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Political Science Indigenous Rights and Governance in Canada, Australia, and New Zealand
by
Kirsty Gover

Introduction

Indigenous rights are now a core part of the constitutional frameworks of the western settler states, including Australia, Canada, and New Zealand. The recognition of specific group rights for indigenous peoples raises complex challenges for the political and legal theory of the liberal democracies. Notwithstanding the significant constitutional and historical differences between these three states, in the past several decades, all have embarked on processes of land claims settlement and official recognition of indigenous peoples. The resulting arrangements are designed to protect the distinctive identities of indigenous peoples, to give effect to historic agreements, and to restore indigenous rights to property, territory, and self-governance. Legal mechanisms include those giving effect to common-law aboriginal title rights, cultural rights and exemptions, self-governance rights, special representation rights, and nondiscrimination rights. In Canada and New Zealand, but not Australia, some indigenous rights are premised on historic treaties. Recognized indigenous rights are expressed in various provisions of public legislation (including, in Canada, the Constitution Act), in indigenous-state agreements on land claims and self-governance, in formal and informal agreements on local governance, and in official apologies. Literature on indigenous rights includes a small but important body of political theory exploring and critiquing the application of theories of cultural pluralism, a large field of secondary legal literature on country-specific arrangements, comparative work considering matters of transnational application in the western settler states, and a sizable body of work on anthropological and cultural theories of indigeneity. This bibliography is intended to provide a sample of commentary to guide researchers in forays into the rapidly developing field of indigenous rights and indigenous governance. There is a vast and growing body of commentary on the legal and political status of indigenous communities in the western settler states. This collection cannot hope to be comprehensive. The emphasis of this selection is on secondary legal sources and analysis and does not include reference to cases or legislation. Wherever possible, comparative works have been included, to show the development of transnational law and policy on indigenous peoples and the sharing of concepts across legal jurisdictions. Likewise, the bibliography has been designed to emphasize works on indigenous laws and institutions, and commentary by indigenous commentators.

Legal and Political Commentary, Comparative Studies

Canada, New Zealand, and Australia are all western, liberal democracies, settled by a predominantly English-speaking majority, with legal and constitutional arrangements structured on inherited English common law. The three states have formed a “natural” comparative grouping in matters involving the relationship between the state and indigenous communities. In all three countries, land claims processes are underway and historic indigenous groups receive a degree of official recognition from the state. There is much evidence of “borrowing” and transplants among the three jurisdictions, especially in the unifying field of common-law aboriginal title, but also in the design and operation of public law and policy. Indigenous communities in these three countries have likewise formed international and transnational alliances that are evident in international activities and standard setting at the UN and elsewhere. The sources collected in the following section are a sample of works that are explicitly comparative in their focus. Some works, such as McHugh 2004, use a historical method to explain commonalities and differences in the evolution of state-indigenous relations in each of the three countries. Others are collections of works by indigenous and nonindigenous scholars organized around a theme; Richardson, et al. 2009 has collated works considering indigenous peoples’ experiences of settler law, and the development of indigenous law, in the four western settler states. Armitage 1995 addresses the scope and purpose of welfare policy aimed at indigenous peoples in each of the three jurisdictions. Havemann 1999 and Fleras and Elliott 1992 address more broadly the legal dimension of settler-indigenous relations, and Langton, et al. 2004 contains a series of essays describing experiences of indigenous peoples in concluding agreements with settler governments on land and resource use. Hocking 2005 focuses on the theory of self-determination, and finally, McHugh and Coates 1998 brings comparative perspectives to bear on the politics and law of Crown-Maori relations in New Zealand.

  • Armitage, Andrew. Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand. Vancouver: University of British Columbia Press, 1995.

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    A comprehensive comparative examination of “ethnically specific” welfare policy directed toward indigenous communities in each of the named states. Armitage emphasizes the coercive assimilative aims of indigenous welfare policy, premised precariously on concepts of humanitarianism, and considers in particular notorious and catastrophic policies designed to remove indigenous children from their families.

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  • Fleras, Augie, and Jean Leonard Elliott. The “Nations Within”: Aboriginal-State Relations in Canada, the United States, and New Zealand. Auckland, New Zealand: Oxford University Press, 1992.

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    A comparative work centered on the political and legal status of aboriginal communities in Canada, contrasted with public law and policy on state-tribal relations in the United States and New Zealand. Emphasizes the emergence of a distinctive claims discourse based on concepts of inherent indigenous nationhood and self-determination and the necessity of accommodating these claims within the constitutional frame of the Canadian state.

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  • Havemann, Paul, ed. Indigenous Peoples’ Rights in Australia, Canada & New Zealand. Auckland, New Zealand: Oxford University Press, 1999.

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    One of the first transnational comparative works on developments in indigenous-states relations in the named states. This book was published at a time when land claims processes in each of the jurisdictions were well underway, and the “implementation phase” of settled claims, and associated questions about governance, were about to begin in earnest. Contributors are all established scholars in their respective fields.

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  • Hocking, Barbara, ed. Unfinished Constitutional Business: Rethinking Aboriginal Self-Determination. Canberra, Australia: Aboriginal Studies Press, 2005.

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    A collection of chapters edited by Australian anthropologist Barbara Hocking, organized around the theme of indigenous self-determination and including contributors from Australia, New Zealand, Canada, and several other jurisdictions. Contributors use the theoretical paradigms of feminism, sovereignty, self-determination, and critical race theory. Includes a helpful introduction and conclusion by the editor.

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  • Langton, Marcia, Maureen Tahan, Lisa Palmer, and Kathryn Shain, eds. Honour Among Nations? Treaties and Agreements with Indigenous People. Carlton, Australia: Melbourne University Press, 2004.

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    A useful collection of essays by established scholars and practitioners in New Zealand, Canada, and Australia, dealing with agreements on resources and land use and the processes by which these are negotiated between public and indigenous representatives. The collection has an emphasis on Australian material and contributors.

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  • McHugh, Paul G. Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination. Oxford: Oxford University Press, 2004.

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    The most comprehensive and detailed intervention to date on the application of English and settler common law to indigenous communities in the western settler states. McHugh traces the evolution of state-indigenous relations, dealing with the reception of the English common law during annexation, mid-century dormancy and repression, and the claims era that emerged in the 1960s and 1970s in each of the states considered.

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  • McHugh, Paul G., and Ken Coates. Kokiri Ngatahi Living Relationships: The Treaty of Waitangi in the New Millennium. Wellington, New Zealand: Victoria University Press, 1998.

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    In this work, legal scholars McHugh (New Zealand) and Coates (Canada) each offer a thoughtful, comparative essay on indigenous-state relations in North America and Australasia, with a focus on New Zealand. They emphasize the need for forward-looking relationships that are not narrowly focused on the settlement of historical claims. The book includes commentary on the essays by nine prominent indigenous and nonindigenous New Zealand scholars.

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  • Richardson, Benjamin J., Shin Imai, and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives. Oxford: Hart, 2009.

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    A collection of new work by established and emerging figures in the field of indigenous law and policy in the western settler states. This book deals with recent developments in the legal mechanisms by which indigenous peoples and their law are recognized in the settler societies. Helpfully, chapters emphasize indigenous concepts, indigenous law, and indigenous legal theory, making this an example of the new generation of indigenous-centered critical legal commentaries.

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“Indigeneity” and the Nature of “Universal” Indigenous Rights

Indigenous rights pose particular challenges for liberal human-rights theories. First, they are not easily characterized as “universal,” because they vest only in those communities that have experienced a particular history of colonization. Second, they are often framed as group rights, vesting in indigenous communities as “peoples” and including rights to self-determination, nationhood, and sovereignty. These confront the liberal cosmopolitan ideal of human rights as individual rights held equally by all human beings, whatever the nature of their relationship with governments. Nonetheless, indigenous peoples have succeeded in forming a global social movement and in securing, through their advocacy, rights that are recognized in a number of international legal instruments. Any expression of indigenous rights must first grapple with the concept of indigeneity itself. Works referenced in this section show various efforts to do so. Written by an anthropologist, Niezen 2003 describes in sociopolitical terms the emergence of indigenous peoples as a distinct class of domestic and transnational actors. International lawyers have embarked on efforts to explain and critique international law as it applies to indigenous peoples. The seminal text is Anaya 2004, which is now in its second edition. Rodríguez Piñero 2005 is a detailed historical study of the indigenous-rights protections recorded in treaties developed under the auspices of the International Labour Organisation (ILO). Charters and Stavenhagen 2009 is a volume of essays by participants in the twenty-two-year-long process of drafting the 2007 UN Declaration on the Rights of Indigenous Peoples. Keal 2003 takes an international-relations approach to the issue of indigenous rights in international law, addressing in particular the exclusion of indigenous peoples from the international community of states. Kingsbury 1998 and Kingsbury 2002 directly confront the problem of identifying indigenous peoples in international law, and the challenge posed by self-identifying communities outside of the western settler states, where indigeneity appears to be a less accepted and applicable concept. Likewise, Ivison 2003 deploys political philosophy and theory to examine the notion of indigeneity as a basis for specific human rights.

  • Anaya, S. James. Indigenous Peoples in International Law. 2d ed. Oxford: Oxford University Press, 2004.

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    The essential text on the rights of indigenous peoples in international law, by a preeminent indigenous scholar and advocate, now in its second edition. This text provides critical commentary on the development of a body of international human-rights law on indigenous peoples and contains a careful exposition of the rights of self-determination as it pertains to indigenous claims in international law.

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  • Charters, Claire, and Rudolfo Stavenhagen, eds. Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples. Copenhagen: IWGIA, 2009.

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    A recent edited collection of essays recording the experiences and observations of (mostly) indigenous participants in the international body established to elaborate the Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007 after twenty-two years of negotiations. Includes commentary on the core components of the Declaration, including self-determination.

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  • Ivison, Duncan. “The Logic of Aboriginal Rights.” Ethnicities 3 (2003): 321–344.

    DOI: 10.1177/14687968030033003Save Citation »Export Citation »E-mail Citation »

    One of the most useful theoretical expositions on the nature of distinctive “indigenous rights.” Ivison provides an approach grounded in political philosophy to consider approaches to the concept and source of “rights” and to assess their application to indigenous peoples.

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  • Keal, Paul. European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society. New York: Cambridge University Press, 2003.

    DOI: 10.1017/CBO9780511491467Save Citation »Export Citation »E-mail Citation »

    The major intervention on indigenous rights, from a scholar of international relations. Keal examines the historical exclusion of indigenous peoples as members of the international community, and the use made of international law in the dispossession of indigenous communities by metropolitan powers. He considers the possibility of reconfiguring international law to accommodate indigenous rights and argues that this is necessary to restore the legitimacy of the international legal order.

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  • Kingsbury, Benedict. “Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy.” American Journal of International Law 92 (1998): 414–457.

    DOI: 10.2307/2997916Save Citation »Export Citation »E-mail Citation »

    An influential article by a well-regarded scholar, which tackles the complexity of efforts to develop a definition of indigenous peoples for use in international policy and standard setting. Kingsbury proposes a constructivist approach, recognizing that the concept of indigeneity and its legal meaning will evolve over time.

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  • Kingsbury, Benedict. “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law.” New York University Journal of International Law and Policy 34 (2002): 189–250.

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    An insightful article providing a very useful taxonomy of the various bases of indigenous claims, and an assessment of the challenges posed by the argumentative structures of each. A significant contribution to debates on the possibility and controversy of a distinct category of “indigenous rights” that supplements rights vesting in indigenous peoples by virtue of characteristics shared with other groups and individuals.

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  • Niezen, Ronald. The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley: University of California Press, 2003.

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    An illuminating analysis of the emergence of the concept of “indigeneity” as a global and international legal and political concept distinct from ideas of “ethnicity” and “race.” Niezen explains and explores some of the challenges of operationalizing indigeneity in domestic and international law.

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  • Rodríguez Piñero, Luis. Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime, 1919–1989. Oxford: Oxford University Press, 2005.

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    A thorough empirical study of the International Labor Organization processes and mechanisms pertaining to indigenous peoples. Includes analysis of the preparatory documents of debates leading to the preparation of ILO Convention 169, the only international treaty specifically protecting the rights of indigenous peoples.

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The Concept of “Indigeneity” and Its Expression in Public Law

Indigenous peoples are identified in public law in order to allow the conferral of social benefits, property rights, political standing, and access to targeted services. Legal indigeneity has also been used to reduce the set of rights and entitlements held by indigenous peoples relative to nonindigenous peoples. In order to operationalize law pertaining only to indigenous peoples, states must first decide on an appropriate definition. The approaches used vary from state to state, but all include some elements of descent, either biological or legal, as a core attribute of a person deemed to be “legally indigenous.” The classifications are controversial and often thought to be either under- or overinclusive. Scholars deploy political theory, anthropology, and political philosophy to critique the scope and consequence of legal definitions. Some accounts proceed from the level of principle to assess the content of the concept of indigeneity itself (such as in Waldron 2003); others seek to maneuver within the categories of concepts such as ethnicity, race, and culture to more coherently explain the meaning of indigeneity (such as in Grammond 2007–2008). Others directly examine legal provisions identifying indigenous peoples and critique the use of settler law to define and control indigenous peoples and their identities. Indigenous scholars Taiaiake Alfred and Jeff Corntassel (see Alfred and Corntassel 2005) and Michael Dodson (see Dodson 1994) take this approach, which is also taken in Corntassel and Primeau 1998 and Chartrand 2002. A less developed body of scholarship has begun to address tribal concepts of indigeneity, by reference to the law and constitutions of recognized tribes (as in Gover 2010). Finally, settler governments are interested in the sociological consequences of choosing one definition over another and have produced or commissioned works that offer population and demographic projections (Clatworthy 2005).

  • Alfred, Taiaiake, and Jeff Corntassel. “Being Indigenous: Resurgences against Contemporary Colonialism.” Government and Opposition 40.4 (2005): 597–614.

    DOI: 10.1111/j.1477-7053.2005.00166.xSave Citation »Export Citation »E-mail Citation »

    A provocative article by indigenous scholars Corntassel and Alfred, arguing for strategies of resistance against the colonial construction of indigenous identities in law. They point out the variegation and situational qualities of indigenous identity and urge indigenous peoples to take control over their own self-constitution and self-identification.

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  • Chartrand, Paul L. A. H., ed. Who Are Canada’s Aboriginal Peoples?: Recognition, Definition and Jurisdiction. Saskatoon, Canada: Purich, 2002.

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    A collection of essays by legal scholars critically addressing law and policy, identifying Canada’s constitutionally protected aboriginal population: Indian, Inuit, and Métis. Includes two essays comparing Canadian and US policies.

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  • Clatworthy, Stewart. Indian Registration, Membership and Population Change in First Nations Communities. Winnipeg, Canada: Four Directions Project Consultants, 2005.

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    One of a series of reports prepared for the federal Department of Indian and Northern Affairs Canada, discussing the implications of amendments made in 1985 to the eligibility criteria set out in the Indian Act for the size of Canada’s registered Indian population. This report projects population changes.

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  • Corntassel, Jeff J., and Tomas Hopkins Primeau. “The Paradox of Indigenous Identity: A Levels-of-Analysis Approach.” Global Governance 4 (1998): 139–156.

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    In this article, Corntassel and Primeau grapple with the problematic concept of self-identification in the indigenous context, at the community, state, and international “levels.” They query the relation between an individual’s right to self-identify as indigenous and an indigenous community’s right to collectively determine its membership, by looking at the discrepancy between public and tribal law on identity.

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  • Dodson, Michael. “The Wentworth Lecture: The End in the Beginning: Re(de)finding Aboriginality.” Aboriginal Australian Studies 1 (1994): 2–13.

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    An article by one of Australia’s most prominent indigenous leaders and scholars, considering the various purposes of laws defining indigenous identities in Australia, and the deleterious effects of those laws on the identities and lives of indigenous persons. Dodson argues that self-identification is the only defensible approach.

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  • Gover, Kirsty. “Comparative Tribal Constitutionalism: Membership Governance in Australia, Canada, New Zealand and the United States.” Law & Social Inquiry 35.3 (Summer 2010): 689–762.

    DOI: 10.1111/j.1747-4469.2010.01200.xSave Citation »Export Citation »E-mail Citation »

    A comparative article discussing tribal membership criteria in the western settler states, by reference to the rules contained in approximately 740 tribal constitutions. The author points out that many of the assumed “ideal” characteristics of tribes, such as boundedness, insularity, and territoriality, are not supported by the content of tribal membership rules and tribal definitions of indigeneity.

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  • Grammond, Sebastien. “Disentangling Race and Indigenous Status: The Role of Ethnicity.” Queen’s Law Journal 33 (2007–2008): 487–517.

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    Grammond considers the problematic use of concepts of “race” to identify indigenous peoples and proposes instead that “ethnicity” is an appropriately inclusive concept that can accommodate nonbiological identity markers and so avoid the implication of racial discrimination that otherwise attaches to legal rights for indigenous peoples.

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  • Waldron, Jeremy. “Indigeneity? First Peoples and Last Occupancy.” New Zealand Journal of Public and International Law 1.1 (2003): 55–82.

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    This article is based on Waldron’s controversial 2002 Quentin-Baxter Memorial Lecture at the Victoria University of Wellington Law School in New Zealand. Waldron is a leading legal philosopher. In this article he calls attention to the difficulty of using the principle of “first occupancy” to ground a theory of justice that would provide content to the concept of indigeneity and thus legitimize indigenous claims.

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Public Law and Policy on Indigenous-State Relations

In each of the states considered in this bibliography, there is a sizable body of secondary legal literature and commentary drawn from the fields of political theory and anthropology, dealing in general or global terms with the relationship between settler governments (and settler law) and indigenous communities. Different logics apply in each of the named countries. New Zealand discourse is centered on the Treaty of Waitangi and the settlement of treaty claims, Australian commentary is heavily focused on the determination of common-law aboriginal title claims (in the absence of any historical agreement in that country), and Canadian scholarship is focused largely on self-government negotiations and agreements, and aboriginal title claims, some of which are based on historic treaties. Each of these approaches operates to structure reasoning about the optimal basis for relationships and reparations, often to the exclusion of different paradigms.

Australia

Australian commentary on indigenous-state relations is heavily oriented toward discussion of historic property and the judicial process by which indigenous native-title claims are determined. There is no Australian equivalent of the processes of land claims negotiation established by the Canadian and New Zealand Crown (with the exception of the Traditional Owner Settlement process established by legislation in the state of Victoria in 2010). The absence of a centralized executive-claims process, and the particular way in which claims have been received by the Australian federal court, have led to a leaning in Australian commentary toward legal evidentiary requirements, and to discussions of the role of anthropology in the assertion of indigenous rights. Some of these specific works are referenced in Indigenous Common-Law Property Rights. For a more general investigation of historical methodologies and indigenous claims, see Curthoys, et al. 2008, and for a helpful critical assessment of the evolution of native-title jurisprudence in Australia since 1992, see Tehan 2003. Behrendt, et al. 2009 provides a useful overview of issues arising from the impact of law on indigenous Australians, and Australian Institute of Aboriginal and Torres Strait Islander Studies 2003 records commentary from indigenous scholars and activists on the need to secure the special constitutional status of indigenous peoples in Australia. Outside of questions about native title, a body of work attends to the socioeconomic status of indigenous Australians and policies intended to respond to indigenous disadvantage, including the controversial Northern Territory Intervention. This work overlaps with scholarship that critiques the ongoing impacts of legal provisions denying indigenous peoples the rights of other Australian citizens. Sutton 2009, Behrendt 2003, and Peterson and Sanders 1998 are representative of this body of scholarship. Finally, commentators consider the intergenerational impacts of the long-standing policy of removing indigenous children from their communities and institutionalizing them. The “Bringing Them Home” report records the investigation of this practice (Human Rights and Equal Opportunity Commission 1997).

  • Australian Institute of Aboriginal and Torres Strait Islander Studies, ed. Treaty: Let’s Get It Right! A Collection of Essays from ATSIC’s Treaty Think Tank and Authors Commissioned by AIATSIS on Treaty Issues. Canberra, Australia: Aboriginal Studies Press, 2003.

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    A collection of commissioned essays reflecting the contributions of participants in the 2000 national think-tank gathering, considering the possibility and implications of formal constitutional acknowledgement of indigenous peoples in Australia. The essays consider the potential of agreement making as a basis for state-indigenous relations in Australia and include the contributions of well-regarded indigenous scholars.

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  • Behrendt, Larissa. Achieving Social Justice: Indigenous Rights and Australia’s Future. Annandale, Australia: Federation Press, 2003.

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    A wide-ranging account of the place of indigenous peoples in the Australian legal and constitutional framework, by one of Australia’s leading younger indigenous scholars. The book includes a critique of “equal rights,” an examination of the concepts of self-determination and sovereignty, an analysis of the impact of native title on indigenous claims and communities, and an assessment of the socioeconomic disparity between indigenous and nonindigenous communities.

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  • Behrendt, Larissa, Chris Cunneen, and Terri Libesman. Indigenous Legal Relations in Australia. South Melbourne, Australia: Oxford University Press, 2009.

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    A popular textbook, the only one of its kind in Australia, dealing with a wide range of indigenous legal issues presented in an easily accessible and engaging format.

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  • Curthoys, Ann, Ann Genovese, and Alexander Reilly. Rights and Redemption: History, Law and Indigenous People. Sydney, Australia: University of New South Wales Press, 2008.

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    This book considers the role played by history and historians in indigenous peoples’ experiences of law. It canvasses the place of historical analysis in native-title litigation and in laws and policies defining indigenous peoples, and addresses the possibility of a “redemptive history,” such as the use of history to explain and seek reparations for the removal of indigenous children from their families (the “Stolen Generation”).

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  • Human Rights and Equal Opportunity Commission. Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. Sydney, Australia: Human Rights and Equal Opportunity Commission, 1997.

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    The commission tasked with preparing this report estimated that between 10 and 33 percent of indigenous children were forcibly removed from their families as a result of policies in effect between 1910 and 1970. The commission made a range of recommendations to government, some of which were eventually put into effect (for example, the 2008 federal apology), but none of the recommended compensation has been provided.

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  • Peterson, Nicolas, and Will Sanders, eds. Citizenship and Indigenous Australians: Changing Conceptions and Possibilities. Cambridge, UK: Cambridge University Press, 1998.

    DOI: 10.1017/CBO9780511552243Save Citation »Export Citation »E-mail Citation »

    An excellent compilation of essays recording the historical exclusion of Australian indigenous persons as full citizens via the express legislative denial of legal rights and entitlements. Explains the emergence of a civil rights movement in the 1970s. The introduction is an especially useful overview of the various stages in indigenous policy in Australia. The book provides a helpful context for contemporary polices such as the Northern Territory Emergency Response measures of 2008.

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  • Sutton, Peter. The Politics of Suffering: Indigenous Australia and the End of the Liberal Consensus. Carlton, Australia: Melbourne University Press, 2009.

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    A controversial book by one of Australia’s leading anthropologists, which examines the steady decline in the welfare of remote Aboriginal communities in Australia since the mid-20th century. Sutton explains the historical backdrop to current levels of dysfunction and argues in favor of interventionist policies designed to curb violence and alcohol abuse in these communities.

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  • Tehan, Maureen. “A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act.” Melbourne University Law Review 27.2 (2003): 523–571.

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    A clear and astute critical analysis of the elaboration of native-title doctrine in Australia and the impact on the common-law doctrine of the 1998 amendments to the Native Title Act, which had the effect of increasing the evidentiary burden on claimants. Tehan argues that the conservative judicial methodology applied in post-1998 native-title cases may have reduced common-law native title to a “barren statutory right.”

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Canada

This section records a sample of some of the most useful and well-known works produced by Canadian scholars, to characterize and critique indigenous-state relations in that country. The 4,000-page landmark report Royal Commission on Aboriginal Peoples 1996 provides the baseline for understanding the history and future direction of law and policy on indigenous peoples in Canada. Popular legal texts and casebooks include Shin 2009 and Elliott 2005, which provide useful resources for students, scholars, and practitioners. Examples of normative approaches to the fundamental political and legal basis of the relationship include Macklem 2001, Borrows 2002, and Borrows 2010. Borrows 2010 in particular marks a new era of scholarship that emphasizes indigenous concepts of law and legal theory.

  • Borrows, John. Recovering Canada: The Resurgence of Indigenous Law. Toronto: University of Toronto Press, 2002.

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    In this book, perhaps his most well known, Borrows makes the case that indigenous law is a formal source of law in Canada, one that is increasing rapidly in importance. Recognition of this law is a vital part of bolstering the legitimacy of the Canadian legal system.

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  • Borrows, John. Canada’s Indigenous Constitution. Toronto: University of Toronto Press, 2010.

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    The latest intervention by Canada’s leading indigenous legal scholar. This book is among a few contributions that begin a critical and normative inquiry into indigenous law, rather than focusing largely or exclusively on settler law. Borrows shows how indigenous and settler legal traditions exist alongside one another in Canada and that indigenous law has been overlooked, with the result that Canada’s legal constitution is incomplete.

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  • Elliott, David W., ed. Law and Aboriginal Peoples in Canada. 5th ed. Canadian Legal Studies Series. Concord, Canada: Captus, 2005.

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    A popular collection of primary materials and commentary, now in its fifth edition. Covers the Indian Act, self-government and land claims, aboriginal title, treaties, and constitutional rights of Canada’s indigenous populations.

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  • Macklem, Patrick. Indigenous Difference and the Constitution of Canada. Toronto: University of Toronto Press, 2001.

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    An important contribution by one of Canada’s foremost scholars of indigenous and human rights. Macklem argues that existing equality protections do not suffice to protect the constitutional equality and indigenous peoples. Instead, indigenous difference should be the basis of specific constitutional rights, premised on the unique histories, cultures, and vulnerabilities of indigenous communities.

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  • Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. Ottawa, Canada: Royal Commission on Aboriginal Peoples, 1996.

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    The final report of the Royal Commission on Aboriginal Peoples, containing recommendations for a twenty-year plan for the implementation of policies to improve the relationship between indigenous Canadians and the governments of Canada. The report is based on a vast collection of interviews and reports from indigenous representatives, scholars, and community members. Commentators are critical of the federal government’s failure to implement its recommendations.

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  • Shin, Imai. Aboriginal Law Handbook. 3d ed. Toronto: Carswell, 2009.

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    A leading reference work and textbook, covering a wide range of legal issues relevant to indigenous communities in Canada, including land and property law, family law, criminal justice, governance, and aboriginal title. A useful resource for students and practitioners as well as academics.

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New Zealand

New Zealand scholarship on the constitutional standing of Maori centers on the 1840 Treaty of Waitangi, signed by representatives of the British Crown and more than five hundred tribal leaders. In the mid-1970s the New Zealand Crown initiated a process to investigate claims that it had breached the treaty, and to negotiate with tribes for the settlement of those claims by providing reparations packages including cash, Crown land, and forms of cultural recognition. The “claims era” in New Zealand has engendered a new and still-nascent body of scholarship considering the governance institutions of tribes, set up to manage assets conferred in Treaty of Waitangi settlements. Interventions include legal-doctrinal accounts of the status of the treaty and the accompanying body of common law recognizing Maori customary property rights (McHugh 1991 is a good example of such an approach). Other scholars have investigated the enduring influence of the treaty as an extra-legal qualification on the authority of the Crown to govern, and as the historical condition for the exercise of that authority. In a series of landmark books, McHugh 1991, Brookfield 2006, and Palmer 2008, all written by legal scholars, investigate the treaty as a powerful constitutional constraint, notwithstanding its lack of formal legal effect. Orange 1987 is the field-defining historical account of the signing of the Treaty of Waitangi and its importance as a mechanism for securing the (relatively) peaceful settlement of New Zealand. Sharp 1997 approaches the history of Maori claims making from the perspective of a political theorist and includes commentary on how the treaty and its terms have provided a basis for the assertion of indigenous rights in New Zealand and a framework for Crown responses. Kingsbury 2002 investigates the partially competing bases of Maori claims, drawing attention to the different logics at play in the political maneuverings of tribes and the state in their dealings with one another.

  • Brookfield, F. M. Waitangi and Indigenous Rights: Revolution, Law and Legitimation. Updated ed. Auckland, New Zealand: Auckland University Press, 2006.

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    In this influential book, one of New Zealand’s most prominent constitutional lawyers suggests (controversially) that whatever the validity of the acts of the British Crown that led to the assertion of sovereignty over New Zealand, the current constitutional structure has gained legitimacy through many years of peaceable governance, and through the efforts of the Crown to give effect to the promises made in the treaty itself.

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  • Kingsbury, Benedict. “Competing Conceptual Approaches to Indigenous Group Issues in New Zealand Law.” University of Toronto Law Journal 52.1 (2002): 101–134.

    DOI: 10.2307/825929Save Citation »Export Citation »E-mail Citation »

    One of a collection of papers published in a special volume of the University of Toronto Law Journal, “Liberal Democracy and Tribal Peoples: Group Rights in Aotearoa/New Zealand.” Kingsbury considers the various logics that drive indigenous claims in New Zealand: nondiscrimination, minority rights, self-determination, sovereignty, and indigenous rights.

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  • McHugh, P. G. The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi. Auckland, New Zealand: Oxford University Press, 1991.

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    A highly influential and durable intervention on the status of the Treaty of Waitangi in New Zealand’s constitutional and public law, by a leading expert on the common-law doctrine of aboriginal title.

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  • Orange, Claudia. The Treaty of Waitangi. Wellington, New Zealand: Allen & Unwin, 1987.

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    The primary work on the historical backdrop of the Treaty of Waitangi. Orange considers the nature of tribal relationships with British Crown officials and missionaries in the lead-up to its signing in 1840, and its subsequent impact (or lack thereof) on the course of settlement in New Zealand over the next fifty years.

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  • Palmer, Matthew S. R. The Treaty of Waitangi in New Zealand’s Law and Constitution. Wellington, New Zealand: Victoria University Press, 2008.

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    Palmer, a well-regarded New Zealand legal scholar, argues that the indeterminate status of the Treaty of Waitangi increases the volatility of public sentiment on the relationships between Maori and non-Maori and between Maori and the Crown. He argues that the treaty should be “stabilized” in New Zealand’s constitutional framework by empowering institutions to facilitate public debate on its meaning and to resolve disputes.

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  • Sharp, Andrew. Justice and the Maori: The Philosophy and Practice of Maori Claims in New Zealand since the 1970s. 2d ed. Auckland, New Zealand, and New York: Oxford University Press, 1997.

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    A seminal work by a highly regarded scholar on Maori-state relations in New Zealand, which combines history and political philosophy. The second edition, published in 1997, includes an additional sixteenth chapter. The book critically analyzes the tenor and practice of Maori claims and shifts in the ideology of public policy in responses to those claims, organized around competing concepts of justice.

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Political Theory on Indigenous Peoples

In the political theory of liberal democracies, indigenous peoples are a “hard case,” because their claims appear to originate in practices and events that predate the constitution of the settler state and its legal system. Most are centered firmly on some concept of prior occupancy, whether framed as a claim to preexisting property rights, sovereignty or “inherent” rights of governance, or self-determination. The consent of indigenous communities to the governance arrangements they are subject to often remains in question, and the claims they make are often collective, vesting in communities rather than individuals. These characteristics mean that indigenous claims sit uneasily with the liberal principle of equality before the law, and the concept that human rights are necessary to ensure individual liberty and freedom of choice. The concern has been that by recognizing indigenous communities as holders of rights opposable to the state, settler societies may endorse illiberal enclaves within a liberal society. Political theorists for the most part have not engaged directly with indigenous claims, but those who have can be grouped broadly in two overlapping strands of inquiry, depending on the way in which they identify relevant indigenous difference. Cultural pluralists fit indigenous claims within a broader theory of multiculturalism, in which cultural difference is framed as a public good that should be protected by the state, either because culture has an inherent value or because the protection of cultural difference improves individual agency and choice. In the case of indigenous communities, cultural difference can include special relationships to land alongside distinctive traditions of law, custom, and autonomous governance. These accounts tend to be ahistorical. A second body of theory locates the relevant difference of indigenous communities in their historical exclusion from the formation of the national polity, thus emphasizing not the cultural “equality” of indigenous peoples but the sui generis nature of their claims, arising from their prior occupancy of the territory in question and their continuity with historic communities. Cultural pluralists address indigenous claims alongside the rights of other cultural minorities, and sometimes obliquely as part of larger studies, but theorists of “indigenous specificity” deploy other logics, including, as noted, justificatory arguments based on sovereignty, self-determination, and property. Some theorists run cultural and historical arguments in tandem, with varied success.

Cultural Pluralism

Theories of cultural pluralism and indigenous cultural difference are dominant in political theory of indigenous peoples, because these approaches are relatively compatible with the liberal tradition and allow the characterization of culture to include collectively exercised individual rights, or approaches that style group rights as derivative of the individual freedom to choose a “good life” in a liberal democracy (see Kymlicka 1989). Ivison, et al. 2000 is an edited volume of approaches that span cultural and other approaches, and it is the centerpiece of a developing field of political theory looking directly and specifically at indigenous peoples. Cairns 2000 outlines a broad theory of indigenous rights, beginning with the principle of liberal equality between citizens plus additional entitlements that are necessary because of the fact of indigenous difference. Some scholars in this tradition have centered their analysis on the concept of “recognition” and the concepts of cultural difference it entails, and the power dynamics inherent in the act of conferring recognition. A major and early contribution is Taylor 1994, and a later example is Day 2001.

  • Cairns, Alan C. Citizens Plus: Aboriginal Peoples and the Canadian State. Vancouver: University of British Columbia Press, 2000.

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    An influential work by a highly regarded Canadian political theorist, arguing that the equal rights of indigenous persons in the settler states must be supplemented by specific entitlements that reflect their special constitutional status as indigenous peoples, including specifically the right to governmental autonomy.

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  • Day, Richard. “Who Is This ‘We’ That Gives the Gift? Native American Political Theory and ‘the Western Tradition.’” Critical Horizons 2.2 (2001): 173–201.

    DOI: 10.1163/156851601760001300Save Citation »Export Citation »E-mail Citation »

    This article by Canadian political theorist Richard Day discusses the limits of “recognition” as it is deployed in liberal multiculturalism. He describes the challenges posed by indigenous political theory to this conception of cultural pluralism.

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  • Ivison, Duncan, Paul Patton, and Will Sanders, eds. Political Theory and the Rights of Indigenous Peoples. London and New York: Cambridge University Press, 2000.

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    The central text in the small body of political theory directly addressing the status and rights of indigenous peoples. The book includes a very useful introduction by the editors, and contributions from established theorists, working with concepts of multiculturalism, property, reparations, and cultural rights. An essential book for anyone seeking to understand the particular challenges posed by indigeneity to liberal theories of democratic governance.

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  • Kymlicka, Will. Liberalism, Community, and Culture. Oxford: Clarendon, 1989.

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    Kymlicka is credited with the development of the highly persuasive and influential theory of “liberal multiculturalism,” in which the public protection of cultural communities is necessary to advance the liberal goals of individual choice, equality, and agency. This is in contrast to the concept that the public recognition of group identities can constrain individual freedom.

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  • Taylor, Charles. “The Politics of Recognition.” In Multiculturalism: Examining the Politics of Recognition. Edited by Amy Gutmann, 25–74. Princeton, NJ: Princeton University Press, 1994.

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    A catalytic essay by a leading Canadian political theorist, introducing the now-uncontroversial idea that a failure to recognize the self-ascribed cultural identity of a person or community can constitute an injustice in and of itself, aside from its structural consequences. Peoples and individuals are entitled to “equal recognition.”

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Historical Specificity and Status of Indigenous Peoples

Approaches based on cultural difference tend to be largely ahistorical. Other theoretical framings emphasize the historical continuity and particular experiences of indigenous communities as a basis for their special standing in settler law. The approaches distinguish the status of indigenous communities from other cultural minorities in the settler states. Scholars tend to focus on historically continuous indigenous communities, such as tribes, rather than on groups that are recently formed but culturally distinctive. Tully 1995, for example, premises the author’s approach on the concept of indigenous communities as nations, and Macklem 1993 bases the author’s argument on indigenous sovereignty. Schouls 2003 takes a dynamic approach to recognition of indigenous self-governance rights, necessary to protect indigenous cultural difference, advanced through intergroup dialogue. Ivison 2002 emphasizes dialogue, alongside efforts to repair relationships and to compensate indigenous peoples for historical injustices. Dene scholar Coulthard (Coulthard 2007) and Mohawk scholar Alfred (Alfred 1999) take issue with the concept of recognition itself, asserting instead the inherent capacity of indigenous communities to govern and identify themselves independently of the state and its law. Macdonald and Muldoon 2006 similarly makes a case for indigenous agency, pointing out that indigenous communities have been able, in some instances, to claim self-governance in practice, by means other than official recognition of inherent rights.

  • Alfred, Taiaiake. Peace, Power, Righteousness: An Indigenous Manifesto. Don Mills, Canada: Oxford University Press, 1999.

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    A provocative text by Mohawk scholar Taiaiake Alfred, urging the assertion of indigenous concepts and traditions to critique and reject settler ideology on the status of aboriginal communities in North America. A forerunner of the emergent body of scholarship on indigenous political theory.

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  • Coulthard, Glen. “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada.” Contemporary Political Theory 6.4 (2007): 437–460.

    DOI: 10.1057/palgrave.cpt.9300307Save Citation »Export Citation »E-mail Citation »

    This prize-winning article by Dene political theorist Glen Coulthard challenges the power differential inherent in liberal concepts of official “recognition,” arguing that the logic of exchanges of this kind distorts and undermines indigenous claims to self-determination.

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  • Ivison, Duncan. Postcolonial Liberalism. Cambridge, UK, and New York: Cambridge University Press, 2002.

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    In this groundbreaking book, Ivison confronts head-on the challenges faced by settler societies in accommodating indigenous claims to autonomy and group rights within a liberal-democratic framework. He identifies this challenge as the hallmark and sui generis characteristic of the settler societies, derived from their particular histories, and makes a convincing case for a multifaceted approach to engagement with indigenous peoples, including reparations, dialogue, and forms of cultural accommodation.

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  • Macdonald, Lindsey Te Ata o Tu, and Paul Muldoon. “Globalisation, Neo-Liberalism and the Struggle for Indigenous Citizenship.” Australian Journal of Political Science 41.2 (2006): 209–223.

    DOI: 10.1080/10361140600672477Save Citation »Export Citation »E-mail Citation »

    An interesting collaboration by Macdonald (New Zealand) and Muldoon (Australia) that draws attention to indigenous agency and strategy in a way that few scholars have attempted. This piece argues that while economic globalization and neoliberalism have worsened living standards of many indigenous communities, some have also benefited from the accompanying reduction in the reach of government and have used devolution and decentralization policies to bolster self-government and increase their independence from settler governments.

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  • Macklem, Patrick. “Distributing Sovereignty: Indian Nations and Equality of Peoples.” Stanford Law Review 45 (1993): 1311–1367.

    DOI: 10.2307/1229071Save Citation »Export Citation »E-mail Citation »

    In this article, Canadian scholar Patrick Macklem characterizes sovereignty as a good that is inequitably distributed among the nations of North America to exclude the sovereignty of indigenous communities, arguing for a more just distribution that does not require indigenous communities to frame their claims to autonomy in the language of culture, property, or prior occupancy.

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  • Schouls, Timothy A. Shifting Boundaries: Aboriginal Identity, Pluralist Theory, and the Politics of Self-Government. Vancouver: University of British Columbia Press, 2003.

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    This insightful book develops the concept of “relational pluralism” to augment theories of cultural pluralism in order to respond to indigenous claims to self-government. The work adeptly shows why governmental autonomy is appropriately sought by indigenous communities to protect their changing cultural and political identities from external intervention.

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  • Tully, James. Strange Multiplicity: Constitutionalism in an Age of Diversity. New York: Cambridge University Press, 1995.

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    Tully is a well-known Canadian political philosopher who has written extensively on the challenge of liberal constitutionalism in plural societies. In this book he argues in favor of ongoing “multinational” dialogue between indigenous nations and settler governments, to promote cooperation on matters of mutual concern while preserving autonomy in matters of internal self-governance.

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The Right and Practice of Indigenous Self-Governance

One of the central claims of indigenous communities is the right to autonomous self-governance. The right to self-government is variously derived from communal property ownership (McNeil 2001), self-determination as peoples (Aikio and Scheinin 2000), or some version of preexisting sovereignty (arguably, this is the basis of the Canadian “inherent right” policy; see Wherrett 1999). In either case, having decided to allow or facilitate indigenous governance, states must decide who or which indigenous communities should exercise the right and how those communities are to be identified, including the identification of their membership (Gover 2010, cited in Indigenous Governance Institutions). Canada recognizes the “inherent right” of aboriginal communities to self-govern and acknowledges that this right is among those rights protected by section 35 of the Constitution Act 1982. The recognition and protection of self-governance arrangements have, since 1995, been policy goals in and of themselves. In Australia and New Zealand, however, as law and policy now stands, whatever self-governance capacity is officially recognized to vest in indigenous communities largely derives from the settlement of historical land claims or delegated service-delivery functions: see, for example, the expressions of indigenous governance considered in Rowse 2002, Durie 1998, and Sharp 2002. As a consequence, in Australasia, the “self-governance” jurisdiction of recognized communities is usually limited to those powers required for the management of tribal property, while in Canada, recognized self-governing communities have the formal authority to regulate in a range of matters internal to the group, including service delivery, taxation, education, and natural-resource management. The language of “self-governance” as a “right” is an accepted part of indigenous policy in Canada (see Belanger 2008, Wherrett 1999, and Department of Indian and Northern Affairs Canada 1995) but is much more contested in Australia and New Zealand, where governance may be de facto but not recognized as an entitlement. The argument made in McNeil 2001, that self-governance rights can derive from collective property rights, is applicable in all three named countries as a claim independent of historical agreement or recognition. Finally, Aikio and Scheinin 2000 shows that the debate about indigenous self-governance also continues in international forums, in discussions about the international legal capacity of indigenous peoples to exercise self-determination.

  • Aikio, Pekka, and Martin Scheinin, eds. Operationalizing the Right of Indigenous Peoples to Self-Determination. Turko, Finland: Institute for Human Rights, Abo Akademi University, 2000.

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    A collection of papers by prominent scholars and representatives who have been active in the development of international human-rights standards for indigenous peoples. Includes commentary on the right of self-determination as vested in “peoples” in international law, along with analysis of how the rights might be exercised by indigenous peoples internationally and domestically.

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  • Belanger, Yale Deron, ed. Aboriginal Self-Government in Canada: Current Trends and Issues. 3d ed. Saskatoon, Canada: Purich, 2008.

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    The third edition of a collection of articles on self-government in Canada, by established legal scholars. Contributions include reflections on the theory and policy of self-government as well as discrete practical challenges, such as the operationalization of Métis self-governance and the governance of “satellite” reserves, the design of fiscal arrangements, impacts on indigenous women, and the provision by aboriginal governments of particular services.

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  • Department of Indian and Northern Affairs Canada. “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.” Ottawa: Department of Indian and Northern Affairs Canada, 1995.

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    The policy basis of the Canadian government’s negotiation of self-governance agreements with Canadian Aboriginal communities. It explains the powers that are to be exercised by indigenous governments, and those that are to be retained by the provincial and federal governments.

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  • Durie, Mason. Te Mana, Te Kāwanatanga: The Politics of Maori Self-Determination. Oxford: Oxford University Press, 1998.

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    This book, by preeminent Maori scholar Mason Durie, critically analyzes the various modes through which Maori exercise self-determination in contemporary New Zealand society, and the mechanisms deployed by the Crown and Maori groups to broker their relationships. He discusses the Maori exercise of authority through land and resource management, representation in the national parliament, and language preservation.

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  • McNeil, Kent. “Self-Government and the Inalienability of Aboriginal Title.” McGill Law Journal 47 (2001): 473–510.

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    In this article McNeil joins other scholars in pointing out the governance component of collective property rights. He argues that the recognition of indigenous rights of self-governance is inseparable from common-law recognition of communal property rights.

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  • Rowse, Tim. Indigenous Futures: Choice and Development for Aboriginal and Islander Australia. Sydney, Australia: University of New South Wales Press, 2002.

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    Rowse examines the emergence and operation of an “indigenous sector” populated by indigenous governance institutions designed to perform specified representative and service delivery functions. He describes the variegation and associational fluidity of indigenous governance as it has evolved in Australia in line with changes in indigenous demography and lifestyles.

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  • Sharp, Andrew. “Blood, Custom, and Consent: Three Kinds of Maori Groups and the Challenges They Present to Governments.” University of Toronto Law Journal 52 (2002): 9–37.

    DOI: 10.2307/825926Save Citation »Export Citation »E-mail Citation »

    An insightful commentary on the variegation of indigenous associational and governance practices in New Zealand, emerging from the increasingly complex demography of Maori community life.

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  • Wherrett, Jill. Aboriginal Self-Government. Ottawa, Canada: Political and Social Affairs Division, Parliamentary Information and Research Service, 1999.

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    An informative and useful research paper, outlining the Canadian government’s efforts to implement its “inherent right to self-governance” policy. Gives a good overview of the basis for the policy.

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Indigenous Governance Institutions

Alongside commentary addressing indigenous rights to self-governance, and the resulting relationships between self-governing indigenous communities and the institutions of the state, a more recent and less developed body of literature addresses the institutions designed and adopted by indigenous communities themselves (sometimes at the direction of settler governments). Notwithstanding the differences between form of recognition and indigenous jurisdiction in the three named countries, much of the analytical scholarship on indigenous institutions has an explicitly comparative character. There is ample evidence of sharing of ideas between indigenous communities, and between researchers, on optimal indigenous institutional design. The major challenge in this subfield is how best to design institutions that can accommodate the particular organizational characteristics of tribal communities, especially their kinship relationships, their reliance on custom in governance practices, and the dominance of descent in recruitment and membership rules. Existing incorporation methods in Australia and New Zealand (trusts, incorporated societies, and companies) tend not to successfully accommodate these distinctive features of tribalism (see especially Mantziaris and Martin 2000). These issues have been the subject of ongoing law reform efforts in New Zealand (New Zealand Law Commission 2002, New Zealand Law Commission 2006, and Joseph 2007) and Australia (Mantziaris and Martin 2000 and Sullivan 2006). Plumptre and Graham 1999 is an example of the type of work underway in nongovernmental policy bodies and think tanks in North America and Australasia that produce research and policy recommendations on indigenous governance. Others have focused on the particular functional designs of indigenous institutions. Gover 2010 considers tribal constitutional provisions on membership, while Nettheim, et al. 2002 collects contributions on indigenous institutional arrangements for land management.

  • Gover, Kirsty. Tribal Constitutionalism: States, Tribes and the Governance of Membership. Oxford: Oxford University Press, 2010.

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    This recent work addresses the mechanisms used by tribes and states to constitute recognized tribal communities by designing formal membership rules. It examines the influences and pressure operating on tribes in membership governance, the tensions between state and tribal preferences, and the consequences of state and tribal policies for nontribal indigenous peoples.

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  • Joseph, Robert. “Contemporary Maori Governance: New Era or New Error?” New Zealand University Law Review 22.4 (2007): 682–709.

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    One of the few recent substantive articles on Maori governance, by indigenous scholar Robert Joseph. The author emphasizes the incompatibility of traditional customary governance and formal legal institutions, arguing that Maori communities should be wary of expressing customary norms as formal rules.

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  • Mantziaris, Christos, and David Martin. Native Title Corporations: A Legal and Anthropological Analysis. Annandale, Australia: Federation Press, 2000.

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    The only comprehensive scholarly investigation of the social impacts of institutions required to be adopted by Australian native-title-holding communities on the determination of their claims (Native Title Prescribed Bodies Corporate). The authors discuss the incongruity of aboriginal customary governance and formally incorporated governance institutions, using legal and anthropological methodologies.

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  • Nettheim, Garth, Gary D. Meyers, and Donna Craig, eds. Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights. Canberra, Australia: Aboriginal Studies Press, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002.

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    This work is an example of the explicitly comparative focus of work on indigenous governance, here concerned mainly with governance arrangements than pertain to land and resource management. This volume is centered on Australian arrangements, and the problem of ensuring productive relationships between indigenous and nonindigenous governance institutions, drawing on experiences from the United States, Canada, and New Zealand.

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  • New Zealand Law Commission. Treaty of Waitangi Claims: Addressing the Post-Settlement Phase: An Advisory Report for Te Puni Kōkiri, the Office of Treaty Settlements and the Chief Judge of the Māori Land Court. Wellington: New Zealand Law Commission, 2002.

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    One of two very useful recommendatory Law Commission reports on tribal governance in New Zealand. This one considers the design of Treaty Settlement Entities, established to manage assets conferred on tribes as a result of the settlement of their Treaty of Waitangi claims. The commission considers the extent of Crown control over the scope and functional mandate of these institutions and suggests they do not adequately reflect or facilitate Maori aspirations.

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  • New Zealand Law Commission. Waka Umanga: A Proposed Law for Māori Governance Entities. Wellington: New Zealand Law Commission, 2006.

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    This report builds on analysis conducted for the “post-settlement” report and comprehensively canvasses Maori concerns with existing governance arrangements, including especially the high degree of Crown control over tribal constitutional design and timing, and the disadvantages these constraints impose on smaller “minority” tribal communities. The commission proposes a new legislative model to facilitate tribal governance. A bill was proposed but not adopted by the New Zealand Parliament, but the issue remains current and debates are ongoing.

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  • Plumptre, Tim, and John Graham. Governance and Good Governance: International and Aboriginal Perspectives. Ottawa, Canada: Institute on Governance, 1999.

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    The Institute of Governance is one of a number of think tanks and policy bodies that conduct research on indigenous governance. This report provides an introduction to approaches to “good governance” drawn from international development policy, as those principles might apply to aboriginal governance in Canada.

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  • Sullivan, Patrick. Indigenous Governance: The Harvard Project on Native American Economic Development and Appropriate Principles of Governance for Aboriginal Australia. Canberra, Australia: AIATSIS, 2006.

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    This work includes a useful exposition and critical analysis of the theory and policy of indigenous self-governance, by assessing the relevance to Australian experiences of approaches developed in the United States by the very influential Harvard Project on American Indian Economic Development. Sullivan appropriately cautions against the uncritical and wholesale transplant of ideas from the United States, given the vast differences in the history and cultural practice of tribal self-governance in that country.

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Recognizing Indigenous Law and Custom

Aside from debates about the recognition of indigenous property rights and rights to self-governance, there is a broader effort underway to consider the extent to which indigenous law and custom can be accommodated within, or recognized by, the legal system of settler states. As part of efforts to secure the place of indigenous communities in settler societies, law reform bodies have conducted extensive surveys of customary law in the hope of devising ways to accommodate some forms of indigenous law, through incorporation (the adoption of indigenous concepts into settler law) or recognition (more controversially, this empowers the law-making and enforcement authority of indigenous institutions). For examples of surveys and reform recommendations see New Zealand Law Commission 2001 and Law Reform Commission of Western Australia 2006. See also the critical analysis in McLaughlin 1996. One of the major challenges posed by questions of this kind is the extent to which nonstate forms of law can, in fact, be recognized as law at all, given the legal doctrines of positivism and sovereignty. Doctrinally, a positivist approach insists (in broad terms) that law must emanate from a sovereign and its institutions, and that nonstate law lacks the requisite pedigree. Challenges to positivism include claims that indigenous peoples have some vestigial sovereignty (this seems the closest to the Canadian inherent-right policy, but courts in Australia and New Zealand have emphatically rejected this possibility), or have law-making powers derived from the recognition of communal property rights, or alternatively, challenging the positivist concept of law itself, the argument that indigenous laws and customs have the normative qualities of law, even if they lack the backing of a “sovereign.” This latter argument is evident in a body of work known as “legal pluralism,” a subfield of which considers the legal pluralism of settler states (see, for an excellent example, the piece by a Maori scholar in Jackson 1994). More recently, some scholars have shifted the focus of debates away from settler accommodation of indigenous law toward the investigation of indigenous legal theories and methods in and of themselves (see Borrows 2010).

  • Borrows, John (Kegedonce). Drawing Out Law: A Spirit’s Guide. Toronto: University of Toronto Press, 2010.

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    An engaging book exploring the legal context of indigenous Canadians, using concepts and values drawn from Anishinabek law. A remarkable contribution that centers its methodology firmly in indigenous legal theory and provides a view of the Canadian legal system from an indigenous vantage point.

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  • Jackson, Moana. “Changing Realities: Unchanging Truths.” Australian Journal of Law and Society 10 (1994): 115–129.

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    A perceptive and thought-provoking account of legal pluralism in New Zealand, and the adverse effects on Maori communities of the incorporation into state law of Maori customary concepts. Jackson is a prominent figure in indigenous politics and law in New Zealand.

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  • Law Reform Commission of Western Australia. Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture. Perth: Law Reform Commission of Western Australia, 2006.

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    A comprehensive survey of aboriginal customary law in Western Australia as it operates in criminal, civil, family, property, and natural-resource law. Includes recommendations for facilitating the recognition of customary law in the Australian legal system.

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  • McLaughlin, Rob. “Some Problems and Issues in the Recognition of Indigenous Customary Law.” Aboriginal Law Bulletin 3 (1996): 4–9.

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    An outline of the issues raised by the attempts to reconcile Aboriginal customary law with Australian public and constitutional law.

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  • New Zealand Law Commission. Māori Custom and Values in New Zealand Law. Wellington, New Zealand: New Zealand Law Commission, 2001.

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    A useful report on Maori custom law and the practice and prospects of respecting these in New Zealand law. Based on interviews with and contributions from Maori legal scholars, practitioners, and elders, this account helpfully emphasizes the way in which Maori custom evolves in accordance with underpinning values and principles, in the same way that other legal systems are guided by fundamental concepts.

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Land Claims Processes

As noted in Public Law and Policy on Indigenous-State Relations in Canada and New Zealand, but not in Australia, the executive branch of the state (the Crown) has entered into negotiations for the settlement of historical indigenous claims. In New Zealand, claims are premised on breaches of the 1840 Treaty of Waitangi and include compensation, grants of Crown land or property, and forms of cultural redress (access, hunting, fishing, and naming rights). Government of New Zealand 2000 explains the New Zealand Crown’s policy on treaty settlements, and Birdling 2004 critiques the Crown’s intervention in tribal organization via the treaty settlement process. In Canada, the federal and provincial governments have undertaken to negotiate comprehensive claims (where no treaties exist, mostly in British Columbia) and specific claims (based on particular treaty rights and breaches-of-trust responsibilities). These processes are explained in General Briefing Note on Canada’s Self-Government and Land Claims Policies and the Status of Negotiations 2011. Often, Canadian land claims settlements are accompanied by self-governance agreements. Again, there is a small body of explicitly comparative work on historical claims processes (see, for example, Scholtz 2006 and Lenzerini 2009), providing evidence of the sharing of policy and legal approaches between officials of the relevant governments.

  • Birdling, Malcolm. “Healing the Past or Harming the Future? Large Natural Groupings and the Waitangi Settlements Process.” New Zealand Journal of Public and International Law 2.2 (2004): 259–283.

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    A critique by Maori scholar Malcolm Birdling to the New Zealand Crown’s “large natural groupings policy,” whereby it insists on the aggregation of small tribes into a single claimant group as a condition of entering into settlement negotiations with that group. Birdling frames this policy as a coercive intervention into the self-governance entitlements of tribal communities and suggests that aggregation disadvantages smaller tribes by forcing them to become minorities within a tribal confederation.

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  • Department of Indian and Northern Affairs Canada. General Briefing Note on Canada’s Self-Government and Land Claims Policies and the Status of Negotiations. Ottawa: Department of Indian and Northern Affairs Canada, 2011.

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    A short and helpful explanatory brief explaining Canada’s approach to the negotiation and settlement of historical claims by aboriginal peoples.

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  • Government of New Zealand. Ka Tika A Muri, Ka Tika A Mua, Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown. Wellington, New Zealand: Office of Treaty Settlements, 2000.

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    The official guide to the Treaty of Waitangi claims settlement process, prepared by the government to inform claimants about the processes and policies deployed by the Crown. Since there is no legislation governing treaty claims, this book is the only substantive, publically available exposition of treaty settlements policy.

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  • Lenzerini, Federico, ed. Reparations for Indigenous Peoples: International and Comparative Perspectives. New ed. Oxford: Oxford University Press, 2009.

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    A collection of chapters by established indigenous and nonindigenous scholars, discussing the availability of legal and political mechanisms to provide reparations to indigenous peoples affected by historical injustice. Contributors consider the reparative obligations of state signatories to international human-rights instruments, presenting a series of detailed case studies of claims processes in North America, New Zealand, Africa, Asia, and Scandinavia.

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  • Scholtz, Christa Sieglinde. Negotiating Claims: The Emergence of Indigenous Land Claim Negotiation Policies in Australia, Canada, New Zealand, and the United States. New York: Routledge, 2006.

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    In this book, Canadian political scientist Scholtz presents a rigorously researched comparative study of approaches taken in Canada, Australia, New Zealand, and the United States to historical claims made by indigenous peoples. She investigates the political and legal influences that prompt a government to engage in negotiated agreements, and those that encourage instead the relegation of claims settlement to judicial resolution.

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Indigenous Common-Law Property Rights

Perhaps the largest and most extensive body of legal scholarship on indigenous rights in the western settler states addresses the common doctrine of aboriginal title (known as “native title” in Australia and “customary title” in New Zealand). The doctrine derives from the English common law inherited by each of the three named states, by which a sovereign does acquire absolute title to land along with sovereignty when indigenous territory is annexed. Indigenous property rights survive to the extent that they have not been validly extinguished by the Crown. McNeil 1989 is the major work on the content and scope of the doctrine. The doctrine was applied by courts in Canada and New Zealand in the early days of colonization but was subjected to a long period of legal dormancy and rejection in the 20th century, finally reappearing in both countries in the “claims era” in the 1970s. In contrast, the common law of Australia did not recognize the presovereign rights of indigenous peoples until 1992, when the landmark High Court decision of Mabo and Ors vs. Queensland (No. 2) (1992) 175 CLR 1 was decided. The enormous impact of this case and the controversy of the many federal court decisions on native title to follow have generated a wide and detailed body of Australian critical scholarship, as is evidenced in Young 2008, Ritter 2009, and Strelein 2009, and several texts designed to make the complicated jurisprudence of native title accessible to students and practitioners. The two major texts on native title in Australia are Bartlett 2004 and Perry and Lloyd 2003. The doctrine varies in its content and evidentiary requirements from jurisdiction to jurisdiction, but its principles are shared across the common law operating in each of the three states. There is much evidence in judicial decision of cross-pollination of the doctrine among the three jurisdictions (Young 2008). In Australia the native-title paradigm is arguably more dominant in indigenous-state relations than in Canada and New Zealand, where the formal relationship is perceived to operate along a broader political and institutional interface. Webber 2000 is an insightful effort to broaden the terms of Australian debates by emphasizing the constitutional and political significance of the landmark 1992 High Court decision in Mabo. In New Zealand most indigenous property claims were channeled through the political process of treaty claims settlement, until the landmark Court of Appeal decision Ngati Apa vs. Attorney-General [2003] 3 NZLR 643, finding that Maori customary title rights may still exist in the foreshore in seabed, as is critically discussed in Charters and Erueti 2007.

  • Bartlett, Richard H. Native Title in Australia. 2d ed. Sydney, Australia: LexisNexis Butterworths, 2004.

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    One of the two major texts on native-title law, by a leading figure in the field. Includes commentary on the comparative elements of the doctrine, and the influence of the federal Native Title Act 1993.

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  • Charters, Claire, and Andrew Erueti, eds. The Last Frontier: Maori Property Rights and the Foreshore and Seabed. Wellington, New Zealand: Victoria University Press, 2007.

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    A collection of essays by legal scholars addressing the implications of the New Zealand Court of Appeal’s 2003 decision in Ngati Apa, in which the court found that customary title could still exist in the foreshore and seabed, and the subsequent controversial legislative responses of the New Zealand government. The collection includes contributions by leading figures in the field.

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  • McNeil, Kent. Common Law Aboriginal Title. Oxford: Clarendon, 1989.

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    Widely considered to be the leading text in the field, McNeil outlines the parameters of the common-law doctrine of aboriginal title, by which the common law recognizes the property rights of indigenous peoples that have survived the acquisition of British sovereignty over their territories. An essential book that covers the origins and evolution of the doctrine and continues to inform current debates about its content in Canada and the other former English colonies.

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  • Perry, Melissa, and Stephen Lloyd. Australian Native Title Law. Sydney, Australia: Lawbook Co., 2003.

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    A useful and detailed volume that includes an annotated copy of the Native Title Act 1993. A staple for scholars and practitioners, and a useful resource for students.

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  • Ritter, David Laurence. Contesting Native Title: From Controversy to Consensus in the Struggle over Indigenous Land Rights. Crows Nest, Australia: Allen & Unwin, 2009.

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    This book steps back from the doctrinal analysis of native-title law to examine the political and historical origins of the Australian “native title system” and the interactions of the many institutions and communities that populate it. Ritter provides an elegantly written and provocative account of the rapid efflorescence of the intricate field of native title following the Mabo decision in 1992.

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  • Strelein, Lisa M. Compromised Jurisprudence: Native Title Cases since Mabo. 2d ed. Canberra, Australia: Aboriginal Studies Press, 2009.

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    A useful and accessible volume containing commentary on the significance of the major High Court decisions on native title, and their influence on the evolution of the common-law doctrine.

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  • Webber, Jeremy. “Beyond Regret: Mabo’s Implications for Australian Constitutionalism.” In Political Theory and the Rights of Indigenous Peoples. Edited by Duncan Ivison, Paul Patton, and Will Sanders, 60–88. Cambridge, UK: Cambridge University Press, 2000.

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    An interesting intervention by political theorist Jeremy Webber, persuasively arguing that the decision in Mabo and the advent of native title in Australia have had a constitutional significance that extends well beyond property law. He helpfully points out that notwithstanding positivist legal doctrine, communal land rights necessitate governance, so that property and governance are intertwined in the native-title process.

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  • Young, Simon. The Trouble with Tradition: Native Title and Cultural Change. Sydney, Australia: Federation Press, 2008.

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    Young presents an analysis of the operation of the doctrine of aboriginal title in Australia, contrasted with approaches taken by courts in New Zealand and Canada. He notes that the continuity test deployed in Australia is narrower and more onerous than that used by courts in the other jurisdictions, suggesting that the Australian emphasis on the juridical concept of “tradition” is unnecessary and unjust.

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LAST MODIFIED: 11/29/2011

DOI: 10.1093/OBO/9780199756223-0028

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