Law Against Law: Indigenous Rights and the Richtersveld Cases

Hanri Mostert
Department of Private Law,
Stellenbosch University,
South Africa
hmos@sun.ac.za

and

Peter Fitzpatrick
School of Law,
Birkbeck College,
University of London, UK
peter.fitzpatrick@clickvision.co.uk

Abstract

‘Law against law’ seen in several aspects: (1) The Richtersveld decisions in South Africa join a distinguished list of indigenous efforts to draw on resistant dimensions of the law so as to counter the positivistic law of ‘sovereign’ colonial appropriation. (2)Yet the Richtersveld decisions, like their counterparts in other countries, rely on this same positivistic law to contain and subordinate the rights and the laws of indigenous peoples in the very process of ‘recognising’ them. (The Richtersveld decisions are not, however, clones of these other cases. One of the concerns of this paper is to bring out the differences as well as the similarities between the Richtersveld decisions and these cases and to provide some indication of how the Richtersveld decisions may be ‘placed’ in the growing body of cases on indigenous title and indigenous rights.) (3) Finally, the asserted ‘sovereign’ subordination fails because the positivistic legal terms in which it is supposedly effected cannot be sustained in the face of the indigenous challenges to its historical and ontological basis. This is a productive failure, however, in that it reveals constituent dimensions of law and of our relating in law, which dimensions are denied in law’s positivist assertion.

Authors’ Note

This article emanates from a workshop on Legal Foundation and Native Title, held at Stellenbosch University in May 2003. Preliminary findings were disseminated at the Critical Legal Conference held in September 2003 at Rand Afrikaans University, Johannesburg. The research assistance of Ebrezia Johnson, Wharren Fortuin and Jacques Jacobs is gratefully acknowledged, as is the financial support of the National Research Foundation of South Africa and Stellenbosch University. Opinions expressed in this article should not be attributed to either of these institutions.

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This is a refereed article published on: 28 February 2005

Citation: Mostert, H and Fitzpatrick, P, ‘Law Against Law: Indigenous Rights and the Rictersveld Cases’, 2004 (2) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/2004_2/mostertfitzpatrick>

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1. Remaining in the Margins and on the Edge ?

The people of the Richtersveld, their land and their history could hardly be a more obvious symbol for a well-worn academic theme, the centrality of the margin. The Supreme Court of Appeal (‘SCA Decision’) recognised this when acknowledging, as part of its contribution to resolving the land claim dispute between the Richtersveld people and the state-held diamond-mining company Alexkor,¹ that these people for centuries had lived ‘in the margins of history on the edge of the country’ (SCA Decision, para 8). This was a land and a people of almost no concern to an Occidental settler civilisation,² so-called, until a part of it became of intense if rather narrowly focused interest when diamonds were discovered there in the early 20^th century.

Even with the mining for diamonds, the Richtersveld remained something to be adjusted incidentally to the imperial scheme, remained ‘waste and vacant’ to adapt the British colonial phrase, a desolation to the cluttered European soul. Its unsettling potential was already embedded in the attempt to contain it in a name. Only the most fragile possessiveness can be carried by the naming after an obscure German missionary who visited the area briefly in the early 19th century. Yet even that tenuous hold dissipates in the ‘veld’, for even if the Dutch ‘field’ suggests a snug containment, when filtered by way of Afrikaans ‘veld’ becomes uncontained country.

Our analysis of the three main instances of judicial involvement in the Richtersveld dispute juxtaposes the uncontainability of ‘community’ and the contained arrogation of sovereignty. In doing so, we employ the Richtersveld decisions to illustrate the ease with which communality in a private property setting can be used to obscure the basic and original question of an enduring sovereignty over territory. Consequent to that, we explore the challenge posed by the uncontainable community for the constituent completeness of a fragile national sovereignty and of the law supposedly generated by it. All of which is not to deny that the cases we consider do in a way extend the ‘recognition’ of indigenous title and of indigenous rights. But, as we have to argue, the very terms of this recognition are also terms of the containment and subordination of indigenous peoples.

1.1. The People, the Land and the Diamonds

The people of the Richtersveld initially approached the Land Claims Court for an order restoring their ancestral lands under the Restitution of Land Rights Act of 1994.³ The Richtersveld is part of a larger area called Namaqualand, situated south of the Garib (Orange) River, and comprising about 85,000 hectares. It is rich in mineral resources. Today, most of the Richtersveld people are resident in four settlements: Kuboes, Sanddrift, Lekkersing and Eksteenfontein. Their ancestors stemmed from two indigenous groups of people, the (pastoralist) Khoi-Khoi and the (hunter-gatherer) San, who inhabited the area in nomadic fashion, long before even the Dutch colonisation of the Cape from 1652 onwards. By the 19th century, the two groups had merged into the so-called Nama tribe and incorporated others present in the area, mainly some white trekboere (itinerant farmers) and the so-called basters (ie people of mixed descent, chiefly from white fathers and San or Khoi mothers). They lived independently, under their own political management.

The harshness of the land inhabited by the Richtersveld people was more than matched by the severity of their treatment under colonial and apartheid rule. The whole of southern Namaqualand (including the Richtersveld) was placed under British rule through annexation in 1847. Initially, the British Colonial Government showed no interest in the presence of the Nama tribe on the land. Later (between 1925 and 1927) a rich deposit of diamonds was discovered. By that time the British Colonial Government had been succeeded by a South African government under the protection of the Crown. It started proclaiming alluvial diggings and awarding mining rights to various stakeholders, in the belief that the land was unalienated Crown land consequent on the 1847 annexation. Since then, the Richtersveld people were progressively denied access to the land they previously occupied. The dispossession culminated in the creation of reserves for these people, and the establishment of the state-owned Alexander Bay Development Corporation. The latter held most of the prospecting and mining rights in the area. When it was eventually converted into a private stock company (Alexkor), the state remained its largest shareholder. Alexkor opposed the Richtersveld people's claim for restoration of their land.

1.2. Judicial View of the Richtersveld People's ‘Place’

The legislative criteria for restitution, in particular the combination of requirements of the Restitution Act of 1994⁴ that dispossession of land rights had to have been the result of racial discrimination and that it had to occur after 1913 in order to attract a restitution award, eventually led the Land Claims Court (LCC Decision) to find against the claim.⁵ It based its finding on the state’s reliance on the terra nullius principle⁶ of 19^th century international law (LCC Decision, paras 106, 110). The Supreme Court of Appeal reversed this decision, holding that the Richtersveld community held a ‘customary law interest’ in the land, which survived annexation. The ‘customary law interest’ was described as being ‘akin’ to rights held under common law ownership (SCA Decision, paras 8, 23-29). It included rights to the precious stones and minerals on the land. The most intriguing aspect of the SCA's argument is its use of aboriginal-title reasoning to outline the requirements against which the existence of a ‘customary law interest’ may be tested (SCA Decision, para 23). First, it held that even though the Richtersveld people's use of the land may have been seasonal, sparse and intermittent due to the exigencies of their survival, they still had ‘exclusive beneficial occupation’ of the land, especially since the community had ‘a strong sense of legitimate entitlement to the land’, which others respected, the sources upon which these considerations are based obviously involving considerations of the doctrine of aboriginal title (SCA Decision, paras 23-24). The court further employed similar sources to describe the trait of ‘exclusivity’ which is connected with beneficial occupation, where it supported the notion that exclusivity would be demonstrated by ‘the intention and capacity to retain exclusive control’, before finding that the Richtersveld people ‘had enjoyed undisturbed and exclusive occupation of the … land’ at the time of annexation (SCA Decision, para 28, quoting McNeil, 1989, p 204).

The SCA linked the annexation of the Richtersveld to the progressive expulsion of the Richtersveld people from the land after 1913, thus bringing the claim of the Richtersveld people under the ambit of the Restitution Act. Further the SCA rejected (SCA Decision, paras 35, 44-51)⁷ the terra nullius doctrine upon which the LCC based its decision, and reconsidered the applicability of aboriginal title in the South African context (SCA Decisions, paras 36-43 and 52-62). It is of some significance that the SCA's argument against the terra nullius rule relied on proof of the attitude of the colonising authority, in particular its not considering the annexed territory to be terra nullius. This places in question the assumptions of encompassing sovereignty underlying the debate, since one would expect that the attitude of the colonial government would make no difference to the applicability of the terra nullius rule if it indeed formed part of the law. It was argued that according to the doctrine of continuity which is established in colonial Anglo-American jurisprudence, the proprietary rights of the community remained intact until such time as it was affected by a subsequent act of state (SCA Decision, paras 55-61).

The Constitutional Court (CC Decision)⁸ was requested to set aside the order of the SCA, amidst fears aired in the media about the extent of the financial burden placed on the present South African government to compensate the Richtersveld community (eg de Bruin, 2003). Save in one respect, the CC essentially endorsed the conclusions reached by the SCA. The CC allowed Alexkor to revive the argument that the Richtersveld had no rights worthy of protection (CC Decision, paras 42-45 ), even though this issue was abandoned during the SCA hearing. The compelling ground behind this move was the CC's desire to provide the LCC with a proper characterisation of the Richtersveld community's title in order to facilitate the later process of determining the value of the claim (CC Decision, para 45). This characterisation was undertaken with reference to the indigenous law of the Richtersveld people (CC Decision, para 50).⁹ It was found that the Richtersveld people had a right of ownership in the land under indigenous law (CC Decision, para 62). Annexation robbed the Richtersveld people of their sovereignty, but it did not extinguish their land rights (CC Decision, paras 66-69, 76). The Court found that the ‘indigenous law ownership’ of the Richtersveld community remained intact until well after the Restitution Act's cut-off date of 1913 (CC Decision, para 81). The position changed only once diamonds were discovered in the area, when the community's indigenous law ownership was extinguished through the variety of (physical and legislative) measures taken to bring the land under the control of the state-held diamond mining company. In this typification of the right as ‘indigenous law ownership’ lies the original contribution of the CC.

To a certain extent each of the Richtersveld decisions subconsciously supports assertions about the ‘place’ of the Richtersveld people in South African history and upon South African soil. They also stake claims about the uniqueness of this community's struggle to regain what has belonged to them all along. Perceptions of the case as ‘unique’ (Bain and Benjamin, 2003, p 13) underscore our main point of interest: the claim to an encompassing sovereignty, be it of a colonial nature, or of a more ‘modern’, democratic kind, in the resolution of disputes of this kind.¹⁰ This matter has arisen in various other settings and jurisdictions, where the acknowledgement of aboriginal title had been at stake. In the South African context it is complicated, although not really distinguished, by attempts to bring aspects related to the inquiry under the ambit of the Restitution Act.

In brief, our argument here is that treatment of restitution claims as dealing with matters of property alone disregards the possibility of such claims escaping their containing reach and exposing the depressing acceptance of sovereign arrogation, be it of a colonial or modern democratic nature. In addition, Richtersveld illustrates that the intuitive link drawn between a cohesive ethnicity and claims of proprietary restitution of indigenous communities eventually restricts possibilities of land restoration in a system in which indigenous land title remains marginal. We accordingly argue that continued subordination of indigenous land title to a law that originated from an initial act of violence, a territorial assertion of sovereignty, simply sustains marginalisation.

2. ‘Community’ and its Impact on Richtersveld

It is evident from all three Richtersveld decisions that the constitution of the ‘communal’ played an important role in establishing the quality of rights held by the Richtersveld people and dispossessed by government. The definition of ‘community’ in Section 1 of the Restitution Act focuses on ‘shared rules determining access to land held in common’ by the group claiming to be a community or part thereof. The definition is partial, of course, not staking any claims concerning the maintained identity or any essential attributes or characteristics of the members of such a community. It focuses merely on the manner in which land is used and controlled by the group. Yet, even though the existence of a ‘community’ for purposes of the Restitution Act was not really in dispute in the Richtersveld case, the LCC and the SCA’s respective treatment of this element influenced their eventual decisions on the quality of the land rights held. The CC relied heavily on the ‘indigenous’ aspect accompanying the concept of community to determine the quality of the land rights held by the Richtersveld people.

2.1. ‘Community’ and the Conception of Indigenous Land Rights

The LCC supported the idea that ‘the community’s sense of legitimate access to the land’ (LCC Decision, para 62) would determine the very question of a communal element being present. Upon the evidence it was not difficult to establish this sense of access (LCC Decision, para 62). In addition, ‘community’ for purposes of a restitution award would involve the existence of a ‘sufficiently cohesive group of persons,’¹¹ taking into account the possible impact of the original dispossession on the solidity of the community: at least ‘some element of commonality’ had to survive the dispossession (LCC Decision, para 67). Yet, the LCC accepted that ‘every community will change over time’ and did not regard it as necessary to explore genealogical evidence to prove enduring cohesion (LCC Decision, paras 67 and 73). Much more attention was given the political organisation of the community (LCC Decision, para 68 LCC decision), especially in as far as this related to the community members' and outsiders' land use and control in the area. The existence of shared rules determining access to the land was thereby established (LCC Decision, paras 68 and 71). This alone ensured a sufficient degree of communality. Significantly, exactly the same considerations were then used to find that the only interest the Richtersveld people had in the land at relevant times was ‘beneficial occupation’. This refers to an interest, which would – but for its protection under particular legislative provisions - be no more than the unprotected potential to mature into a right on the basis of acquisitive prescription. The finding that the community's relation to the land amounted to ‘beneficial occupation’ did not really accord the claimants broad entitlements upon restitution.

In considering the same requirements for restitution, the SCA found it necessary to highlight the ‘discrete’ ethnicity of the Richtersveld community (CSA Decision, para 15).¹² Focus was placed on the fact that the community had ‘maintained its identity as a people and the essential attributes and characteristics of their forebears and the society and culture of earlier times’ (SCA Decision, para 5). The SCA recognised that the Richtersveld community had in various ways accommodated a diversity of peoples and a diversity of uses of the land by others. Yet the ultimate test the community had to meet was one of exclusivity and distinctiveness and enduring cohesion.

The apparent reason for relying on the cohesion of the community is, however, not so much to determine communality itself, but to find and develop the idea of the ‘customary law interest’ provided for in the Restitution Act as a basis of the community’s right to land. Particular emphasis, understandable given the nature of the case, was placed on the continuing relation to the land, to its effective occupation, to the precise terms on which others may have been allowed to use it, to the maintenance of customary rules governing access to and use of the land – to whether, in sum, ‘exclusive beneficial occupation’ was asserted and maintained (SCA Decision, paras 21, 28, 29). The ‘customary law interest’ which the Richtersveld people had to establish in the land itself required proof of a custom which ‘must be certain, uniformly observed for a long period of time and reasonable’ – the ‘right’ to the land having to be ‘rooted in the traditional laws and custom of the Richtersveld people…inher[ing] in the people inhabiting the Richtersveld as their common property, passing from generation to generation’ (SCA Decision, paras 27-29).¹³ Accordingly, the SCA's discussion, even though it did not challenge the LCC's finding on this issue, went beyond the mere assertion that shared rules existed which governed access to land held by the group. The SCA's approach represents a broader basis for community claims, although its further treatment of the issue of aboriginal title again suggests strict containment of the type of claims which may be brought on this basis.

Perhaps the link between the communal and the land, appearing most notably from the SCA decision, is a convenient endowment stemming from the court’s use of foreign case law on aboriginal title. As appears from the SCA decision, the vagueness of the concept ‘customary law interest’ in land enables a finding that can incorporate basically any entitlements to which a specific community wants to lay claim, or which a court is prepared to grant such a community, if it can be established that the specific elements of land control were customarily present. Finding a link between the community and the land also achieves a distinction between the Richtersveld people and other communities, by building in an additional, constituent condition for restitution in the form of a discrete ethnicity (SCA Decision, para 5; and see Lehmann, 2004).

But even more notably, the link between the communal and the land, based as it is on aboriginality, places the Richtersveld people in a continued state of subordination. The SCA understands a ‘customary law interest’ under the Restitution Act to denote: ‘[a]n interest in land held under a system of indigenous law … whether or not it was recognised by the civil law as a legal right’ (SCA Decision, para 9). The court found this interest to be similar to common law ownership (SCA Decision, paras 8; 23-29). It specifically involves ‘exclusive beneficial occupation of the entire area … for a long period of time’, which can be consistently exercised even by a nomadic community (SCA Decision, para 29). It also includes the right to exploit and determine the distribution of mineral and natural resources of the land (SCA Decision, paras 85-89). This type of control is described by the SCA as ‘certain and reasonable’, based on ‘traditional laws and custom’ (SCA Decision, para 28). Accordingly, the SCA discovered for the Richtersveld people an interest in land which is characteristically indigenous and community-based, but still somehow corresponds with South African ‘common law’ ownership, which is characteristically individual.

By the time the dispute reached the CC, interpretation of the communal element of the land claim has mutated the originally nebulous ‘beneficial occupation’ of the LCC and the eventual, somewhat confusing ‘customary law interest’ of the SCA into ‘indigenous law ownership’ of the land (CC Decision, paras 58-96 and 74). The latter is typified as essentially ‘communal’ and comprises the right to exclusive occupation and use by community members (CC Decision, paras 58-59 and 62). In particular it includes the right to use water, to use the land for grazing and hunting and for exploiting its natural resources, above and beneath the surface (CC Decision, para 62). It hence included the right to the minerals and precious stones (CC Decision, para 64). Contrary to the SCA's description, the CC regards the right of the Richtersveld people as something distinct from common law ownership, something which has its own values and norms, something which was conceived in the history and uses of the community and which was given room to evolve according to the needs of the community at least up until 1913 (CC Decision, paras 50, 53, 55 and 57).

The CC did not pursue the ‘communal’ aspect of the Richtersveld claim, the issue having been acknowledged as ‘common cause’ (CC Decision, para 20). Yet, in determining the nature of the land rights available to the community, the conception of the community and their relation to the land as ‘indigenous’ enjoyed particular attention. The CC's contribution stretches beyond that of the SCA in that it awards a ‘place’ to indigenous law in determining the content of the Richtersveld community's title to the land (CC Decision, paras 48-50). In its further attempt to internalise law governing the land rights of the Richtersveld people into the ‘amalgam of South African law,’ without paternalising it by regarding it ‘through the common law lens’, the CC invoked the Constitution to determine the ‘ultimate force and validity’ of the law applicable (CC Decision, para 51). Referring to the difficulties of courts from other jurisdictions in dealing ex post facto with injustices caused by dispossessions of land from indigenous peoples by colonial settlers, the court made an effort to distinguish the situation in South Africa from these jurisdictions (CC Decision, para 34). It did so on the basis of the constitutional provision providing for, but also limiting, restitution of dispossessed land, and it was in this setting that the court acknowledged expressly the ‘originality and distinctiveness of indigenous law as an independent source of norms within the legal system’ (CC Decision, para 36).¹⁴ The CC, adding to its own particular containment of the applicable indigenous law, proceeded to require such law to be established by adducing evidence (CC Decision, para 52). Despite taking pains to distinguish the South African situation from those of other jurisdictions, the court thus reverted to the same kind of requirements for invoking indigenous law as those applicable in, for instance, Australian or Canadian cases on aboriginal title, where indigenous law is required to be proved as a matter of ‘fact’.¹⁵

The eventual result was that the indigenous law rights exercised by the Richtersveld community as they evolved until 1913 were viewed ‘not through the prism of the common law’ or ‘legal conceptions … foreign to the community’ (CC Decision, paras 54-55). Instead, the court turned to the communal aspect of the Richtersveld people for evidence as to the real character of indigenous title to land (CC Decision, paras 57-62). The evidence of the ‘history and usages’ of the community gave content to this title in terms of exclusive occupation and use of the land by the community members, in particular the use of water, land for grazing, hunting and exploitation of the natural resources above and beneath the surface (CC Decision, paras 60 and 62). Accordingly the CC found the community's conduct to be consistent with their ownership of the minerals upon the land (CC Decision, para 64). The CC's treatment of the land rights of the Richtersveld community, pivots – like the SCA's decision – on matters of cohesion, exclusivity and distinctiveness.

This link between the ‘communal’ and ‘indigenous’ nature of the claim and the determination of the quality of dispossessed rights for purposes of restitution, which features at various points in the different decisions, ensures a particular subordination remaining even after the restoration of the Richtersveld community's rights by the SCA and the CC. Their rights are subordinated to a legal system which does not effectively cater for them.

2.2. Subordination and Containment through ‘Community’ and ‘Aboriginality’

The tenor of the SCA's decision concerning the notion of ‘community’ is that land reform legislation in South Africa has not completely eliminated the idea of aboriginal rights. In terms of the SCA judgment, ‘aboriginality’ of communities continues to be a factor, albeit in a severely restricted sense. With the assumed affinity between the ‘common law’ as Roman-Dutch and the English brand, the SCA relied heavily on precedent from Canada and Australia – which we will touch on later. Such precedent, not only in the explicit reference to it but in its whole orientation, reinforced the enclosing and containing conception of community ‘found’ among the people of the Richtersveld, their being rendered as ‘encapsulated societies’, borrowing the phrase from Geertz (1994, p3) – as supposedly static, custom-bound communities.¹⁶ As Vattel put it more purposively, such people were to be restricted ‘within narrower bounds’ (see Green, 1989, p74).

The CC made a point of distinguishing the South African situation from claims by indigenous peoples in respect of land over which colonial settlers arrogate political and legal sovereignty (CC Decision, para 34). The argument advanced was that limited restitution was expressly permitted by both the Interim and 1996 Constitutions to the confined extent of occurrences after 19 June 1913 (CC Decision, para 38). Thence the CC suggests that restitution of ancestral lands is a matter solely dealt with by the terms of the Restitution Act in correspondence with the Constitution. But the CC limits its range of concerns to those related to the constitutional aspect of the dispute, thereby avoiding the trouble of having to indicate whether the Restitution Act was meant to provide an exclusive means of dealing with issues of aboriginality and restitution (CC Decision, para 37). It was apparently not necessary in Richtersveld to be explicitly concerned to ensure that whatever is ‘recognised’ does not, as it was put in the Canadian case of Delgamuukw, ‘strain the … legal and constitutional structure’.¹⁷ The CC's ‘recognition’ of indigenous rights keeps them contained ‘within the legal system’ and subject to constitutional values, regardless of how original and independent indigenous law as a source of norms may be (CC Decision, para 82).

Hence one finds a distinct orientation, in all three instances of judicial involvement with the Richtersveld dispute, towards containing the types of claims that could be made in a Richtersveld-like scenario. The judgements of both the SCA and the CC ensure some kind of justice for the Richtersveld people, without creating any expectations of a broad-based restitution policy for the many other (now) dispersed and less cohesive groups, who may have been subjected to an even more disruptive and changeful history, and who might have wanted to rely on the precedent set by the Richtersveld case.

Chief Justice Lamer cautioned with emphasis in the Canadian case of Van der Peet that the rights given to indigenous peoples in the constitution ‘are aboriginal’ and this ‘aboriginality’ means that the ‘rights cannot…be defined on the basis of the philosophical precepts of the liberal enlightenment,’ on the basis of their being ‘general and universal’.¹⁸ The resulting subordination and containment effected in cases like these and given surpassing force in terms of sovereignty is less evident in Richtersveld since the case was based on a legislative assertion of the sovereign South African state. And yet, even in those instances where the Richtersveld people's claim to the land was acknowledged, the omnipresence of a sovereign arrogation and its grip on aboriginality cannot be denied. The SCA judgment indicates that ‘aboriginality’ remains confined to typically occidental views of community: ‘aboriginal’ groups are static and custom-bound communities, subordinated in some kind of tight communality and defined in terms always relative to a supposedly more dominant ‘non-aboriginal’ or ‘national’ group (SCA Decision, para 37).¹⁹ This view typically must result in a conclusion about the loss of communality as soon as tight ethnicity is broken. The consequence would be that Richtersveld-type claims would depend on the existence of tight cohesive groups – even if aboriginality is only significant in some restricted sense as propagated by the SCA. The peculiarity of the Richtersveld community is that years of subordination, first to the Dutch ‘incomers’, and later to the British Crown and the South African government enhanced rather than impaired communality.

Of particular relevance in the SCA's consideration of the nature of aboriginal title is the court's endorsement of the idea that aboriginal title gives rise to a right sui generis, which originates in pre-colonial systems of indigenous law, and which does not conform to typical concepts of property known to South African common law.²⁰ Although it is enforceable in the ordinary courts, and may be invoked in order to protect pre-colonial land holding and control, aboriginal title may be extinguished by legislative act. It is not an individual proprietary right, but rather a communal right vesting in an indigenous group of people. It is inalienable to anyone except the state. The content of aboriginal title can vary but it may include integrally indigenous practices, customs and traditions, the recognition of site-specific rights to engage in particular activities on land, and acknowledgment of title itself in the sense of ownership. In all, pre-colonial indigenous land control is first defined in terms of the law of the colonial entity exercising sovereignty over the land and thence diminished as some kind of entitlement which does not threaten sovereign power over the territory.

The first acquisition of a territory by a sovereign state and the imposition of the sovereign's law upon that territory renders it difficult for courts ‘of’ that sovereign to challenge, control or interfere with the original acquisition, unless they are willing to move beyond the boundaries set for law by sovereign assertion. In this manner, the basis of colonial acquisition is confined to issues of property, rather than political territory. This creates the setting in which the settler's law becomes the solid basis for exclusivity of land title or ‘proprietary interests’ in land, whilst simultaneously the way is prepared for subordination of competing indigenous land title. The latter is reduced to a fragile and diminutive occupation of the land under common law.

But even the CC decision, for all its laudable attempts to separate the ‘indigenous’ and the ‘common’ in law (paras 53-64 CC decision), does not move beyond the margins of the occidental. Instead, it creates some impression of free movement outside the constraints of Western thought, whilst placing and subordinating the indigenous aspect even more securely within these constraints. As such, the CC compellingly remains within the established positivistic framework in which it is then attempts to reverse the effects of discriminatory 19^th-century laws. Whilst eschewing the tendency to ‘view indigenous law through the prism of legal conceptions that are foreign to it’ the Court would still study ‘the history of [the] community and its usages’ and relate this to the encompassing mystical power of ‘the British Crown’ so as to endorse a finding in favour of colonialism and the arrogation of sovereignty (CC Decision, paras 54, 57 and 66). So indigenous rights and title to land can only be particular, subsisting factually and precariously in the community’s continuing to occupy the land, in its sustained coherence as a traditional community, in its still observing its traditional customs and in its still acknowledging its traditional laws, all of which matter has to be established as ‘fact’ if the ‘extinguishment’ of the rights or title is to be avoided (see CC Decision, para 70). Otherwise, and as Brennan J put it in the Australian case of Mabo, if ‘the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared’.²¹ The laws of some people are ever contained and contingent, the laws of others ever expansionary and surpassing.

3. Richtersveld and the Law's Schizophrenia

The findings reflected in the various Richtersveld decisions reveal a range of ambivalent expectations as to the role of the law in acknowledging proprietary and territorial claims to land under a new land regime in South Africa. One could, for instance, assume that the SCA's decision is the result of an awareness of the way in which the Roman-Dutch oriented concept of ownership, in the times of both external and internal colonisation of South Africa, was superimposed on indigenous title to land, contributing to the ‘untenable schizophrenic profile’ of the legal system.²² But the effect of the SCA's characterisation of the relevant interest would still be to maintain the existing subordination of indigenous land rights. The indigenous aspect of the customary law interest in land is still subjected to a process of filtering or qualification based on common law ownership. Yet there seems to be also an awareness that legislation pertaining to land restitution permits an openness or responsiveness towards ‘alternative’ forms of title not falling within the narrow ambit of the common law.²³ The determinate or ‘stable’ quality of common law is thus combined with a more responsive dimension of it (Reilly, 2000). But in the case of the Richtersveld, responsiveness is tripped by the continued reliance upon the difference between common law and aboriginal title. For the SCA, common law ownership remains the yardstick against which the ‘customary law interest’ is measured. The result is continued subordination of the customary law interest to a scheme of law created apart from it and into which it cannot simply be wedged.²⁴

With the CC, however, the applicability of the common law did not arise and, so, this could be seen as left open for future decision. The CC's argument seems to be their conviction that there is no relevant common law to be developed here because the Restitution Act provides comprehensively for the South African objective of land restitution. However, the CC does not explore the alternative contention that certain principles of South African common law indeed leave room for adoption of an alternative to restitution as envisaged by the legislature. Instead, the CC invokes indigenous law to determine the nature and content of the Richtersveld community's land rights, advocating that indigenous law now is part and parcel of South African law without its being seen ‘through a common law lens’.(CC Decision, paras 50-51).

The CC goes further to state that since indigenous law ‘unlike common law’, is not written (even though the Roman-Dutch variety, like the Anglo-American, is considered to be lex non scripta), it needs to be evidenced by the history and usages of a particular community (CC Decision, paras 52, 53 and 55). Thus, despite its attempts not to view the indigenous law ‘through the prism of legal conceptions that are foreign to it’, the court reverts to the same standard terms in which indigenous people are comprehensively contained and subordinated within other jurisdictions which are supposed, in the Court’s view, to differ substantially from the South African situation (CC Decision, paras 35 and 54). So the grip of an enduring sovereignty remains embedded in the very terms of an approach acknowledging the property rights of the Richtersveld people, even if that sovereignty is now rendered in a ‘democratic’ mode.

4. Property, Territory and the Law

The reluctance of the various courts, especially the LCC, deciding on the claims of the Richtersveld people to go beyond the remit of legislation enabling a limited restitution of land is a telling example of the caution with which attempts to overcome the injustices of a colonial past in South Africa are undertaken. Perhaps the reason for this must be sought in a preoccupation with the country's apartheid history as a basis for the land restitution policy, and a concomitant disinterest in the injustices of the earlier periods of ‘external’ colonialism (Mostert, 2002b; Visser and Roux, 1996, p 94; Murphy, 1996, p121). The 1997 White Paper on South African Land Policy underscores such a stance, with its explicit restriction of the scope and time-span of the restitution process, and its recognition of the fact that some unfair dispossessions are not covered by the restitution process (Republic of South Africa, 1997 para. 4.14.2). But the immensity of addressing the systematic monopolisation of the country's surface which commenced with the arrival of the first European settlers probably contributes to the tendency to shy away from a restitution policy incorporating rectification of pre-colonial entitlement (Carey Miller and Pope, 2000, pp 316-17). In this regard, arguments can be advanced to the effect that acknowledgement of pre-colonial entitlement may be politically divisive, or that it might give rise to legal complexities incapable of solution (eg Republic of South Africa, 1997, paras 4.1 and 4.2). As to the characteristic of ‘aboriginality’, however, these arguments are advanced from within a paradigm assuming that the interests of the larger, ‘non-aboriginal’ sectors of South African society outweigh those of indigenous communities.

The SCA's reluctance to acknowledge the very existence of a doctrine of aboriginal title in South African law may be based upon similar considerations. The LCC avoided deciding the issue on the basis of lacking jurisdiction (LCC Decision, paras 44-52). The CC distanced itself from the issue altogether, basing itself on the clear distinction it saw between the South African situation and other jurisdictions in which the objective of restitution was taken to be not as comprehensively legislated for as in South Africa (CC Decision, para 35).²⁵ The SCA deals with the question of import of aboriginal title more openly, but finds that the doctrine does not ‘fit comfortably’ into South African law (SCA Decision, para 43). This finding is based upon a consideration of several authoritative works. Some indicate ‘the hazards associated with recognising aboriginal title in South Africa’(SCA Decision, para. 42), and yet others analyse the viability of aboriginal title as a workable part of South African law (Hoq, 2002 SAJHR 435; Bennett and Powell 1999 SAJHR 450-451). Some authors take the very reason for the 1913 cut-off date in the Restitution Act as an attempt to eliminate claims of aboriginal title, and others argue that recognition of aboriginal title would exacerbate ethnic tension, and that this would run contrary to the intentions of the Restitution Act (eg Roux, 1998; O’Reilly, 2000). Yet other scholars acknowledge the positive prospects for establishing aboriginal title, both as an additional common law cause of action and as part of the existing land restitution process; this would dispel fears that recognition of aboriginal title in terms of the Act will open the proverbial floodgates (Bennett and Powell, 1999, pp 450-451); O’Reilley, 2000, pp 528ff). In this context, particularly, the claim is made that anyway only a few instances exist where indigenous land title in South Africa could have survived the assertion of sovereignty.

Such claims imply that aboriginal title should not pose too much of a threat to the continued sovereignty of a democratically constituted state (cf Dollie, 2003). They are based on the same considerations which would lead to the argument that restitution is a mere symbolic redress of injustice, one which must remain within the parameters of modern demands on the state to effect a more just land regime in an economically viable manner (Mostert, 2002b, pp 166-167). For that matter, the CC follows basically the same line of argument in its treatment of the issue as one which neither necessitates a development of the common law (CC Decision, para 38), nor permits retroactive consideration beyond the cut-off date of 1913, nor justifies a consideration of indigenous law outside the confines of the new constitutional dispensation (CC Decision, paras 38, 40 and 51).

These arguments seem oblivious to their complicity with ‘sovereign’ appropriation and dispossession. The CC, in particular, attempts to ‘place’ indigenous law within the ‘amalgam of South African Law’ by indicating that it is simultaneously ‘independent’ and ‘dependent on the legal system’ (CC Decision, para 51). The court relies upon the primal efficacy of the Constitution by indicating that it is the Constitution which gives force to indigenous law, but the Constitution does not explicitly do so. The constitutional dispensation simply becomes a further means of containment and subordination of indigenous law in general and indigenous land title in particular. The CC's unquestioning acceptance of the colonial arrogation of sovereignty is obvious also from the manner in which the court phrases its assignment as being to determine whether the Richtersveld community ‘had … rights prior to the British Crown acquiring sovereignty over the … land’ (CC Decision, para 32). This acceptance is underscored by the view that ‘evidence’ or ‘scholarship’ may establish the continued existence of rights beyond the original act of annexation, and by the adoption of a transcendent sovereignty in the court's dictum that an ‘Act of State’ overrides a treaty of cession, regardless of what the latter provides (CC Decision, paras 41, 47, 52 and 66-68).

The tendency to assume that matters such as the recognition of indigenous rights, the development of the law or the delimitation of the restitution policy need to be dealt with from within the parameters set by the sovereign state, allows a particular state action to be placed unquestionably above the law (Fitzpatrick, 2002, pp 79-80; Fitzpatrick in press). Such an approach excludes the possibility of judicial challenge to or emendation of the first territorial acquisition by a colonising, sovereign state. Judicial reluctance or inability to engage in juridical decolonisation – to question the arrogation upon which colonisation rests – results in the sorry, standard panoply of colonial encompassment, even in a post-colonial, democratic era (cf. Anghie, 1999, p 75). Especially through continued support of the colonial principle of territorial occupation, the rights of the colonised are placed under continuous subordination and subjected to a filtering process, all of which allows the colonial sovereign's law to become the solid basis for exclusivity of land title and subordination of competing indigenous land title. It also confines the issue of the putative basis of colonial acquisition to questions of property rather than territory, as both the LCC and CC decisions in the Richtersveld case so aptly illustrate.

Yet, if indigenous rights are to be ‘recognised’ under a new democratic dispensation, reliance on sovereignty can no longer sustain its suppositions of solidity and enduring completeness. The constitution of a self-consistent democratic polity cannot be fixedly delimited in the terms of its constitution, ‘original’ or otherwise, and neither can it be enduringly closed and exclusive or excluding of others. A truly authentic democratic dispensation must not seek only to conserve and stolidly reproduce. It has to realise operatively that the very conservation and reproduction of itself, and emphatically of itself as democratic, involves its ever responding to what lies beyond its existent self (see Derrida, 1987, pp17, 25).

Taking account of the oppressive claims of an all-encompassing sovereignty bathes the decisions of the Richtersveld/Alexkor dispute in a different light. The LCC eliminated pre-colonial entitlement altogether by directly subjecting the case to an overarching claim of sovereignty (LCC Decision, paras 37, 39, 41, 93; SCA Decision, paras 35, 44, 46, 52, 60, 64, 106).²⁶ The court compounded this by finding that the Restitution Act's cut-off date did not allow the annexation itself to be considered for purposes of restitution under the Act. The decisions of the CC and SCA at first glance seem to be more supportive of the Richtersveld community's claim. Nevertheless, the effects of underlying assumptions in these decisions about sovereignty and the law are even more disturbing than in the case of the LCC's judgment. The SCA fails to account for the limits on land claims based on indigenous uses and customs within a system relying on the continued exercise of sovereignty constituted in the terms of the settler’s laws. It fails to account for the fragility of the relation between colonial and indigenous law.

The SCA pointed out that the Richtersveld was never acquired by occupation or settlement. On the basis of the putative vesting of colonial sovereignty over the area, the Court speculated that the annexation of the Richtersveld could be ‘an acquisition by conquest or cession’; then, in the absence of indications that the Richtersveld was acquired by conquest, it was ‘deemed to have been acquired by cession’, but with the court adding that ‘it is not necessary to decide whether it was the one or the other’ (SCA Decision, para 52).²⁷ Given that the colonial annexation of 1847 is the definitive moment in determining whether or not the Richtersveld people's rights endured into the twentieth century, the SCA's brushing aside of the distinction between conquest and cession as bases for the vesting of sovereignty over the area seems peculiar and unconsidered. This stance is, however, not surprising if, as in Anghie's analysis, it is accepted that sovereignty was never so much the result of mechanisms such as conquest or cession as it was simply an assumption of sovereignty subsequent to colonisation (Anghie, 1999, pp 49ff). On the facts as set out in both the SCA and LCC decisions, there seems neither to have been any conquest nor any treaty justifying acquisition through cession (SCA Decision, para 30).²⁸

The ‘fact’ that neither conquest nor cession ‘took place’ is an exemplary instance of the impossibility of sovereignty as a claim of right not being reducible to some contained singularity. No amount of ‘factual’ claiming and declaiming sovereignty by way of discovery, conquest or the like can constitute sovereignty itself (Fitzpatrick, 2001, pp 166-75). These exercises are always retrospective and a legitimating of what sovereignty ‘is’ now (Fitzpatrick, 2002, p 244).²⁹ Even though the ‘indigenous’ character of the claim and the place of indigenous law in determining it received more attention in the CC decision, the cavalier manner in which both the SCA and the CC deal with the Crown's vesting of sovereign power over the Richtersveld suggests that this original and constitutive action of sovereignty still passes unquestioned, despite its obviously arbitrary basis (CC Decision, paras 50-64). Moreover, neither the SCA's description of the Richtersveld community's interest in the land as a ‘customary law interest’ akin to common law ownership, nor the CC's ruling that their rights constituted ownership under indigenous law as part of the ‘amalgam’ of South African law, does much to constitute indigenous people and their title to land in terms other than those of national sovereignty. National sovereignty, even when bearing 'democratic' rather than colonial credentials, still encompasses and pointedly subordinates claims to land in terms of indigenous laws. The CC's acceptance of the colonial sovereign's intervention and the SCA's reliance upon aboriginal title precedent in foreign law to define the customary law interest in South African law even strengthens the idea that some kind of unquestionable, prerogative power of the state exists against which exclusivity and effectiveness of holding territory must be assessed. For those outside or on the margins of the sovereign's law, this is a lost battle.

Perhaps unremarkably then, the range of cases in various countries dealing with indigenous land title end up delineating indigenous peoples and their claims to land in very similar terms.³⁰ Like so many of the cases preceding it, the Richtersveld case indicates a process of subordination and filtering of existing title, undertaken at the hand of the sovereign coloniser or its more modern, ‘democratic’ successors. ‘Rights’ were previously dependent on the ‘benign’ hold, in ‘honour and good faith’, of the coloniser, who recongnised the ‘special bond’ between the indigenous people and the land, and who purportedly protected the bond so as to avoid the destruction of the ‘unique’ value of the land as part of the ‘traditional way of life’ of an indigenous people; and that subordinate placing served to render such rights dependent on a ‘highly contextual’ and factual finding by the courts of the coloniser.³¹ In the democratic, post-colonial context, the existing ‘rights’ still depend on their according with the terms of sovereign assertion. Or their lasting existence depends upon their ‘continuity’ as ‘fully respected’ by the sovereign, a sovereign who understands the indigenous claims to be the ‘qualification of a burden on [its] radical … title to the territory’, even if the burden is one lightly borne or easily disposed of .³² It may still be argued, though, that the decisions of the Richtersveld dispute go beyond the case law from other countries even whilst limiting the effect of that case law, and limiting the range of recognition of indigenous rights and title with which the case law engages, even if most inadequately so. For the SCA, the argument against importing the doctrine of aboriginal title into South African law is based upon the existence of ‘stronger’ protection under the statutory law of a democratic state. This is endorsed by the CC's stance on the encompassing range of the Restitution Act.

The sustained insistence of indigenous peoples through the various cases that they be ‘recognised’ is testament to the necessity of recognition for being, and it is recognition which, in its singularity and its commonality, actively makes community. Such community challenges the enclosed sufficiency, the completeness of the ‘community’ claimed by a surpassing sovereignty. It would displace the primal positioning of the sovereign’s determinate and desolate being. To counter this displacement, the attributes of that being – its constituent tying to the land, to territory, to a distinctive people – become attributes also projected onto indigenous community, thereby creating a similarity with such community and enabling a determinate and affective connecting to it. Yet the attributes of indigenous community are also projected as different to, less than, and containable within a sovereign diapason. So, these attributes of indigenous community become things of evanescent fact, whereas sovereignty is a domain of transcendent right, a domain, as Chief Justice Lamer readily notes, of the ‘general and universal’, a domain from which ‘aboriginal rights’ are excluded because they cannot ‘be determined on a general basis’.³³Thence they become rights relegated to an age ‘so finished’ that ‘it could be sold again, without insight, or understanding of the unfinished past, the unfinished present…’(Harris, 2001, p 100).

As a legal artefact, ‘rights’ will serve as well as any other to illustrate just how overwrought this distinction is. Bluntly, a right cannot be a rendering of the future in terms of a rigidified past. Rather, rights are constituted iteratively in the converting of a past by way of its responsive relation to the future. It could be said, in some kind of descriptive sense, that such and such were the rights which certain people had in a past. But in a performative sense, and in an operatively legal sense, rights cannot be so hermetically contained. Doubtless rights do have to be ‘particular’ or, to return to the Candian judicial usage, ‘highly contextual’, but this is so with any right.³⁴ There has to be a pre-existent content to the assertion of a right, but the right cannot be enduringly confined to any pre-existent. As a normative claim on futurity, a right has to be able always to become other than what it ‘is’. It generatively trajects beyond any contained condition, temporal or otherwise. Such is the impelling element of a right’s being ‘general and universal’, of its surpassing any specificity – returning again to Chief Justice Lamer’s ‘enlightened’ formulation.³⁵

The instantiated sovereign seeks to encompass and embody right. The sovereign must, as we saw, originate and subsist not just in itself, in its instantiated and particular self, but also in relation to an infinite beyond of itself, a beyond inevitably contrary and contested. Assiduous enquiry into the constituent conditions of sovereign right would reveal its partial and provisional nature. It would reveal the historical and, which is the same thing, the continuing delimitation of its claim to authority. That is why, repeatedly, courts in various countries when dealing with these cases of indigenous title and indigenous rights refuse to enquire into the origins of sovereignty (see e.g. Fitzpatrick, in press). And the incipience of such a revelation is why the indigenous challenge so acutely puts that origin in question. What shields the continuing contingency of sovereignty, and of the law to which it would lay a generative claim, is the attribution to it of a completeness, a universality in its ‘taking place’, thus obviating any contained relation to an origin, to anything beyond itself. This is the operative claim of a modernist sovereignty, or of a sovereignty persisting into modernity. Supreme authority, then, is inevitably delimited in its finitude, yet its sovereign capacity must be elevated beyond limit; and this classic conundrum of sovereign power can in modernity no longer be solved, after a fashion, through a transcendental reference joining determinate rule to limitless scope. It is this intrinsic incoherence of a modernist sovereignty, and of ‘its’ law, that the indigenous challenge always threatens to expose. And it is such an exposure that would open out, in Auden’s terms, the ‘folded lie’ that secures it (Auden, 1979, p 88) And it is such an opening-out that that would make possible a being-with indigenous peoples instead of a morbid domination of them.

Endnotes

¹ See especially the decision in the Land Claims Court, Richtersveld Community and Others v Alexkor (Pty) Ltd and Another, 2001 (3) SA 1293 (‘LCC decision’), the decision in the Supreme Court of Appeal, Richtersveld Community and Others v Alexkor (Pty) Ltd and Another, 2003 (6) BCLR 583 (‘SCA decision’), and the Constitutional Court decision in Alexkor (Pty) Ltd and Government of the Republic of South Africa v Richtersveld Community and Others, 2003 (12) BCLR 1301 (‘CC decision’).

² Evidence lead at the Richtersveld hearings, as well as prior research, suggest that the pre-colonial titles of indigenous groups were at first simply ignored by the British. Only later local systems of African customary law were ‘recognised’ if they did not ‘offend colonial precepts of civilisation’. See, for example, the consideration of such evidence in LCC decision at paras 56-72; and particularly at paras 106-109, 112-113; see also SCA decision at paras 30-33; and Bennett and Powell (1999, pp 481-482).

³ A summary of the facts of the dispute is provided in Mostert (2002b, pp 160–167).

⁴ See, in particular, section 2(1) of the Restitution of Land Rights Act, 1994 (‘Restitution Act’). A discussion of the requirements set out by section 2 may be found in Mostert (2002a, pp 400-428) and Badenhorst, Pienaar and Mostert (2003, pp 512-516). In brief, section 121(2) of the Interim Constitution (or section 25(7) of the Final Constitution) read with section 2(1)(a) of the Restitution Act, requires that the claimant must be a ‘person’ (or direct descendant of such a person) or a ‘community’, who must have been ‘dispossessed’ of a ‘right in land’. Dispossession must have taken place after 19 June 1913 and had to have the purpose of furthering the object of a ‘racially discriminatory law or practice’. Dispossession must have taken place ‘without payment of just and equitable compensation’. Finally, the claim for restitution also had to be lodged on or before 31 December 1998.

⁵ See note 1. In the LLC decision at paras 106, 109, 110, 115, the Court pointed out that, in view of the cut-off date requirement, it did not consider itself to have jurisdiction to decide whether the 1847 annexation was a dispossession as contemplated by the Restitution Act, and that this particular act of discrimination was not covered by the Restitution Act. According to the court, the only relevance annexation had is that it caused all subsequent governments in South Africa to view the land as unalienated Crown land, belonging to no private individual or community and rightfully acquired by the British Colonial Government.

⁶ The doctrine of terra nullius, imported by the common law of colonizing Britain in the 19th century, had it that settlement was a valid ground for acquiring ‘uninhabited’ countries. Under this doctrine, eventually, colonisers were permitted to regard land as uninhabited if the indigenous people upon it did not meet the requirements of a putative civilisation. Civilisation, according to this doctrine, depended on the degree to which the land to be inhabited was already cultivated, and the extent to which the indigenous people were politically and socially organised. Nevertheless, no clear standards existed according to which sufficient civilisation could be determined. In any event, the formulation of this doctrine, and its application in practice was later found to be arbitrary and racist by various courts around the world. See, for example, Mabo and Others v The State of Queensland (No. 2) (1992) 175 CLR (HCA). Bennett and Powell (1999, p 455 ff) provide a detailed analysis of the content of the terra nullius doctrine at various stages in legal history. See also Fagan (1996, p 41), and the discussions in the LCC decision at paras 37, 41, 93, 106, along with the SCA decision at paras 35, 44-46, 52, 60, 106, 109-110. For a discussion of the consideration of this standard in Mabo, see Fitzpatrick (2002, p 244ff). See generally Anghie (1999).

⁷ The SCA doubted the applicability of the terra nullius doctrine to the case of the Richtersveld, on account of the considerable measure of political and social organization which was evident from the facts before the court. In paragraph 47 of the SCA decision it is indicated that the colonial government did not regard the Richtersveld as terra nullius upon annexation.

⁸ See Note 1.

⁹ The CC relied here upon the Privy Council decision in Oyekan and Others v Adele [1957] 2 All ER 785 (PC) at 788.

¹⁰ Discussions of problems surrounding the dichotomy between the indigenous and the sovereign in the context of native land rights are provided by Fitzpatrick (2002, p 233 ff) and Fitzpatrick (in press).

¹¹ See the LCC’s use (para 67) of the decision in In re Kranspoort Community 2000 (2) SA 124 (LCC).

¹² The existence of a ‘community’ as required by section 2(1) of the Restitution Act was no longer in dispute by the time the case reached the SCA (see SCA decision at para 5).

¹³ SCA decision at para 18 then provides an exposé of exactly what the land culture of the Richtersveld people entailed: communal land holding, which excluded access to the land for outsiders; along with reasonable use and occupation of the land and its resources. Non-members had to obtain (and sometimes pay for) permission to use the land.

¹⁴ The court here specifically refers to section 121(3) of the Interim Constitution and section 25(7) of the 1996 Constitution which set the cut-off date of 19 June 1913 for purposes of restitution.

¹⁵ For more detail on the Australian situation, see Motha (1998) and, for Canada, see R v Van der Peet (1996) 2 SCR 507 (SCC) at paras 47, 69; and Delgamuukw v British Columbia (1997) 3 SCR 1010 (SCC) at para 90.

¹⁶ Compare in general the seminal contribution of Bennett (1993).

¹⁷ Delgamuukw at para 82.

¹⁸ R v Van der Peet at paras 17-19, emphasis in original.

¹⁹ The SCA relied in this context especially on Members of the Yorta Yorta Aboriginal Community v Victoria 2002 HCA 58 at para 103, and Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SCC) at 193-195.

²⁰ For this and for the characteristics of title mentioned in the rest of our paragraph see the SCA decision at paras 38-9 and, in particular, the Court’s reliance on Bennett and Powell (1999, pp 461-2), and their reliance in turn on cases from Australia, Canada and colonial Nigeria.

²¹ Mabo at 66.

²² Pretorius (1985, p 288). See also Steytler (2000).

²³ See, for example, the SCA decision at para 23ff; also see the synopsis provided in section 1.2 of this article.

²⁴ The confusion is heightened by another aspect of the law’s schizophrenia: the unwitting marriage by the SCA of principles of the ‘common law’ (that is, now, the Anglo-American variety), particularly those pertaining to aboriginal title, with South African ‘common law’ ownership which endorses a Roman-Dutch oriented definition of the concept of ownership. The ‘customary law interest’ is equated with common law ownership of the Roman-Dutch brand whilst relying on cases from Anglo-American common law, without any explanation of the proposed link between it and Roman-Dutch (‘common’) Law in the South African milieu, and without any indication as to an awareness of or sensitivity towards the limitations posed by a comparison between civil law and Anglo-American common law title to land.

²⁵ This tends to overlook section 35 of the Canadian Constitution.

²⁶ The LCC applied the international law prevailing at the time of annexation, which apparently incorporated the terra nullius doctrine. Upon the basis of terra nullius, the British Colonial Government during the nineteenth century simply assumed sovereignty of, and full ownership over, the entire southern Namaqualand (including the Richtersveld). Despite the Richtersveld community’s repeated attempts to have their title to the land acknowledged, and although considerable proof of political organisation was at hand, the British Colonial Government did not consider the Richtersveld people to have the sufficient degree of civilisation to warrant such recognition. According to the LCC, such territorial domination by the colonial sovereign power excluded the continuation of any pre-existing ownership claims.

²⁷ The SCA decision was on the basis of the statement in Halsbury’s Laws of England, 4 ed, vol 6 at para 980, that ‘an annexation in the face of an organised society considered civilized was treated as a case of cession and not settlement even before or in the absence of cession by international formalities’. The argument in Halsbury is based on two seminal cases, Campbell v Hall (1774) 1 Cowp 204, 98 Eng Rep 1045 (KB) and Re Southern Rhodesia [1919] AC 211 (PC).

²⁸ And for good measure it is apparent that the 1847 proclamation of annexation abrogated and annulled all existing treaties.

²⁹ The most dramatic instance of this is perhaps the Mabo case where the ‘original’ basis of sovereign acquisition, terra nullius, is quite vacated as illegitimate but the acquisition, of course, remains, and a new legitimation, more consonant with ‘contemporary’ human rights and democracy, is put in its place. See the remarks in Fitzpatrick (2002, p 244).

³⁰ A range of these is explored in Fitzpatrick (forthcoming).

³¹ Delgamuukw at paras 128-129, 191, 194, 204.

³² Amodu Tijani v The Secretary, Southern Nigeria (1921) 2 AC 399 (PC) at 407; Sobhuza II v Miller and Others 1926 AC 518 (PC) at 525; and SCA decision at para 55.

³³ R v Van der Peet at paras 19, 69.

³⁴ Delgamuukw at para 191.

³⁵ R v Van der Peet at paras 17-19.

References

Anghie, A (1999) ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, Harvard International Law Journal 40(1), pp 1-81.

Auden, WH (1979) ‘September 1, 1939’, Selected Poems (London: Faber & Faber).

Badenhorst, PJ, Pienaar, JM and Mostert, H (2003) Silberberg and Schoeman’s Law of Property (Durban: Lexis Nexis Butterworths).

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Bennett, TW (1993) ‘Redistribution of Land and the Doctrine of Aboriginal Title in South Africa’, South African Journal on Human Rights 9, p 443.

Bennett, TW and Powell, CH (1999) ‘Aboriginal Title in South Africa Revisited’, South African Journal on Human Rights 15(4), p 449.

Carey Miller, DL and Pope, A (2000) Land Title in South Africa (Cape Town: Juta & Co).

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Derrida, J (1987) ‘The Laws of Reflection: Nelson Mandela, in Admiration’, trans MA Caws and I Lorenz, in Derrida, J and Tlili, M (eds) For Nelson Mandela (New York: Henry Holt & Co).

Dollie, N (2003) ‘The Long View’, Sunday Independent, 9 February 2003.

Fagan, E (1996) ‘Roman-Dutch Law in its South African Historical Context’, in Zimmermann, R and Visser, D (eds) Southern Cross. Civil Law and Common Law in South Africa (Oxford: Clarendon Press).

Fitzpatrick, P (2001) Modernism and the Grounds of Law (Cambridge: Cambridge University Press).

Fitzpatrick, P (2002) ‘“No Higher Duty”: Mabo and the Failure of Legal Foundation’, Law and Critique 13, pp 233-252.

Fitzpatrick, P (forthcoming) ‘“We know what it is when you do not ask us”: the unchallengeable nation’, Law.Text.Culture.

Geertz, C. (1994) ‘Life on the Edge’, New York Review of Books, 7 April 1994, pp 3-4.

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Lehmann, K (2004) ‘Aboriginal Title, Indigenous Rights and the Right to Culture’, South African Journal on Human Rights 20(1), pp 86-118.

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Motha, S (1998) ‘Mabo: Encountering the Epistemic Limit of the Recognition of “Difference”’, Griffith Law Review 7(1), pp 79-96.

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Statutes

Restitution of Land Rights Act, 1994 (South Africa)

Cases

Alexkor (Pty) Ltd and Government of the Republic of South Africa v Richtersveld Community and Others, 2003 (12) BCLR 1301 (CC).

Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 (PC).

Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 (SCC).

Campbell v Hall (1774) 1 Cowp 204, 98 Eng Rep 1045 (KB).

Delgamuukw and Others v British Columbia and Others (1997) 3 SCR 1010 (SCC).

In re Kranspoort Community 2000 (2) SA 124 (LCC).

Mabo and Others v The State of Queensland (No. 2) (1992) 175 CLR (HCA).

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) HCA 58 (HCA).

Oyekan and Others v Adele [1957] 2 All ER 785 (PC).

R v Van der Peet (1996) 2 SCR 507 (SCC).

Re Southern Rhodesia [1919] AC 211 (PC).

Richtersveld Community and Others v Alexkor (Pty) Ltd and Another, 2001 (3) SA 1293 (LCC).

Richtersveld Community and Others v Alexkor and Another, 2003 (6) BCLR 583 (SCA).

Sobhuza II v Miller and Others 1926 AC 518 (PC).