in collaboration with Aboriginal groups, particularly the NACC, which would play a crucial role in its formulation (Libby, Reference Libby1989). The minister committed to not presenting the draft to Parliament without NACC’s approval. This draft was intended to pressure state governments into enacting similar Aboriginal land rights legislation. If states failed to legislate by a set deadline, the Commonwealth planned to override their authority in this matter using the powers granted by the Australian people in the 1967 referendum. This approach was not just politically risky but also faced legal hurdles, in particular the likelihood that the states would be constitutionally entitled to just terms compensation for any Crown land granted to Aboriginal peoples.

Holding’s brinkmanship in land rights policy stood in contrast to Prime Minister Hawke’s approach to federal–state relations. The Hawke government has been described as the culmination of what Galligan and Mardiste (Reference Galligan and Mardiste1992) termed “Labor’s practical reconciliation with federalism.” Hawke preferred a co-operative consensual federal model rather than a centralist role for the Commonwealth, primarily as a pragmatic strategy.

Holding’s confrontational plan, emphasizing federal dominance in land rights, was soon to clash with Hawke’s pragmatic preference for cooperative intergovernmental relations (for a book-length account, see Libby, Reference Libby1989). Delays in implementing the minister’s plan had given time for critics to attack the policy. Aboriginal members of the steering committee advising the minister were concerned that the approach didn’t go far enough, particularly on questions of which land might be available for claim and compensation. By late 1984, the plan was unravelling. The Burke Labor government of Western Australia – which had also come to power in 1983 with a strategy of cultivating friendly relations with business elites – was under pressure from the mining lobby to resist the Commonwealth’s land rights agenda. Over the course of 1983, Burke came to a position that decisively and vigorously opposed Holding’s five principles, especially regarding mineral extraction. The mining industry had been campaigning heavily in Western Australia on the issue, spooking politicians nationally (Goot & Rowse, Reference Goot and Rowse2007). Faced with advocacy by Burke, conflict among Labor factions, and polling in Western Australia suggesting that Aboriginal land rights were unpopular, Prime Minister Hawke unilaterally decided in October 1984 to remove the Aboriginal veto over mining from Labor policy. He did not discuss the matter with Aboriginal interests, or even Minister Holding. With the Labor Party heading toward an early election in December, neither Holding nor his Aboriginal advisors were able to advance the Woodward land rights agenda.

By the end of 1984, the Labor agenda of uniform, national land rights was in tatters but not yet abandoned. A period of negotiation between Aboriginal interests and the mining industry ended in stalemate in February 1986. The mining lobby was unsuccessful in its efforts to remove the de facto veto on mining in the existing Northern Territory legislation, and Aboriginal interests were unable to advance the national uniform land rights legislation. Hawke’s consensual approach to the federal dimension in Aboriginal land rights had defused a potential political crisis – but at the cost of abandoning the Woodward principles for land rights. Recognition of this failure can be seen in the passage of special land rights legislation for the small Aboriginal community at Wreck Bay in Jervis Bay Territory, the final mainland territory in which the Commonwealth had legislative responsibilities for an Indigenous population. The Aboriginal Land Grants (Jervis Bay Territory) Act 1986 (Commonwealth) granted Woodward-style land rights to that community in response to protest, and in an admission that no national legislation was forthcoming. Labor’s practical reconciliation with federalism meant the betrayal of the promise of national uniform land rights, with the states – and crucially the judiciary – once again becoming the focus of activism for land restitution.

Yet few states were responsive to this renewal of legislative responsibility. Only in Queensland was land rights legislation enacted during this period, and there it was weak and belated (Brennan, Reference Brennan1991). After its initial reforms in 1982, the Bjelke-Peterson government further modified the DOGIT regime to both strengthen Indigenous security of tenure (ultimately requiring an act of Parliament to revoke DOGITs) and to facilitate the granting of perpetual leases over dwellings to individual residents. When the Goss Labor government came to power in late 1989 after three decades of conservative rule, it did so with the promise of substantive reform to Indigenous policy in Queensland, including land rights. Its approach to land rights was to offer the mining and pastoral industries a choice: support the introduction of a weak package, or publicly resist land rights and have a Northern Territory style scheme legislated. Business elites chose the former path, and it was thus that the Goss Labor government legislated a weak form of land rights in 1991 without substantive Aboriginal input and in the face of significant Aboriginal resistance.

Judicial Centralism and Reaction, 1993–2007

The fierce opposition to land rights from Queensland’s Bjelke-Petersen government and its plan in 1981 and 1982 to issue DOGITs over former Indigenous reserves, catalyzed the preparation of a new legal challenge to settler dispossession (Keon-Cohen, Reference Keon-Cohen2000). Known as the Mabo case, the litigants were successful in overturning the myth that Australia at the time of colonization was terra nullius or land belonging to no one. In their decision in 1992 in Mabo v. Queensland (No. 2), the majority of High Court justices recognized the fact that Indigenous Peoples had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. The High Court decision altered the foundation of land law in Australia, finding that while the Australian system of real property law could, and does, include native title, such native title rights could also be extinguished a number of ways, including by governments granting rights to land to others (like freehold or leasehold titles) that are inconsistent with the continued existence of native title. In certain limited situations, such extinguishment might create a right for native title holders to be compensated.

The Keating Labor government’s response to the Mabo decision came after a period of intense negotiation between the states and an “A Team” representing Indigenous interests. Seeking consensus, Keating’s Native Title Bill had several objectives. Among them, it created a framework for the recognition of native title and a claims system through which such recognition might be sought. Crucially for settler interests, it sought to legalize (or “validate”) the extinguishment of native title, which, since the passage of the Racial Discrimination Act 1975, was illegal. The bill did not result in grants of inalienable freehold title to land, but instead the recognition of native title rights in certain parcels of land so long as customary connection to such land continued, with the right to exclude others from such lands granted in cases such as on reserves and Crown land where it had not already been extinguished. Crucially, no veto over mining or statutory royalty scheme was introduced, with the bill instead granting certain native title holders a “right to negotiate” for compensation with proponents of mining on their land. In 1992, the Native Title Act 1993 (Commonwealth) was passed through the Australian Parliament, opening the way for claims by Aboriginal and Torres Strait Islander peoples to their traditional rights to land and compensation. While our chapter is focused on legislated land rights, native title rights and interests emerge from 1993 as the leading mechanism for Indigenous recognition by the settler-state.

The High Court’s decision in 1992 and the subsequent Native Title Act 1993 finally introduced a form of national uniform land restitution. The High Court’s “judicial revolution” represented a significant intervention into Australian constitutionalism. While the Mabo decision was celebrated by Indigenous activists, critics argued it amounted to law-making by judiciary, with at least three of the justices directly confronting the question in their decisions and arguing that a change in Australian law was warranted (Chesterman & Galligan, Reference Chesterman and Galligan1997). Alternatively, the Mabo decision may be seen as a move by the judiciary to force the Parliament to legislate on the unresolved question of national land rights, which the Commonwealth had abandoned for almost a decade. As such, the High Court acted in its familiar role as centralizer in the Australian federal system (cf. Galligan, Reference Galligan1987). The Keating government was finally drawn into legislating a national response to the dispossession of Aboriginal land two decades after the election of Whitlam. But its response was reformist rather revolutionary, falling far short of the principles in the Woodward Report.

The Commonwealth’s introduction of even this modest legislation was too much for some conservative state governments, however (Chesterman & Galligan, Reference Chesterman and Galligan1997). In Western Australia – led by a conservative government and with no land rights legislation introduced – competing legislation was introduced in an attempt to reduce Aboriginal rights by extinguishing native title and replacing it with weaker statutory rights of usage. This Western Australian legislation was found to be invalid by the High Court, however, which ruled not just that the legislation contravened the Racial Discrimination Act 1975, but also that Commonwealth’s power to legislate for Aboriginal peoples granted in 1967 empowered it to pass the Native Title Act 1993. Having forced the Commonwealth to act in response to the Mabo decision, the judiciary had once confirmed the Commonwealth’s role in legislating for national land restitution.

Yet, as the subsequent years revealed, centralizing Indigenous land restitution was no guarantee of positive reform for Indigenous Peoples. When native title was recognized in 1993, a significant portion of the Australia landmass was subject to pastoral leases ranging from 34 percent of land tenure in Western Australia to 54 percent in Queensland. As native title law evolved through the common law, the High Court ruled in 1996 that the Wik peoples’ native title rights and interests in northern Queensland were not extinguished and could co-exist with the granting of a pastoral lease. That is, both the Wik people and the lessee could exercise their rights, so long as one didn’t conflict with the other. This decision mobilized the new conservative government, led by Prime Minister John Howard (1996–2007) to develop a response known as the “10-point plan” and by 1998 the Native Title Act was amended under the heading, “Confirmation of past extinguishment of native title.” The prime minister’s stated ambition was to provide “certainty to pastoralists and miners” (Howard, Reference Howard1997). The 1998 amendments undercut the intent of the native title legislation and foreclosed options for pursuing beneficial outcomes through the courts.

In 2007, with the long-serving Prime Minister John Howard approaching electoral defeat, a suite of measures were hastily crafted in relation to the Northern Territory, ostensibly in the interests of the “safety and wellbeing of children” and “designed to ensure the protection of Aboriginal children from harm” (Brough, Reference Brough2007). To enact this package of legislation, several existing laws were affected or partially suspended, which included the Racial Discrimination Act 1975, the Aboriginal Land Rights (Northern Territory) Act 1976, and the Native Title Act 1993 (Commonwealth). The laws gave the Commonwealth powers to compulsorily acquire townships held under the Native Title Act 1993. Sixty-five Aboriginal communities were compulsorily acquired and subject to five-year leases that gave the government unconditional authority over and access to those lands, and, to an extent, resident Traditional Owners. While both Prime Ministers Keating and Howard had centralizing approaches to Indigenous land questions, they took very different ideological approaches.

Commonwealth Disinterest and the Negotiated Settlements

Since Howard, no Commonwealth government has pursued any substantive agenda on land rights or native title. Dreams of national uniform land rights along the lines of the Woodward principles are long forgotten. And governments have shown little appetite to change the statutory framework for native title enacted in the Native Title Act 1993, despite numerous reviews suggesting that reform is necessary (Law Reform Commission review, Juukan Gorge review). Instead, it has been left to state governments (and, with respect to native title, the courts) to provide solutions to Indigenous land issues, some innovative, some less so.

In 1995, Tasmania recognized Aboriginal land rights through the Tasmanian Aboriginal Lands Act, transferring significant lands to the Tasmanian Aboriginal Land Council (TALC). This legislation came after the High Court acknowledged the fallacy of terra nullius and recognized native title rights. It reflected a broader national movement toward reconciliation and acknowledging past injustices against Aboriginal peoples. The Act aimed to reconcile with the Aboriginal community by granting lands of historic and cultural importance. Clyde Mansell, Chair of the TALC, emphasized that the Act recognized their historical presence and resilience against colonial oppression. The Launceston TALC office displays photos capturing the community’s journey, illustrating both the grief of past injustices and the joy of recognition.

The TALC consists of eight elected Aboriginal representatives. This council manages fifteen areas as of 2021, often under plan and including culturally important sites like putalina/Oyster Cove and Mount Cameron West. Despite initial progress, the transfer of additional lands has stalled, leading to frustration among community leaders.

In Victoria, a more substantial land rights response was developed that offered a viable alternative to the Commonwealth native title process while still operationalizing the Native Title Act. Unlike earlier laws that were site specific, the Traditional Owner Settlement (TOS) Act 2010 (Vic) emphasized a series of Recognition and Settlement Agreements drawn between Aboriginal peoples and the state relating to land transfer agreement, land use activity agreement, natural resources agreement, and funding agreements. By entering into an agreement with the Victorian Government under the TOS Act, Traditional Owners agree to withdraw any native title claims and suspend any future claims. Under the TOS Act, there is no requirement to recognize or extinguish native title but it allows the state’s recognition of a group of people as the Traditional Owners for a particular area, together with other negotiated benefits. A Recognition and Settlement Agreement under the TOS Act is underpinned by the registration of an Indigenous Land Use Agreement (ILUA) on the Register of Indigenous Land Use Agreements. Preparations for treaties are also underway at the time of writing, which – if eventually negotiated and implemented – promise to deliver further negotiated land and other reparative settlements with the Aboriginal Traditional Owners of Victoria.

In Western Australia, a settlement process has been underway. In 2018 the largest native title settlement, known as the Noongar Settlement, was registered with the Native Title Registrar. The Noongar Agreement was the culmination of several years of negotiation to amalgamate six native title claims into a single claim encompassing Noongar country. The settlement has been characterized as the largest and most comprehensive agreement relating to Aboriginal interests in land in Australian history (Hobbs & Williams, Reference Hobbs and Williams2018b). The Noongar Settlement was struck on behalf of 30,000 Noongar Traditional Owners, covering 200,000 square kilometers of land in southwestern Australia, and is valued at $1.3 billion. The wide-reaching agreement covers rights, obligations, and opportunities relating to land, resources, governance, finance, and cultural heritage. Critical to the agreement, and which runs counter to the recommendations of the Woodward Report, Noongar peoples had to concede any current or future claims. Yamatji people, from mid-west Western Australia, also reached a comprehensive settlement in February 2020. In the Yamatji case, native title rights and interests and alternative settlements were reached simultaneously. Yamatji groups were awarded possession of traditional lands, non-exclusive native title and a $450 million economic package to Yamatji people’s social and economic independence. The Noongar and Yamatji comprehensive settlements show the evolution of the Native Title Act, led by state governments negotiating outcomes beyond native title rights and interests.

Uneven Outcomes

This chapter section illustrates the kinds of inconsistent outcomes of land rights created by variations in legislation and court decisions over time and space. The analysis above has described how land rights at the state level were contingent on political dynamics, demonstrating how the varying stances of Commonwealth and state governments on land rights and federal–state relations have led to a patchwork of land rights laws across Australia. The two maps below illustrate this patchwork of outcomes using the examples of tenure and veto rights over mineral extraction.

These maps have been produced by compiling spatial data separately on land restored to Indigenous Peoples under each land rights regime, as well as on native title determination outcomes. While every effort has been made to compile comprehensive information, there are some spatial data we were unable to access: lands held by land councils in NSW that entered the estate in ways other than the claims process; lands transferred as part of settlements in Western Australia, in particular through the Noongar Settlement Agreement, the Yamatji Settlement Agreement, and the Yawuru Global Agreement; some Community Living Areas in the Northern Territory that are held under various forms of tenure other than freehold; lands purchased using government funds by organizations such as ATSIC or the Aboriginal Development Commission; lands divested from the Aboriginal Lands Trust estate in Western Australia; and, various other one-off or ad hoc arrangements.

Nevertheless, we believe we have compiled spatial data on the vast majority of land held by Indigenous Peoples. Methodologically, we have followed the approach outlined by Altman and Markham (Reference Altman, Markham, Brennan, Davis, Edgeworth and Terrill2015), but accessed a more comprehensive set of data. Almost all data are current as of July 1, 2023, or more recently. For each parcel of land, we have attempted to classify the rights enjoyed by land holders in terms of land tenure and alienability, and whether landholders have a veto right over mining (de facto or de jure). In doing so, we have relied on the summary by Nettheim et al. (Reference Nettheim, Meyers and Craig2002), as well as our own interpretation of the relevant legislation, a process of abstraction which – even as it illustrates heterogeneity – hides much of the real legal complexity and diversity in rights.

Figure 6.1 maps the varying land tenure underlying the multitudes of different land rights and native title lands returned. It shows a patchwork of land tenures, with freehold titles predominantly outside Western Australia. Only in the Northern Territory, the western parts of South Australia, Cape York in Queensland, and in small pockets of land in Victoria is land returned under inalienable freehold as Woodward recommended.

Figure 6.1 Indigenous land restitution in Australia, 2023, showing land tenure, alienability and native title recognition (Source: Produced by the authors from data provided by state and territory, and Commonwealth government agencies)

Figure 6.1Long description

The following types of land are distributed across the map in various regions. Broadly, there are 2 types, namely, native title determinations and land rights tenure. Native title determinations have exclusive and non-exclusive possessions, land rights alienability, and inalienable. The land rights tenure has freehold, pastoral lease, reserve, and other. Western Australia, W A, and the Northern Territory, N T, show extensive areas of exclusive and non-exclusive native title determinations, particularly in central and northwestern regions. The central N T and northern W A display large zones marked as inalienable land. Pastoral leases dominate interior zones across N T, W A, and South Australia, S A, with some overlapping native title areas. Queensland, especially in its northern and central parts, shows a high density of non-exclusive determinations. Eastern Australia, including New South Wales and Victoria, shows minimal indigenous land restitution coverage.

The map also shows how native title has acted as a baseline form of uniform land restitution. In Western Australia in particular native title is the primary means by which Aboriginal peoples have gained legally enforceable rights in land. It does this in two ways, extensively and substantively. First, it extends Aboriginal rights in land to vast areas of Crown land far beyond those available for Aboriginal peoples through the Aboriginal Land Trust, pastoral lease transfers and other arrangements. Second, it substantively strengthens the rights of traditional owners in areas like reserves that are already set aside for Aboriginal peoples. This second function also acts to strengthen legal protections against alienation under arrangements like the Aboriginal Land Trust in South Australia, while complicating Indigenous rights by intersecting the traditional ownership basis of native title with the residency basis of the Aboriginal Lands Trust Act 2013 (South Australia).

Figure 6.2 shows the extent of a further crucial element of land rights as envisaged by Woodward, the de facto or de jure right to veto mineral extraction. It shows a tiered system of three levels of rights. Land holders in the Northern Territory can control mining on their land, holding de facto veto rights over mining in areas of land held subject to the Aboriginal Land Rights (Northern Territory) Act 1976 (Commonwealth), with mining prohibited on the smaller community living areas in the territory. In NSW, most minerals are owned by land holders under the Aboriginal Land Rights Act 1983 (NSW), although the amount of land restored to Aboriginal peoples under that scheme is relatively small. In South Australia, traditional owners of the Anangu Pitjantjatjara Yankunytjatjara lands and the Maralinga Tjarutja lands have similar rights to veto mineral extraction, although doing so may trigger an arbitration process. For much of the rest of the country, most notably Queensland and Western Australia, Indigenous land holders lack powers to veto mineral development, instead having only a time-limited “right to negotiate” compensation with proponents of extractive developments. As such, the rights enjoyed by Aboriginal landholders with regard to mineral extraction vary radically across the continent, a consequence of the uneven and contested political process that has unfolded across the Australian federation since the 1960s.

Figure 6.2 Indigenous land restitution in Australia, 2023, by type of mineral extraction veto rights enjoyed by landholders (Source: Produced by the authors from data provided by state and territory, and Commonwealth government agencies)

Figure 6.2Long description

The map shades 3 categories namely, veto over mining or exploration, veto triggers arbitration, and right to negotiate. Central and northern Australia have several regions with veto over mining or exploration. The central region of southern Australia has veto that triggers arbitration. A majority of the native titles with right to negotiate lie in western Australia and a few scattered lands in the northeastern parts of the country.

Conclusion

Legislative responses to recognize Aboriginal land rights were initially led by the states, and the Commonwealth in the Northern Territory. The Woodward Report was intended to guide state-based responses; however, both the Fraser coalition government in the late 1970s and the Hawke Labor government in the 1980s failed to advance a national land rights agenda that left advancing Aboriginal interests in land to the states and litigation through the courts. The land rights model outlined in the Woodward Report was limited in influence on NSW and South Australia. Litigation that successfully challenged the legality of occupation necessitated a Commonwealth Government response confirming land dealings and creating a mechanism for the recognition of native title. State-based responses after recognition of native title rights and interests have continued to evolve. Accepting the difficulty of proving native title, the Tasmania state government responded with limited land rights recognition. In Victoria and Western Australia, settlement processes have been underway that utilize the structures of the Native Title Act, and that also engage the states in the negotiation of a range of social justice aspirations that go beyond land repossession.

In this chapter we argue the land rights recognition in Australia is an outcome of shifting state–Commonwealth relations within the Australian federation. This has led to a hugely varied and spatially uneven set of legislative land rights regimes across Australia, placing onus on Indigenous Peoples to work to advancing their rights and interests in the absence of agreed-upon national standards or leadership from the Commonwealth government.

Introduction

To bring insight to the development of land rights in Canada, this chapter compares how various manifestations of the British Crown took very different approaches to Indigenous-held lands during the early and middle encounter periods (1500–1800) in eastern North America, as compared to the nineteenth-century encounters in Australia and British Columbia. We trace just a few contextual differences to demonstrate motivations for British Columbia’s denial of Indigenous claims to land in opposition to earlier British policy. We then demonstrate how the introduction of the Torrens system of land-title registration, first proposed and adopted in Australia in 1858, proved the perfect vehicle to ensure that Indigenous claims did not survive the assertion of a title interest by settler and colonial officials. The vastly different circumstances of government officials in the pre-Confederation era, compared with those in post-Confederation British Columbia, go a long way to explaining the profoundly different regimes of land management and, eventually, registration by colonial officials on the East and West Coasts of what we now call North America.

While critical analyses of the Indigenous-settler encounters across Canada have produced a significant literature on the theoretical justifications for land appropriation, very few scholars have addressed the legal mechanisms that converted Indigenous lands into the privately held property of European settlers. We show how the transition to settlement required that Indigenous claims to land be sidelined to make room for increased European settlement, and how the Torrens system facilitated the en masse appropriation of Indigenous lands in western Canada. This contrasts to eastern Canada, characterized by a steady acquisition of Indigenous lands by the Crown and private entities, in a long series of what are termed the Peace and Friendship treaties. The legal mechanisms for appropriation have implications for how lands are reclaimed today.

British Land Law before the Nineteenth Century

In the common law, land plays a unique role distinct from property in chattels. The first mention of land as property is found in St. German’s Doctor and Student published in 1530 (Jones, Reference Jones2018) where, for the first time, land was “equated with property, rather than treated as a special case.” Even so, it takes a while for this practice to become standard. Coke’s Reports, published from 1600 to 1615, treat property in goods separately to ownership of land. Coke’s Institutes, from 1628, uses the terms more interchangeably, and generalize land and goods as property (Jones, Reference Jones2018).

Land and property were distinct because their treatment under the law was fundamentally different. Specifically, “[i]n theory, land was held for a feudal lord, and could not be devised by will. In practice, land can sustain many overlapping claims by many individuals, and be used casually or regularly by many others” (Jones, Reference Jones2018, p. 194). Jones found the 1600s was marked by a shift from qualitative to quantitative measurements of land (p. 197). By the early 1600s, Gunter’s chain, twenty-two yards made of one hundred links, was used to plan the entirety of the British Empire (Jones, Reference Jones2018, p. 194). Despite this shift towards quantitative measurement, the fungibility of land as a commodity was severely constrained well into the nineteenth century because the process of buying and selling land was expensive, rudimentary, and slow.

Land conveyancing was largely governed by contract (Pottage, Reference Pottage1994). Validity of title turned on the soundness of contracts, through which ownership was conveyed from one party to another (Pottage, Reference Pottage1994). In practical terms, this meant lawyers would evaluate “the plausibility of a paper title against a practical sense of property which had arisen from land use, and which lay in local memory” (Pottage, Reference Pottage1994 p. 363). Put simply, a prudent purchaser of land needed to ensure that the purported owner had a valid title to sell. Since there was no registry that the owner could reference to demonstrate that they had legal title to the land, the seller had to provide documentation illustrating a valid chain of title going as far back as possible. Yet, this documentation could not be relied on in isolation. Lawyers would evaluate the likelihood that the paper documentation was legitimate, and weigh that against knowledge of land use embedded in local and community memory (Pottage, Reference Pottage1994).

For example, as one senior ordnance survey officer explained to the Registration and Conveyancing Commission, even in cases where it is easy to show title, through deeds and paper documentation, showing the exact boundaries of the property down to the very border “depend[ed] on the evidence of tenants, and old laborers, and persons of great age, and to the practice that may have prevailed with different occupiers” (Pottage, Reference Pottage1994, p. 364).Footnote ¹ Indeed, lawyers relied heavily on community knowledge. Accordingly, until the early nineteenth century, land surveyors would be accompanied by local residents as their knowledge was essential to creating an accurate estate map. Land was not a particularly fungible form of property.

Feudal property relationships, lawyers, and the aristocracy slowed the transition towards a commoditized and fungible real-property regime based on registration in the United Kingdom. Primarily, this is because the aristocracy, still land-rich from feudal property arrangements were not inclined to make the alienation of their vast estates any easier. “As Stone and Stein note, in 1833, ‘24 peers in the realm of England’ each held estates in excess of 100,000 acres” (Bhandar, Reference Bhandar2015, p. 272). Lawyers, in turn, resisted a system of land registration because the time-consuming nature of title research was profitable (Bhandar, Reference Bhandar2015). This was the deed registration system imported to the American colonies.

British–Indigenous Relationships to Land from the Sixteenth to Eighteenth Centuries

The assertion of Crown sovereignty over distant lands was just that – an assertion – which, without more, such as an actual occupation or sale, provided no rights to land. This was widely accepted in European, and certainly British, encounters with Indigenous Peoples (Banner, Reference Banner2005). Royal Charters were certainly granted, but upon arrival, colonists, or Hudson’s Bay Company (HBC)Footnote ² traders, did their best to secure their interests through treaty or purchase. Certainly almost no one in the eastern colonies imagined that the lands before them were barren or unused. Applying a doctrine of possession, based on an imagined empty landscape, would have struck anyone as ludicrous (Banner, Reference Banner2005). Before 1763, purchases of Indian lands were ordinary contracts entered into by individual colonists, corporations and towns, as well as governors and other Crown representatives. Whatever else the colonists might have called the Indigenous population, it was clear that they understood Indigenous Peoples as proprietors and owners of their lands (Banner, Reference Banner2005).

The tension of imperium and dominium (the assertion of sovereignty and the actual possession of property) was resolved in North America through Crown assertion of British sovereignty in the form of patents for land purchases – patents guaranteeing the right to land only if the patent was coupled with a purchase of sale from the relevant Indigenous party. In this way, the British could say that their sovereignty extended in some jurisdictional sense, even if no Indigenous party on the ground was even remotely aware of visitors from another continent, or of their assertion of sovereignty. After 1763, the Royal Proclamation’sFootnote ³ prohibition on the sale of Indian land to anyone other than the Crown created a distinction between Indigenous and settler held lands. Until then, the two property interests were treated identically – but after 1763, Indigenous title came to be seen as something different than the sort of title that settler people held in the lands they called fee simple.

One consequence of this pattern of land acquisition was that, even after 1763, a very large number of titles to land traced their purchase to an original Indigenous seller. After 1763, and as a consequence of the Royal Proclamation’s requirement that land be ceded first to the Crown, and all subsequent land grants traced to grants from the Crown. After the Proclamation was issued, contracts for sale of Indian lands were void unless the sale was via a treaty negotiated with the Crown.

Once purchased, the Crown would then issue patents to would-be landowners. But the British found themselves still bound by treaty relationships with their military allies. Since the early seventeenth century, the British had been engaged in a complex and deepening alliance with an Indigenous confederacy known as the Five Nations. The formal name for the British–Five Nation relationship was the Covenant Chain, described as a symbolic silver chain that bound the parties in a military and trade alliance (Morito, Reference Morito2012). After 1763, the British attempted to further their influence in the west through an extension of the Covenant Chain relationship.

Under William Johnson’s term as Superintendent of Indian Affairs, this influence was possible because Johnson was himself deeply enmeshed in an Indigenous worldview. Johnson had an Indigenous wife, spoke Indigenous languages, and had taken the time to read through volumes of reports on and histories of treaty making between his predecessors and Indigenous nations. Johnson employed Indigenous diplomatic protocols and processes to affirm peace with Indigenous nations. After his death, Johnson’s relations carried on, but over time the various governors general and superintendents of Indian Affairs grew slowly less familiar with the details of a once-close and sustained relationship between the Crown and its Indigenous allies.

The annual treaty meetings and distribution of presents came to be seen as an unnecessary expense, and by 1836 it was possible for Sir Francis Bond Head to remark that “on our part, little or nothing documentary exists – the promises which were made, whatever they might have been, were almost invariably verbal; those who expressed them are now moldering in their graves” (Head, 1836, as cited in Corbiere, Reference Corbiere2019). The once vital Covenant Chain relationship was now no longer even a distant memory – the commitments of the Royal Proclamation became rote and boilerplate, when they were remembered at all.

After 1850, the Crown began a series of treaty negotiations for lands that became Canada. The treaty regime after 1850 used boilerplate language in treaties with distinct Indigenous nations – giving an almost spooky uniformity to these treaties. Except in the west, where, throughout most of British Columbia, land was both unpurchased and not subject to treaty. Future property interests in British Columbia would turn not on the need to formally recognize original Indian title, as was the case in the east, but rather on the need to eliminate all prior Indigenous claims. Without treaty or purchase, it was hard to imagine how this could be accomplished.

Relations to Land in Australia: The Torrens System

Unlike in the United Kingdom and eastern North America, land in Australia was conceptualized as a fungible commodity “without any owners, to be claimed, partitioned, securitized and cultivated” (Bhandar, Reference Bhandar2015, p. 256). In practice, this meant that a more efficient system of land conveyancing was needed to accommodate the increasing number of land transactions. Indeed, the colony “required something less costly, less artificial, something which […] may [be] handle[d] with more freedom and rapidity” (Torrens, Reference Torrens1859, p. 4). By this time, the commoditization of Australian land was already well underway. To illustrate, the “Colonization Commissioners for South Australia noted that by 1839 (three years after the first settlers had landed on the coast St. Vincent’s Gulf) 250,320 acres of public land had been sold for the sum of £229,756” (Bhandar, Reference Bhandar2015, p. 267). Yet, without a centralized registry, the system was almost as cumbersome to manage as that in the United Kingdom. Flaws in title could still be passed down from owner to owner without their knowledge, the risk of fraud and forgery was high, and ownership still needed to be traced as far back as possible to confirm the buyer was receiving valid title to land. Consequently, the expense, difficulty, and legal uncertainties of land conveyancing under the British law were perceived as a barrier to the settlement of the Australian colony.

With this problem in mind, Robert Torrens, a member of the House of Assembly for the City of Adelaide, devised a centralized land-registry system based on the “shipping system, where funded property was bought and sold within a system of registration” (Bhandar, Reference Bhandar2015, p. 258). Bhandar (Reference Bhandar2015) noted that Torrens emphasized that there was no difference in principle between land and other forms of property for the purposes of conveyancing (pp. 258–259). The Torrens system was made into law under the Real Property Act 1858.Footnote ⁴ This supported the process of British settlement in the Australian colony, as land transactions were now relatively easy and inexpensive. The Torrens system was popular with already landed Australian settlers because it made ownership of land more attainable for the majority of citizens (Taylor, Reference Taylor2008). Moreover, “the settler colony of South Australia was the ideal space for the imposition or trialling of this technique, treated, as it was, as a terra nullius” (Bhandar, Reference Bhandar2015, p. 256). The treatment of Indigenous lands as legally empty, without owners or sovereigns in Australia, stands in stark contrast to the well-established colonial practice in eastern Canada. Indeed, rather than acquire rights to Indigenous lands through treaty and purchase, in Australia the very existence of Indigenous ownership was, and arguably still is, simply denied.

Relations to Land in British Columbia

Prior to the mid-nineteenth century, European presence in Canada’s westernmost province, British Columbia, was minimal and primarily dedicated to fur trading. Europeans were limited to geographically small settlements, with equally small populations; and there was neither the motivation nor the ability to claim ownership of vast swaths of Indigenous lands. In addition, Indigenous Peoples were not passive victims; they actively asserted claims to land and land ownership. Thus, European settlement cannot be characterized as the acquisition of “empty” lands. Indigenous Peoples did not simply occupy the land, extracting resources as they made seasonal rounds of their traditional territories. Indigenous Peoples adapted to the changing economic and political landscape by engaging in European-style agrarian farming and capitalism. Nevertheless, as we discuss in the following section, racist discourses of the “savage” Indian painted Indigenous Peoples as incapable and uninterested in agrarian capitalism – such that their lands were considered “wastelands” and thus legally empty and open for appropriation by European settlers.

In the west, the years between 1800 and 1858 are characterized by Robin Fisher as the “fur trade era.” During this period, Indigenous Peoples and settlers enjoyed a reciprocal and mutually beneficial relationship with minimal conflict. Fisher (Reference Fisher1977) suggested that Indigenous Peoples “to a large extent controlled both the trade and their culture, and European traders did not attempt any major interference with their way of life. The mutually beneficial nature of the land-based fur trade was indicated by the continued absence of interracial conflict” (p. 24). Several factors underpinned this dynamic.

Indigenous Peoples were skilled hunters and trappers, and they provided the HBC with their desired otter, marten and beaver pelts (Fisher, Reference Fisher1977). The power dynamic between the two groups was relatively stable because Indigenous Peoples were skilled and competitive bargainers. Both American and Russian traders provided alternative trading options and thus economic competition was intense (Fisher, Reference Fisher1977). In recognition of this fact, the Northwest Company introduced a debtor system which was continued by the HBC after it took control of the area. Under this system, Indigenous communities were supplied with goods and equipment in the fall, with the understanding that they would pay for the goods with pelts in the coming spring (Fisher, Reference Fisher1977).Footnote ⁵

The mutually beneficial nature of the relationship encouraged many Indigenous communities to engage in the fur trade for the benefits to be gained, and the settler population in the region was still dwarfed by the surrounding Indigenous communities. As a result, some Indigenous groups were able to resist participation in the fur trade. For example, in 1829, the HBC built a fort in Tsilhqot’in territory, in central British Columbia, with an eye to engaging them in the fur trade. Yet, the Tsilhqot’in,

This passage is significant, demonstrating the power of local Indigenous communities to actively and confidently assert control over their territories. Moreover, the small population of HBC trading posts rendered the traders highly vulnerable. Fisher (Reference Fisher1977) believes it is likely that Indigenous Peoples could have destroyed them, but refrained from doing so because the settler presence was valued.

Indigenous Nations such as the Haida engaged with settlers and other Indigenous communities through alternative economic means. Indeed, Indigenous Peoples in British Columbia participated in both agrarian-style capitalism and sophisticated trading relationships with European settlers. For example, the Haida grew potatoes and manufactured carvings and cedar canoes for sale (Fisher, Reference Fisher1977). HBC reports indicate that by 1836, the Haida engaged in large-scale potato farming, and by 1860, potato farming had spread to the majority of Indigenous communities in the interior of what would become British Columbia (Thomson, Reference Thomson1994).

Importantly, during this era there was no incentive for settlers to alter Indigenous Peoples’ traditional ways of life. Indeed, exactly the opposite, settlers had “a considerable investment and interest in keeping much of the Indian way of life intact. Obviously it did not want to see the kind of radical change that would prevent the Indians from being efficient fur hunters. For this reason there was little intrusion on Indian land during the fur-trading period” (Fisher, Reference Fisher1977).

The very existence and maintenance of the fur trade turned, in some sense, on Indigenous Peoples remaining in control of hunting grounds that supplied the HBC with pelts. Thus, the economic pull of a steady supply of furs was substantial enough to render ineffectual calls for increased efforts at “civilizing” Indigenous Peoples (Fisher, Reference Fisher1977).

There was even a grudging respect for the property laws of Indigenous nations along the coast. A mass “culture area” of interconnected peoples, speaking a wide variety of unconnected language groups, bound coastal nations through familial bonds expressed and given shape in the form of totemic and house identities (Graeber & Wengrow, Reference Graeber and Wengrow2021). Land in these communities was the property of a House Chief – a title that provided exclusive rights to direct labor and to allocate resources within a defined property boundary or within the House Chief’s territories. Ascension to the status of House Chief required a long history of study of, and immersion into, the cultural histories of the House to which one belonged, and further required not only the affirmation of House members, but even more importantly, the approval of neighboring House Chiefs whose interests were intertwined through marriage (Mills, Reference Mills1994).

Although interests in particular fishing spots or berry-gathering areas descended matrilineally, broader control over border maintenance and the allocation of hunting resources fell to the House Chiefs whether they be male or female. Upon first seeing Gitxsan and Wet’suwet’en communities, HBC Chief Trader William Brown remarked that these were “men of property,” just as traders along the East Coast referred to Indigenous Peoples as “proprietors” (Banner, Reference Banner2005, p. 22).

Property law disputes within a House clan were resolved at the level of the House Chief. Disputes involving other House Chiefs required the gathering of regional chiefs to assemble in a regional potlatch (Mills, Reference Mills1994). There, House business was discussed and settled, and the wealth and acumen of the Chiefs were demonstrated through a massive redistribution of wealth in the form of almost competitive gift giving called potlatch. With each gift, a House chief affirmed his or her ability to master the reciprocal relationship to the lands – one of “perpetual gift exchange” – such that the wealth of the people fed the land, and the land fed the people in abundance (Daly, Reference Daly2007, p. 271).

Indigenous Peoples were not merely inhabiting the land: they were owners, stewards, sovereigns, and lawmakers over their traditional territories. As such, they actively asserted rights over their traditional territories, embraced aspects of agrarian cultivation, and engaged in trade relationships with both settlers and other Indigenous communities. At that time, European encroachments on Indigenous lands were minimal and allowed to occur because the trading relationship was mutually beneficial.

Indigenous–Settler Relationships in the Transition to Settlement

With a looming threat of American expansionism, the colony of Vancouver Island was established in 1849 through Royal Charter to HBC for the purpose of settling a colony of the United Kingdom (Martin, Reference Martin1849). Despite the Oregon Treaty, signed by the United Kingdom and the United States in 1846, and settling boundaries on the west coast, the Colonial Office feared their interests, protected by assertions of sovereignty, were of little force or effect in comparison to physical occupation and settlement (Wrinch, Reference Wrinch1932). HBC had the capital and administrative reach to oversee and regulate the process of European settlement in the area (Wrinch, Reference Wrinch1932).Footnote ⁶

The colony was barely more than a fur trading post, with little appeal for settlers, and “by 1852, as few as 435 emigrants had been sent to the colony, [and] only 11 had purchased land, and another 19 had applied for land” (Fisher, Reference Fisher1977, p. 58). Nearly all of the settlers were servants of the HBC (Blanshard, 1851, as cited in Fisher, Reference Fisher1992). Despite the HBC and Colonial Office’s efforts, immigration and settlement of the colony remained stagnant until the Fraser River gold rush in 1858. While most of the new immigrants were miners seeking gold, many developed ties to the region and sought to settle there. As settlement of the Colony expanded, competition between settlers and Indigenous Peoples for land, and particularly the highest quality farmlands, increased. Besides mining, new settlers primarily engaged in agriculture as a means of subsistence. This created tensions, because “[a]gricultural settlement was destructive to the Indian’s methods of food gathering. In the Fort Victoria area, for example, Indian camas grounds were broken up by the plough” (Fisher, Reference Fisher1977, p. 66). Indigenous Peoples were also utilizing agrarian techniques for producing food, and serious competition emerged for the most arable sections of land.

Just weeks after the HBC received the Royal Grant, and in keeping with the general tenor of British land policy in the East, James Douglas, Chief Factor for HBC, and soon-to-be Governor of the Vancouver Island Colony, wrote to the HBC secretary in London making it clear that arrangements would have to be made for the purchase of Indigenous lands, as had been the well-established practice in Eastern Canada for over a century (Douglas, Reference Douglas1849).

The HBC replied by citing a report compiled by the Committee of the House of Commons examining claims of the New Zealand Company. Within, it was argued that Indigenous Peoples “had only ‘qualified Dominion’ over their country, consisting of a right of occupancy but not title to land” (Fisher, Reference Fisher1977, p. 66). Accordingly, Douglas was permitted to engage in treaty-making with Indigenous Peoples with respect to lands that had been cultivated or had houses built by the year 1846 when they came under the sovereignty of Great Britain.Footnote ⁷ All other land was to be regarded as waste and therefore available for colonization (Fisher, Reference Fisher1977). Douglas set about negotiating treaties with local Indigenous communities. In total, Douglas made fourteen treaty agreements between 1849 and 1854.

By 1854, Douglas had acquired more land than could be effectively settled and defended (Harris, Reference Harris2002). Engaging in treaty-making was a time-consuming endeavor, and a process that required the Crown’s commitment to substantial annual gift giving to Indigenous treaty partners. Thus, further treaty-making was likely not a priority unless there was actual need and use for the lands to be acquired. Interestingly, Douglas maintained a policy until 1859 for compensating Indians for the surrender of their lands. Yet, this policy would end in both intent and practice because in 1858 the severing of the colony’s ties with the HBC reduced the amount of goods availableFootnote ⁸ for purchasing Indigenous lands.

In illustration of this rapid swing in policy toward Indian lands, John Trutch, Chief Commissioner of Lands and Works for British Columbia in 1864, wrote that “the Indians had to [be] relieved of as much land as possible so that it could be ‘properly’ and ‘efficiently’ used by European farmers” (Fisher, Reference Fisher1977, p. 162). Later, Trutch argued that the lands reserved for Indigenous Peoples were “entirely disproportionate to the numbers or requirements of the Indian tribes,” and that it was “very desirable … that it should be placed in possession of white settlers as soon as practicable” (Fisher, Reference Fisher1977, p. 163).Footnote ⁹

By 1866, the reserves of the Shuswap peoples were adjusted so that a forty-mile stretch of land was reduced to three reserves each of no more than four square miles, a unilateral process that would have been unimaginable during the earlier era in the east. Further reductions soon after totaled 40,000 acres (Fisher, Reference Fisher1977, p. 163). Yet, rendering lands as legally empty or wasted was insufficient to get land into the hands of settlers.

The Torrens title system of land registration was implemented under the Land Registry Act 1860.Footnote ¹⁰ Under the Act, any person who possessed title that had been registered for a period of five years was deemed “absolutely and indefeasibly entitled to the interest in respect of [that land]” (Land Registry Act 1860, s. 20). In simple terms, five years after registering a newly created title to lands the owner had an exclusive right to land that was unaffected by any other unregistered interests (i.e., Indian land interests).

Bhandar (Reference Bhandar2018) observed that “the most radical aspect of a system of title by registration is that it renders all prior ownership claims irrelevant” (p. 95). Taylor (Reference Taylor2008) argued that what separated the Torrens systems from other systems of deed registration is that it made deeds easier to find – it did not cure any defects in the title.

Validation versus Elimination of Indigenous Claims

By 1875, Télesphore Fournier, the Minister of Justice in Ottawa, now aware that Indigenous lands in British Columbia were, with the minor exception of the fourteen Douglas treaties, not acquired in accordance with the established protocol of purchase through treaty, reprimanded Lieutenant-Governor Trutch. He recommended that An Act to Amend and Consolidate the Laws Affecting Crown Lands in British Columbia be disallowed and postponed until the last possible date because it ignored Indigenous land rights (Hodgins, Reference Hodgins1896). Ultimately, the federal government and British Columbia agreed to the creation of a joint commission to address the allotment of Indian reserves. Yet Harris (Reference Harris2002) maintained that the Joint Indian Reserve Commission had little interest in casting doubt upon vast swaths of settler land titles and were determined to leave sufficient land open for further settlement.

We may never fully know why colonial policy was set aside, but we can point to four points of context. First, the relationship between Indigenous Peoples and settlers was, on the West Coast, recent and shallow compared to the hundreds of years old relationships in the east. In British Columbia, Indigenous and settler families were not intermarried, contacts were comparatively few, and there was no motivation for anything more complex than a commercial trading relationship. As the rhetoric of race began to influence relations between colonial officials and Indigenous Peoples, there was no long history to buffer growing racism. The language of efficiency and waste came to dominate the characterizations of Indigenous lands and what to do with them. In the east, settler colonial deeds of possession could be traced to original Indigenous possession, and so to question the validity of Indigenous title was to cast doubt upon every subsequent purchaser. But in the west, as in Australia, there were no prior settler titles, and each new title was to be based on occupation of land noted in a centralized registry. Settler claims to land were in direct competition with Indigenous histories and patterns of occupation. Valid titles thus depended not on a valid chain of prior titles, but rather a complete wiping clean of any prior owners, and a fresh start with settler names on the deeds. In this, Australia and British Columbia found themselves in identical positions – and so it is no surprise they are the first and second jurisdictions to adopt the most efficient methodology for eliminating Indigenous title to the land: the issuance of indefeasible title under the Torrens system.

Contemporary Indigenous Land Rights Claims and Their Relationship to Torrens Title

Of course, the issue of Indigenous land claims has never gone away. Indigenous communities in British Columbia have actively asserted their rights to land throughout the nineteenth, twentieth, twenty-first centuries. Most notably, in Tsilhqot’in Nation v. British Columbia (2014), the Tsilhqot’in successfully brought a claim for Aboriginal title over a large portion of their traditional territories.

Aboriginal title is grounded in Indigenous legal systems, derived from Indigenous use, occupancy, and control of their lands prior to the Crown’s assertion of sovereignty (Tsilhqot’in Nation, 2014). Nevertheless, the Supreme Court of Canada described the content of Aboriginal title as analogous to ownership rights, rather than a jurisdictional or sovereign authority over the land. As a result, Aboriginal title claims have overlapped – and may continue to overlap, as well as come into conflict with fee simple ownership rights of property owners in contemporary British Columbia.

Importantly, in Tsilhqot’in Nation, the plaintiffs carefully drew the borders of their claimed territory to exclude any overlap with privately owned lands held in fee simple. Hence, the Supreme Court was not required to consider this issue of conflict and primacy.

Nevertheless, in some cases avoidance of overlap between Indigenous land rights and privately owned and registered property is simply not possible. This was the case of the Grace Islet dispute in British Columbia, where the Cowichan Nation sought a declaration of title for ancient burial grounds on fee simple lands (which were threatened by development) (Borrows, Reference Borrows2015). This dispute was settled out of court by the Cowichan and the provincial government, “to avoid potentially precedent-setting litigation that favourably pitted Aboriginal title against ‘private’ ownership” (Borrows, Reference Borrows2015, p. 99). As such, the relationship between overlapping Aboriginal title rights and privately owned and registered fee simple under the Torrens title system remains an open question.Footnote ¹¹

Registrability of Aboriginal Title

Thus far, attempts by Indigenous communities to register their Aboriginal title rights under the Torrens title system have been rejected by the courts. In Skeetchestn Indian Band and Secwepemc Aboriginal Nation v. Registrar of Land Titles (Skeetchestn Indian Band, 2000),Footnote ¹² the plaintiffs appealed a decision by the Registrar of Titles to refuse to register “a certificate of pending litigation against certain lands in the Kamloops Land Title District, which many years ago, the Crown had granted in fee simple.” In addition, the plaintiffs also sought a declaration that they held Aboriginal title rights over the land in question. Relying on a proceeding associated with the Delgamuukw case, indexed as Uukw (1988), the Court noted that the claim for Aboriginal title is “upstream of the certificate of indefeasible title” (in Skeetchestn Indian Band, 2000, para. 50), exists outside the four corners of the legislative framework of the Land Titles Act and is therefore not an interest capable of registration.

The Court added that “Aboriginal title is not marketable and is therefore not registerable” (Skeetchestn Indian Band, 2000, para. 20). In simple terms, the idea is that Aboriginal title is an interest that arises outside the legislative framework of the Land Titles Act, and therefore cannot be registered. In addition, because Aboriginal title lands are only alienable to the Crown, they are not marketable and incapable of registration.

The important point for our purposes is that the Torrens title system continues to secure settler land rights from competing Aboriginal title claims. This has two major implications. First, as Aboriginal title interests cannot be registered, landowners and prospective landowners alike may not receive notice that certain lands held in fee simple are currently or likely to be the subject of an Aboriginal title claim. The presence of a current or impending Aboriginal title claim is likely to alter the market value of the land. Second, allowing for registration of Aboriginal title interests on lands regulated under the Land Titles Act would notify and motivate Aboriginal title claims to be proactively addressed by the provinces and the federal government. A potentially fruitful and simple solution, then, would be to amend the Land Titles Act to make possible the registration of Aboriginal title interests. Landowners and Indigenous claimants alike would benefit from the notice, and the ability to register a claim.

Conclusion

The legal nature of Indigenous tenure in what we now call British Columbia is unique. But the use of property law and land title regulation, as efficient tools of dispossession, is a common theme in spaces wherever settlement encountered prior occupiers – as, for example, shown in the Aotearoa New Zealand chapter elsewhere in this book. There a Native Land Court was designed to identify customary title holders, and to convert customary titles into fee simple titles. These fee simple titles could then be bought and sold on the open market, thereby making it possible for settlers to acquire said titles. Likewise, as shown by Koné, in the Democratic Republic of Congo Indigenous land rights were totally denied by a legal regime that viewed all lands not held by settlers as “vacant” and therefore the property of the state. In each of these spaces, Indigenous communities were dispossessed of their lands through law, policy, and bureaucracy, rather than brute force or conquest.

Righting historical wrongs is a complex but achievable goal. Our intervention should be viewed as an initial step in this process – namely, to accurately and coherently identify the wrong in order to illuminate avenues for redress. In the context of Indigenous dispossession in British Columbia, this requires an empirical analysis of the laws and policies that facilitated dispossession.

While British policy toward Indigenous land in North America remained constant after 1763, the actual practice varied by region and era. Along the eastern seaboard and around the Great Lakes, Indigenous claims to land were affirmed, which enabled Indigenous sellers to engage with British and colonial buyers. In British Columbia, virtually no Indigenous rights to land were recognized by treaty, and direct purchases of Indigenous land were essentially non-existent.Footnote ¹³ The one hundred or so years between the colonial experience in the eastern Americas and the west coast of British Columbia provide context for the differing treatments.

During these intervening years, social and political theories began casting Indigenous Peoples as backwards and inferior, which promoted discourse around Indigenous lands as being waste due to inefficient use. In British Columbia, there was no long history of Indigenous–settler alliances or even any need for such alliances – the relationships were almost purely commercial, in sharp contrast to close relationships in the east that the British enjoyed with their Indigenous military and commercial allies during the seventeenth and eighteenth centuries. The lack of close bonds made it easy for late nineteenth-century colonists to make (racist) assumptions about Indigenous Peoples and their relationships to land. Perhaps more importantly, once Indigenous title to land had been recognized as it was in the east and around the Great Lakes, future deeds for the same land could be traced to an original Indigenous seller. To deny Indigenous rights to land would thus jeopardize the long chains of settler title made after purchase from an Indigenous seller. Precisely the opposite situation obtained in the West: there, valid setter title turned on the complete erasure of Indigenous interests in the land – terra nullius – because without purchase, no settler interests in fee could be recognized.

The history we present here in this chapter is important for understanding the current distribution of land rights in British Columbia and has implications for how we might think about contemporary Aboriginal title claims, because it is clear that Indigenous lands were taken without consent or sale. The vast disparity in the treatment of Indigenous lands by colonial officials between the seventeenth and mid-nineteenth centuries strongly suggests that official policy had changed, and so that perhaps even if immoral, the settlement of British Columbia was at least legal. But this is not the case, and the settlement that occurred was wrong in both law and policy.

Introduction

During the nineteenth century, the New Zealand Government used a series of legislative mechanisms to facilitate the alienation of land from Māori (Boast, Reference Boast2008). The Māori customary regime was seriously altered, and land titles were individualized to facilitate land transactions and settlement. The conversion from a customary regime into a fee simple (or freehold title system) revealed difficulties in reconciling the “new” system with the customary regime. Under the customary regime, land is held in accordance with tikanga Māori (Māori law, values, and practices)Footnote ¹ and represents a source of identity (Durie, Reference Durie1998), while under the “new” Crown land tenure system, land was and is today seen in terms of market potential and commercial interests.

The freehold title system resulted in the alienation of the land, undermined tribal authority, and imposed complex ownership arrangements (Belgrave et al., Reference Belgrave, Deason and Young2004). Indeed, the Land Transfer Act 1870 introduced the Torrens system for land titles, where those with indefeasible title were guaranteed full ownership to the land, thus extinguishing customary title. As Diamond and Sanderson argue in this book, the Torrens system created the administrative tool for dispossession with ongoing ramifications for land rights. The freehold system also created two categories of private land: general land and Māori freehold land. General land, under private ownership, is not subject to the distinct statutory regime of Māori freehold land and can be owned by Māori or any other New Zealander. Māori freehold land is usually collectively held and today is regulated by the Te Ture Whenua Māori/Māori Land Act 1993 (TTWM). The status of Māori freehold land indicates that the land title is ultimately derived from a determination by the Native/Māori Land Court based on customary regime and ancestral connections, and has been converted by the Court to a freehold title.

The TTWM has roots in the relationship of Māori with the land, the transition of customary land to an individual title, and various attempts to address challenges associated with fragmented titles and multiple owners. It is estimated that Māori freehold land is about 5 percent of Aotearoa New Zealand’s 26.8 million hectares of total land area (Harmsworth, Reference Harmsworth2018).Footnote ²

For Māori, attitudes toward land are multidimensional and continue to be deeply influenced by mātauranga Māori (Māori knowledge systems) (Harmsworth & Awatere, Reference Harmsworth, Awatere and Dymond2013; Mead, Reference Mead2016; Marsden, Reference Marsden and Royal2003). The political and legal processes preceding the enactment of TTWM illustrated that Māori saw a recognition of land as a basis of identity (Durie, Reference Durie1999; Mead, Reference Mead2016). Additionally, the pressure to develop the land with commercial interests motivated a “new role” for the land as a sustainable economic base for Māori. Therefore, the TTWM focuses on retention alongside utilization, and recognizes land as tāonga tuku iho – a treasure that connects current generations with their ancestors and future generations. Safeguarding this land is critical moving forward.

Te whenua Te iwi, the Land and the People

While many aspects of Māori culture are integrated into mainstream culture in Aotearoa New Zealand, it remains distinct in several ways. For example, Māori rights and obligations to land are primarily founded upon ancestral connection to the land over successive generations. Maintaining that connection through use of the land and participation in the community is also important. The resolution of disputes about land and the assertion of rights in relation to land are framed by a distinctive worldview. According to this worldview, both rights and duties are held in accordance with tikanga Māori, which Jones (Reference Jones2014) articulates is a Māori values-based system that “[d]escribes the right or correct way of doing things within Māori society. It is a system comprising practices, principles, processes and procedures, and traditional knowledge. It encompasses Māori law but also includes ritual, customs, spiritual and socio-political dimensions that go well beyond the legal domain” (p. 189).

Before European arrival in Aotearoa New Zealand and the signing of Te Tiriti o Waitangi (the Treaty of Waitangi), Māori association with the land was shaped by the belief that people belong to the land rather than owning it (Mead, Reference Mead2016). For Māori, the relationship between people and land comes from an ancestral connection based on customary practices, protocols, and values. Land is a source of identity for Māori, as they see themselves as tangata whenua or the people of the land. Whenua is the word for land in Te Reo Māori (Māori language). As Mead (Reference Mead2016) states, “whenua carries a wide range of meanings. Whenua, as placenta, sustains life and the connection between the foetus and the placenta is through the umbilical cord. This fact of life is a metaphor for whenua, as land, and is the basis for the high value placed on land” (p. 285).

Under a Māori customary regime, rights of occupation and use were determined collectively by Māori tribal authorities, subdivided into whānau, hapū and iwi (family, sub-tribe and tribe). As observed by Durie (Reference Durie and Phillips1987), “in the beginning land was not something that could be owned or traded. Maoris did not seek to own or possess anything, but to belong. One belonged to a family that belonged to a hapū that belonged to a tribe. One did not own land. One belonged to the land” (p. 78).

The Māori customary regime and association to land involved collectively held rights of occupation, access, and use over land without claiming ownership (Durie, Reference Durie1998; Kingi, Reference Kingi2008; Bennion, Reference Bennion, Brown, Thomas, Toomey, Muir and Palmer2009). The rights to land were evidenced through occupation by establishing kāinga (settlement) and cultivation, but also through the use of resources for the sustainability and survival of the settlement. Association with the land was predominantly recognized by an ancestral connection based on historical occupation (ahikāroa) or spiritual connection with the land – for example, birth or death of their ancestors. Given this ancestral connection with a specific land or area, the association with the land could be retained even when rights over the land were lost (Waitangi Tribunal, 2003).

Although the Crown has altered the customary regime, attitudes toward land are still profoundly influenced by mātauranga Māori (Māori knowledge systems) (Harmsworth & Awatere, Reference Harmsworth, Awatere and Dymond2013; Mead, Reference Mead2016; Marsden, Reference Marsden and Royal2003). Mātauranga Māori provides the basis for Te Ao Māori (Māori world view) and Māori values through which Māori experience and interpret their environment and determine their attitudes toward land (Harmsworth & Awatere, Reference Harmsworth, Awatere and Dymond2013; Marsden, Reference Marsden and Royal2003; Mead, Reference Mead2016; Phillips & Hulme, Reference Phillips and Hulme1987). Guiding land use decisions were principles of interdependency and intergenerational equity. Interdependency is a reciprocal relationship between people and the land, and comprises manaaki whenua (caring for the land) and manaaki tangata (caring for people) (Harmsworth & Awatere, Reference Harmsworth, Awatere and Dymond2013). Intergenerational equity can be seen as a concern for resource sustainability and protection of the land across generations. With these decision drivers in place, land is passed from one generation to the next in as good a condition as it was received.

Te Tiriti o Waitangi

Land tenure and the mechanisms for recognizing tikanga-based or Māori customary forms of title were specific matters addressed in Te Tiriti o Waitangi/the Treaty of Waitangi, signed in 1840 by Māori leaders and the British Crown. Te Tiriti is recognized as a foundational constitutional document, which established the formal relationship between Māori and British spheres of authority. It was signed in the context of a system of tikanga that provided for a range of intersecting rights and duties in relation to land and the natural environment. Te Tiriti is central to any discussion of Māori land.

The essential bargain set out in Te Tiriti was that the British Crown could exercise governmental authority, at least over British subjects in Aotearoa, in exchange for the protection of Māori authority. Te Tiriti contains specific guarantees for Māori to retain the undisturbed possession of their lands, unless and until Māori wished to sell any such land. The Māori text of Te Tiriti frames this as a broad guarantee of authority over all things that are highly valued to Māori, whereas the English text uses the specific language of property rights in relation to resources such as land, forests, and fisheries.

Partly on the basis of Te Tiriti and partly on the basis of “discovery,” the British Crown asserted sovereignty over Aotearoa New Zealand, notwithstanding the fact that exclusive Crown sovereignty would have been entirely inconsistent with the guarantees of Māori authority contained in Te Tiriti.

Te Tiriti is now recognized as a foundational component of Aotearoa New Zealand’s unwritten constitution. In 1975, the Waitangi Tribunal was established to hear claims based on “the principles of the Treaty” and has subsequently published a large body of reports addressing both historical and contemporary breaches of Treaty principles and making recommendations to the government of the day to redress well-founded claims and to prevent future breaches of Treaty principles. Many of these claims relate specifically to land alienation that has occurred in breach of Te Tiriti.

However, without formal constitutional protection, legally enforceable rights under Te Tiriti are limited. Aotearoa New Zealand’s unitary and unicameral system of government centralizes power in the Parliament, which, in turn, has historically been dominated by the Executive branch, at least until the introduction of proportional representation in 1996. Settlements of historical Treaty claims are negotiated political agreements, rather than a recognition of rights. Both the Māori Land Court and the ordinary courts have a limited statutory jurisdiction in relation to Māori rights to land. As a consequence, Māori have been able to use Te Tiriti more effectively as a political instrument, rather than the source of legally enforceable rights to land.

An Era of Land Dispossession, Alienation and Title Individualization

From the 1860s onwards, the Crown drastically altered the Māori customary regime to facilitate the trading of the land for European settlement purposes. The Torrens system, an ownership arrangement with individual and indefeasible title-recording owners and shareholders, replaced the customary regime. Though some land blocks remained under Māori ownership (today known as Māori freehold land), this individualization undermined tribal authority and affected the social cohesion between whānau, hapū, and iwi.

The Crown enforced a range of legal mechanisms to dispossess and alienate land from Māori and individualize the property rights of the land without reference to the wider community. The main mechanisms used were land confiscation, Crown land purchases and alienation facilitated by the Native Land Court (Boast, Reference Boast2008; Bennion, Reference Bennion, Brown, Thomas, Toomey, Muir and Palmer2009).Footnote ³ The Native Land Court was established to stipulate who held the rights on customary land and had the authority to convert customary lands into fee simple.Footnote ⁴ Land was surveyed and divided up into blocks of varying sizes, and lists of “owners” were drawn up and allocated with shares (Mead, Reference Mead2016). As a result, two parallel ownership arrangements took place: European land (today known as general land) and Māori freehold land. Since then, Māori freehold land has evolved into a complex multiple ownership structure with fragmented titles and multiple interests (Kingi, Reference Kingi2008; Waitangi Tribunal, 2008).Footnote ⁵

The Current Māori Land Law Framework

During the twentieth century, the Crown was deeply involved in the administration and management of Māori freehold land with commercial purposes in mind. Before the Second World War, policies regarding Māori land development relied on a process of amalgamation and incorporation as an attempt to consolidate land blocks into economic units and simplify ownership (Belgrave et al., Reference Belgrave, Deason and Young2004).Footnote ⁶ After the mid-twentieth century, the Māori Affairs Act 1953 and its amendments led to an era of title reforms and schemes for administering Māori freehold land. Furthermore, policies were mainly implemented through the Māori Land Court (formerly the Native Land Court), the Department of the Māori Affairs,Footnote ⁷ and the Māori TrusteeFootnote ⁸ (Belgrave et al., Reference Belgrave, Deason and Young2004; Fleras & Spoonley, Reference Fleras and Spoonley1999; Waitangi Tribunal, 2016).

The Māori Affairs Act 1953 introduced a leasing regime, set out reforms for the operation of Māori incorporations, and created a system of trusts, known as 438 trusts.Footnote ⁹ This Act also conferred the Māori Land Court with special powers to (1) appoint the Māori trustee as an agent to dispose of unproductive land; (2) allow others apart from landowners to develop a specific Māori land block, when it was proved that it was fertile and was not being put to “good use”; and (3) establish an incorporation over any block of Māori freehold land with three or more owners under the intent to occupy and use the land for any agricultural, pastoral, or timber activities. However, the implementation of the reforms introduced in the Māori Affairs Act 1953 and its amendments were not an easy task for the Crown. By the end of the twentieth century, Māori opposition was vocal and well organized, demanding the return of unjustly alienated land and the retention of land in Māori ownership according to tikanga Māori. This led to the current Māori land law framework, regulated by the TTWM.

The TTWM explicitly references Te Tiriti o Waitangi and recognizes that whenua (land) is a taonga tuku iho or a treasure for Māori people that connects current generations with their ancestors and those to come. The TTWM recognizes that Māori cultural values influence Māori behavior and relationships with land, driving decisions relating to collaboration, investment, diversification, and management of Māori freehold land. The TTWM promotes the retention of land in the hands of its owners, their whānau (extended family) and their hapū (sub-tribe). It also facilitates the use, development and control of Māori freehold land, recognizing several different land uses, not only commercial use. To meet these objectives, the TTWM sets strong rules that restrict the alienation of Māori freehold land, including sales or lease (Durie, Reference Durie1998).

Moreover, to administer and facilitate decisions, the TTWM provides a scheme for the Māori land governance structures. These structures have become an important body to overcome absentee ownership and title fragmentation. They have been used as a vehicle to try to revert to collective ownership, but they cannot be easily compared with any “institutions” observed under the customary regime (Kingi, Reference Kingi2008).

Foreshore and Seabed

Aotearoa New Zealand has not experienced the same kind of landmark Aboriginal title cases that jurisdictions such as Australia and Canada saw in the latter part of the twentieth century (see the chapters on Australia and Canada in this book).Footnote ¹⁰ The primary reason for this is that the Native Land Court was extremely effective in its task of converting customary title into freehold title. As discussed above, Māori lands and title have been regulated by a comprehensive statutory regime since the 1860s. Although the current legislation, Te Ture Whenua Māori Act 1993, maintains the Māori Land Court’s jurisdiction to identify customary title, it is estimated that very few, if any, areas of land remain that are held according to customary title. Most Māori land is now held as Māori freehold land. However, in recent years, the nature of potential customary title in the foreshore and seabed has been the subject of litigation, legislation, and significant political debate.Footnote ¹¹

The nature of Māori rights in the foreshore and seabed became an issue of significant public controversy following the Court of Appeal’s 2003 decision in Ngāti Apa v Attorney-General. In that case, the Court of Appeal (at the time, the highest appellate court based in Aotearoa, with only the United Kingdom’s Privy Council superior in hierarchy) recognized that areas of the foreshore and seabed may still be held under Māori customary title. The Ngāti Apa decision did not address any specific claims of customary title, so the Court did not make any findings of customary title existing in any particular area of the foreshore. Rather, the Court determined that such title could theoretically exist. That is, a Native Land Court determination of customary title in coastal land, and conversion of that title to freehold title, did not imply any determination about title to the adjacent foreshore. What is more, the Court held that there was no general legislative bar to the existence of Māori customary title to the foreshore. The Court noted that it would not necessarily be easy to prove continuing customary title, and it may be that very few areas of customary title in the foreshore still exist, but, nevertheless, such rights and title could potentially be proven. Ngāti Apa overruled a previous Court of Appeal decision, In Re the Ninety-Mile Beach,Footnote ¹² and, in doing so, upended existing assumptions of title in the foreshore.

The Court of Appeal’s decision sparked an intense political debate. Within days, the then Labour-led government announced that it intended to introduce legislation removing the court’s ability to recognize either common law Aboriginal title or customary title under TTWM for the foreshore and seabed. The government’s proposals were highly controversial, with many Māori viewing them as a confiscation of property rights.Footnote ¹³ The government’s intention was to provide a more limited legislative scheme for the recognition of Māori customary rights in the foreshore and seabed than would have been provided by the recognition of common law Aboriginal title or by a Māori Land Court finding of customary title. The central plank of the legislation provided that title to the foreshore and seabed would be held by the Crown. Māori would be able to apply for the recognition of customary rights in these areas, but not exclusive title.

Prior to legislation being introduced, the Waitangi Tribunal agreed to urgently hear claims alleging that the Crown’s proposals were inconsistent with the principles of the Treaty of Waitangi. The Tribunal found the Crown’s proposed policy was in breach of Treaty principles in several ways. First, the Tribunal determined that, even if no specific customary title to the foreshore had at that point been recognized, the removal of the ability to test such claims of title in the courts would be tantamount to the removal of a property right. Second, the Tribunal noted that the Crown already had the ability to compulsorily purchase land under public works legislation, but the proposed policy would remove property rights to the foreshore and seabed without compensation. Third, because the proposals would exempt any areas of the foreshore already explicitly covered by a certificate of title, only Māori property rights would be abrogated. The Tribunal had many other concerns with both the substance of the proposals and the process by which they were developed and recommended that the Crown engage in a longer conversation with Māori before progressing the proposed policy. However, the government was not bound to follow those recommendations, and the Foreshore and Seabed Act was enacted in 2004.

Treaty Settlements

One further area that has a bearing on the nature of Māori land rights is the settlement of historical claims based on Crown breaches of Te Tiriti o Waitangi. Since the early 1990s, the Crown has been engaged in a systematic programme of direct negotiation with Māori groups to settle historical claims. These settlements often involve redress related to land, including the return of land acquired by the Crown in breach of its Tiriti obligations. Where title to land is returned, this is usually returned as general land and, while forming an important part of treaty settlements, does not raise any novel or distinctive legal issues.Footnote ²⁰

However, there are many forms of redress relating to land that are used in treaty settlements, including various models of co-governance or co-management of specific sites. These models may include partnership arrangements between settling groups and the Crown and collective management by multiple Māori groupings. For example, the Tāmaki Makaurau Collective Settlement vested a number of volcanic cones in the Auckland area in a joint governance body made up of six representatives appointed by thirteen Māori groups included in the settlement and six representatives from Auckland Council (the relevant municipal body). These sites retain the status of public reserves, with the joint governance body now overseeing the management and administration of these sites.

In relation to the lands which formerly comprised Te Urewera National Park in the central North Island (now simply “Te Urewera”), the joint governance arrangements are underpinned by a recognition of the legal personality of the land itself. Te Urewera Act 2014 provides that Te Urewera is, itself, a legal entity with “all the rights, powers, duties, and liabilities of a legal person.”Footnote ²¹ Te Urewera is now managed by a joint governance board. Six members of the board are appointed by Tūhoe (the settling group), and three members are appointed by the Crown. The legislation requires that the board must consider and give expression to customary values and law in the management of Te Urewera. The recognition of legal personality of a landscape feature has also been used in the settlement of claims in relation to Te Awa Tupua (formerly, the Whanganui River)Footnote ²² and Ngā Maunga o Taranaki, Pouākai me Kaitake (Mount Taranaki, Pouākai, and the Kaitake Ranges).Footnote ²³

Pathways toward Land Rights

With no formal constitutional protection, recognition of Māori land rights remains limited and precarious. The enactment of the Foreshore and Seabed Act 2004 illustrates that the New Zealand Government continues, even into the twenty-first century, to be willing to expropriate Māori property rights and limit the jurisdiction of the courts to recognize Māori rights to land.

Any land that falls within the statutory category of “Māori land” is regulated by the Māori Land Court and its empowering statute, Te Ture Whenua Māori Act 1993. That statute has been effective at slowing the alienation of Māori land but has done so by placing significant restrictions on the rights of Māori landowners. The statute is primarily an attempt to ameliorate the problems created by earlier legislation which was designed to facilitate the sale of Māori land.

Negotiated agreements aimed at settling historical breaches of the Treaty of Waitangi have resulted in some land being returned to Māori ownership. However, the amount of land made available in these settlements is tiny compared to the scale of historical land loss. The Waitangi Tribunal is prohibited from recommending the return of private land to Māori and private land is excluded from Treaty settlement agreements. Only surplus Crown land is available to be used in Treaty settlements, which means that in practice very little land is returned by way of Treaty settlements.

Treaty settlements have, however, provided innovative mechanisms for co-governance and opportunities for Māori to participate in conservation or resource management processes. Aside from the small percentage of Aotearoa New Zealand’s land area that is retained as Māori land under TTWM, this is perhaps the area in which Māori have had most success in securing an ability to influence land management. Similar participation rights are likely to result in the coming years from applications made under the Marine and Coastal Area (Takutai Moana) Act 2011.

Conclusion

Prior to the assertion of British sovereignty in Aotearoa New Zealand, Māori land rights were recognized and governed by tikanga Māori (Māori law, values, and practices). Today, however, Māori land is primarily regulated by TTWM. The state legal system has recognized Māori land rights via a legislative scheme ever since the enactment of the Native Land Acts in the 1860s. Those statutes were intended to recognize the customary owners of land and to convert the customary title into freehold title. TTWM now aims to support the retention of Māori freehold land in the hands of Māori and to promote their utilization of that land. Although filtered through the framework of the legislation, tikanga Māori remains relevant to decisions about land use, the implementation of the legislation, and the operation of the Māori Land Court. Recent developments in relation to the foreshore and seabed and the settlement of historical treaty claims further illustrate the New Zealand Government’s preference to give effect to Māori land rights via legislation. This legislative approach has generally tended to narrow the scope of Māori land rights and has ensured that the recognition of Māori land rights is subject to the political whims of the government of the day. Although tikanga Māori has always been a key thread of state law recognition of Māori land rights, to a greater or lesser degree recent developments show a state legal system that is still struggling to give appropriate effect to land rights sourced in tikanga. Without constitutional protection and a land rights framework aimed at strengthening Māori land title in ways that meet Māori needs, the promise of land as tāonga tuku iho remains elusive.