‘Radical title’, the underlying or ultimate title of the Crown to all lands within Commonwealth realms, is said to be a feature of English Common law, derived from Anglo-Norman feudal doctrines, that was transplanted to most British colonies. The focus of this chapter is the history of this doctrine and how that impacted on the recognition or otherwise of the sovereignty, laws, titles and rights of indigenous peoples. Canada, Australia and New Zealand are three modern nation states (the former two having federal constitutions) that emerged from a number of colonies in the British Empire. In all of these colonies, from a very early point in colonial rule, European settlers came to dominate all aspects of political, social, cultural and economic life. In the laws of the colonies, indigenous peoples – variously known as Natives, Indians, Eskimos, Aborigines, Maori (and sometimes as savages, primitive barbarians and a range of other racist descriptions) – were explicitly marginalised by legal dispensations put in place. They were subject to a range of policies labelled as amalgamation, assimilation, adaptation or integration, with a view to ‘civilising’ those who did not perish during the drastic population decline that followed the arrival of European settlers.

When almost all the colonies, protectorates, protected states and other polities within that Empire became independent states in the United Nations during the decolonisation era after World War II,Footnote ¹ the colonised peoples of British North America within what is now Canada, of New Holland in what is now known as Australia, and of New Zealand found themselves a small minority within constitutional monarchies and an electoral system based on a democratic franchise of one person, one vote. During the latter part of the twentieth century, however, an increasingly vocal and persistent number of movements and protest actions by indigenous peoples, with support from elements of civil society in the majority population, forced state institutions to search for ways and means to attend to their calls for justice and redress. One of the responses in each of the three legal systems was the development by the judicial branch of government of a doctrine usually known as aboriginal title.Footnote ² In the enunciation of this doctrine by judges and scholars, a good deal of attention has been devoted to the notion of the radical title of the Crown to all lands.

A reasonably coherent account of legal history on this topic might seem possible, and even plausible, if one focused on the development of the Common law in just one of the three legal systems. The value of comparative analysis and historical contextualisation in this instance is that the semblance of coherence and clarity tends to evaporate when one investigates judicial pronouncements on this Anglo-Norman doctrine as a substratum element of aboriginal title rights in the three settler-dominated jurisdictions, and in the advice proffered to the sovereign by the Judicial Committee of the Privy Council in a small number of much cited decisions, including especially two appeals from African territories. This essay notes, in particular, the divergent judicial responses to the status and relevance of pre-colonial indigenous norms and values when evaluating aboriginal title claims. These range from outright rejection of their relevance based on ‘waste lands’ or terra nullius conceptions, to limited acceptance of usufructuary and possessory rights, to a broader acceptance more recently that aboriginal title must be understood in the light of prior and present indigenous understandings.

I begin with quotations from relatively recent appellate court judgments in each of the three jurisdictions. The first is from the decision of a full bench of the New Zealand Court of Appeal in litigation asserting Maori customary rights over foreshore and seabed lands in the Marlborough Sounds.Footnote ³ In her leading judgment Elias CJ wrote:

In 2014, many decades of expensive litigation by large numbers of indigenous plaintiffs on aboriginal title issues, going back to 1983,Footnote ⁵ finally culminated in the first declaration of aboriginal title by the Supreme Court of Canada in respect of land that had never been ceded nor been the subject of a historic treaty with the Crown. The declaration in favour of the Tsilhqot’in Nation covered a 1,900 square kilometre area of British Columbia. In her judgment for the entire court McLachlin CJ made these observations on radical title:

This signal victory for the Tsilhqot’in Nation still leaves a good deal of scope for ambiguity or ambivalence about the nature of radical title. As Ryan Beaton has written, Canadian judicial doctrine ‘has long been torn between a nation-with-nation vision and a vision of perfected Crown sovereignty’. If recognition of prior occupation and pre-existing systems of indigenous law truly are burdens on underlying Crown title, then how is it that the Crown, unilaterally it seems, may invoke ‘the right to encroach on Aboriginal title if the government can justify this in the broader public interest’ as stated by the Chief Justice?Footnote ⁷

The doctrine of radical title also played a large part in the reasoning of judges of the High Court of Australia when prior decisions declaring that aboriginal title was not part of Australian Common law were overruled. The most frequently cited statement is from the judgment of Brennan J (with which Mason CJ and McHugh J agreed):

One might conclude from reading the above quotations that the radical title of the Crown and the feudal doctrine of tenures have happily accommodated recognition of indigenous peoples’ aboriginal title rights in all three Commonwealth realms. There might be some variance as between recognition of usufructuary and possessory rights only, or a fuller recognition of native title rights, but those rights are not only cognisable but also justiciable and enforceable in ordinary courts. Nevertheless, it was not always thus, and comparative legal history tells a more complicated tale.

The starting point, indeed, is not legal history at all, but legal fiction. Brendan Edgeworth correctly observed that the radical title of the Crown and feudal tenure systems did not appear overnight following the Norman Conquest in 1066 and the replacement of English landholders with Norman feudal lords. Some centuries elapsed before ‘the role of the Crown in the ownership of land came to be reconceived in much more expansive terms. Not only did leading feudal overlords owe their titles to grants from the monarch, but all landowners, including tenants lower down the pyramid, were now presumed to have received their titles from grants subsequent upon those original grants’, though ‘this pattern of creation of titles never occurred as historical fact’.Footnote ⁹ Edgeworth notes that while English legal historians have no doubt that ‘this “wholly mythic”, doctrinal revisionism took place’, they do not pinpoint with precision when this modern dogma emerged.Footnote ¹⁰ Edgeworth also points to Brennan J’s Mabo (No. 2) judgment in crediting William Blackstone’s Commentaries as the first attempt to try to understand this ‘modern’ fiction.Footnote ¹¹ Blackstone, despite his Tory connections, was not one who would want to emphasise the Norman yoke in eighteenth-century England. In that era of Whig hegemony Sir Edward Coke’s equally fictitious ‘ancient constitution’, based on documents falsely attributed to the saintly Anglo-Saxon King Edward, still held sway as being basic to English liberties.Footnote ¹² Blackstone made clear his adherence to the supposedly ancient constitution when describing the radical title of the Crown. For him,

Invented fiction may be all well and good to account for the evolution of English land law on radical title and on tenures during a number of centuries of feudalism in the medieval period. The magisterial contributions of J. G. A. Pocock have identified some twists and turns as Tudor forms of late feudalism transitioned into the Common law patterns of reasoning that have prevailed since the seventeenth century.Footnote ¹⁴ But a feudal form of political economy as such was not part of the baggage transported when England, and later the United Kingdom, began to assert sovereignty over plantations and colonies in overseas continents and islands where there were long established indigenous populations . Mercantilist capitalism, not feudalism, prevailed in the early years of imperial expansion. Laissez-faire capitalism had taken centre stage by the time cartographers tinted a quarter of the world’s map in British imperial pink. Triumphalist rhetoric waxed lyrical about the extent and strength of this empire: ‘On her dominions the sun never sets; before his evening rays leave the spires of Quebec, his morning beams have shone three hours on Port Jackson, and while sinking from the waters of Lake Superior, his eye opens upon the Mouth of the Ganges.’Footnote ¹⁵ Yet, as Maya Jasanoff observed, ‘the imperial map was little more than a rose-tinted fiction. It lied time and again. The uniform coloring falsely implied similarities across radically different kinds of domains.’Footnote ¹⁶ Further to that insight, in this chapter it will be argued that, even as between somewhat similar European settler domains, the doctrine of tenures evolved in radically different ways when judges were called on to assess what (if any) rights or title to land might have been retained by the indigenes after proclamations of British sovereignty.

The application by colonial judges and Privy Counsellors of another passage from Blackstone is an especially important context for understanding the diverging pathways in Australia, Canada and New Zealand. In Commentaries, Book I, Blackstone opined:

Unsurprisingly, none of the judgments quoted above and delivered in Mabo (No. 2) in 1992, Ngati Apa in 2003 and Tsilhqot’in in 2014 embraced Blackstone’s notion that a territory might be lawfully occupied by British settlers if they found it desert and uncultivated so that it could be deemed to be ‘an uninhabited country’ in which all English laws, including of course the radical title of the Crown to all land, were immediately there in force. Quite rightly, from the retrospective comfort of contemporary points of view, judges in those cases have rejected the racism and enthnocentrism undergirding European imperialist thinking in the past that justified the acquisition of territories without even the pretence of obtaining consent from those upon whom colonial rule was imposed. It was not so, however, for many of their judicial forebears.

In considering Blackstone’s formulae, it is not at all surprising that inconsistent policies were adopted by decision-makers at the point when British sovereignty was proclaimed, and later by judges scrutinising the basis for those assertions of sovereignty. Did English law (including radical title) automatically apply in new colonies as the birthright of British subjects – regardless, incidentally, of whether they hailed from England, Wales, Scotland, Ireland or other jurisdictions within the United Kingdom? Were the plantations of North America, and the later colonies in Australia and New Zealand, properly claimed by occupancy, by conquest or by treaty? That is not a question for which clear answers are available even to this day. When Blackstone wrote of an ‘uninhabited country’, did that mean a stretch of territory totally devoid of any human persons? Or rather, was the focus of British policy-makers’ attention on whether the inhabitants whom British sailors had ‘discovered’ were capable of owning property – for which the test would be Lockean notions of cultivation and labour as the basis for private property rights, and without regard to indigenous conceptions of connections to land and country?

Of the three jurisdictions considered in this essay, the Canadian portion of British North America has the most complicated history of intrusions into indigenous territories by Europeans who claimed to have ‘discovered’ them. There, various indigenous nations controlled military forces, some of whom were allies (and some enemies) of Great Britain in wars against France and later against rebels in the thirteen colonies that became the United States of America. These nations engaged in trade for some centuries with both British and French interests and concluded a great variety of treaty and wampum covenant transactions with Europeans. Beyond the eastern seaboard, there were prairies and mountains where the Hudson Bay Company traded for a long time before gold seekers and settler migrants arrived in the nineteenth century to disperse and displace indigenous populations. Brian Slattery has identified the complexities of the legal instruments by which New France was incorporated into British North America following the Treaty of Paris in 1763.Footnote ¹⁸ For Paul McHugh the outcome by the nineteenth century was clear. The status of indigenous peoples had been ‘moved from ally to subjects of the Crown’.Footnote ¹⁹ By the 1820s, ‘their forms of political organization and representation were denied juridical standing before the courts of Upper Canada. Their relations with the Crown were rendered “political” in the sense of being non-justiciable or unrecognizable in the colonial courts except through the protective agency of the Governor’.Footnote ²⁰ When considering the radical title of the Crown and any aboriginal titles or rights that may have survived treaties, conquests and occupation policies, the complexities and the different histories in what are now the provinces of federal Canada were usually disregarded in favour of a primary focus on the Royal Proclamation 1763.Footnote ²¹ That was certainly the reasoning in the leading case from Canada that was appealed to the Privy Council in 1888: St Catherine’s Milling and Lumber Co. v. The Queen.Footnote ²² The Proclamation dealt with a number of issues following the British defeat of French forces, subsequent capitulations and a treaty. Relevant to this paper is this recognition of indigenous interests:

The Proclamation affirmed and extended the policy of Crown pre-emption. The Crown held a monopoly right to purchase lands from the Indian nations or tribes and to extinguish native title in the land ceded. Any land occupied by settlers prior to a Crown purchase remained lands reserved to the Indians, and settlers were bidden forthwith to remove themselves from such settlements.

Delivering the advice of the Privy Council in the St Catherine’s litigation between the government of Canada and the government of Ontario province (from which the indigenous Salteaux nation, a party to the relevant Treaty No. 3, was entirely excluded), Lord Watson concluded that the Royal Proclamation 1763 was the primary instrument to identify whatever indigenous interests there might have been in the land in dispute between Ontario and Canada. Addressing the character of the interests that ‘Indian inhabitants had in the lands surrendered’ by a treaty, Lord Watson wrote:

Some Canadian scholars detect in that reasoning support for the modern doctrine of aboriginal title – cognisable and enforceable in the courts – that has been developed by Canadian judges since Calder in 1973 leading to Tsilhqot’in in 2014. Disagreeing with McHugh for views that are said to be ‘neither good history nor good law’,Footnote ²⁵ they assert that the post-Calder jurisprudence ‘reassessment’ of St Catherine’s does not amount to ‘a revision of the law’ laid down in that case, but rather that modern case law is ‘based on a better understanding of Indigenous societies, their relationship with land, and their cultures, including their legal orders’.Footnote ²⁶ St Catherine’s is accepted as an important precedent but criticised as a flawed precedent owing to factual findings that were ‘riddled with prejudicial assumptions about the Salteaux that must have led the Privy Council to conclude that they were too primitive to have laws of their own or any land rights that had not been conferred on them by the Crown’.Footnote ²⁷

In my reading of Lord Watson’s advice to Her Majesty, I would note the finding that Salteaux interests in Treaty 3 lands, as recognised by the 1763 Proclamation, were possessory only, were usufructuary only and were protected (if at all) only by ‘the goodwill of the Sovereign’ – not by judgments of the sovereign’s courts. I have long argued that what is indeed ‘good law’ for the late twentieth and early twenty-first centuries has emerged from ‘revisionist legal history’. Even if judges persistently disavow being revisionists – long a feature of Common law reasoning – that does not mean legal scholars should disregard the actual historical context of bygone precedents.Footnote ²⁸ Judges in 1888 did indeed conclude that indigenous peoples in Canada were too primitive to have laws of their own – as the notion of ‘law’ was then understood by those judges. That did not mean that indigenous interests were entirely irrelevant to the colonisers’ law. It did mean, however, that in the colonisers’ law indigenous interests were not recognised as ‘ownership’ interests; all land was vested in the Crown as an estate ‘underlying the Indian title’, and vindication of those interests depended on the ‘goodwill’ (or otherwise) of the political branches of government, not the judicial branch of government.

There was a rather simpler legal history on the application of radical title in Australia. First named New Holland by Europeans who thought of themselves as ‘discoverers’, the Commonwealth of Australia now covers a continent that has been inhabited by numerous diverse indigenous peoples for many tens of thousands of years. Was that continent uninhabited, desert and uncultivated in 1788 – when a British penal settlement known as New South Wales was established on the continent’s east coast, under a military dispensation that bore but a faint resemblance to ordinary English law?Footnote ²⁹ Or in 1828 – when an imperial statute formally applied ‘all Laws and Statutes in force within the realm of England’ to the colonies of New South Wales and Van Diemen’s Land (now Tasmania)?Footnote ³⁰ The answer of Australian and Privy Council judges prior to 1992 was clear. The continent was indeed ‘uninhabited’ in law.

The most important pre-Mabo (No. 2) case in Australia on radical title was the 1847 New South Wales Supreme Court decision Attorney-General (NSW) v. Brown.Footnote ³¹ This was a dispute between the Crown and the lessee of land who mined for coal despite an explicit reservation in the Crown grant that rights to mine gold, silver and coal were retained by the Crown. The defendant challenged the Crown’s title to the land. That defence was peremptorily dismissed. According to Stephen CJ ‘the waste lands of this Colony are, and ever have been, from the time of first settlement in 1788, in the Crown; that they are, and ever have been, from that date (in point of legal intendment), without office found, in the Sovereign’s possession’. He went on to aver that ‘At the moment of its settlement the colonists brought the common law of England with them.’ Waste lands of the Crown was a term that ‘meant all the waste and unoccupied lands of the colony; for, at any rate, there is no other proprietor’. Furthermore, even though the radical title of the Crown was a fiction in English law, ‘in a newly-discovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction. … Here is a property, depending for its support on no feudal notions or principle.’Footnote ³²

The invisibility and irrelevance of indigenous peoples in actual possession of large tracts of the continent within the boundaries of New South Wales could hardly be more striking to modern eyes, but the law laid down was abundantly clear. Similarly, the Privy Council in 1889 had no difficulty in identifying the law applicable to land rights in New South Wales. In Cooper v. Stuart, the self-same Lord Watson, who had delivered the Privy Council decision in St Catherine’s the previous year, had this to say about New South Wales:

In support of this proposition, Lord Watson quoted the famous passage from Blackstone’s Commentaries, Book I, that I quoted above. He then addressed what the relevant land law might be:

Even as late as 1971, in a test case seeking recognition of aboriginal title to land on the Gove Peninsula in the Northern Territory of Australia, Blackburn J in a lengthy judgment refused to shift from the orthodoxy of those precedents. He affirmed the view that ‘the Crown is the source of title to all land’, that all land is held mediately or immediately of the Crown and that on the foundation of New South Wales ‘every square inch of territory in the colony became the property of the Crown’.Footnote ³⁵ The Gove Peninsula, incidentally, is some 2,889 kilometres from Sydney. There are a large number of square inches between the location where a small penal colony was established at Botany Bay and Port Jackson in 1788 and the territory of the Yolngu people, who have occupied the Gove region for at least 60,000 years. This seems a very long stretch for a doctrine that, so it was said, ‘is no fiction’.

Moving some 2,155 kilometres from Sydney in a different direction – across the Tasman Sea to New Zealand – legal history on the radical title of the Crown has followed a very different trajectory to that of either Canada or Australia. In Canada, there were multitudes of alliances, treaties and other legal transactions between indigenous peoples and the Crown in northern America prior to confederation pursuant to the British North America Act 1867. Then, post-confederation in western Canada, there were eleven ‘numbered treaties’ entered into between 1871 and 1921. All these treaties are important to the narratives on radical title and extinguishment of indigenous rights. In Australia, on the other hand, there were no authorised treaties at all between the Crown and the continent’s prior inhabitants. There was an 1835 unratified document, often called Batman’s Treaty, purporting to purchase a large tract of land from the Aboriginal people in the area that is now Melbourne. The story of that one and only Australian attempt to treat formally with the indigenous peoples prior to being dispossessed of their lands has been told well by Bain Attwood.Footnote ³⁶

In New Zealand, however, just one treaty signed at the outset of colonial rule in 1840 continues to define Maori–Crown relations.Footnote ³⁷ In New Zealand’s flexible and evolving Westminster-style constitutional arrangements, the Treaty of Waitangi is described now in the Cabinet Manual 2017 as ‘a founding document of government in New Zealand’.Footnote ³⁸ There have been disputes as to the congruence of the Maori text, signed by a large proportion of Maori tribal leaders throughout the New Zealand islands in 1840, with an English text of the treaty. Both texts, though, are embedded in the schedule to the Treaty of Waitangi Act 1975, which created the Waitangi Tribunal to inquire into and report on issues between Maori and the Crown.

There has been significant debate also about whether or not the Treaty’s provisions align with whatever protection a colonial court may have provided under what is now known as the Common law doctrine of aboriginal title.Footnote ³⁹ In my view, Ned Fletcher is right to argue that policies based on the Treaty initially guaranteed a good deal more protection to Maori interests than any American or colonial common-law court would have permitted:

That high level of protection for Maori interests, and the broad recognition of Maori property rights in all land, was anathema to the New Zealand Company – a private company seeking to bring settlers to New Zealand. The Company had friends in high places in Westminster. In 1844, a House of Commons select committee resolved that the conclusion of the Treaty of Waitangi ‘was a part of a series of injudicious proceedings’ and the recognition of Maori property in ‘wild lands’ was ‘an error which has been productive of very injurious consequences’.Footnote ⁴¹ In support of their view that native title rights should be narrowed as much as possible so as to enable rapid emigration of settlers to the new colony, Company advocates – including Henry Chapman, the proprietor-editor of the New Zealand Journal (a newspaper subsidised by the Company) – called in aid the jurisprudence of Marshall CJ in a famous trilogy of cases from 1823 to 1832 on federal Indian lawFootnote ⁴² and in Kent’s Commentaries.Footnote ⁴³ Company supporters argued for a ‘fundamental principle of colonial law’ that native rights should be admitted only when based on actual current occupation of small areas of land.Footnote ⁴⁴ Opposing that view, and defending his Tory government’s much more generous interpretation of the Treaty of Waitangi, a member of the Commons in 1845 declaimed:

Not long after that debate, however, the Tory government lost a vote of no confidence and a new Whig ministry replaced it. Viscount Howick, who had chaired the 1844 select committee in the Commons, but was now the third Earl Grey, sitting in the Lords, became the Secretary of State for War and the Colonies in the Whig administration.Footnote ⁴⁶ With that change of government in the United Kingdom, and also a change of governor in the colony, by 1847 the scene was set to bring a test case in the New Zealand Supreme Court. The new governor issued a Crown grant over land to one of his own officials who had no personal nor pecuniary interest in that land. This collusive piece of litigation was designed to obtain findings from the Supreme Court to reaffirm Crown pre-emption in dealing with Maori land (waived for a period by the previous governor). The governor sought rulings that the radical title to all land was vested in the Crown and only by Crown grants could settlers obtain a lawful title to land. In reaching this conclusion the Court was not called on to inquire exactly how (and with what justice) Maori customary interests had been extinguished prior to the Crown grant.

By now, Henry Chapman was a judge on the New Zealand Supreme Court bench. In the case concerning this grant, R v. Symonds, he and Martin CJ duly cited and relied upon the Marshall CJ decisions. Those American precedents, they held, laid down the settled law applicable in colonies such as New Zealand. The Treaty of Waitangi was now realigned to conform to them. According to Chapman J, in ‘solemnly guaranteeing the Native title’ and ‘the Queen’s pre-emptive right’, the Treaty of Waitangi ‘does not assert either in doctrine or in practice any thing new and unsettled’.Footnote ⁴⁷ The reasoning in Symonds relied heavily on Johnson v. M’Intosh and quoted with approval Kent’s summary of the decision that ‘on the discovery of this continent by the nations of Europe, the discovery was considered to have given to the government by whose subjects or authority it was made, a title to the country, and the sole right of acquiring the soil from the natives’.Footnote ⁴⁸ It should be noted, too, that Chapman J did not apply to New Zealand Marshall CJ’s later recognition in Cherokee v. Georgia that the indigenous communities in that state should be recognised as being ‘domestic dependent nations’.Footnote ⁴⁹

Colonial government policy in New Zealand, following Symonds, ruled out the possibility that Maori customary law would govern land transactions between Maori and Europeans. It was local statute law – not American law nor Common law nor iure gentium – that assessed the validity of land transactions, known as ‘old land claims’, entered into prior to 1840. A Land Claims Act 1840 was passed by the legislature of New South Wales (when New Zealand was a dependency of that colony) and was reenacted as the Land Claims Ordinance 1841 after New Zealand was erected as a separate colony.Footnote ⁵⁰ This legislation assessed old land claims not by reference to Maori customary law, nor by assessing the intentions of Maori in entering into pre-Treaty land transactions, but rather by the amount paid to Maori in any purported purchase. A schedule to these statutes sets out a scale: 6 pence per acre would suffice to justify any transactions prior to the end of 1824; 8 pence per acre from 1824 to 1829; and so on, rising to between 4 and 8 shillings per acre in 1839.Footnote ⁵¹ In all cases, however, the commissioners appointed to inquire into old land claims could not make an award in excess of 2,560 acres. One who refused to accept this law was James Busby, who had served as British Resident from 1835 until the Treaty of Waitangi. He challenged the validity of the Land Claims Ordinance 1841, which treated his pre-Treaty of Waitangi land purchases as ‘null and void’. For two decades he continued to maintain his claim to hold large areas of land under ‘native title’ as conferred on him by Maori. All his efforts came to nought in 1859.Footnote ⁵² Then, from 1862, the Native Land Court became the instrument for extinguishing customary title. Under its statute-bestowed jurisdiction, this court devised its own understandings of Maori customs and usages so as to extinguish them as rapidly as possible, and thus free up Maori land for the government to make it available for incoming settlers.Footnote ⁵³

Hence it was statute law – not the Common law and not the Treaty of Waitangi – that determined and governed Maori–Crown relationships. The statutory definition of ‘customary land’ was ‘land vested in the Crown and held by Natives under the customs and usages of the Maori people’.Footnote ⁵⁴ An explanatory memorandum for the Bill that became the Native Land Act 1909 explained the crucial role of Crown radical title, as understood in New Zealand law, in explicitly denying court enforceable rights to Maori (until Ngati Apa in 2003):

And yet there is a significant body of scholarship that has looked to legal history in order to bolster the claims of the modern Common law doctrine of aboriginal title as a coherent corpus of jurisprudence applicable to Canada, Australia and New Zealand alike where indigenous rights are enforceable in the ordinary courts and the source of those rights lie (or should lie) in indigenous law conceptions. This has been described by Mark Hickford as ‘a golden thread of reasoning about native title independently actionable at Common law in the courts’.Footnote ⁵⁶ Three Privy Council cases in particular are regularly cited in support of these claims: Nireaha Tamaki v Baker (1901);Footnote ⁵⁷ In re Southern Rhodesia (1919);Footnote ⁵⁸ and Amodu Tijani v Secretary, Southern Nigeria (1921).Footnote ⁵⁹ The Canadian scholar Kent McNeil cites all three cases for the proposition that they ‘make clear that Indigenous laws, when revealed by evidence, can give rise to legal land rights enforceable in common law courts’.Footnote ⁶⁰ The Australian scholar Ulla Secher cites all three cases for a proposition ‘contrary to the conventional view’ that ‘the Crown does not have a present proprietary interest underlying Aboriginal title’ and furthermore that St Catherine’s is not authority for the view ‘that the Crown’s radical title is necessarily a full proprietary estate underlying any pre-existing title which is recognised by the common law’.Footnote ⁶¹ Whilst respecting the passion of these authors to advance indigenous peoples’ rights, I submit that the facts of each case, the actual outcome following each decision, and the surrounding historical context of each case point to untidiness, ambiguity and a distinct lack of coherence in the Common law. Edward Cavanagh, on the other hand, is closer to historical veracity when he suggests that ‘the jurisprudence of the highest imperial court of appeal at the time’ led to decisions that ‘often hung on the ad hoc response … to a particular colonial political crisis. In this court, history and precedent alike never served, but were instead made subservient to a pragmatic ambition to bolster the constitution of the Empire Commonwealth.’Footnote ⁶²

The Tamaki litigation in New Zealand began with a number of orders of the Native Land Court in 1871 individualising the customary title of members of the Rangitane tribe.Footnote ⁶³ Much of the land was immediately sold to the Crown and was proclaimed Crown land, but survey requirements of the Native Land Acts were not fully complied with. In 1893 the Crown offered the sold lands for on-sale to European settlers. Nireaha Tamaki, and other non-sellers awarded title in an adjacent block, then seized on the surveying irregularity to claim that their customary title had not in fact been extinguished by the 1871 court orders. Richmond J delivered the brief judgment of the Court of Appeal in 1894:

An appeal was eventually heard by the Privy Council in 1901. The Judicial Committee humbly advised His Majesty that the appeal should be allowed. After quoting in full the English text of the Treaty of Waitangi and many statutes beginning with the Land Claims Ordinance 1841, Lord Davey was of the opinion that ‘if the appellant can succeed in proving that he and the members of his tribe are in possession and occupation of the lands in dispute under a native title which has not been lawfully extinguished, he can maintain this action to restrain an unauthorised invasion of his title’.Footnote ⁶⁵ Too much weight has been accorded by adherents of ‘a golden thread of reasoning’ to this successful appeal by a Maori plaintiff to the Privy Council. The actual outcome of the case was a settlement payment to Tamaki of £4,566 minus court costs and his agreement to the extinguishment by legislation of native title to the disputed land.Footnote ⁶⁶

As to the 1877 Parata precedent, their Lordships opined that dicta in that case, especially in relation to the interpretation of the Native Rights Act 1865, ‘went beyond what was necessary for the decision’ and were plainly wrong. Native title was indeed cognisable and had been recognised in statutes. Nevertheless, their Lordships saw ‘no reason to doubt the correctness of the conclusion arrived at’ by Richmond J and Prendergast CJ in refusing to annul a Crown grant that implied native title had been extinguished.Footnote ⁶⁷ The colonial judiciary in a number of subsequent cases applied the Parata precedent so that customary title could not be enforced in the ordinary courts.Footnote ⁶⁸ Maori would have their rights recognised in court but if, and only if, they could point to a statutory basis for their claims.Footnote ⁶⁹

Secher’s criticisms of Parata, and of decisions that followed it, are in some respects seriously misconceived. For a start, she misunderstands a quotation from the Parata judgment as being a statement that New Zealand was acquired as a colony by cession.Footnote ⁷⁰ On the contrary, the judges concluded that Maori were ‘primitive barbarians’ who lacked the capacity to enter into a treaty so that the Treaty of Waitangi was ‘a simple nullity’.Footnote ⁷¹ Secondly, she asserts that there was a ‘marked contrast’ between the Symonds reasoning and that in Parata.Footnote ⁷² I would argue that, in all essential aspects of the actual decisions, Symonds and Parata are closely aligned, including, as expressed in Parata, that there is a duty on the sovereign ‘as supreme protector of aborigines, of securing them against any infringements of their right of occupancy’.Footnote ⁷³ Thirdly, Secher states that the Privy Council in Tamaki ‘effectively overruled the decision’ in Parata.Footnote ⁷⁴ As noted above, the Privy Council did not doubt the correctness of the Parata decision, and it was followed on numerous occasions after 1901.Footnote ⁷⁵

It is likewise odd that the Southern Rhodesia case is invoked in support of a court enforceable doctrine of Common law aboriginal title rights.Footnote ⁷⁶ In that case, legal arguments submitted by the Anti-Slavery and Aborigines’ Protection Society asked the Judicial Committee to uphold the land rights of the native population rather than focus on the dispute between the British South Africa Company and the settlers’ Legislative Council concerning ‘unalienated lands’.Footnote ⁷⁷ In his rejection of these submissions, Lord Sumner pronounced:

The crucial historical context for this decision was the pragmatic consideration that Southern Rhodesia was destined in the minds of Britain’s rulers to be a territory dominated by European settlers and any extensive recognition of native title rights would be most inconvenient.

Southern Nigeria provided a very different historical context. This was a region where there was a large African population and a very high death rate for European residents from ‘blackwater fever’ (malaria) and other diseases. Tropical Africa did not attract European settlers who might one day claim the right to responsible self-government as was envisaged in Rhodesia. A tiny number of European colonial officials were called on to exercise political domination in tropical Africa colonies. The solution they arrived at to deal with what Mahmood Mamdani names as the ‘native problem’ in such colonies and protectorates was to institute a system of administration known as indirect rule.Footnote ⁷⁹ The leading proponent of indirect rule was Sir Frederick Lugard (later Baron Lugard of Abinger), who spent a good deal of his career in Nigeria and later wrote up his ideas in The Dual Mandate in British Tropical Africa.Footnote ⁸⁰ Under this policy, external, military and tax control was operated by the British, while most aspects of life were left to local traditional chiefs and their courts.

One such chief in 1921 was Amodu Tijani, Chief Oluwa of Lagos. He most certainly did win a case appealed to the Privy Council. It held that he was entitled to full compensation for land taken for public purposes on the footing that he had exercised full ownership rights in the land. In reaching that result, Viscount Haldane LC made an observation that was cited with warm approval in Mabo (No. 2) and Ngati Apa:

That the Tijani case is now considered so authoritative ought not to lead one to the conclusion that there was a coherent body of Common law to be found in Privy Council case law. On the contrary, as their Lordships themselves stressed, ‘abstract principles’ should be avoided in favour of inquiring into ‘the history of the particular community’. The Privy Council was willing to assess for itself (without much or any evidence, and on a case by case basis) whether indigenous peoples held legal conceptions that were ‘hardly less precise’ than English property law concepts, or if they were on lower rungs in the scales of civilisation.

I conclude, therefore, as I suggested at the outset, that coherence and clarity cannot be found in a legal history of the doctrine of aboriginal title. Radical title seems to be a creature akin to a chimera, composed of a variety of disparate parts. In Privy Council cases such as St Catherine’s, Cooper, Tamaki, Southern Rhodesia and Tijani, it was policy and pragmatism deemed appropriate for the time, place and historical context of each case that tended to triumph, rather than principled Common law reasoning.