The Rights of Indigenous Peoples in Marine Areas

Stephen Allen, Nigel Bankes, Øyvind Ravna, Stephen Allen, Nigel Bankes, Øyvind Ravna

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509952021
• eBook ISBN: 9781509928651
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The question of what rights might be afforded to Indigenous peoples has preoccupied the municipal legal systems of settler states since the earliest colonial encounters. As a result of sustained institutional initiatives, many national legal regimes and the international legal order accept that Indigenous peoples possess an extensive array of legal rights. However, despite this development, claims advanced by Indigenous peoples relating to rights to marine spaces have been largely opposed. This book offers the first sustained study of these rights and their reception within modern legal systems. Taking a three-part approach, it looks firstly at the international aspects of Indigenous entitlements in marine spaces. It then goes on to explore specific country examples, before looking at some interdisciplinary themes of crucial importance to the question of the recognition of the rights of Indigenous peoples in marine settings. Drawing on the expertise of leading scholars, this is a rigorous and long-overdue exploration of a significant gap in the literature.

Part I

The Colonial Encounter in Marine Space

1

Indigenous Legal Traditions, Inter-societal Law and the Colonisation of Marine Spaces

ROBERT HAMILTON

I.INTRODUCTION

In 1604, a French vessel approached the shores of Mi’kma’ki, later also known as Acadie, and later still as the British colony and then Canadian province of Nova Scotia. As the vessel entered the calm waters of the Annapolis basin, a birch bark canoe came out to meet it. Membertou, Sagamaw of the Mi’kmaq peoples of the region, pulled the canoe aside the French ship and boarded. Membertou addressed those aboard in broken French.¹ The Mi’kmaq that these early French colonists encountered were familiar not only with French, but traded with Europeans in a pidgin-Basque language developed through a century of trade with Basque fishermen.² In addition to several types of canoes designed for a variety of purposes, the Mi’kmaq sailed single-mast European shallops that they controlled with a proficiency that impressed European observers. The Mi’kmaq were a coastal people.³ Their interactions with Europeans over the first two centuries of contact took place on the shores and on the water.

As a coastal people, the Mi’kmaq had law regulating the use of marine spaces and resources. Over the centuries of contact with European colonists and fishermen, a body of inter-societal law, first customary and later positive in nature, developed to regulate the relations between peoples and their use of marine spaces and resources. This pattern is observable in many colonial spheres. However, most of the analysis of the impact of European imperial projects on Indigenous peoples has focused on land. This is not without reason. The voracious European appetite for land and land-based resources drove an acquisitive form of colonialism that dispossessed Indigenous peoples of their lands the world over. Particularly in settler-colonial states, much of the contemporary opposition to colonial power has therefore focused on gaining recognition of rights to land.

However, legal disputes between Indigenous peoples and colonial states over rights and jurisdiction in marine areas have also played a prominent role in contemporary rights disputes. The long histories of Indigenous and inter-societal law in marine areas should inform how legal doctrine in common law countries treats these disputes. From a common law perspective, the long-standing doctrine of continuity recognises that Indigenous legal traditions could survive the assertion of colonial sovereignty.⁴ Their historical and ongoing importance shapes contemporary doctrines. As Lamer CJ stated in Delgamuukw: ‘The common law should develop to recognize aboriginal rights as they were recognised by either de facto practice or by aboriginal systems of governance.’⁵ Contemporary attempts to facilitate this development in the common law have not been as successful as higher-minded statements from common law courts suggest they could have been. One of the reasons for this is that courts have failed to fully acknowledge and conceptualise the nature and role of Indigenous and inter-societal law in the early colonial period. If the common law is to develop in a manner that reflects ‘aboriginal systems of governance’ and the customary forms of inter-societal law that shaped de facto practice, it must strive to understand those systems of law.

With that in mind, the following two sections of this chapter describe the ways in which two types of law – Indigenous law and Indigenous-European inter-societal law – each historically regulated the use of marine areas and resources. This overview illustrates how de facto practice and ‘aboriginal systems of governance’ understood the rights and jurisdiction of Indigenous peoples in colonial spheres in the common law world and brings to the fore the legal pluralism that characterised Indigenous spaces in the imperial age. Section IV argues that the theoretical discourses and legal categories that shaped the ‘doctrine of discovery’ applied equally to marine spaces. In doing so, it juxtaposes European theorising which justified imperial expansion with the legal pluralism and negotiated forms of law and authority described in the two prior sections. The section concludes by illustrating how these European theories supported an extension of jurisdiction which dispossessed Indigenous peoples in marine areas through the development of colonial legal and regulatory regimes.

Section V briefly connects the contemporary rights paradigms of settler-colonial states to this longer history. In doing so, it seeks to chart a path for the development of common law doctrine which could be informed by a reading of Indigenous law and governance free from preconceptions that have historically worked to minimise those traditions.⁶ This provides the foundation for a re-assessment of Indigenous marine rights in the contemporary context.

II.INDIGENOUS LAWS IN MARINE SPACES

The image of Indigenous peoples as lawless and uncivilised prior to European contact has been conclusively undermined.⁷ However, this framing has had pernicious political and legal consequences, as Indigenous law, sovereignty and jurisdiction were eliminated by a way of seeing the world that could not admit of their existence.⁸ Several damaging legacies of these early beliefs are still present today. This is despite the fact that these views were contrary to the lived reality recorded by European observers, who consistently noted the well-developed legal and social structures of the Indigenous nations they encountered.⁹ Indigenous peoples had laws that governed their relationships within their communities, with other peoples and with the world around them. Their laws touched on matters such as trespass, property, marriage, adoption, crime, hunting, trade and so on.¹⁰ Indigenous rights in marine areas today must be considered in light of the history of Indigenous law in those spaces and the jurisdiction that such law illustrates. As Eddie Mabo Jr has written: ‘We have always operated out of an understanding of our own … jurisdictions to land and water.’¹¹

Indigenous notions of territoriality and conceptions of distinctions between marine and dry land areas shaped the ways in which Indigenous jurisdiction in marine spaces was conceived.¹² Indigenous legal systems often conceptualised distinctions between marine, foreshore and dry land areas of territory differently than common, civil or international law systems. As the Waitangi Tribunal wrote in its Report on the Crown’s Foreshore and Seabed Policy: ‘The need to distinguish the foreshore from the adjacent dry land and seabed arises from the English common law, which developed distinct rules for that zone. In Maori customary terms, no such distinction exists.’¹³

Before turning to Indigenous legal principles in marine areas, two notes of caution are warranted. First, it is important to recognise the heterogeneity of Indigenous peoples in order to avoid essentialist or reductionist approaches to Indigenous cultures and identity.¹⁴ Though I draw on several Indigenous legal traditions in the following analysis, the aim is to draw out similarities between distinct peoples with vastly divergent legal traditions. Second, Indigenous law must not be tethered to the past. Law is continually re-shaped to meet the demands of the present, and its present legitimacy cannot be assessed in terms of its adherence to an idealised past. The legitimacy of Indigenous peoples’ contemporary laws concerning marine areas is not tied to their fidelity to historical laws. Further, Indigenous law is shaped and created in the present. As John Borrows writes: ‘Indigenous people’s laws hold contemporary relevance for themselves and others, and can be developed through contemporary practices.’¹⁵ That is not to say that historic laws do not provide guidance: the historical role of Indigenous legal traditions clarifies how Indigenous laws came to sit in relation to state laws in the manner they do today and informs the articulation of contemporary Indigenous legal principles.

How, then, can Indigenous legal principles in relation to marine spaces and resources be identified? John Borrows identifies five sources of Indigenous law that are a useful starting point when analysing Indigenous legal traditions. These sources are not exhaustive, but they offer a way to begin seeing Indigenous law. Those sources are ‘sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs’.¹⁶ The particular, contingent circumstances of each people shape how the distinct sources inform law.¹⁷ There are many ways in which the law derived from these sources can be recorded and communicated. Stories and oral histories can record aspects of Indigenous law. Stories express community norms, standards of judgement, and modes of reasoning and present examples of proper and improper behaviour. As such, stories can be analogous to ‘cases’ in the common law.¹⁸ The stories of coastal Indigenous peoples may articulate legal principles concerning marine spaces and resources.

The Mi’kmaq were ‘hunters for marine animals such as walrus, seal, and small whales, and before the arrival of Europeans they had depended primarily on marine resources, including cod and bass, as well as the deep-sea swordfish’.¹⁹ They travelled in sea-going canoes that took them across open waters as far as Newfoundland and by the beginning of the seventeenth century sailed European shallops.²⁰ The norms associated with this intensive use of, and existence with, the sea and sea life were developed and shared partly through stories and songs, and the Mi’kmaq have many stories that are set in marine spaces. A story called ‘Gluskape, the Giant Killer, and the Whales’ recounts that Gluskape (who is the ‘first man’ in Mi’kmaw creation stories, often playing the role of creator himself) was a fisherman. The story tells of a whale hunt and the sharing of the harv...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• List of Contributors
• Introduction
• PART I: THE COLONIAL ENCOUNTER IN MARINE SPACE
• PART II: INTERNATIONAL DIMENSIONS
• PART III: INDIGENOUS RIGHTS IN MARINE AREAS IN DIFFERENT JURISDICTIONS
• PART IV: PERSPECTIVES ON INDIGENOUS RIGHTS IN MARINE AREAS
• Index
• Copyright Page