IV Native Title as a Sui Generis Right: The Historic Roots
Sui generis is a latin term meaning ‘forming a kind by itself; unique, literally of its own particular kind’. It connotes uniqueness and a class of its own. The term was first used to refer to Aboriginal rights in the Canadian courts in Guerin v R.92 Since Guerin the appellation has been extended to rights such as hunting, fishing and land rights, and to issues like the relationship between Aboriginal people and the state.
Judicial recognition of Aboriginal rights as sui generis may be traced back to the Privy Council decision in Mohegan Indians v Connecticut in 1772-73.93 The Mohegan case confirmed that in certain circumstances native nations were not subject to colonial jurisdictions established for settlers but to their own traditional customs and institutions.
This became the pivotal concept in the landmark decision of Johnson v McIntosh,94 where Marshall CJ was required to resolve conflicting claims of settlers in the European settlement: one claiming title from a crown grant, the other from Aboriginal title. Chief Justice Marshall adopted the compromise known as native title or Aboriginal title at common law, devising a concept that sustained the property rights sanctioned by the Government while in part maintaining the rights of Aboriginal people in a ‘new and different rule, better adapted to the actual state of things’.95 He held that an Indian title was valid in accordance with Indian law held ‘by a title dependent on their laws’.96 This decision has been repeatedly affirmed in the Supreme Court of the United States97 and formed the basis of law and policy in that country.98 The golden threads that ran through these cases are also evident in the decisions of other common law jurisdictions.
A hundred years after Johnson, in Amodu Tijani,99 Viscount Haldane warned against ‘a tendency, operating at times unconsciously, to render [native] title conceptually in terms which are appropriate only to systems which have grown up under English law’. He added that ‘this tendency had to be held in check closely’. Viscount Haldane appreciated the uniqueness of Aboriginal land rights based in custom. He said that:
the proper method of ascertaining rights possessed by indigenous people necessitated a study of the particular community’s customs and laws…and…Aboriginal title is best understood through considering indigenous patterns of land usage rather than importing the preconceived notions of property rights under the common law.100
This view was supported by Lord Denning in Adeyinka Oyekan v Musendika Adele.101 His Lordship said that the guiding principle is that inhabitants’ rights to property are to be fully respected ‘even though those interests are of a kind unknown to English law’.102 This was a departure from the notion that land ownership existed only where it adhered to common law concepts at the expense of Indigenous principles of ownership.
In Canada the law of Aboriginal title directly descended from the decision of Marshall CJ in Johnson. In Calder103 Hall J held that Aboriginal rights were legally enforceable and were not dependent upon their similarity to common law. He found that the Nishga’a had a ‘concept of ownership indigenous to their culture and capable of articulation under the common law’.104 A decade later that decision was followed in Guerin105 when the Supreme Court ‘settled upon an appropriate interpretive tool to reconcile Indigenous and non-Indigenous legal perspectives’.106 Since the nature and existence of Indian title arose from pre-existing Indigenous organisations and laws, the Court decided that Aboriginal rights should not be categorised according to common law rights of property. In Guerin Dickson J devised a more appropriate terminology, calling the rights sui generis, the first time it was so called in the courts. This was only the beginning of the judiciary’s extension of the sui generis concept in Canadian Aboriginal rights jurisprudence. It eliminated almost 100 years of judicial uncertainty about how to conceptualise Aboriginal rights and reconciled potentially conflicting judicial assumptions about the existence and nature of Aboriginal title.107
More than a decade after Guerin, in Delgamuukw108 the sui generis nature of native title was said to be ‘the unifying principle underlying the various dimensions of that title’. The characteristics of native title cannot be completely explained by reference either to common law rules of real property or to the rules of property found in Aboriginal legal systems since ‘[t]heir unique nature has made them difficult, if not impossible, to describe in traditional property law terminology’.109 Such rights must therefore be understood by reference to both common law and Aboriginal perspectives.110 In this way the Court formulated a body of law that was sui generis, derived from experience rather than sovereign decree.111
This of course followed the path-breaking case of Mabo (No 2),112 handed down by the High Court of Australia in 1992.113 The broad effect of the lengthy judgments is summarised by Mason CJ and McHugh J, who stated ‘that the common law of this country recognises a form of native title which…reflects the entitlement of the Indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.’114 Referring to Viscount Haldane’s decision in Amodu Tijani Brennan J pointed out that there was no reason not to extend common law recognition to native title even though they were different from common law tenures. Justices Deane and Gaudron declared that the ‘preferable approach’ was to recognise the inappropriateness of forcing the native title to conform to traditional common law concepts and to accept it as sui generis or unique.115
Calder, Mabo (No 2) and the preceding common law cases clearly influenced the recognition of the pre-existing customary right of the Orang Asli in Peninsula Malaysia in Adong. This set a precedent for the same declaration in other cases both in Peninsula Malaysia and in Sarawak. The various descriptors used for native title counsel courts to look beyond the common law. In particular, ‘pre-existing’ refers to a time prior to the existence of the common law; ‘customary’ implies a set of practices accepted over a long and common usage; ‘beneficial’ involves the rules of equity; and sui generis communicates the uniqueness of the right. This suggests the general inadequacy of the common law categories.116