Indigenous Rights and Governance in Canada, Australia, and New Zealand

by

Kirsty Gover

• LAST REVIEWED: 29 November 2011
• LAST MODIFIED: 29 November 2011
• DOI: 10.1093/obo/9780199756223-0028

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.

  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.

• 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.

  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.

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

  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.

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

  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.

• 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.

  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.

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

  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.

• 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.

  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.

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

  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.