PE1297/A: Andy Wightman letter of 14 January 2010 (195KB pdf)

PETITION PE1297 by Ranald Alasdair MacDonald of Keppoch
Written Response by Andy Wightman
14 January 2010
Dutchas (or more correctly Dùthaich) is a gaelic term meaning land, native country or
territory over which hereditary rights are exercised. Typically it represents the territory
regarded as the homeland of a clan or other kinship group.
Prior to the imposition of feudalism in Scotland, a range of native tenure systems existed.
Feudalism was superimposed on these systems of native title and in many instances ran
concurrently alongside them. In contrast to England, where William the Conqueror was
careful to legally confiscate property before he began to grant it all away, no Act was ever
passed in Scotland that confiscated property to the Crown. However Monarchs from
Malcolm Canmore onwards adopted the feudal system in order to impose Crown authority
over Scotland. David I is regarded as the King who did most to consolidate feudalism by
granting extensive lands to foreign Saxon and Norman nobles.
Feudal charters were also granted to native chiefs (Mormaers and Thanes) who were
gradually co-opted into the feudal system. Feudalism was slower to penetrate the
Highlands but by 1500 and certainly by 1600, feudal charters covered virtually all of
Scotland outwith the Northern Isles. Indeed in 1598, James VI demanded all those who
claimed to own land in the Highlands and Islands to produce their title deeds to the Privy
One problem was that, as the historian Allan Macinnes has argued,
The estates the chiefs and leading gentry held in heritage as their oighreachd did not
always match up to the territorial bounds over which they exercised heritable trusteeship,
their duthchas, on behalf of their clans.
(Scottish Power Centres, Cruithne Press, 1998 pg163)
Kinship modified by feudalism was how the historian Professor Christopher Smout has
described landownership in parts of the Highlands and Islands at this time. The more
astute Clan Chiefs adopted a dual strategy of retaining indigenous forms of kinship based
tenure and authority but backed up by keeping in with central authority in Edinburgh at the
same time. Despite the limited impact of feudalism, its legal authority was to have
devastating effects when the older clan system eventually collapsed and was to lead to the
ultimate betrayal by Clan Chiefs of their clansmen who almost universally never accepted
that a piece of paper from some distant monarch could ever usurp their rights.
By 1600, however, feudal tenure was firmly established and virtually all land (excepting the
Northern Isles) was held by the crown and granted out by feudal charter. The Scottish
state and its judicial system never recognised native title of any sort although remnants of
it persisted in the various non-feudal tenures that still exist.
It is notable that in all the authoritative texts on Scots land law by the institutional
writers and others (Bell, Stair, Erskine and Rankine), there is nowhere any reference
whatsoever to the concept of dùthaich.
As a form of native title associated with the Highlands, dùthaich was eliminated by
feudal tenure and the central problem for the petitioner is that there is no case to my
knowledge where dùthaich has been raised in any court of law as a prior and thus
legitimate form of land tenure. Nor do I think there is much prospect that it could be.
The idea that native title can be resurrected was tested recently in Australia. Mabo vs
Queensland (No 2) was a test case brought by Eddie Mabo, David Passi and James Rice
to determine the legal rights of the Merriam people on the islands of Mer (Murray Island),
Dauar and Waier in the Torres Strait which were annexed to the State of Queensland in
1879. In 1992 the High Court in Australia ruled that the land in the Murray Islands which
the petitioners claimed remained under native title is not Crown land within the meaning of
that term in s.5 of the Land Act 1962-1988.
This was a revolutionary ruling. It ended the colonial fiction that Australia was terra
nullis when the British arrived and established the fact of there being in existence such a
thing as native title at common law and thus native land tenure.
Can feudalism be equated with the Crowns rights in Australis and dùthaich with
Australian native title? Yes, it can but does Mabo offer any comfort for anyone seeking to
recover land formerly held under dùthaich? Probably not, since the court also found at 83
(3) that,
Native title to land survived the Crown's acquisition of sovereignty and radical title. The
rights and privileges conferred by native title were unaffected by the Crown's acquisition of
radical title but the acquisition of sovereignty exposed native title to extinguishment by a
valid exercise of sovereign power inconsistent with the continued right to enjoy native title.
In other words, native title survived where it had not been extinguished by Crown grants.
That observation must have come as a relief to everyone who owns property in Australia
as otherwise every title for every acre of Australia would be open to challenge.
If this ruling were to be found applicable to dùthaich in Scotland then for any land held
under dùthaich to survive would involve demonstrating it had never been the subject of
any feudal grant or that any feus which had been granted are not valid.
The Keppoch dùthaich has long since been granted by feudal charter to a number of
landowners including British Alcan (now owned by Rio Tinto). They hold it by virtue of titles
recorded in the Register of Sasines. In the case of any dubiety, they will mostly have
possessed the land for the prescriptive period and thus under the Scots law of property
any prior claims under feudal or any other form of tenure are most likely to fail.
In essence the petition calls on the Scottish parliament to urge the Scottish
government to undertake research. In bald terms I see no prospect of them doing so since
their research strategy is aligned to the policy objectives of government and nowhere in
the SNP manifesto or any of their statements since is there any mention of issues of native
At the end of the day, the petition relates to the law of land tenure in Scotland and the
only place where claims relating to dùthaich can be raised are in a court of law.
I have no view on whether the continued existence of dùthaich brings particular
disadvantages to tenants since I believe that dùthaich is dead.