Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand

“It is inconceivable, I think,” asserted Prime Minister Pierre Trudeau in 1969, “that in a given society, one section of the society have a treaty with the other section of the society. We must be all equal under the laws and we must not sign treaties amongst ourselves.” Further, “We can’t recognize aboriginal rights because no society can be built on historical ‘might have beens’.” 

Trudeau’s language was not idiosyncratic. Assimilation had been the goal of Indian policy from Confederation onwards. Accordingly, the 1969 White Paper – the context for his remarks – was not a departure from past policy but, rather, a hoped-for acceleration of the process of achieving it. Trudeau would not have been welcome at the 2003 conference from which this volume emerged. He is mentioned only once, in passing, so much has the intellectual and moral climate changed in the past forty years. 

Of the ten chapters in this book, an introduction, and a conclusion, six are written by lawyers, three by historians, two by anthropologists, and one by a professor of Greek and Roman studies. The leading role of the legal academics in this policy area, evident in the last three to four decades, albeit now ceding some of their former hegemony, is manifest in the citing of more than one hundred cases and over eighty statutes, treaties, and agreements, separately listed in two indices. The country focus is Canada, Australia, and New Zealand. Two contributors have indigenous backgrounds – Paul Chartrand and Jacinta Ruru. 

The authors bring their separate disciplinary skills and backgrounds to analyze a work in progress, focusing on the goal of recognition of Aboriginal title. The book’s objective is to analyze the history of Aboriginal/non-Aboriginal relations from the pre-contact era to the present, significantly but not exclusively through the prism of government policies and indigenous resistance. The chapters are driven by empathy with indigenous peoples and sympathy for their cause of obtaining recognition of Aboriginal title. Or, as Peter Hutchins observes, citing Michael Ignatieff, responding to an indigenous “longing to live in a fair world.” Clearly, there is an international climate of opinion supportive of some version of decolonization that the authors have imbibed. 

The book is a major contribution to the widespread controversies over how the contemporary state and minority peoples/nations within it can come to an enduring rapprochement. We now know that it was much easier for European empires to end external colonialism for hundreds of millions of colonized peoples around the world than for democracies to end internal colonialism for, in most cases, relatively small populations. 

From this comparative perspective, it could be argued that the major contribution of this volume would have been enhanced if, when the issue is the recognition of Aboriginal title, the authors had devoted some space to the contemporary rationales of the democratic state on the other side of the bargaining table. While we should be thankful for what this volume addresses, it is helpful to be reminded that why the state acts as it does is also a researchable question. 

The indigenous resurgence challenges the idea of citizen-state relations, which lies at the heart of contemporary liberal democracies. The contemporary democratic state, as Rogers H. Smith, Charles Taylor, and many others have pointed out, is in the business of making citizens. The state naturally prefers a high degree of uniformity and homogeneity among the peoples within its jurisdiction. This was a key rationale for the historic policy of assimilation. The goal of an encompassing citizenship is a natural objective of the state. Citizenship, however, unfortunately gets little attention in this volume. It is not cited in the indices. Only Paul Chartrand devotes serious attention to it. This relative absence is regrettable, for it excludes discussion of why the liberal democratic state behaves as it does. This book, therefore, shares with many others a lack of concern for the perspective and interests of the states within which indigenous peoples live. 

The organizers of the original conference and the editors of this volume are to be congratulated for their recurrent advocacy of an interdisciplinary approach, pleas for which abound. Further, this approach is practised, at least in the minimal sense that chapters from different disciplines inhabit the same book. In fact, however, there is an only partly concealed debate taking place between contributors with different disciplinary backgrounds. Several non-legal contributors decry what they see as a too great emphasis on courts and legal decisions. The anthropologist Nicolas Peterson argues that excessive dependence on legal analysis avoids the question of what happens after the court has pronounced, Aboriginal title has been recognized, and perhaps access to increased resources has been attained. He categorically asserts: “Any sophisticated social analysis is completely lacking with the focus solely on power and legal relations, to the neglect of the economic and cultural.” He critically observes that much academic writing on self-determination is “thinly disguised advocacy” or “abstract legal or political theorizing that is unrealistic” about its potential benefits. And, in his keynote address to the conference, Peter Hutchins gives “a call to arms against the disciplinary silos that have been in construction for over fifty years.” 

While such pleas are appealing, the reality is that the fragmentation that interdisciplinarity is supposed to overcome is becoming more pronounced. The dramatic growth of the urban Aboriginal population attracts hitherto absent disciplines to the study of employment, social mobility, postsecondary education, race relations, crime, street gangs, and so on. Although there is obviously some overlap, the reality in Canada is that the reserve and the urban setting attract different disciplines, with the result that the possibility of interdisciplinarity is minimal. 

An analysis of the different composition of the disciplines that study Aboriginal issues in the three countries that are the focus of this volume would inform us how different Aboriginal realities – urban versus rural, for example – influence the composition of the research community. 

None of my concerns undermines the fact that the editors and contributors have produced a volume that should be on the bookshelf of every serious scholar studying Aboriginal issues. 

Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand

Edited by Louis Knafla and Haijo Westra

Vancouver: UBC Press 2010. 267 pp. $32.95 paper