The Wrong Way to Defend the Rights of Jews to the Land of Israel and Beyond

Saturday, 19 August 2017

So far this year, the U.S. based Tablet magazine published online two articles, both written by Canadian authors, the first of which seeks to establish the “indigeneity” of the Jewish People to the land of Israel, while the second focuses on the specific “aboriginal rights” of the Jewish People on that land.  .

I propose to address the second article written by Allen Z. Hertz titled The Aboriginal Rights of the Jewish People-Do the Jewish people have legal rights of entry, sojourn and settlement to the land of Israel?

The professional qualifications of Hertz  are set out  at the end of his article: he was ”a senior advisor to the Privy Council Office serving the Prime Minister  and the Federal Cabinet on a number of matters, including aboriginal issues.(Italics mine). He formerly worked in Canada’s Foreign Affairs Department and earlier taught history and law [at four universities].”

Since I am on the subject qualifications, prior to my retirement, I devoted the last 24 years of my career at the Canadian Federal Department of Justice to the practice of aboriginal law; namely, rendering legal opinions; co-ordinating the department’s litigation; providing assistance to litigators as and when requested, and last but not least, litigating major lawsuits brought on by aboriginal groups.

The object of the Hertz article is to establish that the question posed in the subtitle must be answered in the affirmative.

I submit that author’s recourse to the juridical concept of “aboriginal right” in to answer the question both inappropriate and ultimately counter-productive. 

To be blunt about it, of all the concepts and arguments that have been put forward to date, to prove the existence of Jewish People’s rights to the land and to exercise sovereignty over it, accordance with international law Hertz's argument is the worst possible one, bar none.

The point of departure: The law governing “aboriginal rights” in Canada

Hertz bases his arguments concerning the rights in question by analogising them with those of the aboriginal peoples of Canada, since the enactment of section 35 of the Constitution Act, 1982,   and their interpretation and application by the Supreme Court of Canada. Section 35 reads:

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Hence Hertz’s evokes a specific domestic legal regime, which is not typical of those in effect in other countries inhabited by aboriginal peoples; more specifically, the Canadian regime is way ahead of those in effect in the other countries

The Nature of aboriginal rights

To begin with the modern juridical concept of aboriginal right refers to the rights of the aboriginal peoples against the colonial power that govern their territories.   

The concept of aboriginal rights originated  from the writings  of  the Spanish historian , theologian and member of Dominican order  Bartolomé de Las Casas (1474 or1484-1566) who advocated peaceful and just means of evangelisation; respect for the property of the aborigines, and ultimately proposed the establishment of Indian Kingdoms under natural rulers linked into a commonwealth attached to the Spanish Crown. 

Speaking for Canada, the ideas of Las Casas evolved in the United Kingdom, chose not to pursue the Spanish savage policy of conquest, death and dispossession, and pursued a policy of colonisation by settlement and obtaining the aboriginal people’s property in land and the abridgment of certain land related rights in specific specified circumstances by making treaties with them. However, the U.K stayed clear of the issue of self-governance advocated by Las Casas.

In Canada, the critical date for establishing the existence of subsisting aboriginal rights of peoples not covered by treaties is the date of contact between the newcomers and the peoples in issue.

Aboriginal rights are usufractuary and site-specific and do not confer the rights of ownership in the land. In the context of Hertz’s article, they comprise the rights of the aboriginal peoples to hunt, fish, gather/harvest flora on their traditional lands now owned by the Crown as they had done before contact and for all practical purposes prior to signing a treaty subject to the limitations specified in the treaty. In recent times, it has been argued that the notion of aboriginal right includes the right to self- government.

Upon signing a treaty, the aboriginal rights became treaty rights.

The rights in issue whether they be aboriginal or treaty rights are fragile rights and prior to the enactment of section 35 in 1982 could be extinguished as and when the federal government saw fit or found it necessary. 

An aboriginal right may also become extinguished by historical events such  as the discontinuance or abandonment of the specific activity by the peoples holding this right,  supervening events which are inconsistent with the continued existence or exercise of the right.

Once extinguished, the aboriginal right or treaty right in question cannot be revived although the right to resume one or more aboriginal activity could be conferred by the government as a legal right.

In Canada, since 1982, section 35 provides strong constitutional protection of (still) existing aboriginal and treaty rights, short of granting the aboriginal peoples the power to veto the partial abridgment or extinguishment of such rights. And the Crown carries the heavy and in some instances, almost impossible evidentiary burden to prove either that the alleged right is not an existing right, or that the proposed infringement or extinguishment of the right in issue meets all the statutory requirements as well as those spelled out by the Supreme Court of Canada.

On September 13, 2007, the United Nations [General Assembly] adopted the UN Declaration on the Rights of Indigenous Peoples.

The Declaration expands and strengthens significantly the nature and the scope of the rights of aboriginal peoples.

A UN General Assembly Declaration is a document that expresses political commitment on matters of global significance. It is not legally binding and it is not signed or ratified by states. The government of Canada formally recognised the Declaration in 2010 and formally adopted it in 2016.

In the light of the foregoing analysis of the nature and scope of aboriginal rights, clearly Hertz argues his case on the strength of a historically problematic and juridically fragile right, when there is absolutely no need to invoke it. 

And that is not all. It gets worse.

Aboriginal title

The concept of aboriginal right simpliciter has no bearing on the rights in issue since these rights are land based and therefore are governed by land law. One that does not enjoy the alleged rights would be called trespassers and squatters.

In the premises, the legal regime of governing the” rights of entry, sojourn and settlement in the Land of Israel are a specific type of aboriginal right called “aboriginal title”.

In the circumstances, the operative juridical right at play is aboriginal title.

The aboriginal title in a territory is the right of aboriginal peoples against the colonising power.

It arises on the date on which the latter declares its sovereignty over the territory in question.

In Canada, Supreme Court operating under section 35 has relatively recently held that in order to establish aboriginal title the aboriginal group must demonstrate that a) it has exclusive occupation and control of the land, and b) in the case of the semi-nomadic indigenous groups, the occupation of the land must be sufficient, exclusive and where the claimant group is relying on present occupation, the occupation must be continuous. Ultimately, the aboriginal group must show that they have historically acted in a way that would communicate to third parties that they held the territory for their own purposes.

This does not preclude the existence of overlapping and completing claims to Aboriginal title over the same territory

There is no evidence that the right underlying the concept of aboriginal title existed in pre-historical times and indeed prior to the writings of Las Casas. And indeed after the formulation of the right underlying the concept. Nor am I aware of any European colonial power, save United Kingdom that incorporated it into its own legal system.

As with the case of the other aboriginal rights, aboriginal title is not absolute and it could be abridged or altogether extinguished by the exercise of sovereign power, and where there has been a succession of sovereign powers, by any one of them or through treaty making as is the case of the United Kingdom.   

Hence, no sooner one would rely on aboriginal title to assert the rights invoked by Hertz, the opposing side would invariably and promptly respond: What aboriginal title? These were never recognised in the Middle East and even if they were at one time, they have been extinguished since then by superseding   or intervening historical events such as Islamic conquest. And that would engage in a never ending debate, because the test adopted by the Canadian Supreme Court for establishing the continuing existence of an aboriginal title is quite complicated and difficult to apply.

Having regard to the foregoing facts and considerations I cannot think of a single valid reason for those who recognise, assert and defend the Jewish People’s right to settle in and occupy the Land of Israel and Israel’s right to exist and legitimacy to invoke the concepts of aboriginal rights and title if for no other reason that they would simply open another front of attack against this right and the legitimacy.

Since Israel’ right to exist  and legitimacy  is  already  a legal fact based on international law and legal instruments, what is the point of going around and about analogising  the rights of the Jewish people and of the State of Israel to aboriginal right and title ?

At all events, if those who attack Israel’s the right to exist  and  its legitimacy are not prepared to recognise and abide by  perfectly valid and binding international instruments that recognize  and confirm Israel’s existence and rights as a sovereign country, they are hardly likely to be bowled over by arguments based on such esoteric concepts. To the contrary, arguments built on these two esoteric concepts may well give them a second wind to continue their mischiefs.

If someone questioned me as to whether the Jewish people are the aboriginal or indigenous people of the Holy Land, the lands owned and occupied by  the state of Israel, my answer has been: Don’t be daft,  just re-read the Bible to refresh your mind.!