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Bankes, Nigel --- "Aboriginal Title to petroleum: Some comparative observations on the law of Canada, Australia, and the United States" [2004] NZYbkNZJur 9; (2004) 7 Yearbook of New Zealand Jurisprudence 111

Last Updated: 12 April 2015

Aboriginal Title to Petroleum:
Some Comparative Observations on the Law of
Canada, Australia, and the United States

Nigel Bankes*


This paper deals with the question of aboriginal title to petroleum and looks
at how the claims of indigenous peoples to title to petroleum have fared in
Canada, Australia and the United States.' The paper falls into seven parts.

The first and introductory part of the paper seeks to define the nature of the
petroleum resource while the second part provides a conceptual framework
for thinking about aboriginal title to petroleum. Borrowing from Professor

Faculty of Law, The University of Calgary, This paper is based on a presentation that I made to two seminars hosted by the School of Law at the University of Waikato and held in Hamilton and Wellington, New Zealand, October 2003. I am grateful to Professor Barry Barton and to the faculty at Waikato both for the invitation to speak at these seminars and for the hospitality shown to me during my visit. I would also like to thank Barry for helping me to identify relevant Australian materials.

The paper does not deal with rights to petroleum that may arise by way of treaty or by way of modem land claim agreement, or with the petroleum rights that may attach to reserves or reservations. All of the modem land claim agreements in Canada acknowledge an aboriginal entitlement to the ownership of some subsurface resources including mines and minerals and petroleum and natural gas. The more recent agreements also acknowledge that the First Nations or other aboriginal group may be able to exercise powers of self government with respect to their lands and resources. In addition, Indian reserves in Canada are generally acknowledged to include title to oil and gas deposits: see Richard Bartlett, Resource Development and Aboriginal Land Rights (Calgary: Canadian Institute of Resources Law, 1981); Nigel Bankes and Doug Rae, 'Recent Cases on the Calculation of Royalties on First Nations' Lands' (2000) 38 Alberta L Rev 258. In the US, reservations generally include the mineral title and regional corporations obtained mineral titles under the terms of the Alaska Native Claims Settlement Act, 43 USC 1601: James Linxwiler, `The Alaska Native Claims Settlement Act the First 20 Years' (1992) 38 Rocky Mountain Mineral Law Institute, Annual Proceedings 2-1 to 2-59. For overviews see Peter C. Maxfield et al, Natural Resources Law on American Indian Lands (Boulder, Colo: Rocky Mountain Mineral Law Foundation, 1977); Judith Royster and Michael Blumm, Native American Natural Resources Law: Cases and Materials (Durham: Carolina Academic Press, 2002). In Australia the general position under the Northern Territory settlement legislation (as well as through the application of the Native Title Act) is that aboriginal groups can negotiate agreements with mineral developers based upon their surface title to the lands. Michael W. Hunt, 'Native Title and Aboriginal Heritage Issues Affecting Oil and Gas Exploration and Production in Australia' (2001) 19 J Energy & Natural Resources L 364.

Kent McNeil's work,2 I suggest that there are two distinct approaches to thinking about the source, and therefore the content, of aboriginal title. One approach, the physical fact of prior possession approach, emphasises the fact of prior occupation by indigenous peoples and suggests that the content of title is determined by the protection that the common law typically affords those in possession. The second approach, the aboriginal land laws approach, emphasises that common law aboriginal title is based upon the common law's recognition of an aboriginal property system. On this approach, the content of aboriginal title is contingent, varies from community to community, and is dependent upon proof of the content and scope of those aboriginal laws.

The next and most substantial section of the paper comprises parts three to six which examine each of the three jurisdictions of Canada, Australia, and the United States in light of this conceptual framework and traces the implications of that framework for the question of aboriginal title to petroleum. The paper also discuss questions of extinguishment for each of the three jurisdictions. The broad conclusions are as follows. In Australia, the High Court, aided and abetted by the terms of the Native Title Act,3 has settled on the aboriginal land laws approach for determining the source and content of aboriginal title. As a result, when dealing with claims of aboriginal title to petroleum, Australian courts have demanded evidence that the Aboriginal community had developed laws and practices in relation to particular resources at the relevant time. To this point that evidence has been lacking. But even if the applicants are in a position to adduce that evidence, claims of aboriginal title to petroleum seem doomed to failure since the Australian courts have also indicated that an aboriginal title to petroleum would not have survived state and Commonwealth laws vesting title to petroleum resources in the Crown. Such laws were passed well before the Commonwealth Racial Discrimination Act (1975) which provided the basis for the judgments in Mabo.4 As a result, in Australia, petroleum resources are treated as public property held for the benefit of society at large.

  1. Kent McNeil, 'The Meaning of Aboriginal Title' in Michael Asch (ed) Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: UBC Press, 1997) (hereafter McNeil, Meaning); and, more generally, Kent McNeil, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon: Native Law Centre, 2001) (hereafter McNeil, Emerging Justice).

3 1993 (Cwlth) amended 1998.

  1. Mabo v Queensland (No .1) (1988) 166 CLR 186, Mabo v Queensland (No. 2) [1992] HCA 23; (1991-1992) 175 CLR 1. On the radically different traditions of Australia and the former North American colonies of the Crown in their dealings with indigenous peoples see Webber, 'The Jurisprudence of Regret: The Search for Standards of Justice in Mabo' [1995] SydLawRw 1; (1995) 17 Sydney L Rev 5.

By contrast, the physical fact of prior occupation approach has been dominant in the United States and, certainly in recent years, in Canada. The leading decision in Canada is that of the Canadian Supreme Court in Delgamuukw.5 In that case, Chief Justice Lamer, giving judgment for the majority of the Court, indicated that the courts should look at the fact of possession and the implications of a possessory title within the common law but should also consider the existence and content of aboriginal land laws as a way of establishing possession. However, the majority of the Delgamuukw Court seems to have been very impressed with the principle that the nature and quality of aboriginal title should be similar to the nature and quality of title to Indian reserves. Since the Court was of the view that the title to Indian reserves would ordinarily include minerals (including oil and gas), the Court concluded that an aboriginal title should include oil and gas rights. While these observations remain to be tested in concrete cases, if a plaintiff is able to establish a title to petroleum there is little risk that such a title will have been extinguished by relevant legislation. This is because no jurisdiction in Canada has passed Australian-style vesting legislation purporting to vest all petroleum rights in the state or in the Crown. The farthest that Canadian legislators have gone is to prohibit future alienations of Crown mineral titles (these provisions go back to the nineteenth century), and to create statutory presumptions to the effect that Crown grants should not be interpreted as having granted mines and minerals in the absence of express provisions to the contrary. Consequently, Canada is a mixed jurisdiction recognizing both public and private rights in relation to petroleum.

While the early treaties in Canada between the Crown and First Nations (the peace and friendship treaties) did not extinguish title, the later treaties (the numbered treaties) did contain extinguishment clauses. The prevailing view, yet to be tested in the courts, assumes that these extinguishment clauses applied to the mines and minerals estate as well as to the surface estate. Reserves created pursuant to treaties, or otherwise, generally include mines and minerals. Finally, the modem generation of land claim agreements also recognize aboriginal communities as owners of oil and gas resources within particular tracts of land.

In the United States, the Supreme Court's adoption of the physical fact of prior possession approach had led US courts to presume that the Indian interest in the soil includes a full range of resource entitlements (minerals, petroleum and forest resources). Consequently, US courts have not required

5 Delgamuukw v British Columbia [1997] 3 SCR 1010.

proof of aboriginal usage of petroleum and mineral resources and a body of tribal laws pertaining to those resources before recognizing an aboriginal title to them. That said, it must be acknowledged that these specific conclusions with respect to petroleum are largely based on inferences drawn from judicial treatment of the scope of title to reservations rather than clear cases on aboriginal title.

As in Canada, US legislators have not made laws vesting petroleum titles in the state thereby extinguishing private rights to petroleum. However, in the offshore, title to petroleum is vested in the government and the US courts have also held that no claims of aboriginal title, whether to petroleum or other resources, in both the US territorial sea and the outer continental shelf lands, can be maintained in light of the US federal paramountcy doctrine. Under that doctrine the courts have held that claims to property rights in these lands, whether maintained by the states or by aboriginal peoples, are inconsistent with the paramount powers of the United States over such matters as national defence, foreign affairs and world commerce. In at least one specific case, Alaska, Congress has also passed legislation, the Alaska Native Claims Settlement Act,6 (ANCSA) comprehensively extinguishing all aboriginal rights, titles and interests in Alaska (including petroleum).

The seventh and final part of the paper offers some brief conclusions.


I use the term 'petroleum' to include oil, bitumen and natural gas. These substances are the liquid and gaseous forms of chemically complex substances called hydrocarbons. Hydrocarbons are found in sedimentary rocks and are composed of the remains of organic material, marine plants and animals, transformed by pressure and heat into crude oil and natural gas. Hydrocarbons occur in the pore spaces between particles in the sedimentary rocks. Where the pore spaces are interconnected (i.e. the rocks are permeable), the petroleum and natural gas float upwards (being lighter than water) until trapped by a layer of impermeable rock. These natural traps form the basis for a reservoir or a pool. Such a pool may contain oil and natural gas or natural gas alone. When the pool is tapped by a well, oil and gas will enter the well bore. If the pressure is high, oil will flow to the

6 43 USC 1601.

  1. The account in this section is based on large measure on the trial judgment in Anderson v Amoco Canada Oil and Gas [1999] 3 WWR 255, aff d [2002] ABCA 162, [2003] 1 WWR 174 (Alta CA). The trial judge in turn acknowledges her debt to John S. Lowe, Oil and Gas in a Nutshell, 2nd ed (St. Paul: West Publishing 1988).

surface; if lower, additional pumping may be required. Within the pool, both liquid and gaseous hydrocarbons have some capacity to move around and will tend to migrate towards any wells which will constitute lower pressure spots. In some cases, hydrocarbons have been subjected to such temperatures and pressures that even under reservoir temperature and pressure conditions they resemble solids more than liquids or gases. These are the bituminous sands or tar sands which can only be extracted either by mining (after having stripped off the overburden) or by introducing heat (steam) into the reservoir (steam-assisted gravity drainage or SAGD).

Where hydrocarbons are not prevented from migrating by a natural trap they will eventually leak out onto the surface. In some cases, this will take the form of natural seeps. Consequently, there are some well-documented examples of indigenous peoples being aware of these hydrocarbon seeps, and putting them to use. In some cases these hydrocarbon showings may have spiritual significance to indigenous peoples.8

Theories of ownership of oil and natural gas need to recognize the capacity of hydrocarbons to migrate within the reservoir, but different jurisdictions have responded to this reality in different ways. Canadian courts subscribe to a variant of the rule of capture to explain ownership of petroleum and natural gas. Under this theory, first developed in Borys v Canadian Pacific Railway,9 it is possible for a person to obtain a certificate of title for a severed estate in petroleum and natural gas, or in just one of those substances, yet, at the same time, that owner has no absolute right to have those substances remain within that title unit. The petroleum title is said to

  1. Seepages seem to have been particularly common in parts of New Zealand and Maori use of petroleum substances is well documented: Waitangi Tribunal, The Petroleum Report, WAI 796, 2003 available <>. For examples of seepages in Canada see Northern Oil and Gas Directorate, Petroleum Exploration in Northern Canada: A Guide to Oil and Gas Exploration and Potential, 1995, available <> at 3 referring to Indian use of petroleum seepages along the Mackenzie River at Bosworth Creek, and Alexander Mackenzie in 1789 noting petroleum seepages along the Lower Ramparts of the same river. The record suggests that it was a Dene, Karkassee, who drew the attention of speculators to further seepages at Norman Wells which eventually led to a major commercial discovery at that site in 1920. Globally, seepages seem quite common, whether reflected in the 'bubblin' crude' of the Beverly Hillbillies (the Ballad of led Clampett) or in the post World War I negotiations that led to the creation of Iraq where, we are told by Margaret MacMillan, Paris 1919, Six Months that Changed the World (New York: Random House, 2003) at 395 that the British were anxious to establish control of the oil and gas resources that were evidenced by 'black sludge' seeping out of the ground around Baghdad and 'gas fires flared off swamps in Mosul'.
  2. [1953] AC 217 (PC Cda); Laycraft and Head, 'Theories of Ownership of Oil and Gas' (1953) 31 Can Bar Rev 382.

be subject to defeasance. The implication of this is that neighbour B who drains C's property (without actually trespassing on C's property) commits no wrong. While this rule of capture is the background property rule, oil and gas exploration and production is universally subject to regulation based upon ideas of oil and gas conservation that are designed both to minimize waste (by conserving reservoir energy), and to provide each owner with the opportunity to produce its share of production.10

The position under US law would be similar although there is considerable diversity of rules in the individual states." Commentators in Australia, while aware of the rule of capture, caution that there is no Australian decision adopting the rule of capture. Furthermore, aware that private rights to petroleum do not exist because of state and commonwealth vesting laws, they have suggested that Crown tenure holders are only authorized to produce the licensed substances under their lands.12

This brief account of the physical aspects of oil and gas will suffice for present purposes. Two features deserve emphasis. First, notwithstanding the fact that substantial accumulations of hydrocarbons are usually found hundreds or thousands of metres below the surface, and can only be fully exploited through the application of modern technology, there are instances of aboriginal use of these substances. Consequently, to the extent that a jurisdiction will only recognize an aboriginal title based upon aboriginal use of that resource in accordance with customary rules, further inquiries will need to be made to ascertain whether or not such a claim may be made out.

Second, common law theories of ownership of oil and gas resources have recognized that it is difficult to conceptualize the ownership of migratory resources, This is a problem that oil and gas resources share with other migratory resources, especially water and wildlife. Responses to the problem include claims to state ownership but also the rule of capture.

See, for example, Oil and Gas Conservation Act, RSA 2000, c. 0-5.

  1. A standard account is E Kuntz, A Treatise on the Law of Oil and Gas (Cincinnati: W H Anderson Pub Co, 1962) chap 2.
  1. Crommelin, 'The US Rule of Capture: Its Place in Australia' [1986] AMPLA Yb 264. Daintith, 'A Critical Evaluation of the Petroleum (Submerged Lands) Act as a Regulatory Regime' [2000] AMPLA Yb 91.


Questions about aboriginal title to petroleum are ultimately questions about the content of aboriginal title. But in order to answer questions about content we need to reflect upon the nature and source of aboriginal title.

In an influential paper on 'The Meaning of Aboriginal Title '13 prepared before the Supreme Court's decision in Delgamuukw," Professor Kent McNeil suggested that the Canadian case law vacillates between two different approaches as to the source of aboriginal title the physical fact of prior aboriginal occupation and aboriginal land laws. The first approach emphasises the fact of possession,15 while the second emphasises occupation of land in accordance with the land laws and customs of the aboriginal society concerned. What are the implications of these two approaches? On the first approach it would seem that aboriginal title takes its content and force from the common law rather than from the aboriginal customary law: i.e. the common law acknowledges that the aboriginal people concerned have rights flowing from their occupation of traditional lands. The second approach grounds title in the practices, customs, laws and traditions of the aboriginal societies, and the role of the common law is simply to accord recognition to those laws and practices.

The choice of approach has important implications for the content of aboriginal title. If we take the physical fact of prior aboriginal possession approach, we find the content of aboriginal title by looking to the doctrines of the common law, and, in particular, the law of adverse possession, to find what legal rights are accorded to persons in possession of land. On this

13 McNeil, Meaning, supra note 2.

  1. McNeil's comments on the Supreme Court's judgment (supra note 5) can be found in 'The Post-Delgamuukw Nature and Content of Aboriginal Title' in K. McNeil (ed) Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon: Native Law Centre, 2001) (hereafter McNeil, Nature and Content) at 102-135. His comments on the position of the Australian High Court, 'The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law' are reproduced in the same volume at 416-463 (hereafter McNeil, Relevance).
  2. In support of this approach McNeil, Meaning, supra note 2, points to dicta in two Supreme Court decisions, Guerin and Roberts. In Guerin v The Queen [1984] 2 SCR 335 a case dealing with the surrender of reserve land rather than a case of aboriginal title, Dickson CJC explained the Court's earlier decision in Calder v AG BC [1973] SCR 313 by saying that aboriginal title is 'a legal right derived from the Indian's historic occupation and possession of their tribal lands.' In Roberts v Canada [1989] 2 CNLR 146, Wilson J, speaking for the entire Court, suggested that aboriginal title is 'a legal right derived from the Indians' historic occupation and possession of their tribal lands.'

approach, possession is the source of title. The nature of the possession (i.e. the uses made of the land) is relevant to the question of whether or not the possessor can establish title tut in no way limits the nature of the adverse possessor's interest'16 thereby supporting the conclusion that 'Aboriginal peoples may still be entitled to the complete benefit of [their lands], including both surface and subsurface rights'.I7 It also follows from this approach that the content of aboriginal title will be pretty much constant. Once an aboriginal people establishes exclusive possession of particular territories, the content of the title will follow as a matter of law and not as a matter of evidence. While this approach looks to the facts of possession it does not mean that the content of aboriginal laws is irrelevant. Rather, it suggests that the content of those laws is important to the internal relations between members of the aboriginal nation or community. However, the existence of a system of property laws may also be important in helping to establish the facts and extent of possession.

What of the second approach? What are the implications of the aboriginal land laws approach, for the content of title? On this approach 'one would expect its content to be defined in terms of those laws and customs, which would have to be proved.'18 Professor McNeil devotes less attention to this approach in his paper, largely because his assessment of the case law is that Canadian courts have generally not required proof of specific aboriginal laws and customs to establish aboriginal title. However, McNeil does see some suggestion that at least some members of the British Columbia Court of Appeal (especially Macfarlane and Wallace JJA) in Delgamuukw19 applied a version of the aboriginal land laws approach to limit and fossilize the content of aboriginal title in that case. McNeil suggests that they accomplished this by holding that the scope of aboriginal title is limited to aboriginal uses of the land that were integral to the distinctive cultures of the Aboriginal peoples at the time the Crown asserted sovereignty. This approach may have important implications for establishing the existence of an aboriginal title to petroleum since it seems to demand that the aboriginal people establish the existence of both the use of the resource in question and relevant rules pertaining to its exploitation and allocation.

In conclusion, there appear to be two approaches to the source and nature of aboriginal title. The one approach emphasises exclusive possession while the other emphasises aboriginal land laws. The choice of approach has

16 McNeil, Meaning, supra note 2, at 143.
17 Ibid.
18 Ibid at 141.
iv The Court of Appeal's decision is reported at [1993] 5 CNLR 1.

important implications for content. The exclusive possession approach tends to afford a broad and constant content to aboriginal title without requiring proof of use of particular resources. The aboriginal land law approach tends to limit the content of aboriginal title in particular cases to those lands and resources that were actually put to use at the time of the Crown's acquisition of sovereignty and for which there exists a relevant body of laws whose content can be proven before the court.

We are now in a position to consider which approach has been taken in each of the three jurisdictions and to endeavour to show the implications this has for the content of title and especially the treatment of petroleum.


A. The General Approach to Source and Content

The starting point for any consideration of the source and content of aboriginal title in Australia is the High Court's decision in Mabo (No. 2)21 but we also need to look at how the Commonwealth legislature responded to that decision through the Native Title Act as well as at the subsequent efforts of the Australian courts to apply their new mandate.

In Mabo, the plaintiff Meriam people, occupying the Murray Islands in Torres Strait, claimed the benefit of an existing aboriginal or native title. The formal order of the Court included a declaration to the effect that 'the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'. The evidence showed, however, that the Meriam recognized more of an individual form of property rather than a collective or communal form of property.

The case did not specifically raise issues of mineral or petroleum title but the various judgments did indicate how questions of source and content should be approached. The leading judgment is that of Brennan J although Mason CJ and McHugh J offered a summary of the effect of the collective

20 McNeil's own view supports the fact of prior possession approach. In concluding Meaning, supra note 2 at 153, he suggests that Canadian courts, by favouring occupation as the source of aboriginal title,

are on the right track. Aboriginal land law would have been developed to govern internal landholding within the nations themselves.... It would not have

served to determine the land rights of those nations vis-I-vis other nations ...

  1. Mabo No. 2, supra note 4; all paragraph references arc to the HCA on-line version of the

judgments with which summary all of the members of the Court agreed. It is useful therefore to start with that summary before looking to Brennan's judgment.

The Mason / McHugh summary indicated that six members of the Court (Dawson J dissenting):

were in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. [Emphasis added.]22

There are several passages in Brennan J's judgment that suggest, on the face of it, that he was committing himself to the aboriginal land laws approach to the source and content of aboriginal title.

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.23

... once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was 'desert uninhabited' in fact, it is necessary to ascertain by evidence the nature and incidents of native title. Though these are matters of fact, some general propositions about native title can be stated without reference to evidence.24

Native title, though recognized by the common law, is not an institution of the common law ...25

Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crowds radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.26

22 Ibid at pars 2.
23 'bid at pars 64.
24 Ibid.
23 Ibid at para 65.
26 Ibid at para 66.

Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. 27

But there are other passages that suggest that Brennan J was equally cognizant of, and reliant upon, the exclusive possession approach. Key amongst these passages are the formal declaration of a title, good against the entire world, as well as additional passages in which Brennan J deals with the common law protection available to an aboriginal title:

If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor.... The ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership, and there are no other owners.28

... native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. 29

In an early comment on the decision, a comment that preceded the NTA and subsequent efforts of the High Court to interpret that Act, Kent McNeil endeavoured to explain the apparent conflict between these two groups of passages by suggesting that it is the exclusive nature of the possessory entitlement that gives rise to rights enforceable against the whole world (i.e. that deals with external relationships) while it is the aboriginal laws themselves that govern relationships inter se. While a neat way of resolving the apparent conflict in a manner that precluded the content of aboriginal laws being used to limit or freeze the content of an aboriginal

27 Ibid at para 83, # 6.
28 Ibid at para 53.
29 Ibid at para 68.
30 Relevance, supra note 14 at 420-421.

title, subsequent events have not confirmed this optimistic opinion. Instead, the post-Mabo decisions of the High Court have confirmed that it is the traditional laws and customs of the aboriginal people themselves that represents the starting point for claims of aboriginal or native title in Australia.

The Court put it this way in a significant joint judgment in Fejo v Northern Territory:

Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.31

This passage was also cited with approval in a subsequent joint judgment in Commonwealth v Yarmirr32 but one of the clearest statements of the Australian aboriginal land laws approach is found in Gummow J's separate opinion in Yanner v Eaton.33 Yanner involved an aboriginal right to take crocodiles. The majority judgment is principally concerned with the question of extinguishment (and we deal with that portion of the decision below) but Gummow offered extensive comments on the nature of a native title:

72. In Mabo v Queensland [No 2], Brennan J stated the essential characteristics of native title:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native


[1998] HCA 58; (1998) 72 ALJR 1442, at pars 46 per Gleeson CJ and Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J's separate concurring judgment is in substantial agreement. The substantive issue in Fejo was the effect of a grant in fee simple on an aboriginal title. The Court unanimously held that such a grant would extinguish an aboriginal title because an unconditional fee simple grant was of such broad scope and import that it was inconsistent with the continued existence of native title. The Court also held that the native title would not be revived even if the land became re-vested in the Crown. For further discussion of this and the subsequent cases see Bradley Selway, Alabo: Where Have We Been and Where Have We Yet to Travel?' [2002] AMPLA Yb. 95-130.

32 (2001) 75 ALJR 1582 at para 9 per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Yarmirr, also known as the Cape Croker case, is discussed further infra text to notes 47 et seq.
33 [1999] HCA 53.

title must be ascertained as a matter of fact by reference to those laws and customs.

Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia's indigenous peoples, the Aboriginals and Tones Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land, defined by reference to that community's traditional laws and customs, which is the bridgehead to the common law. As a corollary, native title does not exhibit the uniformity of rights and interests of an estate in land at common law and 'ingrained habits of thought and understanding' must be adjusted to reflect the diverse rights and interests which arise under the rubric of 'native title'. To repeat what was said in Wik Peoples v Queensland:

The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence.

73. The term 'native title' conveniently describes 'the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants'. The native title of a community of indigenous Australians is comprised of the collective rights, powers and other interests of that community, which may be exercised by particular sub-groups or individuals in accordance with that community's traditional laws and customs. Each collective right, power or other interest is an 'incident' of that indigenous community's native title.34

On this approach it is clear that the content of a native title will vary depending upon the facts and circumstances of the particular plaintiffs.

The majority judgment in Yanner emphasised that the Court was principally concerned with construing the terms of the NTA and the Court returned to this theme in its majority judgment in Western Australia v Ward.35 There, the Court emphasised that the questions at issue involved first and foremost

34 Ibid at paras 72-73 (references omitted).

  1. [2002] HCA 28. See also Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 at paras 32 and 75.

questions of statutory interpretation and in that context drew attention to the definitions of 'native title' and 'native title rights and interests':

223 (1) The expression "native title" or "native title rights and interests" means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Tones Strait Islanders; and
(a) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(a) the rights and interests are recognised by the common law of Australia.

(2) Without limiting subsection (1), "rights and interests" in that subsection includes hunting, gathering, or fishing, rights and interests.

The Court then commented as follows:

Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s 223(1). This is the 'recognition' of rights and interests. To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of `recognition'.'6

In conclusion, the High Court has pursued an aboriginal land laws approach to questions of the nature and content of aboriginal title. In large part, the later developments in the High Court's approach have been strongly influenced by the text of the Native Title Act which compels the Court to rely upon aboriginal laws and customs to both identify content and establish connection with particular lands.37

36 Ibid at para 20.

  1. John Basten, 'The Content of Native Title' (2002) 21 AMPLJ 225 at 225: 'Identifying the content of native title involves no more, and no less, than an analysis of the relationship between particular indigenous peoples or indigenous communities and identifiable areas of land.' Richard Bartlett, `The Denial of Native Title to the Resource Provinces of the Burrup Peninsula and the Pilbara: Daniel v State [of] Western Australia' (2003) 22 AR.ELJ 467 at 457: 'The High Court in Ward insisted on the particularisation of each element of traditional law and custom, and right and interest, inevitably stifling any larger claim to a more global or comprehensive right.'

B. Implications of the General Approach for the Treatment of Petroleum as a Component of Aboriginal Title

Australian courts have considered the question of aboriginal title to petroleum on at least three occasions: in Wik (at trial),38 in Yarmirr (principally at trial),39 and in Ward (in all three levels of court). While these cases contain some observations on petroleum as a component of aboriginal title, in reality, and especially in the appellate courts, much of the discussion has focussed on questions of extinguishment.

1. The Wik Decision

The Wik Peoples brought an action seeking a declaration that they had certain native title rights over a large area of land in North Queensland. Pursuant to the rules of the Federal Court certain questions were put to the Court separately from the other issues in the litigation. One of the questions was the following:

Question 3

If any Aboriginal title or possessory title of the Wik Peoples included rights of ownership, possession or control of minerals or petroleum (other than minerals or petroleum on land below the low water mark), were those rights extinguished by: as to minerals: Mining on Private Land Act 1909 (or any amendment thereof) Mining Act 1968 (or any amendment thereof) as to petroleum: Petroleum Act 1915 (or any amendment thereof) Petroleum Act 1923 (or any amendment thereof)?41

As with the question on pastoral leases (the main issue in Wik in the High Court), this question was framed in a conditional and abstract way with the result that the Court was not being invited to make findings as to whether an aboriginal title to minerals and petroleum actually existed — it merely had to address the question of extinguishment, if title could be established. Justice Drummond approached the question by focussing first on the evolution of

  1. Wik Peoples v State of Queensland (1996) 63 FCR 450. The issue was not dealt with on appeal to the High Court (1996) 187 CLR 1. Note that in discussing questions of extinguishment I focus on the extinguishment of an aboriginal title to petroleum. I put to one side the far more complex question of the extent to which state grants of petroleum interests might have extinguished an aboriginal surface interest. Bartlett, ibid., discusses this point at 459 et seq.

39 [1998] FCA 771; (1998) 82 FCR 533.

  1. [1998] FCA 1478 (trial), [2000] FCA 191 (Full Court), [2002] HCA 28. See also Daniel v State of Western Australia [2003] FCA 666 and for commentary see Bartlett, supra note 37.

41 Wik, supra note 38, at paras 114 et seq.

the relevant Queensland minerals legislation before offering the following general conclusions:

135. In broad outline, the policy adopted by successive Queensland governments since 1909 has been to extend Crown ownership to all minerals in all lands in Queensland, whether or not those lands have been alienated in fee simple, and to vest in the Crown the sole right to grant authority to mine any minerals in Queensland, including the very limited range of minerals which remain in private ownership [mainly coal] ... 42

Drummond J then went on to anticipate possible objections to this conclusion. The first objection taken was the argument that by recognizing that title to minerals had become vested in the Crown, the Court was doing little more than affirming the now (post-Mabo) discredited view that the Crown acquired absolute ownership upon the acquisition of sovereignty. Drummond J rejected that objection noting that the intent of the legislation was to vest the full beneficial interest in the Crown and even to expropriate that interest where it had been included in a prior grant.43 He went on to emphasise that such takings extinguished 'all rights to minerals possessed by anyone' in Queensland (with some very limited exceptions).

The second argument was to the effect 'that because the Crown owed fiduciary duties to native title holders, it should be inferred that these general declarations of Crown ownership of minerals were not intended to apply to any minerals that might be the subject of native title.'44 The Court rejected this argument somewhat summarily holding that even if one assumed that the Crown had such a fiduciary duty 'there is no basis for drawing the inference as to the legislative intention suggested'.45

42 !bid at para 135.
43 lbid at para 140:

... the Queensland Legislature, in my opinion, exercised its power to appropriate to itself full beneficial ownership of all minerals in Crown land then unalienated, as well as ownership of a range of minerals that may previously have passed into private ownership. The declaration of Crown ownership of minerals in unalienated Crown lands made in 1909 and the assertion by the Crown in the Act of 1909 of the exclusive right to grant authorisations to both the owner of private land and third parties to mine private lands, coupled with the assertion by the Crown in the Mining Act 1898 of the right to grant authorisations to mine for minerals in Crown lands, demonstrates this intention on the part of the Parliament to claim on behalf of the Crown full beneficial ownership of the minerals in lands of the kind that are the subject of the applicants' claims.
44 Ibid at para 144.
45 Ibid.

Having answered the question in relation to minerals generally, Drummond J then turned his mind to the more specific issue of petroleum. Here the position was clearer because there was a single piece of legislation involved, section 4 of the Queensland Petroleum Act, 1915, which provided:

Notwithstanding anything to the contrary contained in any Act or in any grant, instrument of title, or other document, it is hereby declared that petroleum on or below the surface of all land in Queensland, whether alienated in fee-simple or not so alienated from the Crown, and if so alienated whensoever alienated, is and always has been the property of the Crown.

Following his earlier analysis of mineral statutes, Drummond J was able to conclude that 'any native title rights the applicants might once have had in relation to petroleum in any of the subject lands were extinguished by the Petroleum Act 1915, just as were any rights that any grantees of land from the Crown in fee may have had, prior to the enactment of that legislation, in petroleum in their land.'46

In sum, even if the plaintiffs could establish an aboriginal title to petroleum, which issue was not before the Court, that title had been extinguished.

2. The Yarmirr Decision

The broad issue before the Court in Yarmirr47 was the question of whether it was possible for an aboriginal group to maintain a native title claim to marine areas, areas within the intertidal zone, internal waters and territorial sea. Mary Yarmirr had applied under the Native Title Act, 1993 for a determination of native title to marine areas in the Croker Island Region of the Northern Territory. The application was heard by Justice Olney of the Federal Court who dealt with both the existence and nature of a title claim to petroleum and the question of extinguishment.

On the question of title, Justice Olney was clearly of the view that the application must fail precisely because there was an absence of evidence on customs and laws in relation to the use of seabed minerals.

The applicants' proposed determination ... seeks recognition of the right of ownership of the waters and land of the claimed area and rights to use and to control the use by others of ... all resources existing within the seabed and subsoil including minerals located on or below the seabed. However, as there

46 /bid at para 150.
47 Supra note 39.

is no evidence to suggest that any traditional law or traditional custom of the Croker Island community relates to the acquisition or use of, or to trading in, any minerals that may exist or be found on or in the seabed or subsoil of the waters of the claimed area there can be no basis for a determination that would recognise native title in such minerals. [Emphasis supplied.'"

However, Olney J went on to deal with the extinguishment issue in equally conclusive terms:

... the Commonwealth [argues] ... that title to minerals in the seabed and subsoil within the limits of the Northern Territory and beneath the coastal waters of the Northern Territory has been vested in the Crown either in the right of the Commonwealth or in the right of the Northern Territory. This result is said to be achieved by the combined effect of the Atomic Energy (Control of Materials) Act 1946 (Cth), the Atomic Energy Act 1953 (Cth), the Minerals (Acquisition) Ordinance 1953, the Petroleum (Prospecting and Mining) Ordinance 1954, the Northern Territory (Self Government) Act 1978 (Cth) and the Coastal Waters (Northern Territory Title) Act 1980 (Cth).

[M]y own consideration of the rather complex legislative history referred to leads to the conclusion that the Crown has by the exercise of its undoubted legislative powers appropriated to itself an interest in the minerals in question which amounts to the full beneficial ownership thereof. It necessarily follows that no native title rights in the minerals could have survived the acquisition. This conclusion is entirely consistent with the reasons of Brennan J in Mabo No 2 (at p. 68) and of the Queensland Court of Appeal in Eaton v Yanner; ex parte Eaton where similar conclusions have been expressed in circumstances where there has been a legislative vesting of property in the Crown."

On appeal to the Full Court, the majority simply stated that it agreed with the trial judge that there was 'no evidence to support any traditional claim to their use and control' with respect to the resources of the subsoi1.

By the time that Yarmirr reached the High Court, the majority found it unnecessary to consider the specific question of petroleum. The majority was content to decide the case on the basis that the trial judge had been correct to find that the evidence did not establish a right of exclusive use of the sea resources generally, but, even had they been prepared to interfere with the findings of fact of the primary judge, they would have held that the maintenance of an exclusive right was fundamentally inconsistent with the

48 Ibid at para 158.
49 mid,
" [1999] FCA 1668 at para 245.

common law public rights of navigation and fishing as well as the right of innocent passage.5I

Justice Kirby, in dissent, took a somewhat different view. He pointed out that the applicants had modified their claim of exclusive rights to admit that it was subject to the public right of navigation and subject to commercial fishing licences. However, they continued to maintain that their title took precedence over the public right of fishing and claimed the right to exclude others from using the area for other resource purposes. Kirby thought this claim plausible and preferred it to what he characterized as the all or nothing approach of the majority. He also thought that it was supported by the evidence. He noted that the evidence showed that the applicants claimed the rights to negotiate with petroleum companies as to the location of drill sites and showed that, in some cases, the applicants had been successful in persuading those companies to relocate their activities away from sacred sites.52 He concluded as follows:

In the remote and sparsely inhabited north of Australia is a group of Aboriginal Australians living according to their own traditions. Within that group, as the primary judge accepted, they observe their traditional laws and customs as their forebears have done for untold centuries before Australia's modern legal system arrived. They have a 'sea country' and claim to possess it exclusively for the group. They rely on, and extract, resources from the sea and accord particular areas spiritual respect. The sea is essential to their survival as a group. In earlier times, they could not fight off the 'white man' with his superior arms; but now the 'white man's' laws have changed to give them, under certain conditions, the superior arms of legal protection. They yield their rights in their 'sea country' to rights to navigation, in and through the area, allowed under international and Australian law, and to licensed fishing, allowed under statute. But, otherwise, they assert a present right under their own laws and customs, now protected by the 'white man's' law, to insist on effective consultation and a power of veto over other fishing, tourism, resource exploration and like activities within their sea country because it is theirs and is now protected by Australian law. If that right is upheld, it will have obvious economic consequences for them to determine-just as the rights of other Australians, in their title holdings, afford them entitlements that they may exercise and exploit or withhold as they decide. The situation of this group of indigenous Australians appears to be precisely

  1. (2001) 75 AJLR 1582 at para 98. McHugh J took the view that no aboriginal group could maintain a claim to marine areas since the common law had never applied to marine areas. Callinan J held (at para 364) to the same effect.

52 Ibid at para 310.

that for which Mabo [No 2] was decided and the Act enacted. The opinion to the contrary is unduly narrow. It should be reversed. [Emphasis supplied.]53

3. Ward

The applicants in Ward sought a determination of native title under the Native Title Act in the East Kimberly areas of the State of Western Australia and the Northern Territory. At trial, Justice Lee had concluded that within the 'determination area' the native title holders could claim a broad range of rights and entitlements to use resources. His formal determination stated as follows:

  1. Native title in the 'determination area' is held by the Miriuwung and Gajerrong people, and in respect of ,.. Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples
  2. Subject to par 5 hereof, the nature and extent of the 'native title rights and interests' in relation to the 'determination area' are the rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title, in particular: a) a right to possess, occupy, use and enjoy ...; b) a right to make decisions about the use and enjoyment... ; c) a right of access ...; d) a right to control the access of others

; e) a right to use and enjoy resources ....; )9 a right to control the use and enjoyment of others ...;g) a right to trade in resources; h) a right to receive a portion of any resources taken by others; i) a right to maintain and protect places of importance under traditional laws, customs and practices; and j) a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders._ [emphasis supplied].54

The determination did not define the term 'resources'. Faced with this, the majority of the Full Court noted on appeal that in the pre-trial particulars of their claim the applicants had indicated that: (1) that they 'dug for and used stones, ochres and minerals on and from the land'; and (2) that they 'shared, exchanged and/or traded resources derived on and from the land'. There was evidence led at the trial that the applicants dug for ochre at several special

n At para 320. In reaching this conclusion Kirby J shows himself very much aware of the

risk that the aboriginal land laws approach might freeze entitlements contrary to international norms of non-discrimination which demanded (ibid., at paras 295-296) the `recognition that the culture and laws of indigenous peoples adapt to modem ways of life an evolve in the manner that the cultures and laws of all societies do ... lest, by being frozen and completely unchangeable, they are rendered irrelevant and consequently atrophy and disappear ... it would be discriminatory against them to deny recognition of exactly the same entitlements in respect of their rights and interests in land or waters as other Australians would enjoy in respect of their rights and interests.'

Supra note 40.

sites within the claim area and used the ochre recovered for ceremonial purposes.55 The majority went on to say that:56

.... in describing aspects of the claimants' connection with the area, the trial judge had said (at ALR 538):

There was evidence of the contemporary use of natural resources found in and around the claim area for ceremonies and tool-making, in particular, ochre for the former. Consistent with the 'primary' evidence, the archaeological evidence suggested that sources of ochre within Miriuwung and Gajerrong country were limited and that all locations of ochre were associated with sacred sites ...

534 This is a specific indication that the reference in the determination to `resources' was intended to pick up ochre. We agree with his Honour's conclusion that this aspect of the applicants' traditional connection with the area claimed was established on the evidence. In our view it should be regarded as one of the applicants' native title rights ...57

The inference is clear: while the evidence supported a conclusion that the claimants had established title in relation to ochre, the evidence did not support a similar claim in relation to petroleum.

But the majority of the Full Court also considered extinguishment arguments in light of the statutory vesting legislation of both the State of Western Australia and the relevant commonwealth legislation for the Northern Territory. For the state, the following provisions were key:

Western Australia Constitution Act 1890 (Imp), s. 3:

The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony.

Mining Act 1904 (WA), s. 117:

SUBJECT to the provisions of this Act and the regulations

(1.) Gold, silver and other precious metals on or below the surface of all land in Western Australia, whether alienated from the Crown, and if alienated, whensoever alienated, are the property of the Crown.
(1.) All other minerals on or below the surface of any land in Western Australia which was not alienated in fee simple from the Crown before the

66 Full Court decision, supra note 40, at paras 514-515.
56 Ibid., at paras 533-534,

  1. There was a caveat to this proposition to the effect that the term 'minerals' as used in the statutory vesting legislation did not include ochre. See also Daniel, supra note 40 at paras 730 and 732.

first day of January, One thousand eight hundred and ninety-nine, are the property of the Crown.

Petroleum Act 1936 (WA), s. 9:

Notwithstanding anything to the contrary contained in any Act, or in any grant, lease or other instrument of title, whether made or issued before or after the commencement of this Act, all petroleum on or below the surface of all land within this State, whether alienated in fee simple or not so alienated from the Crown is and shall be deemed always to have been the property of the Crown.

These provisions led the Full Court to conclude that even had the applicants succeeded in establishing a title then:

any native title rights to the minerals there specified within the State were wholly extinguished. In our opinion, those provisions were intended to reserve to the legislature and the Crown the full beneficial ownership of all the minerals specified. Similarly, we consider that if any native title right or interest existed in relation to petroleum within the State in the determination area that right or interest was wholly extinguished by virtue of s 3 of the Western Australia Constitution Act and s 9 of the Petroleum Act 1936. However, in this case there is no evidence of any traditional Aboriginal law, custom or use relating to petroleum either in the State or in the Territory and as a matter of fact any claim in relation to the possession, use or enjoyment of petroleum (if there is any in the determination area) is not established.58

In reaching this conclusion the majority indicated that it was following the trial level decisions, those in Wik and Yarmirr, and distinguishing the High Court's decision in Yanner v Eaton.59

In the High Court, the majority opinion largely followed the opinion of the majority of the Full Court.° Specifically, the majority found that the applicants had failed to establish the existence of an aboriginal title to minerals other than ochre,6I and, even if they had, such a title had been

58 1bid, at para 541.

[1999] HCA 53.
8D [2002] HCA 28.

  1. Ibidat para 382: 'questions of extinguishment first require identification and consideration of the native title right or interest that is in issue ... [Here] there was no evidence of any traditional Aboriginal law, custom or use relating to petroleum either in the State or in the Territory. Nor, assuming ochre is not a mineral, was there any evidence of any traditional Aboriginal law, custom or use relating to any of the substances dealt with in either the Mining Act 1904 or the WA Mining Act. (No party contended that ochre fell within the relevant definitions.) In these circumstances, no question of extinguishment arises. No relevant native title right or interest was established.'

extinguished by the relevant legislation. Like the Full Court, the majority opinion found it easy to distinguish Yanner:

All minerals and petroleum, on or under Crown lands, were thus subject [by

s 3 of the Western Australia Constitution Act] to legislative disposition. Reserving them to the Crown and vesting 'property' in them in the Crown had several consequences. First, it was no longer necessary (if it ever had been necessary) to consider questions of prerogative rights to some but not all minerals. Thenceforth, upon the subsequent alienation of land by the Crown, all minerals on or under the land would remain vested in the Crown. Secondly, the Crown could, and did, deal with minerals separately from the land and could thereafter, and did, grant separate rights to search for and recover them.-But unlike the fauna legislation considered in Yanner v Eaton, the vesting of property in minerals was no mere fiction expressing the importance of the power to preserve and exploit these resources. Vesting of property and minerals was the conversion of the radical title to land which was taken at sovereignty to full dominion over the substances in question no matter whether the substances were on or under alienated or unalienated land.62

The references to Yanner v Eaton63 require some explanation and take us back to the introductory section of this paper which discussed the migratory nature of petroleum resources. In Yanner, the question before the Court was whether the appellant's native right, title or interest to hunt crocodiles in Queensland had been extinguished by virtue of section 7(1) of the Queensland Fauna Act which provided that:

All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.

The majority judgment of the Court64 began by analysing the term 'property' leading to the conclusion that 'There are several reasons to conclude that the "property" conferred on the Crown is not accurately described as "full beneficial, or absolute, ownership, and, therefore, that the vesting clause in this case did not extinguish aboriginal rights.65 The Court offered four reasons for that conclusion: (1) it was not clear what fauna might be owned by the Crown given the migratory nature of fauna and the fact that it might

62 Ibid at para 384.
63 Supra note 59.

  1. Ibid Gleeson CJ, Gaudron, Kirby and Hayne JJ. McHugh and Call inan JJ dissented on the basis that legislature meant what it said and that the term property should be given its ordinary meaning.

65 Ibid at para 22.

cross state boundaries; (2) it was not clear what might be meant by full beneficial ownership of a wild bird or animal given that the Act did not seem to aim at according the Crown broad powers of use and disposal but rather, with few exceptions, contemplated that wildlife would remain outside the possession of and beyond disposition by humans; (3) it was hard to equate Crown ownership of wild animals with ownership of ordinary objects given that the Crown's title would not apply to fauna taken in accordance with the Act and given that the Crown had no corresponding responsibility to complement its ownership interest; and (4) the vesting seems to have been motivated by a desire to institute a scheme for levying a royalty on skins or animals taken in the state. Collectively, these reasons led the majority to conclude that: 'the statutory vesting of "property" in the Crown by the successive Queensland Fauna Acts can be seen to be nothing more than "a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource".'66 Mere regulation could not extinguish aboriginal rights and therefore the majority was content to conclude that the statutory vesting had not had the effect of extinguishing the accused's right to take juvenile crocodiles.

Was this reasoning applicable to other migratory resources like petroleum? Was the state vesting legislation simply a technique for acquiring the capacity to regulate the resource? While the majority of the Court in Yanner67 did not address the issue at all, the Court's answer was, as we have just seen, clear by the time it decided Ward.

While the above clearly represents the dominant view within the High Court, Justice Kirby has been at some pains to articulate an alternative

66 Ibid at pars 28. The quotation is a reference to a decision of the US Supreme Court.

  1. The only member of the Court to advert to this issue was Callinan J (in dissent) ibid.: 144. The second argument of the appellant is that the text of the Act as a whole requires 'property' in s 7 to be read as meaning no more than an extensive power to regulate the protection and some limited exploitation of fauna ...

147. In support of his second argument the appellant referred to the difficulty in reducing wild animals to possession and of preventing them from migrating out of the State as a reason for the reading down of the word 'property' in the Act. In this connexion an analogy may be drawn with the way in which, in the United States, natural gas and oil, which are fugitive minerals, are treated. There, these are regarded as having some features in common with wild animals. In that country ownership of the land generally carries with it ownership of minerals beneath it. The fact that natural gas or oil may migrate from under one property to another, does not mean that a property owner does not own absolutely and may not exploit fully these minerals whilst they are underneath his or her land. [Emphasis supplied.]

approach. We have already seen some evidence of this in Yarmirr68 and he developed these views further in Ward. There, while agreeing with the majority 'as to the extinguishing effect of the Mining Act (WA) and the Petroleum Act 1936 (WA)'69 Kirby J went on to comment at length as to the proof of the content of an aboriginal title. On that point, and as the following extract shows, Kirby J was attracted to the physical fact of prior possession approach:

  1. There were differing views in the Full Federal Court. North J, in dissent, concluded that the determination of native title to 'resources' was broad enough to include minerals and petroleum, where these exist. In contrast., the majority of the Full Court held that Lee J's determination should be restricted to the use of ochre, excluding petroleum or other minerals. This seems to have been based, in part, upon the argument that 'minerals that are mined by modem methods' cannot form part of native title rights and, in part, upon a view of the evidence that the only rights to resources that had been proved were the use of ochre.
  2. In relation to the capacity of the common law to recognise change and development in traditional laws and customs, I prefer North J's approach. It supports the recognition of historical uses of resources, such as ochre. It also includes other minerals. It envisages the extension of such recognition to modem conditions, developed over time, so as to incorporate the use of other minerals and resources of modem relevance. Such an approach is generally consistent with the authority of this Court and decisions in Canada. When evaluating native title rights and interests, a court should start by accepting the pressures that existed in relation to Aboriginal laws and customs to adjust and change after British sovereignty was asserted over Australia. In my opinion, it would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal customs not envisaged, or even imagined, in the times preceding settlement.
  3. The second issue is one of evidence. I acknowledge the need in a native title claim for the claimants to prove how their traditional laws and customs in relation to the land and waters claimed have given rise to the propounded rights and interests in resources in the claim area. Evidence of a traditional use of ochre has been noted. Nonetheless, because of the principle of equality of the rights of all Australians before the law, where a native title claim is otherwise established as conferring possession, occupation, use and enjoyment of the land and waters to the exclusion of others, there is, in my view, a presumption that such right carries with it the use and enjoyment of the minerals and like resources of the land and waters. In a case where such extensive native title rights are found, there would be no need to conduct a separate inquiry regarding the identity of those resources. It is unnecessary in

68 See supra text to notes 52 & 53.
69 Ward, supra note 60 at para 572.

this case to make a specific finding in relation to the existence of a native title right to minerals or petroleum because of the conclusion I favour regarding the extinguishing effect of the relevant legislation. But in another case, where the legislation was different, it could be vital. [References omitted; emphasis supplied.]70

But, to this point, Kirby J's approach has been very much a minority opinion.

C. Conclusions

In sum, this trio of decisions of Wik, Yarmirr, and Ward collectively establish that native title claimants in Australia are unlikely ever to be able to establish a native title to petroleum for two principal reasons. First, the provisions of the NTA require that the applicants establish the existence of traditional laws and customs relating to the use of petroleum. In the absence of surface seeps of petroleum it seems unlikely that any aboriginal clan will be able to muster evidence of the required specificity. Second, even if a claimant group were able to adduce this evidence it would still face the further, and to this point insurmountable, obstacle that any private title to petroleum, including an aboriginal title, has been extinguished by state and commonwealth vesting legislation.71


A. An Introduction to Delgamuukw

The leading Canadian judgment on aboriginal title is that of Chief Justice Lamer in the Supreme Court of Canada's decision in Delgamuukw v British Columbia.72 As it happens, in the course of its discussion as to the content of

Ibid at paras 573-575.

  1. All Australian jurisdictions have some form of Crown vesting legislation; see J R S Forbes and A G Lang, Australian Mining and Petroleum Laws, 2nd ed (Sydney: Butterworths, 1987) at para 220 and Doug Young, 'Native Title after Mabo: A General Overview of the Implications for the Mining and Petroleum Industries' (2002)21 AMPLJ 207 especially at 215-217.
  2. Supra note 5. Another earlier and contrary authority is AG Ontario v Bear Island (1985) 49 OR (2d) 353 especially at 392 Steele J held that the content of an aboriginal title was limited by traditional uses and did not extend to mining or lumbering, aff d but without considering this matter 58 DLR (4th) 117, and aff d [1991] 2 SCR 570, holding that whatever aboriginal title the Temagami people might have had it had subsequently been extinguished by treaty. Although Delgamuukw was decided in late 1997 we are still awaiting clarification of important aspects of the decision. One significant decision is R v Bernard [2003] NBCA 55. In that case Bernard was charged with unlawful possession of timber taken from Crown land. He defended on the basis of an aboriginal title and a treaty

aboriginal title, the Court explicitly addressed the issue of oil and gas rights. Before discussing the substance of Delgamuukw as it relates to the content of aboriginal title, it is important to make some preliminary comments about the limitations of the case as an authority on these questions.

The action was commenced by the hereditary chiefs of the Gitskan and Wet' suwet'en peoples both individually and on behalf of their respective Houses. The claim was originally a claim for a declaration of ownership of the traditional territory (some 58,000 square kilometres) and jurisdiction over that territory. During the trial, and on appeal from the trial decision of the Chief Justice of British Columbia, the plaintiff-appellants altered their claim in two ways.73 First, the claims to ownership and jurisdiction were reframed as claims for aboriginal title and self-government. Second, the individual claims by each House were amalgamated into two communal claims one advanced on behalf of each Nation. On further appeal to the Supreme Court of Canada, the defendant province of British Columbia argued that these claims were not properly before the Court since there had been no formal amendment to the pleadings and any such amendment would cause British Columbia prejudice. Had it known the case it had to meet it might have conducted its defence quite differently. While the Court held that the transformation of the claim from ownership and jurisdiction to aboriginal title and self government caused no prejudice, the Court did accept the province's argument in relation to the collapsing of the claims from multiple House claims into two Nation claims. That was sufficient for the Court to order a new tria1.74 The Court also offered other grounds for ordering a new trial. In particular, the Court was of the view that the trial judge had erred in failing to accord oral histories any independent weight at all. The trial judge had decided that such histories were admissible, and might be used to confirm other understandings, but they had no independent standing.75

Although that was sufficient to decide the case, the Court, in order to provide further guidance both to the trial judge in this particular case and for other litigants, went on to make very extensive comments on three key

right. The majority of the Court upheld the defence and see especially the judgment of Daigle J at paras 37, 38 and 178 which simply seems to assume, based on Delgamuukw, that if an aboriginal title is established that it embraces the right to harvest timber. See also the parallel decision of the Nova Scotia Court of Appeal in R v Marshall [2003] NSCA 105.
73 Ibid at para 73.
74 Ibid at para 77.
75 Ibid at para 96.

questions. One of those questions76 was this: 'What is the content of Aboriginal title, how is it protected by section 35(1) of the Constitution Act, 1982, and what is required for its proof?'

B. Observations on the Content of Aboriginal Title

The Court framed its discussion of the content of aboriginal title by setting out the competing views of the appellants and of the province. The Court characterized the appellants' claim as a claim that 'Aboriginal title is tantamount to an inalienable fee simple, which confers on aboriginal peoples the rights to use those lands as they choose ...'.77 It characterized the province's position as an argument to the effect that an aboriginal title was nothing more than a bundle of discrete aboriginal rights which might claim to be exclusive.78 The province framed its argument this way because of earlier decisions of the Supreme Court of Canada, notably its decision in R v Van der Peet,79 in which the Court had held that only those practices, customs or traditions that were integral to the distinctive culture of the group claiming the right might qualify for protection under section 35. This way of putting the claim raised the spectre that an aboriginal plaintiff would not be able to establish an aboriginal title to minerals or oil and gas unless it could establish that its use of these substances was integral to the culture of that band or nation at the time of first contact with settler society.

The majority of the Court took what it described as a middle view between these two competing positions which it put in the following summary paragraph:

The content of aboriginal title, in fact, lies somewhere in between these positions. Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which

  1. The other two questions were these: 2. Has a claim to self-government been made out by the appellants? 3. Did the province have the power to extinguish Aboriginal rights after 1871, either under its own jurisdiction or through the operation of s 88 of the Indian Act?

77 Ibid at para 110.
78 Ibid.

  1. R v Van der Peet [1996] 2 SCR 507. See also R v Pamajewon and Jones [1996] 2 SCR 821.

forms the basis of the particular group's aboriginal title. This inherent limit, to be explained more fully below, flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple. [Emphasis supplied.]80

While the word 'parasitic' may be an unfortunate choice of phrase, it captures a key idea here and constitutes the Court's rejection of the limited right-by-right approach propounded by the province and based upon Van der Peet. It suggests that once title is made out, the content of that title is limitless, albeit that the use to which the lands may be put may be limited by other well-established aspects of the sui generis nature of aboriginal title (e.g. that it is inalienable except to the Crown) as well as by the more general (and novel) 'irreconcilable use' test mentioned by Lamer CJC at the end of the quoted paragraph and discussed in more detail below. It remains then for us to consider the arguments that the Chief Justice offered both for the content of title and for the limitations on the uses to which title lands might be put.

For the Chief Justice, the expansive view of the content of aboriginal title emerges not from an examination of the content of Gitskan laws, or from some general observation that the right to exclude others must entail the right to make use of the lands for whatever purpose the person exercising the right of exclusion sees fit, but from three other sources and supported generally by the academic commentary. Lamer refers to these three sources as: (i) the Canadian jurisprudence on aboriginal title, (ii) the relationship between reserve lands and lands held pursuant to title, and (iii) the Indian Oil and Gas Act.810

While I have observed elsewhere" that at least some of these arguments are not especially convincing, I shall endeavour to summarize them here since they constitute the most authoritative observations of the Canadian approach to the question of the content of title. Under the first heading (Canadian jurisprudence on aboriginal title) Lamer refers to two earlier decisions of the Supreme Court, Canadian Pacific Ltd v Paul83 and Guerin v The Queen,"

Delgamuukw v British Columbia [1997] 3 SCR 1010 at para 111.
81 RSC 1985, c. 1-7.

  1. Bankes, 'Delgamuukw, Division of Powers and Provincial Land and Resource Laws: Some Implications for Provincial Resource Rights' (1998) 32 UBC L Rev 317-351.
  2. Canadian Pacific Ltd v Paul, [198812 SCR 654, 53 DLR (4th) 487. The issue in Paul was the validity of a railway right of way across an Indian reserve.
  3. Guerin, supra note 15. There are difficulties with using each of these eases to support Lamer's claims: (1) both cases involve reserve lands set aside under the terms of the Indian Act or other legislation rather than aboriginal title lands, and (2) there is no evidence that the two different approaches to the source and content of title was even a

for the proposition that the right to use title lands is broad and not qualified by reference to traditional and customary uses of those lands.

The argument under the second heading also relies upon dicta in Guerin, but this time for the proposition that the Indian interest is the same in reserve lands as it is in aboriginal title lands. Since the nature of 'the Indian interest in reserve land is very broad's and the use of reserve lands is governed by the Indian Act86 which permits reserve lands to be used for any purpose for the general welfare of the band rather than just traditional activities, it must follow that aboriginal title has a similarly broad content.87

The third argument is perhaps most precisely on point for our purposes although, by its nature, it offers little guidance for other jurisdictions. While admitting that the primary purpose of the Indian Oil and Gas Act88 is to provide for the exploration of oil and gas on reserve lands, Lamer goes on to make three separate points: (1) the statute presumes that the Aboriginal interest in reserve land includes mineral rights,89 (2) 'on the basis of Guerin,

potential issue in either of these cases.
" Delgamuukw, supra note 5 at para 121.
" RSC 1985, c 1-5.

  1. There are a number of problems with using the Indian Act to inform the content of an aboriginal title not the least of which is the fact that neither the Inuit or Metis peoples are subject to the Indian Act. Even leaving aside the difficulties that Metis people may face in establishing a title (for guidance on the application of s. 35 to Metis peoples see R v Powley [2003] 2 SCR 207), how can the terms of the Indian Act have any possible relevance for Inuit title claims? The same difficulties apply to arguments that rely upon the terms of the Indian Oil and Gas Act. La Forest J in a separate concurring opinion in Delgamuukw, supra note 5, at para 192 shares these concerns. For a similar critique see Brian Donovan, 'The Evolution and Present Status of Common Law Aboriginal Title in Canada: The Law's Crooked Path and the Hollow Promise of Delgamuukw' (2001-2002) 35 UBC L Rev 43 at 83-86.

RSC 1985, c 1-7.

Delgamuukw, supra note 5, at para 122. I think that this is mistaken. I think that the more accurate proposition is that if the reserve contains oil and gas rights then this Act provides a mechanism by which the Crown and the band may dispose of those rights. The Act, like its predecessor regulations is neutral on the question of whether a reserve actually includes mineral or oil and gas rights. Lamer seeks to support this claim by referring to the Apsassin decision of the Court (Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development) [1995] 4 SCR 344, 130 DLR (4th) 193) as authority for the proposition that that Court unanimously accepted the idea that there was a statutory presumption that a reserve includes minerals. It is, with respect, very hard to extract this proposition from either judgment in Apsassin. The issue in that case was the band's claim that upon a surrender of the mineral rights to a reserve the Crown had breached its fiduciary duty to the band by alienating the mineral title to a third party rather than retaining the lands for the purpose of leasing the mineral rights for the benefit of the band. There never was any question as to the inclusion of minerals within the reserve title. The case is still of some interest in the present context simply because the subject matter of

Aboriginal title also encompasses mineral rights'", and (3) exploitation of those oil and gas rights 'is certainly not a traditional use for those lands', ergo, `the content of Aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right.'9I Lamer also found some further support for his conclusion in the 'savings' clause of the Indian Oil and Gas Act. Section 6(2) of the Act provides that:

Nothing in this Act shall be deemed to abrogate the rights of Indian people or preclude them from negotiating for oil and gas benefits in those areas in which land claims have not been settled.

Lamer suggested that this clause permitted the conclusion that 'The presumption underlying s. 6(2) is that Aboriginal title permits the development of oil and gas reserves'.92

In assessing these arguments it is important to emphasise that there was no real joinder of the issue on aboriginal title to petroleum in Delgamuukw. Lamer was concerned with a much broader issue, namely the proposition that the content of an aboriginal title should not be confined to traditional uses and activities. That proposition may still be supportable even if we were to reject the persuasiveness of the particular arguments offered in support of it.

In sum, Chief Justice Lamer takes the view that the content of aboriginal title is not restricted to traditional uses and activities. Part of the supporting argument for this conclusion is drawn from Canadian statutory provisions

the claim related to oil and gas rights. The Court was unanimously of the view that the Crown was in breach of its fiduciary duty because in alienating the mineral title for nominal consideration, the Crown, as fiduciary, was failing to show the same care for the property of the fiduciary that it showed for its own property. The reserve land turned out to be gas rich. The Crown ultimately settled the damages claim for an amount in excess of $140 million.

  1. Delgamuukw, supra note 5 at para 122; once again, and with respect, a fair reading of Guerin, supra note 15, offers no support for this proposition.

91 (bid, at para 124.

  1. This is a strained interpretation of a savings clause which is traditionally designed not to prejudice the position of any party rather than to create a presumption in favour of one particular view. In sum, ifa party can establish an aboriginal title to petroleum then there is nothing in the Indian Oil and Gas Act that can be used to abrogate those rights. Furthermore, and this seems to be the real point of the section, regardless of whether or not an aboriginal party can establish a petroleum title, nothing in this Act precludes it from negotiating to acquire oil and gas benefits as part of negotiations to reach an aboriginal land claim agreement.

applying to reserve lands which make it clear that Indians may put their reserves to a wide range of uses and which at least create a presumption that reserve lands include an oil and gas and mineral title. This line of argumentation (and particularly the link between title lands and reserve lands) is not as robust (or as far-reaching) as arguments that build upon the protection typically afforded by the common law to those in possession.

C. Observations on the Inherent Limits of an Aboriginal Title

If Lamer CJC has a broad view of the content of aboriginal title, it is also clear that he was not prepared to accept the 'inalienable fee simple' approach of the plaintiffs. In his view, the sui generis conceptualization of title contemplated that there were some limits on the uses to which title lands might be put. Following the approach taken with respect to content we shall outline Lamer's basic conclusions on this point and then consider the supporting reasons.

Lamer's conclusion93 is that 'lands subject to an Aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to Aboriginal title in the first place.' But what might this mean in practice? Lamer offered two concrete examples as well as an analogy drawn from the common law of waste. Lamer's first example is the case of an aboriginal group that establishes its title claim by reference to the use of the land as a hunting ground. It follows for Lamer that the group 'may not use it in such a fashion to destroy its value for such a use (e.g. by strip mining it).'94 The second example was that of a title claim based upon the value of the land for its ceremonial or cultural significance. In such a case the group 'may not use the land in such a way as to destroy that relationship (e.g. by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot.)'95 Lamer's supporting analogy was to refer to the common law concept of equitable waste which suggests that a person in the position of a life tenant may be restrained from `wanton or extravagant acts of destruction' .96

93 Delgamuukw, supra note 5 at para 128.
94 Ibid.
95 Ibid.

  1. 'This description of the limits imposed by the doctrine of equitable waste captures the kind of limit I have in mind here.' Ibid at para 130.

So what reasons does Lamer CJC give to support this irreconcilable use or `inherent limits' analysis?97 At bottom, Lamer builds his idea of inherent limits upon what he takes to be the purpose of the constitutional protection of aboriginal rights and title which he sees as being to protect prior and continuous occupation of lands from the Crown's acquisition of sovereignty to the present day. The idea of continuous occupation is important because it provides conclusive evidence that these lands are of central significance to the culture of the claimants.98 But the importance of the continuity of relationship between land and people is not confined to the past and the present, it extends into the future as well:

That relationship should not be prevented from continuing into the future. As a result, uses of the lands that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title.

Accordingly, in my view, lands subject to an Aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to Aboriginal title in the first place.99

These passages demonstrate that, for Lamer, the inherent limitations of which he speaks are not based upon a close study of the internal laws of the Gitskan and Wet' suwet'en peoples, but rather are based on the same protective concerns that animate the Indian Act and the Royal Proclamation, 1763.1°°

What are the implications of all of this, assuming that an aboriginal group may be able to establish an aboriginal title that includes petroleum? Will it be able to exploit that resource and if so under what terms and conditions?

  1. There is something of an inconsistency in Lamer's overall approach here. Lamer clearly feels very comfortable making the argument that the content of a reserve title is broad and therefore an aboriginal title must have broad content too; but when he deals with the inherent limits analysis he makes no reference to the Indian Act as a source of limits (if any) on the uses to which reserve lands (and therefore title lands) may be put.

98 Ibid at para 151.

  1. Ibid at paras 127-128. Note how limitations on use becomes conflated with a limited content to the title.

ID° Lamer takes a similar approach to the issue of the inalienability of aboriginal title which is

premised on general observations about the importance of land to all aboriginal people

rather than an evidence-based conclusion about the laws of the Gitskan (ibid at para 129): What the inalienability of lands held pursuant to aboriginal title suggests is that those lands are more than just a fungible commodity. The relationship between an aboriginal community and the lands over which it has aboriginal title has an important non-economic component, The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value.

These are difficult questions and Lamer's judgment provides no concrete guidance, but we can suggest some directions for further inquiry.

First, on Lamer's view, there is a category of activities that is inconsistent with the maintenance of aboriginal title. In my view this area of activity is relatively small, an impression that is confirmed by Lamer's choice of the term 'equitable waste' as the appropriate domestic law analogy.101 It is the extreme activity that Lamer has in mind.102 Hence, on this view, with the exception of particular locations that were specially valued for cultural or spiritual reasons by the particular aboriginal group, ordinary oil and gas exploration with surface seismic activity followed by limited exploratory drilling and production would not be regarded as an irreconcilable use of title lands.103 By contrast, the mining of bitumen using surface stripping methods (as opposed to steam-assisted gravity drainage methods) may be so destructive of the surface and wildlife habitat as to justify the conclusion that such activities constitute an irreconcilable use.

Second, assuming that an activity is not irreconcilable with title, what vehicles are available to the aboriginal group to engage in that activity? Could the group lease the lands to an oil and gas exploration company or would such a transaction run afoul of the inalienability feature of aboriginal title? Could the aboriginal group get around such restrictions by engaging in the activity itself? And if so, by what means? Through a corporate entity incorporated in the laws of settler society? Could it do so by using the innovative service and production sharing arrangements that are used in the international petroleum sector, often to circumvent constitutional restrictions on the alienation of state title to petroleum resources?104 While these types

101 See my more detailed comments on this point in Bankes, supra note 82 at 325.

102 This impression is also confirmed by Lamer's concluding remarks in this passage of his judgment, Delgamuukw, supra note 5 at para 132:

The foregoing amounts to a general limitation on the use of lands held by virtue of aboriginal title. It arises from the particular physical and cultural relationship that a group may have with the land and is defined by the source of aboriginal title over it. This is not, I must emphasize, a limitation that restricts the use of the land to those activities that have traditionally been carried out on it. That would amount to a legal straitjacket on aboriginal peoples who have a legitimate legal claim to the land. The approach I have outlined above allows for a full range of uses of the land, subject only to an overarching limit, defined by the special nature of the aboriginal title in that land.

103 Certainly such activities would not be regarded as equitable waste as between co-owners of a resource. Under that body of law the reasonable exploitation by one co-owner of its share of a mineral deposit or stand of timber may give rise to a duty to account but it is not considered to be equitable waste that is either trespassory or restrainable by an injunction.

104 For general discussion see Ernest Smith et al, International Petroleum Transactions (Denver, Colo: Rocky Mountain Mineral Law Foundation 1993) especially chap 6.

of questions have been much explored in the context of the Indian Act and transactions in reserve lands, they have not been much explored in the context of title lands beyond earlier classical authorities on the Royal Proclamation, 1763.105

We cannot hope to solve these questions in the present context but two further remarks seem appropriate. The scope of the difficulties raised here would be a serious impediment to attracting outside capital. How many companies would be prepared to take a lease, or similar instrument, from an aboriginal group and invest millions of dollars in drilling a deep exploratory well in the absence of some assurance that the agreement would not be struck down? What level of confidence might attach to such an assurance? The second point is related. Both judgments in Delgamuukw place considerable emphasis on the importance of negotiation between the Crown and Aboriginal peoples to properly consider 'the complex and competing interests at stake '.1°6 Those negotiations would presumably seek to clarify some of these questions and the actual practice of land claim negotiations in Canada confirms this view.107

Finally, there is the category of uses that is irreconcilable with title. In such cases the way forward seems clear. Development of lands for those purposes is not proscribed by some fundamental Kantian moral imperative that seeks to protect the inherent value of these lands. On the contrary, utilitarian consideration prevail, and the First Nation may proceed by way of surrender:

Finally, what I have just said regarding the importance of the continuity of the relationship between an aboriginal community and its land, and the noneconomic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration. On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited in the way I have described. If aboriginal peoples wish to use their lands in a way that aboriginal title does

1°5 The Indian Act RSC 1985, c. 1-5, ss. 37 et seq. deals expressly with dispositions short of sale (i.e. leases) but even there the premise is that lands must first be surrendered (or designated) to the Crown and it is the Crown that acts as the lessor. See generally Douglas Sanders, Legal Aspects ofEconomic Development on Indian Reserve Lands (Ottawa: Dept of Indian Affairs and Northern Devlt, 1976).

Delgamuukw, supra note 5 per La Forest at para 207; see also Lamer at para 186,

107 See, for example, the Nunavut Final Agreement, 1993 between the Inuit of Nunavut and the Crown pursuant to which Inuit title to 350,000 km2 of land is confirmed of which approximately 36,000 km2 includes mineral rights.

not permit, then they must surrender those lands and convert them into non-title lands to do so.1°8

D. Extinguishment of Petroleum Titles in Canada?

If we assume that a First Nation or other aboriginal group in Canada has been able to establish an aboriginal title to petroleum, what is the risk that such a title will be found to have been extinguished? There are three parts to the answer to this question: (1) the general test for extinguishment, (2) Canadian vesting legislation, and (3) extinguishment by treaty.

1. The General Test for Extinguishment

The leading cases on extinguishment in Canada are R v Sparrow1°9 and R v Gladstone,11° decisions of the Supreme Court of Canada. Both are fishery cases. The focus in each case is on the possibility of extinguishment prior to 1982 and the entrenchment of aboriginal rights."10 In Sparrow the argument had been made that an aboriginal right to fish had been extinguished by a pattern of regulations under the federal Fisheries Act. Not so, answered the unanimous Court. The burden of proof lies upon the Crown and the test for extinguishment is that the 'sovereign's intention must be clear and plain'. Here the regulations in question merely regulated the right, they did not extinguish it.112 A majority of the Court took a similar view in Gladstone. There the plaintiffs had established an aboriginal right to harvest, and to trade for commercial purposes, herring roe on kelp, The Court summarized the substance of the relevant regulations as follows:

None of these regulations, when viewed individually or as a whole, can be said to express a clear and plain intention to extinguish the aboriginal rights of the Heiltsuk Band. While to extinguish an aboriginal right the Crown does not, perhaps, have to use language which refers expressly to its extinguishment of aboriginal rights, it must demonstrate more than that, in the past, the exercise of an aboriginal right has been subject to a regulatory scheme. In this instance, the regulations and legislation regulating the herring spawn on kelp fishery prior to 1982 do not demonstrate any consistent intention on the part of the Crown. At various times prior to 1982 aboriginal

108 Delgamuukw, supra note 5 at pars 131.
1°9 R v Sparrow (1990) 70 DLR (4th) 346 (SCC).

110 R v Gladstone (1996) 137 DLR (4th) 648 (SCC). On the extinguishment of treaty rights see R v Horseman [1990] 1 SCR 901 at 933 per Cory J and R v Badger [1996] 1 SCR 771 at para 46 per Cory J.

111 It is quite clear that s. 35 only protects 'existing' rights and cannot be used to revive an extinguished right.
112 Sparrow, supra note 109 at 399-403.

peoples have been entirely prohibited from harvesting herring spawn on kelp, allowed to harvest herring spawn on kelp for food only, allowed to harvest herring spawn on kelp for sale with the written permission of the regional director and allowed to take herring roe pursuant to a licence granted under the Pacific Fishery Registration and Licensing Regulations. [Emphasis supplied.]1"

But even this, with its reference to complete prohibitions, was insufficient to work an extinguishment:

Such a varying regulatory scheme cannot be said to express a clear and plain intention to eliminate the aboriginal rights of the appellants and of the Heiltsuk Band. As in Sparrow, the Crown has only demonstrated that it controlled the fisheries, not that it has acted so as to delineate the extent of aboriginal rights. 114

The Delgamuukw case applied ideas of extinguishment in the context of aboriginal title and, inter alia, made it quite clear that a provincial legislature could not, because of the division of powers between federal and provincial governments, extinguish an aboriginal title.115

2. Canadian Vesting Legislation?

While federal and provincial legislatures have, in many cases, followed the Australian example and passed legislation vesting water116 and wildlife"' in the Crown, there is no similar legislation vesting mineral rights or, more specifically, oil and gas rights in the Crown. Consequently, there are significant tracts of privately-owned minerals rights in Canada, especially in

113 Gladstone, supra note 110 at para 34.
114 Ibid La Forest .1 dissented.

115 Delgamuukw, supra note 5 at paras 173 et seq. The rationale is simply that the federal Parliament has the exclusive authority to make laws for Indians and for lands reserved for Indians. Lands held under an unextinguished aboriginal title are 'lands reserved', ergo no provincial law can extinguish an aboriginal title.

  1. See for examples. 4 of the Northwest Irrigation Act, SC 1894, c 30 as am. which provided
    that: 'The property in and the right to the use of the water at any time in any river, watercourse, lake ... or other body of water shall ... be deemed to vested in the Crown ...'. There are similar provisions in the successor legislation of the prairie provinces: see, for example, s 3(2) of Alberta's Water Act, RSA 2000, c W-3 which provides that 'The property in and the right to the diversion and use of all water in the Province is vested in Her Majesty in right of Alberta except as provided for in the regulations.' For more detailed discussion see Richard Bartlett, Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water and Indian Water Rights (Calgary: Canadian Institute of Resources Law, 1988).

117 See, for example, s. 7 of Alberta's Wildlife Act, RSA 2000, c W-10 which provides that 'the property in all live wildlife in Alberta is vested in the Crown.'

the maritime and eastern provinces and in the southern parts of the western provinces. What did happen, however, and from a relatively early time, was that the relevant administrations followed a policy of reserving mines and minerals to the Crown. In addition, legislatures frequently enacted provisions creating an interpretive [is presumption to the effect that grants of Crown owned lands were deemed not to include minerals. Clearly, neither the policy nor the relevant enactments could come close to effecting an extinguishment of a pre-existing petroleum title, whether vested in a grantee from the Crown or an aboriginal title.

This conclusion also extends to offshore petroleum titles. The general proposition in Canada is that while a province may own the title to the seabed and underling mineral estate for any marine areas actually within a province,119 beyond the boundaries of a province (generally the low water mark), title will be governed by the terms of the federal Oceans Act.12° This Act, in a series of three provisions, purports to provide, for greater certainty, that the relevant property rights in the internal waters, the territorial sea, the exclusive economic zone and the continental shelf are all vested in the Crown in right of Canada.121 However, the Act also contains two types of savings clause. The first is a general type of savings clause that qualifies each of the three vesting provisions. It seeks to protect all existing rights as of the date of the original enactment of the vesting provisions and reads as follows: `(2) Nothing in this section abrogates or derogates from any legal

  1. A contemporary example is s. 15 of the Territorial Lands Act, RSC 1985, c T-7 which provides that:

15. There shall be deemed to be reserved to the Crown out of every grant of territorial lands

(a) all mines and minerals whether solid, liquid or gaseous that may be found to exist in, under or on those lands, together with the right to work the mines and minerals and for this purpose to enter on, use and occupy the lands or so much thereof and to such extent as may be necessary for the working and extraction of the minerals.

Reference re the Ownership of the Bed of the Strait of Georgia and Related Areas [1984] 4 WWR 289 (SCC).

SC 1996, c C-31; Reference re Offshore Mineral Rights [1966] INSC 207; [1967] SCR 792, and, more generally, see Constance Hunt, The Offshore Petroleum Regimes of Canada and Australia (Calgary: Canadian Institute of Resources Law, 1989).
121 Oceans Act, ibid.:

s. 8. (1) For greater certainty, in any area of the sea not within a province, the seabed and subsoil below the internal waters of Canada and the territorial sea of Canada are vested in Her Majesty in right of Canada.

s. 15. (1) For greater certainty, any rights of Canada in the seabed and subsoil of the exclusive economic zone of Canada and their resources are vested in Her Majesty in right of Canada.

s. 19. (1) For greater certainty, any rights of Canada in the continental shelf of Canada are vested in Her Majesty in right of Canada.

right or interest held before February 4, 1991.' The second type of savings clause is directed specifically at aboriginal and treaty rights:

2.1 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

In my view, each of these clauses (and certainly the two together) effectively insulates an aboriginal title to petroleum from any extinguishing effect that might have been attributed to the form of vesting clause adopted in the Oceans Act.

3. Extinguishment by Treaty

It is possible that a treaty may, by its terms, extinguish an aboriginal title. Certainly not all treaties will have this effect. Early treaties in Canada, generally applying to the maritime provinces and parts of Quebec and Ontario, were peace and friendship treaties between the Crown and the First Nation.122 These treaties did not deal with title to land and consequently they cannot be taken to have extinguished any aboriginal title to land, or, more specifically, to petroleum.I23 But later treaties, and especially the so-called numbered treaties of western and northern Canada, did deal with the question of land and title to land and all of them included some form of words directed at extinguishing aboriginal title. Treaty 7, the treaty applicable to southern Alberta, may be taken as representative. That treaty, which begins by reciting that the Crown's Commissioners 'have proceeded to negotiate a Treaty with the Blackfoot and other Indians' goes on to provide that those Indians:

... do hereby cede, release, surrender, and yield up to the Government of Canada for Her Majesty the Queen and her successors for ever, all their rights, titles, and privileges whatsoever to the lands included within the following limits [there follows a metes and bounds description of the traditional territory of the Blackfoot and others] ... And also all their rights, titles and privileges whatsoever, to all other lands wherever situated in the North-West Territories, or in any other portion of the Dominion of Canada: To have and to hold the same to Her Majesty the Queen and her successors for ever ...

122 l'or a discussion of the early treaties and the evolution of the Crown's treaty-making practice in Canada see Borrows and Rotman, Aboriginal Legal Issues, Cases, Materials and Commentary, 2nd ed (Markham, Ont: LexisNexis Canada, 2003) pp. 111- i 22.
123 Bernard, supra note 72 and Marshall, supra note 72 especially at pars 98.

While there are contrary arguments,124 these clauses have generally been taken to have extinguished aboriginal title,125 and the Crown, by its practice of disposing of mineral rights as if they were public lands, clearly assumes that any extinguishment extends to any aboriginal mineral title that might be claimed. These issues have yet to be comprehensively litigated.

In conclusion, Canadian courts have developed a stringent test for extinguishment. At the same time, Canadian legislatures, with the exception of the offshore, have never passed the type of Crown vesting enactment for petroleum that is so common in Australia. However, the relevant offshore legislation contains comprehensive savings clauses which allow us to conclude that there is no relevant legislation that can be read as having extinguished an aboriginal title to petroleum, assuming that such a title can be established. That said, the numbered treaties in Canada; as well as other land cession treaties, did contain extinguishment clauses. While some will contest this view, these clauses are generally taken to have extinguished aboriginal title, including any title to petroleum.


A. General Approach

The position in the United States on the source and content of aboriginal title seems relatively clear and is based upon the fact of occupation or possession approach rather than the aboriginal land laws approach. McNeil, for example, states that the Indian title, often referred to as the Indian right of occupancy,

... is generally the same throughout what is now the United States: it depends not on the particular customs or laws of individual tribes (the general existence of which has been more or less acknowledged), but on their actual occupation of lands from what has occasionally been said to be 'time immemorial'.126

124 I discuss some of the relevant arguments in Bankes, 'Treaty Seven and the Surrender of Lands and Mineral Resources: Did it ever happen?' paper prepared for Oil and Gas Exploration and Development and Aboriginal Interests, Conference Convened by Pacific Business and Law Institute, 23-24 Nov 2000, p 25.

125 See, for example, St Catherine's Milling and Lumber Co v R (1888) 14 App Cas 46 (PC) where the similar clause in Treaty 3 is taken to have extinguished any aboriginal title to timber. See also Bear Island, supra note 172.

126 Kent McNeil, Common Law Aboriginal Title (Oxford: Oxford Univ Press, 1989) at 255.

This general conclusion seems incontestable. The leading United States decisions are replete with references to occupancy and possession as the source of entitlement. Take, for example, Worcester v Georgia:

This principle [the pre-emptive power of one European state vis-a-vis others] ... gave to the nation making the discovery the sole right of acquiring the soil and making settlements on it. ... but lit] could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave exclusive right to purchase but did not found that on the denial of the right of the possessor to sell. [Emphasis supplied.]12(

B. Implications for Petroleum

The implications of this general approach are clear. The cases suggest that a title based upon occupancy carries with it title to surface resources like timber as well as sub-surface title to the minerals. 128 This follows from the leading cases of United States v Shoshone Tribe of Indians129 and United States v Klamath and Moadoc Tribes of Indians.130 In Shoshone, the tribe sought compensation when the United States settled a band of Arapahoe Indians on its reservations without consent. In determining compensation the Court of Claims had decided that timber and mineral resources had been included in the reservation when it was established. The treaty setting aside the reservation provided that the lands were to be set apart 'for the absolute and undisturbed use and occupation of the Shoshone Indians ...'. What did that phrase mean?

127 [1832] USSC 39; 6 Pet 515 (US 1832) at 544. See also Mitchel v US [1835] USSC 9; 9 Pet 711 (1835) at 746, 'The Indian right of occupancy is considered as sacred as the fee simple of the whites'; and US v Santa Fe Pacific Ry, [1942] USSC 12; 314 US 339 (1941) at 345 referring to the title of the Walapai Tribe as being based upon 'aboriginal possession'.
128 Accord, McNeil, supra note 126 at 255-256:

But what is the interest held by the right of occupancy? Although it is not a fee simple estate, it is equivalent thereto in so far as it is perpetual, and (notwithstanding the restraint on alienation to private purchasers) entitles the Indians to full beneficial use of the lands covered by it, including the right to standing timber and subsurface minerals.

And see also Rennard Strickland et al, Felix S. Cohen's Handbook of Federal Indian Law (Charlottesville, Va: Michie Bobbs-Merrill, 1982) at 491:

The scope of the rights held by the tribes through unextinguished aboriginal Indian title, although the subject of some oscillation in the decisions, appear to be a full beneficial interest. Generally, the Supreme Court has held that the tribes are entitled to full use and enjoyment of the surface and mineral estate, and to the

fruits of the land, such as timber resources. [References omitted.]

[1938] USSC 107; 304 US 111 (1938).
13° [1938] USSC 105; 304 US 119 (1938).

The phrase ... is to be read, with other parts of the document, having regard to the purpose of the arrangement made, the relation between the parties, and the settled policy of the United States fairly to deal with Indian tribes ....

The principal purpose of the treaty was that the Shoshones should have, and permanently dwell in, the defined district of country. To that end the United States granted and assured to the tribe peaceable and unqualified possession of the land in perpetuity. Minerals and standing timber are constituent elements of the land itself For all practical purposes, the tribe owned the land. Grants of land subject to the Indian title by the United States, which had only the naked fee, would transfer no beneficial interest. The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee....

The treaty, though made with knowledge that there were mineral deposits and standing timber in the reservation, contains nothing to suggest that the United States intended to retain for itself any beneficial interest in them. tEmphasis supplied1131

While these passages undoubtedly speak to the construction of the treaty, Justice Butler's decision for the Court recognizes that the scope of the Indian interest was apparent even prior to the treaty for, 'Subject to the conditions imposed by the treaty, the Shoshone Tribe had the right that has always been understood to belong to Indians, undisturbed possessor of the soil from time immernorial.'132

In Klamath it is even clearer that the Court's comments are directed as much at the nature and content of an aboriginal title as they are at the content of the title held pursuant to the terms of a treaty. In Klamath the plaintiffs had been dispossessed of tribal lands and the question at issue was whether or not they should be compensated for the timber on the lands as well as the lands themselves. The lands in question were part of a tract retained by the tribe out of a much larger body of land held by the tribe by 'immemorial possession'.133 As in Shoshone, the Court ruled that the tribe was entitled to compensation for the timber:

The tract taken was a part of the reservation retained by the plaintiffs out of the country held by them in immemorial possession, from which was made

the cession by the treaty The clause declaring that the district retained should, until otherwise directed by the President, be set apart as a residence for the Indians and 'held and regarded as an Indian reservation' clearly did not detract from the tribes' right of occupancy. The worth attributable to the

131 Supra note 130, at 116-117.
132 Ibid at 117.
133 Supra note 129 at 121.

timber was a part of the value of the land upon which it was standing.

[Emphasis supplied.]134

The emphasised portions of the quotation make it clear that the Court believed that the original aboriginal title, based on possession, included title to the timber. In sum, where lands are held pursuant to recognized aboriginal occupancy,135 these two cases support the claim that the title will include resource rights.136

Where the issue involves a reservation the final outcome will depend upon the instrument creating the reservation137 but the cases do support the idea that there is a presumption138 that a reservation includes a mineral title.

C. Extinguishment of an Aboriginal Title and Federal Paramountcy Doctrine

So far as I am aware, all the recent cases questioning tribal or aboriginal claims to petroleum resources deal with claims by Alaska natives to an entitlement to offshore petroleum resources. These claims have turned on

134 Ibid at 122-123.

135 Where aboriginal title has not been recognized, the US may take the lands and resources without payment of compensation. So held the US Supreme Court in Tee-Hit-Ton Indians v United States [1955] USSC 24; 348 US 272 (1955). In that case, the Alaskan natives sought compensation for an alienation of certain timber on the tribal lands. The Court rejected the claim, not on the basis that the Indians' title did not include timber rights, but on the basis that there was no right to compensation for a taking unless and until Congress recognized the Indian interest.

136 See also US v Paine Lumber [1907] USSC 142; 206 US 467 (1907). Paine and others were authorized by allottees on reservation to harvest timber. The allotments were the result of a treaty whereby the Oneida ceded traditional lands to the United States reserving to individual members of the tribe tracts of 100 acres each. The US argued that the harvesting was unlawful and therefore that the cut trees vested in the US as owner of the fee. The Court rejected this submission (at 473) noting that the Indian title was 'more than a right of mere occupation' although declining to define further the nature of the title.

137 Maxfield et al, supra note 1 at 130: 'Tribal rights in the minerals depend in the last analysis on the terms of the transaction creating or confirming the particular property rights.'

138 See Royster and Blumm, supra note 1 at 131 'As Shoshone Tribe holds, tribal trust ownership of land generally extends to the mineral resources under the land unless Congress has provided otherwise.' [Emphasis supplied.] As a presumption it may be rebutted. Such seems to be the case in Amoco Production Co. v Southern Ute Tribe, [1999] USSC 37; 526 US 865 (1999). In that case, the federal government had restored lands to the tribe subject to homestead patents that had already been issued. The homestead patents included a reservation of coal to the US. Did the coal include coal bed methane (CBM) or not? The Court answered that coal did not include CBM and therefore title to the CBM was included in the patents granted to individual homesteaders.

one of two grounds, extinguishment or the operation of the general federal paramountcy doctrine. In Inupiat Community of the Arctic Slope v United States ofAmerica139 the Inupiat sought to enjoin offshore oil development in the Beaufort and Chukchi Seas. The suit was said to rest 'primarily upon a claim of aboriginal title based upon centuries of occupancy and use of sea ice many miles from shore for subsistence hunting and fishing. 040 The United States Court of Appeals for the Ninth Circuit ruled that any rights that the Inupiat may have had were extinguished by the terms of the Alaska Native Claims Settlement Act141 which was intended by Congress to apply not only to the lands within the legal boundaries of the state of Alaska but also to the outer continental shelf waters contiguous to the State of Alaska.142

This decision seemed to be quite conclusive but the US courts re-visited the question following the Supreme Court's decision in Amoco Production Co v Village of Gambel1.143 In that case the Village of Gambell sought to argue that they could enjoin offshore exploration not on the basis of ANCSA but on the basis of subsequent federal legislation the Alaska National Interest Lands Conservation Act (ANILCA). However, ANILCA, like ANCSA, only applied 'in Alaska' and in Amoco the Supreme Court decided that that phrase did not extend to include the Outer Continental Shelf (OCS). On that basis the Court remanded the case for reconsideration. Not surprisingly, this led the Ninth Circuit to reconsider its stance on the question of extinguishment by ANCSA, and, in People of the Village of Gambell v

139 [1984] USCA9 1859; 746 F 2d 570 (1984) cert denied 474 US 820.
14° 'hid at 571.
141 The Act contained a comprehensive extinguishment clause, 43 USC § 1603:

(a) All prior conveyances of public land and water areas in Alaska, or any interest therein, pursuant to Federal law, and all tentative approvals pursuant to section 6(g) of the Alaska Statehood Act, shall be regarded as an extinguishment of the aboriginal title thereto, if any.
(a) All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.
(a) All claims against the United States, the State, and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy, or that are based on the laws of any other nation, including any such claims that are pending before any Federal or state court or the Indian Claims Commission, are hereby extinguished. [Emphasis supplied.]
  1. In reaching this conclusion the Court was relying upon its decision in People of Village of
    Gambell v Clark [1984] USCA9 1863; 746 F 2d 572 (1984) handed down concurrently with the Inupiat decision.

143 [1987] USSC 38; 480 US 531 (1987).

Hode11,144 that Court held that the phrase 'in Alaska' as used in the extinguishment clause ofANCSA must be given the same interpretation as in ANILCA and therefore could not be taken to have extinguished claims of aboriginal rights and title in the offshore, if such could be proven. Further efforts to litigate that question were frustrated when the Ninth Circuit held the issue moot when all outstanding exploration rights were relinquished.1045 In sum, while ANCSA clearly extinguished aboriginal title in Alaska, including any petroleum title, it did not extinguish any offshore aboriginal title in the OCS.

That is not the end of the matter, however, since there is some authority to the effect that the federal paramountcy doctrine may preclude any private party from maintaining property rights (or at least an exclusive property right) in the OCS. The operation of the federal paramountcy doctrine was dealt with in Native Village of Eyak v Trawler Diane Marie Inc146 In that case, five Alaskan villages sought an injunction against fishing regulations issued by Secretary of the United States Department of Commerce as well as a declaration that they held aboriginal rights to use, occupy, possess, hunt, fish, and exploit the waters, and to the mineral resources within their traditional use areas of the OCS. The Court applied a series of cases dealing with disputes between states and the federal government to hold that the federal paramountcy doctrine serves to bar not only state claims to the OCS but also the claims of indigenous peoples. Those cases had held that the states (even those states that joined the federation with sovereign rights) had no property or sovereign claims to OCS lands. The Court concluded as follows:

... we reject the argument that the Native Villages are entitled to exclusive use of the OCS because they have hunted and fished in the sea for thousands of years prior to the founding of the United States..... The Constitution allotted to the federal government jurisdiction over foreign commerce, foreign affairs, and national defense so that as attributes of these external sovereign powers, it has paramount rights in the contested areas of the sea....

144 [1989] USCA9 162; 869 F 2d 1273 (9th Cir 1989).
145 People of the Village of Gambell v Babbitt, [1993] USCA9 2243; 999 F 2d 403 (1993).

146 [1998] USCA9 1781; 154 F 3d 1090 (9th Cir 1998) cert denied 527 US 1003. For commentary see Andrew Richards, 'Aboriginal Title of the Paramountcy Doctrine: Johnson v McIntosh flounders in federal waters off Alaska in Native Village of Eyak v Trawler Diane Marie Inc' (2003) 78 Wash L Rev 939 (Lexis). Note that in Hodell, supra note 144, the Court had distinguished the paramountcy cases on the basis that those cases dealt with claims to sovereignty rather than claims to title. The Village of Eyak Court distinguished Hodell on the basis that Hodell dealt with non-exclusive rights whereas in Eyak the plaintiff asserted exclusive rights. If this distinction is maintained it may well preclude tribes from maintaining aboriginal title claims as opposed to aboriginal rights claims in the OCS.

The principle applies with equal force to all entities claiming rights to the ocean .... The Native Villages' claim to complete control over the OCS is contrary to these interests and inconsistent with their position as a subordinate entity within our constitutional scheme .... We therefore hold that the Native Villages are barred from asserting exclusive rights to the use and occupancy of the OCS based upon unextinguished aboriginal title.147

D. Conclusions on the United States

The American approach to the content of aboriginal title is based upon the rights flowing from prior exclusive physical possession. As a result, the American decisions on aboriginal title recognize that such a title includes title to both surface resources like timber and mineral resources, including petroleum. However, aboriginal title claims, including title to petroleum, cannot be maintained in the offshore because of the doctrine of federal paramountcy. In some cases, as in Alaska, aboriginal title, including title to petroleum, has been extinguished by Congressional enactments.


We began the paper with a question. Does an aboriginal title include rights to petroleum? That question is part of a broader question about the nature and content of aboriginal title. Kent McNeil has provided us with a useful analytic approach for thinking about these questions by distinguishing between two approaches to aboriginal title: the aboriginal land laws approach and the physical fact of prior possession approach. The former is dominant in Australia while the latter has been adopted in Canada and the United States. It is evident that the aboriginal land laws approach presents considerable obstacles to an aboriginal claimant for it requires that the claimant show that, at the relevant time, the community in question used the petroleum resources in accordance with traditional laws, practices or customs. While this is not an impossible task, especially where there are surface seepages of petroleum, it is clearly a significant hurdle to the proof of a title, and to this point no Australian aboriginal claimants seem to have been able to meet this challenge. Under the physical fact of prior possession approach the aboriginal title is presumed to include all resource rights.

Proof that an aboriginal title may include petroleum is but the first part of the answer to our question. The second part of the answer raises the issue of extinguishment. While aboriginal titles have been extinguished by treaty in both Canada and the United States and in some cases as well by legislation

147 Ibid at 1096-1097.

(e.g. ANCSA) there is nothing in either of these jurisdictions that compares with the comprehensive Crown vesting legislation in Australia which sought to ensure that mines and minerals and petroleum in that jurisdiction were treated as public resources rather than private resources. While such legislation was not directed at aboriginal owners, but rather at all private titles to petroleum, Australian courts have uniformly held that such legislation extinguishes any petroleum title that an aboriginal plaintiff might otherwise be able to establish.

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