The Vulnerability of Indigenous Land Rights in Australia and Canada

Osgoode Hall Law Journal, Vol. 42, pp. 271-301, 2004

16 Pages Posted: 28 Jul 2010

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: 2004

Abstract

Not until the 1990s did the highest courts in Australia and Canada begin to address the colonial reality of the dispossession of the Indigenous peoples. In Australia, the High Court has held that the lacking of Indigenous lands and creation of third party rights by the Crown resulted in extinguishment of Native title. In Canada, while not dealing directly with the issue of extinguishment, the Supreme Court has authorized infringement of Aboriginal land rights for a variety of purposes, including the creation of third party rights. This article examines the legal justifications for these conclusions and finds that they arc not consistent with long-standing principles and precedents of the common law. The explanations for these judicial opinions, the author argues, can be found instead in economic and political considerations that have been influencing the courts. He suggests that this is a reality Indigenous peoples need to take into account when deciding whether to expose their rights to the judicial authority of the Australian and Canadian stares.

Keywords: Canada, Constitutional law, extinguishment , Native title, Indigenous people, rights, Australia, political, economic considerations

JEL Classification: K 39

Suggested Citation

McNeil, Kent, The Vulnerability of Indigenous Land Rights in Australia and Canada (2004). Osgoode Hall Law Journal, Vol. 42, pp. 271-301, 2004, Available at SSRN: https://ssrn.com/abstract=1649599

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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