British Colonial Practice Treaty Making And Indigenous Rights

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02 Nov 2017

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The British practices in the colonization of North America may have laid foundation for the development of the doctrine of native title in the common law jurisdictions. Subsequent to the loss of British America upon the establishment of the United States in 1776, British expanded its political territory to Asia, Pacific and Africa. The practice which recognized the political autonomy of the indigenous peoples developed into a body of political practices and common law. [1] 

In North America, the Royal Proclamation of 1763 recognized the political autonomy of the Native Americans allied with the Crown as well as control of their lands and resources. [2] The treaty forbade direct purchase of native land by settlers under the principle that the Crown could be the sole source of title to land for settlers. Land from Native American territories could only be acquired by government officials in public treaty processes rather than taken by force or usurpation. The practice was intended to inhibit the dispossession of the inhabitants from their land by force as practiced by Spanish conquistadores in the Spanish expansion which they denounced. [3] 

Treaty making became the official policy of the British crown in acquiring land from Indian nations, not only for just law and morality but integral strategy for pragmatic reasons such as business expansion. Although there is disagreement among scholars on whether the Royal Proclamation recognized or undermined tribal sovereignty, the proclamation established an important precedent that the indigenous inhabitants had certain rights to the lands they occupied. [4] A treaty evidenced the recognition of the indigenous peoples as legal and political entities with rights to sovereignty and political authority over their respective lands. [5] It defined the relationship between the British crown and the indigenous peoples. The terms of treaties certainly varied depending on the circumstances of particular territories but the common principle is that the indigenous peoples did not lose their right to land and their resources by being subjected to British sovereignty and they maintained a right to some form of political representation in relation to the powers of the new state. [6] 

The North American experience heavily influenced the development of legal principle and policy in the independent United States of America (the US), [7] Canada and other territories. In the US, it developed into laws protecting the sovereignty of Native American nations and imposing fiduciary obligations on the US government protecting their property. [8] In Canada the treaty making practice led to the recognition of First Nation’s property rights at the common law which also received constitutional protection. [9] Treaty-making spread to other part of the world including New Zealand and some parts of British Columbia. It was also used in Africa and Asia, particularly in India and the Malay States. [10] 

The state practices respecting the rights of existing inhabitants laid the basis for the development of the doctrine of aboriginal title as it is endorsed by courts in common law jurisdictions. It was also acknowledged by the International Court of Justice in 1975 in which majority state that: [11] 

Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’ of terra nullius by original title but through agreements concluded with local rulers.

Despite many flaws and breaches in practice, this tradition has become an important source for the legal order in countries with substantial indigenous groups. [12] 

The British practice is not unique as the same is also seen in the pattern of treaty making between other European powers and indigenous peoples in the period of colonization. [13] 

Australian experience

Even in Australia, where there was no treaty concluded with the Aboriginal Peoples, there was evidence that the British intended to respect the possession and use of land by the existing inhabitants. Colonial Office policy required respect for the local Aborigines and directed Governors to ‘protect their persons and the enjoyment of their possessions, to prevent and restrain violence and injustices towards them, and to punish any of our subjects who harmed them’. [14] 

Cases in 19th century, although limited and not relating to issue of land rights, represent the perspective that the existing inhabitants are distinct political communities with their own legal systems and rights over their land and resources. In R v Ballard (1829), [15] the judges unanimously held that the indigenous inhabitants were to be governed by their own customs and laws based on the principles of equality and justice and supported by the law of nations or international law. [16] Dowling J, in obiter, states that the principle applies to the preservation of property, the

Englishman has no right wantonly to deprive the savage of any property he possesses or assume a dominion over. [17] 

Subsequently, Justice Burton, delivering judgment in R v Jack Congo Murrell (1836), [18] held that the indigenous peoples were ‘amenable to the laws of the Colony’. This finding was based on the ground, among others, that the territory which was unappropriated by any one, has been taken into actual possession by the King of England that gives the English nation both the rights of dominium and empire. [19] This judgment attracted criticism [20] and was reversed in a later case, R v Bonjon (1841), although it became the law. Willis J viewed the aborigines as a nation, a distinct community and a dependant ally of the crown, having sovereignty to their own land and governed by their own law and custom. This view is based on, first, the consistency of the practice of the British in the treatment of natives in other jurisdictions acquired by cession, settlement as well as in conquered territories; and second, the writing of Vattel on the rights of nomadic people. [21] Willis J held that English law was not applicable to the Aboriginal Peoples as a distinct peoples having sovereignty and governed by their own laws and customs. Relying on the law of nations applicable to colonizing nations, Willis J held on the basis of equality and justice that they remained unconquered and free. Even tribes dependent

on the colonists as their superiors for protection; their rights as a distinct people cannot, from their peculiar situation, be considered to have been tacitly surrendered.

In a report of a Select Committee of the House of Common on aboriginal peoples in 1837, the importance of property rights of the existing inhabitants of the British settlements were strongly affirmed. The report states,

It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil: a plain and sacred right, however which seems not to have been understood. Europeans have entered their borders, uninvited, and when there, have not only acted as if they were undoubted lords of the soil but have punished the natives as aggressors if they have evinced a disposition to live in their own country. [22] 

But over time, argues Watson, under influence of the most extreme form of discovery doctrine adopted into the common law by Marshall J in Johnson v McIntosh, the legal fiction of terra nullius took root in Australia. It was maintained through more than a century that indigenous occupants of a ‘discovered’ country had no enforceable property rights. [23] As McHugh describes:

There [in Australia] settlement mostly spread without formal concession to Aboriginal presence with official effort to maintain a line of settlement frustrated by what became unstoppable patterns of ‘squatocracy’ defiance. [24] 

Therefore, the High Court of Australia in Mabo (No 2) [25] in 1992 merely affirmed the position of the Aboriginal Peoples as it was understood during the early settlement. The court rejected the prevalent understanding of the distinction between cession and settlement and the concept of terra nullius [26] in determining the existing rights of the inhabitants at the time British crown took possession. [27] Prior common law propositions implied that the indigenous inhabitants of a settled colonies had no proprietary interest in land would depend on a discriminatory denigration of indigenous inhabitants, their social organizations and customs. [28] In the absence of any explicit territorial cession, all pre-existing Aboriginal rights to territory continue as common law native title. It is thus a re-examination of the understanding of the legal positions of the Aboriginal Peoples which had departed from the original policy.

The doctrine of protection in the United States, its misconception and its impact in other common law jurisdictions

There are three key legal principles in relation to the Native American in the US established by Marshall CJ in the Marshall Trilogy, [29] three major cases involving their rights. [30] However, as Blumm suggests, the trilogy, was misinterpreted by later decisions that failed to recognise that Marshall CJ had recognised that the Indian tribes had fee simple absolute in their land. [31] The misunderstanding was used to justify the diminishment of the land rights of the indigenous peoples.

First, the relation of the Native American nations with the United States was characterised by the concept of ‘domestic dependent nations’. This position was made in reliance on the international law doctrine of discovery which Marshall adopted into the common law. This doctrine, Marshall wrote, not only operated as a limitation for the Native Americans but also on European nations. [32] It regulates the rights given by discovery to the European discoverers, but 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. [33] Marshall also cited Vattel to establish that the domestic dependent status did not limit the importance of tribal sovereignty. Vattel considered viewed that tributaries and feudatory states remain as sovereign and independent states so long as they exercise self-government and have independent administrative authority. [34] 

Marshall announced that the natives were ‘the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion.’ [35] Based on the discovery rule, the tribes retained interest in the possession and use of their lands ie ‘the two sticks in the property bundle of rights commonly associated with a fee simple absolute’. [36] But under the discovery doctrine, Marshall viewed, the tribes lost, ‘their rights to complete sovereignty, as independent nations’; and ‘their power to dispose of the soil at their own will, to whomsoever they pleased.’ [37] 

In Worcester v Georgia, [38] Marshall dropped the ‘limited possessor’ view in favour of a limited owner conception. [39] He ruled that the Cherokee Nation was a ‘distinct community occupying its own territory with boundaries accurately described’. The laws of Georgia were not enforceable in its territory so that the citizens of Georgia could not enter except: with the assent of the Cherokees; or in conformity with treaties and with the Acts of Congress. The decision effectively limited the earlier decision in Johnson to the right of preemption amongst the European colonisers, excluded state authority over Native American nations and established that they Indian Nations had a right to self-government unless voluntarily ceded or lost by military conquest. Michael Blumm describes the title referred to by Marshal as a ‘fee simple subject to the government’s right of preemption’ [40] or, as a ‘fee simple with a partial restraint on alienation’. [41] 

The second principle derived from Cherokee Nation and Worcester is the concept of the fiduciary trust responsibility of the US government to Native American tribes. This principle of trust responsibility is concomitant with the third principle that the states have no authority in the territory of Native Americans as they are the domestic dependent nations. But the US government had an obligation to protect their interests from those that would encroach upon them. Earlier in 1790, the US government enacted Indian Intercourse Acts 1790 to prohibit unregulated trade and travel in Native American territories.

The interplay of these three key legal principles laid the foundation for contemporary expression of self-government by Native American nations within the European derived legal framework. They have influenced legal principles on native land rights operating in Canada, New Zealand and Australia although the content in those jurisdictions varied (Chapter 8). [42] 

Treaty making and dealing with indigenous peoples in India and its influence in the Malay states

British Empire in India was once a large British territory under British dominion or protection. British relation with eastern Indian territories began for trading purposes since the 17th century through the British East India Company (EIC), which expanded to make the region its dominion by 1773 with establishment of Calcutta as the capital territory. The empire later comprised of: 1. British India, which was under direct imperial rule; [43] 2. over 600 princely states, which were either protectorates or protected states; and 3. other territories not really known to come under the same empire, Bhutan, Nepal, Afghanistan, Arabia, and Somalia. [44] 

The British in Asia including India and Africa were largely confined to trade, at least until the 19th century. The EIC from the beginning was firmly opposed to conquest as a way of the expansion of empire in the colonization period. [45] The relationship with the territories in Asia was established through a series of treaties with the local rulers to whom rent or tribute was usually paid. The treaties defined the relationship with the local rulers which the extent of British powers in the territories were varied. [46] British settlements in India, Madras and Calcutta were acquired by treaty and Bombay was ceded by the Portuguese in 1661. [47] 

The same pattern was also adopted in the Malay states where treaties governed their relationship. [48] In Selangor, where there was no treaty, Roland Braddell wrote that an interchange of letters, a proclamation, and the reception of officers were to assist the Sultan to ‘govern his country and to protect the lives and property of dwellers in, and traders to, Selangor. [49] The protection of lives and property was accepted as the very reason for the reception of the British officials and their power in the Malay States.

British developed a residential system which originated from its representatives who resided in the foreign countries and employed by the EIC in east India by early 18th century. By 1786, it also comprised the territories in the Malay Peninsula. [50] Under the system, all of the states and territories other than British India (which was the British dominion), whether independent or under British protection were incorporated into a vast diplomatic network controlled from British India. Each had its own ruler or chief overseen by a British resident or agent. These residencies and agencies were run by the diplomatic corps of British India, known as the Indian Political Service (IPS). Originally, residents took their orders from the headquarters of one of the Company’s three Presidencies in India, [51] until 1858 when London assumed direct control. The IPA was responsible to conduct foreign relations between their rulers and foreign governments. [52] 

The Straits Settlements [53] in the Malay Peninsula were also part of the territories under control of the EIC, which headquarter was based on Calcutta. It came under direct British control as a crown colony on 1 April 1867 when its administrative control was shifted to the colonial office in London. The British Resident-General of the Federated Malay States was answerable to the Governor of the Straits Settlements. [54] 

In many cases the British was responsible for foreign affairs and defence of the territories, whilst the states continued to be responsible for their domestic policies. By mid-18th century, residents became colonial administrators in those regions where the Company assumed direct control. In other territories indirectly controlled by the British, British officers generally acted as diplomatic officers controlling external affairs but British influence in internal affairs was also substantial in many states.

The British demonstrated interest and sensitivities to the existence and use of Hindu and Islamic law. The local laws were referred to in the courts established since the EIC’s rule. [55] Introduction of English law was applied only for Indians who had no other applicable body of law such as Armenians and Parsi. [56] Local customary laws were compiled and judicial institutions were established for different multicultural communities. [57] Â This practice may have a direct influence on the British practice in the Malay states.



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