Between the Lines: the spirit behind land agreements
Goodwin, David; Strack, Mick
Land agreements negotiated between British authorities and indigenous groups were part and parcel of colonial expansion. Although current interpretations of the historical agreements which formed the basis for European settlement and rights in land acknowledge that a variety of forms of evidence (written, numerical, verbal and pictorial) are admissible in law, and generally recognise that the spirit of an agreement is paramount, special difficulties (principally those of culture and language) are associated with getting to the heart of such agreements. Typically, the written words of legal texts have been scrutinised minutely, but forms of evidence other than the written words have been neglected. This paper compares the unwritten evidence for treaties and concessions in three countries, namely Canada, New Zealand and Zimbabwe. Examples include wampum belts in Canada, and surviving verbal synopses of written documents, for example explanations by missionary translators, which were often couched in figurative or metaphorical language and, at the time, may have carried considerable weight. Despite agreements being negotiated verbally, the official version is generally the written document with appended signatures or written marks. From an indigenous point of view, the verbal agreement often carries greater weight, especially when ratified by some form of cultural protocol, for example smoking a pipe of peace. Failure to recognise such verbal covenants and protocols has at times led to misunderstandings about the spirit of land agreements. The paper concludes that legal processes today not only need to be cognisant of written law but should also pay greater attention to unwritten forms of evidence. In particular, imagery resorted to at the time of negotiation has proved itself pithy, well suited to capturing the essence of negotiating points, and capable of providing enduring mental images that should rightly be drawn on to colour legal interpretation today.
Conference: RICS COBRA Research Conference, Cape Town
Keywords: Treaties; Land tenure; Legal evidence; Aboriginal title
Research Type: Conference or Workshop Item (Paper published in proceedings)