The displacement of indigenous populations is an obvious but often-overlooked consequence of worldwide European colonization. Until relatively recently, the rights of these groups have consistently been held to lower standards of protection than those of their colonizing counterparts, partly through the use of doctrines such as terra nullius. While earlier decades established the groundwork for recognition of these rights, in the 1990s native rights issues became of greater importance to both the international community and individual nations. Some of this heightened interest can be attributed to a series of high-profile common law court cases that provided native populations with favorable precedents to rely on for the first time in post-colonization history. The cases of Mabo v. Queensland in 1992, and Delgamuukw v. British Columbia in 1997, opened the floodgates in Australia and Canada, respectively, for indigenous populations to litigate claims to land titles that had been assumed settled for centuries.
This Note argues that, given the recent volatility of common law court decisions in the area of native title, these common law courts are not the proper for a for resolving centuries-old disputes between native populations and settler societies. Rather, a series of negotiations seems much more appropriate due to the complexity of the issues and differing worldviews of the parties involved. First, this Note will use the words of Canadian and Australian scholars and indigenous leaders to emphasize the importance of native title issues to indigenous populations. Next, this Note will focus on the two landmark cases of Mabo and Delgamuukw to emphasize the level of complexity involved in resolving such issues and the importance of resolving those issues through a flexible, non-adversarial process. Finally, this Note will examine both the legal and extralegal features of common law court systems that create inherent constraints on their ability to deal with the problems raised by issues of native rights.
Geoffrey R. Schiveley,
Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for Determining Native Land Title Issues,
33 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol33/iss2/4