1. Rights of Indigenous Peoples: Australia, New Zealand, Canada
Professor Sarah Krakoff
University of Colorado Law School

2. Australia Mabo v. Queensland (1992)
-Do the Meriam People on the island of Mer (Murray Island) in the Torres Strait have legal rights to their lands that stem from Native Title?
-Or did a visit in 1879 by Captain Pennefather establish the lands as subject to the British Crown?

3. Mabo v. Queensland (1992) Court rejects “terra nullius” doctrine
“If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor seen to be frozen in time.”
Court recognizes Native Title
Native title can be proven by custom and tradition
Native title can be lost due to abandonment of traditions
Australian government can only extinguish Native title with clear and plain expressions.

4. What preceded the Mabo decision?
Pre-1960s
Rampant discrimination against aboriginal people
Absolute title asserted; lands sold to settlers and exploited by the Crown
Aboriginal Land Rights Movement of the 1960s
Protests of leasing in the Northern Territories
Aboriginal Land Rights Act of 1976
Recognized Claims in the Northern Territories based on spiritual ties
Aboriginal people had to acquire land through land trusts established by Aboriginal Land Councils
Land Acquisition Act of 1981: allowed for compelled land sales to compensate aboriginal claimants

5. Australia: Self-Determination and Culture
Aboriginal Land Councils; Self- governance according to traditional laws and culture
But no “sovereignty.”
Child Separation Policies: “The Stolen Generation”
Official apology in 2008
No monetary or other compensation

6. New Zealand/Aotearoa A different model: representative governance
Treaty of Waitangi (1840)
Treaty of Waitangi Act of 1975
Treaty of Waitangi (Fisheries) Settlement Act of 1992
Maori Party Members of Parliament

7. Canada: Similar to the US, but different!
More than 600 Treaties with First Nations
Royal Proclamation of (Remember this?)
Consolidated power in the central government
Prohibited land acquisitions by settlers

8. First Nations Rights in Canada
Constitution Act of 1982
Treaties are still negotiated in Canada
First Nations Land Rights: Key Cases
Guerin v. The Queen (1984)
Indians have legal right to occupation and possession
Crown is obligated to make sure that Indians’ rights are respected (fiduciary duty)
Delgamuukw v. British Columbia (1997)
Content of Native Title
Methods of proof: Oral traditions
Right to exclusive use and occupation for a variety of purposes, not just traditional purposes
Protected rights must not be “irreconcileable” with the group’s attachment to the land