9.1 In the latter part of the 20th century, Indigenous peoples across the globe sought legal rights to their ancestral lands and waters. The responses to these claims have taken different legal shape in different places but share many commonalities. In Australia, Canada and New Zealand customary rights to traditional territories have been recognised at common law. The recognition of indigenous rights developed from a shared jurisprudential basis in the common law. There were some divergences due to the specific circumstances in each country, for example, the existence of treaties in New Zealand and Canada. As the analysis in this chapter demonstrates, many of the same features have emerged in the development of the law.
9.2 At the same time as Australian courts have fashioned the law of native title, superior courts in other Commonwealth jurisdictions have been establishing principles for the recognition of the rights to land of their own Indigenous peoples. In the period since native title was initially recognised in Mabo v Queensland [No 2] (‘Mabo [No 2]’), Australia’s jurisprudence has developed with limited reference to these Commonwealth comparators. Australia has developed a major statutory regime for native title claims resolution, and as Chapter 3 has demonstrated, it has moved forward rapidly with consent determinations for native title.
9.3 Some of the matters identified in Chapter 2 which have led to the necessity to consider reform of the Native Title Act 1993 (Cth) (‘Native Title Act’) have parallels in other jurisdictions. The frameworks within which jurisprudence has developed in other jurisdictions—most relevantly Canada and New Zealand—differ in some respects from those in Australia. Australian courts have noted the different position in other jurisdictions.
9.4 This remains so, at the level of general principle, whether there is a statutory framework and judicial exposition around that framework (as in Australia and New Zealand) or whether the development of the law is left entirely to judges. In particular, all require some kind of connection to be established between the claimant Indigenous peoples and land, and continuity between pre-sovereign and contemporary practices or uses of land, although the emphasis on the degree of ‘continuity’ varies in each country. In each situation, tensions have emerged around, whether and how, the question of change to Indigenous societies can be accommodated in the law.
9.5 Robust law reform is enhanced by a consideration of comparable law as it operates in common law countries. Comparisons with the manner in which the law has developed in New Zealand and Canada are particularly relevant due to the initial ‘judicial borrowings’ between these jurisdictions and the similar common law framework.
9.6 Native title laws in Australia evolved from a shared common law heritage. While the Native Title Act is now the starting point for construing the definition of native title, it is important to acknowledge the rich jurisprudence in comparable jurisdictions that grapples with similar complex issues around indigenous rights and title to lands.
9.7 This chapter provides an overview of legal frameworks and jurisprudence in Canada and New Zealand in relation to Indigenous peoples’ rights to land and waters. Where particular facets of this comparative jurisprudence are relevant to specific analyses of connection requirements or recommendations they are noted here, and incorporated as relevant in earlier chapters.
For a general discussion of these trends in common law countries see Paul G McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford University Press, 2011). For the importance of the comparative perspective see: AIATSIS, Submission 36.
Gummow J noted that in Canada the basic legal framework developed quite differently. Wik Peoples v Queensland (1996) 187 CLR 1, 182.
A form of native title has been recognised in many former British colonies, eg South Africa and Malaysia.
See, eg, Fejo v Northern Territory (1998) 195 CLR 96. In that case, Kirby J argued that ‘care must be observed in the use of overseas authority in this context because of the differing historical, constitutional and other circumstances and the peculiarity of the way in which recognition of native title came belatedly to be accepted by this Court as part of Australian law’: . See further Simon Young, Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008) 33–35.
Fejo v Northern Territory (1998) 195 CLR 96, 130.
The relevance of whether a colony was regarded as ceded, conquered or settled, to the recognition of Indigenous rights in land is discussed in Ch 2.
In Australia, and overseas, Indigenous peoples have entered into agreements which may recognise native title, and which will also provide a range of other outcomes. In Australia, these have largely occurred under the framework of the Native Title Act through Indigenous Land Use Agreements. See Ch 3 for further discussion on settlements in Australia. In both Canada and New Zealand, governments have entered into comprehensive agreements with indigenous groups. These are not discussed in this chapter. See further Agreements, Treaties and Negotiated Settlements Project, Agreement Making with Indigenous Peoples: Background Material <www.atns.net.au>.