ABSTRACT

Over the past two decades in Canada, New Zealand and Australia—three former British colonies with large indigenous populations—a new jurisprudence emerged on indigenous peoples’ land rights. Tacking together common law principles relating to property and indigenous rights, these judicial decisions recognized indigenous peoples as being prior to the settler population, with concomitant rights that continued to exist after the assertion of British sovereignty. This was a bold move by the courts—they were stepping into a vacuum created by a weak political commitment to indigenous rights. However, the legal recognition of indigenous land rights contained numerous inherent limitations—most significantly, the decisions recognized only those rights said to have survived colonization and settlement. Given the passage of time between first contact and the judicial inquiry, the new doctrine offered little hope of restoring to indigenous peoples sizeable tracts of land. In fact, with only a few exceptions, that has been borne out by subsequent judicial decisions.