The Factual Basis for Indigenous Land Rights

Groundbreaking judgments in Australia and Canada in the 1990s reveal that Indigenous land rights depend on evidence of Indigenous occupation and law when the British Crown asserted sovereignty. Looking back at earlier Indigenous rights decisions, it is apparent that they were not based on facts, but on prejudicial and erroneous assumptions about Indigenous peoples. In St Catherine’s Milling and Lumber Co v The Queen (‘St Catherine’s’), Lord Watson said the rights of the Ojibwe Indians were based solely on the goodwill of the Crown, a conclusion that evidently stemmed from the trial judge’s racist assessment of Ojibwe society. In Cooper v Stuart, Lord Watson wrongly described New South Wales as a ‘territory practically unoccupied, without settled inhabitants or settled law’ at the time it became a British colony.

This article demonstrates that what was missing in the 1880s was not law supporting Indigenous land rights, but rather evidence that should have led to the application of existing law. Erroneous factual assumptions resulted in legal precedents that led to the denial of Indigenous rights for around a century. Nor is the impact of these precedents entirely spent — even today, false arguments are made that there was no basis in 19th century common law for Indigenous land rights.