How the colonialist ideals promoted in native title disputes continually characterise native land rights as a form of second-class rights

Introduction

Land is a central component of all indigenous lifestyles, practices, and cultures. As such, it is integrated into “all basic definitions of indigeneity” as “the permanent attachment of a group of people to a fixed area of land in a way that marks them as culturally distinct”.1 Historically, land has been the critical interface that facilitated and characterised the clashes between colonialist efforts and indigenous communities: the colonists aspired to gain more land and resources whilst the natives strived to protect their rights to remain on the land.2 The colonialist and imperialist eras, spanning from the 15th century to the 20th century, have been filled with such conflicts. Subsequently, land became the chief vehicle through which historical rights abuses have been imposed on native communities.

The long-standing systems that were established in these historical eras still result in systematic violence and oppression towards indigenous communities.3 Even though measures have been taken to right historical wrongs, this article will demonstrate the lack of sufficient socio-legal infrastructure to achieve practical equality between non-indigenous and indigenous citizens in regard to their rights to land. This is especially relevant with ongoing pushes for reform, such as in Australia’s constitutional referendum.

The approach of defending morally unjustifiable acts by taking precautions ‘on paper’ was adopted by British colonial powers from the very start. When conquering Australia, Britain instructed Captain Cook to claim the land if it was uninhabited; or, alternatively, take possession of the country ‘with the consent of the natives’ if it was inhabited.4 It is indisputable that Captain Cook did not particularly adhere to these instructions but faced no legal repercussions by his commissioning state.5 In the modern day, states take superficial legal and political measures to decolonise the field of land rights, ignoring the reality that the deep-rooted structural issues cannot be fully resolved without substantial measures amending institutional and legal structures.

British colonists justified their scramble for foreign territories as a means of fulfilling their sacred duty to spread their form of civilisation to the world.6 Hence, the main struggle that indigenous people faced was the fight to be recognised as separate civilisations with rights to their own culture and land habitation. The lack of recognition led to pre-colonial norms of native land rights being re-defined within the colonisers’ framework. Hence, concepts such as “native title”, which aim to recognise pre-colonial indigenous presence in the framework of English land law, will never fully translate to the rights that aboriginal citizens had within their own cultures. This issue will be further discussed with the examination of Britain’s colonial strategies that practically forced identity struggles upon indigenous citizens of such colonised lands.

Mabo (No. 2)7 is a characteristic case that has become synonymous with the struggles of native land rights, reflecting non-Aboriginal privilege and the limitations placed on the decolonising process.8 The father of an indigenous man, Eddie Mabo, promised that his land would belong to Mabo after his passing. However, this indigenous legal understanding, which involves promises of land conveyance by aboriginal parents to their children, which would have been ‘binding’ under aboriginal legal culture, was disregarded. Within the field of aboriginal land rights, Mabo is representative of a line of jurisprudence that continuously underestimates native land rights in the struggle to fit native land rights into a culturally different, post-colonial, legal understanding.

This paper examines the challenges to upholding native land rights across various jurisdictions, with a focus on North America and Australia, illustrating the unfortunate similarities in their structural deficiency in protecting native land rights. The practical treatment of indigenous rights as rights of second-degree importance bolsters legal inequality; this continuously undermines the socio-political power of aboriginal communities. The paper will first discuss the history of British colonialism, explaining how the power dynamics established throughout history still effects land disputes. Later, it will be shown that the general lack of recognition of the differences in Western and indigenous culture translates to the struggles of natives in explaining their claims to land in terms of non-indigenous legal standards. Issues with the legal framework will be explained, and the practical effects that these issues have on indigenous disputes will be explored.

The Impact of Britain’s Colonial Legacy

Historically, Western countries used the “superiority” of their race, culture, civilisation, and religion to promote and justify the destructive and exploitative policies which have, in some form or another, survived to this day.9 The British “civilising mission”10 introduced new laws to imperial lands to impose a new culture on the native inhabitants.11Especially in the realm of land rights disputes, policies and legislation imposing political colonisation are still “well strengthened by the illusion that colonization is no longer practised”.12

The challenge of colonialism was not in creating states where none existed, but in modifying pre-existing prominent communities of “totally different race, culture and history”.13 In North America and Australasia, communities were created that mirrored the “British way of life”.14 While the British tried to ‘teach’ the colonies the ideals of British-nationalism, they disregarded these distinctly heterogenous civilisations.15 As a result, the colonists’ dominant culture and majority ended up characterising this newly established nationalism, suppressing the native inhabitants of the land.16 Legally, native laws which were incompatible with the laws Britain imposed on colonised lands were deemed void: “Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony” is to “remain absolutely void and inoperative”.17

During these efforts, native lands were exploited: their natural resources were used as raw material and their population as a source of labour. In the United States, the government took possession of more than two billion acres of land claimed by indigenous tribes and nations. Even though parts of the areas were purchased by treaty or agreement, most were confiscated unilaterally, and without compensation, by acts of Congress or executive order.18 It is notable that even the areas purchased were bought for exceptionally low prices, indicating the start of a modern struggle regarding the systemic manipulation of native communities’ land rights.

In addition to the exploitation of land, colonisers were eager to put the natives themselves to economic use. As a result, they largely disregarded the ethical issues arising from their invasion of the natives’ land. Governments suppressed tribal claims to land, because they believed ongoing disputes delayed their assimilation into the new system.19 The stringent approach of governmental institutions was deliberately put forth to achieve an operational, integrated workforce: “they will hardly knuckle down to work while they still hope the government will pay what they believe is due them”.20 As such, land inequality was the initial condition that fostered long-run economic development.21

Although the colonialist era has, on its most literal understanding, come to an end, colonialism through legal and political processes, or “political colonisation”, continues.22 The societal indifference to this reality has been what upholds the current system of underhanded oppression. Subjecting indigenous peoples in British colonial countries to foreign societal structures and cultural norms has become a normalised aspect of the social fabric in those countries.23

Separate, Subordinate Peoples

The characterisation of native culture as a “primitive” counterpart of the Western way of life has been a misunderstanding that has carried on throughout the decades.24 Such was the understanding that helped justify and legitimise the violence inflicted on natives. From the colonists’ perspective, their efforts helped evolve these people, from a local and primitive version, to the “modernized, prosperous and European” version.25 This section explains how this misunderstanding has consequently led to power dynamics and legal systems that give indigenous rights secondary importance.

As their claims have to fit into the categories and concepts of the dominant culture in order to be acknowledged, aboriginal groups continuously have to use the language of their oppressors.26 They are defined as both “by and in subordination to the majority” in matters affecting their own livelihood — this is objectionable in a democratic and representative system.27 In contemporary terms, indigenous people in predominantly non-indigenous countries are “descendants of the original inhabitants of a territory that was conquered or is still at war and is now occupied by an alien and dominant culture”.28 An example is that no monarch or government in Canada has ever recognised aboriginals as distinct peoples with cultures of their own.29

Furthermore, indigenous groups lack representation in the United Nations process, demonstrating further unsatisfactory infrastructure. The UN Declaration on the Rights of Indigenous Peoples, ironically drafted without the contribution of indigenous groups’ representatives, is among the prime international organs that highlight indigenous rights in international law and policy. It contains the “minimum standards” for the recognition, protection, and promotion of these rights.30 Although the Declaration sets basic rights and standards of treatment such as access to fair procedures,31 right to redress for dispossession of land,32 and protection from forceful relocation, not all states were in favour.33 It was adopted with 144 votes in favour, 11 abstentions, and 4 votes against (Australia, Canada, New Zealand, and the USA).34 It is noteworthy that  the countries voting against such a significant instrument are the ones that need to make the most dramatic changes to ensure equitable co-existence of non-indigenous and indigenous communities. As a first step towards advancing the rights of indigenous communities, the latter should be included in the United Nations process. This measure will encourage states to increase indigenous representation in internal processes, which will lead to the understanding that indigenous people are a cooperative group of citizens rather than remaining ‘outsiders’.

Despite international declarations and covenants that guarantee fundamental rights equally to all humans, states still covertly view native communities as inferior “non-peoples, not entitled to the same rights as others”.35 This is where the land rights violations come into play. States view indigenous rights, primarily those related to land, as rights subject to removal in situations of inconvenience because of the underlying misunderstanding as to their differing culture. Although the view of indigenous culture as ‘primitive’ may not necessarily persist, the view of aboriginal persons and their rights as inferior or less important has yet to be invalidated.

The jurisdiction chosen for native land right claims demonstrates a furtherance of assimilation. Not only do indigenous people have to justify their claims in a legal arrangement that is unfamiliar, but they also stand at a comparative disadvantage because of existing power imbalances within said legal systems.36 To this end, a representative of indigenous communities’ stance has contended: “I wonder where the white man ever got the idea that these wrongs had to be settled in his courts by his rules”?37

Structural Frailty in Native Land Right Disputes

In the process of conquering foreign lands and gaining power over natives, colonising powers propagated that violent measures were necessary. However, in the post-colonial age of equity-focused ‘democratic’ societal structures, maintaining the established power dynamic that disadvantages a certain group through violent measures has become more risky than helpful for the advantaged group. Hence, the ever-existing colonialism within legal systems may be seen to now take the form of passive and insufficient measures of ‘progress’, rather than overt violence. Initiatives aiming to superficially reform the realm of indigenous land rights increase the legitimacy of the flawed legal systems while allowing the non-indigenous, especially white, classes of society to “become increasingly entrenched in their powerful positions of ontological privilege”.38 In the non-violent era of native rights infringements, states resort to alternative means of suppressing aboriginal land rights.

Historically, indigenous peoples’ claims to land have been kept out of official legal and political processes. As these processes have been sterilised of claims that draw attention to the wrongs of the system, structural protections of white supremacy have continuously been reinforced.

After the United States Civil War, native tribes pressed claims seeking more than $6,000,000 in redress for trespass and property damage by American citizens. However, they were unable to prosecute these grievances directly because tribal land claims were excluded from the jurisdiction of American courts.39

Similarly, countries such as Canada aim to avoid official court proceedings in native title disputes even in modern disputes. Canada divides its aboriginal communities’ claims into two categories: comprehensive claims and specific claims. Comprehensive claims are concerned with indigenous claims that have not been addressed through legal means yet. They are resolved by modern-day treaties made between Indigenous peoples and the government based on the traditional use and occupancy of land; specific claims address injustices stemming from Canada’s obligations under historic treaties.40 The specific claims process, as defined by the government, aims to “deal with past wrongs against First Nations”, and resolves disputes outside of the court system, through negotiations with indigenous communities.41The government explains this approach as a means of resolving longstanding disputes “in a balanced way that respects the rights of all Canadians”.42 However, in a societal dynamic where one group is intrinsically privileged and enjoys priority within the legal system as a result of historical patterns, negotiations are bound to be one-sided.43 The current system reinforces equality instead of equity, disregarding the long-standing prioritisation of white people in the Canadian social fabric. Hence, ‘respecting the rights of all Canadians’ practically translates to respecting the rights of aboriginals until it clashes with white Canadians’ rights which were gained by historical violations of the natives’ livelihood. The specific claims system demonstrates a continuity of the exclusion of native claims from official processes.

Australia will hold a referendum in October 2023 to recognise Aboriginal and Torres Strait Islander peoples in the constitution, alongside establishing an advisory body for indigenous representation called the ‘Aboriginal and Torres Strait Islander Voice’.44 Although the constitutional recognition and the Voice are honest efforts to promote greater equality between aboriginal and non-aboriginal Australians, opinions of the Voice will not be binding on the government. Therefore, the initiative still lacks the force that is needed to solve the root issue: aboriginal Australians have limited practical force on the legal system. Some indigenous groups, hence, go as far as to oppose the Voice, instead pushing for a treaty concretely setting out the terms of their relationship with the Australian government.45The referendum shares a common structural flaw with other similar initiatives: it fails to overturn the existing power dynamics.

The joint dedication to keep the process of remedying land injustices away from official procedures illustrates the collective awareness that there is no legally or politically correct way of justifying the white supremacy that was achieved through colonialism.

The Australian native title system exhibits another type of structural weakness in native land claims: it illegitimised claims made on the basis of rights that were disrupted by colonialist efforts. Mabo (No. 2) and the Native Title Act 1993 established it as a condition for native title that a traditional connection has been maintained with the land.46 As per Brennan J: when the “tide of history” has washed away any real connection with the land, “the foundation of native title has disappeared”.47 This means that if colonialism disrupted the land use patterns of aboriginal communities, native title is not granted.48 Not only does this condition under-recognise the genocidal nature of the colonists, which prevented native communities from maintaining their connection with the land, it also misrepresents and downplays the violence as the “tides of history”. This condition is counter-intuitive to the entire concept of native title as it does not feed into the aim of righting historical wrongs while also hiding the underlying structural problem. Disregarding this reality, politicians and commentators claimed that in the absence of said condition, non-Aboriginal Australians would be in danger of forfeiting the land they ‘legally’ owned. It is, again, obvious whose interests the system aids. 

Native title has another structural problem, which is that it only aids in restoring rights that pre-date colonisation. As a traditional connection needs to be retained with the land, any native practices or land use patterns that may have evolved after, or under, colonisation are excluded from the native title process. This, again, connects to the lack of understanding of the nature of colonialism – it is assumed that colonialist efforts integrated indigenous people into the modern, British way of life and hence assimilated them into the same culture. Thus, it follows that new aboriginal rights cannot be created, because technically all nations merged into one state now. As Kirby J contested in his dissenting judgement in Western Australia v Ward: “[I]t would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal customs not envisaged, or even imagined, in the times preceding settlement”.49 Hence, the understanding of native land use patterns and native land rights claims as static is another flaw of the legal framework for native claims.

The same issue exists in the Canadian native land claims system, but it has gone so far as to be ingrained into the legal system through its own test. R v Van der Peet established a test for native land claims which only recognises as valid Aboriginal rights that were practised prior to European contact.50

Subjectivity of the Rights

Another common characteristic of these second-class land rights across jurisdictions is that they can be taken away by relevant authorities if their use fails to coexist with the majority’s first-class rights; they are not absolute, they are subject to political expedience and circumstance.

In Australia, Wik Peoples v Queensland was amongst the most controversial of such cases.51 The case clearly demonstrated that native title was a second-class form of property. In the case, the court held that pastoral leases and native title can exist on the same plot of land – satisfying the economically powerful, non-indigenous, group while also increasing the system’s legitimacy in regard to equitable treatment within the legal system. However, it was held that native title can survive only when native rights and interests can coexist with the statutory rights of the pastoralist; to the extent of any inconsistency, the rights of the pastoralist prevail. It was observed that “[e]ven more so than Mabo, Wik thrust the Australian community into a highly charged political debate”: the conservative government was unhappy about the permission of coexistence, whereas aboriginal communities were dissatisfied about the latter qualification of possible removal.52 The practical implication of Wik is that in a conflict of rights, the native title holders will lose the land rights that have belonged to their community for hundreds of years.

Western Australia v Ward furthered the native land rights struggle, establishing that state forces can not only de-prioritise, but even extinguish native title through forced interference on native land.53 In this case, the objective of the interference was to allow for a mining lease in a remote area where a large part of the land remained in unaltered form.54 The ‘inconsistency of incidents’ test was established to determine extinguishments: the legal nature and extent of the rights of non-indigenous interest are objectively compared against the legal nature and extent of established native title claims.55 The question is whether the respective rights are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant.56

The Canadian case of R v Sparrow also illustrates the fragility of First Nations’ rights to land and to the use of natural resources.57 The question in this case was if the native Musqueam nation held an aboriginal right to fish that was not bound by the federal regulations requiring fishing permits and restricting methods of fishing.58 These claims depended on Section 35(1) of the Constitution Act 1982, stating that “existing aboriginal and treaty rights are hereby recognized and affirmed”.59 Although prior cases had the opportunity, Sparrow was the first one to undertake the risky task of defining the limits of this section and explaining how and when the government has the right to interfere with native rights. In its judgement, the court interpreted the words “recognition and affirmation” in Section 35(1) to suggest that “federal legislative powers continue, including the right to legislate with respect to Indians” as long as it can be justified.60 This part of the judgement is what later became known as the Sparrow test. In its judgement, however, the court ruled in favour of the Musqueam people. This decision was rooted in the evidence, which convincingly demonstrated that the Musqueam Nation had occupied the region well before the European settlers arrived. Additionally, the court acknowledged that salmon fishing had not only been an integral aspect of their past but continued to hold deep significance in their present lives.61 This judgement and the Sparrow test lead to a contradiction: the court embraces the idea that aboriginal rights are formed inherently, because of a long history of the nation’s relationship with nature, but avoids the implications of this recognition — namely, a “constitutional right to aboriginal self-government”.62 This results in a “tentative but extremely fragile” system of aboriginal rights formation and protection.63

Conclusion

This article has demonstrated that the cultural and political struggles indigenous people face in being recognised as a separate community has had a recognisable impact on their land rights. It has further considered the structural inequalities that are bolstered by lingering imperial legacies. Lastly, insufficiencies in rights availability within the law’s current treatment of indigenous legal systems have been demonstrated through cases.

The dispossession of natives’ lands, violation of their rights, and oppression of their culture only amplify in the face of ongoing political colonialism and the current capitalist economy. We are then left questioning: ‘What about Mabo?’64What about claimants like Mabo that never seem to obtain a fulfilling judgement? What about all the indigenous communities that are being robbed of the land to which they have entrenched connections? At present, there is no satisfying answer. The unfortunate conclusion is that indigenous peoples’ rights continue to be of secondary significance, subject to extermination if necessary for the majority’s capitalist objectives. To move beyond this cycle of abuse, states and privileged groups need to take accountability and be more willing to step back from their unaccountable commitments to maintaining their socio-economic status. As per Motha: “you cannot have a legal system … without that legal system having to account for its origins”.65

However unaccountable their origins might be, it remains the reality that societies do fundamentally have these inequitable systems. Whatever the process of forming these systems were, the result is that land rights are now dominantly held by the descendants of colonists, and the legal system is predominantly adapted to their culture. The only plausible alternative that has the highest possibility for spurring positive change is integrating aspects of indigenous legal notions into the existing legal system to ensure equitable access to justice. Just as Islamic finance laws act to ensure equitable financial opportunities for people of the Islamic faith, indigenous land laws should act to ensure that land law is accessible to indigenous people within a state. This would not only help alleviate the “fragmented self-determination”66 that indigenous communities suffer from, but it would also ensure healthier legal discourse between indigenous and white communities, fostered by mutual understanding of each other’s varied legal concepts.67

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[1] Tania Murray Li, ‘Indigeneity, Capitalism, and the Management of Dispossession’ (2010) 51(3) Current Anthropology 385.

[2] Paul Nicolas Cormier, ‘British Colonialism and Indigenous Peoples: The Law of Resistance– Response– Change’ (2017) 49(2) Peace Research Journal 39, 41.

[3] Human Rights Council, ‘Acting High Commissioner: Addressing the Legacies of Colonialism Can Contribute to Overcoming Inequalities Within and Among States and Sustainable Development Challenges of the Twenty-First Century’ (OHCHR Press Releases, 28 September 2022) <https://www.ohchr.org/en/press-releases/2022/09/acting-high-commissioner-addressing-legacies-colonialism-can-contribute> accessed 27 August 2023.

[4] Paul Daley, ‘Mabo 25 years on: let’s look at the vast, absurdist fiction this ruling toppled’ (The Guardian, 02 June 2017) <https://www.theguardian.com/australia-news/postcolonial-blog/2017/jun/03/mabo-25-years-on-lets-look-at-the-vast-absurdist-fiction-this-ruling-toppled> accessed 08 August 2023.

[5] ibid.

[6] Asafa Jalata, ‘Indigenous Peoples in the Capitalist World System: Researching, Knowing, and Promoting Social Justice’ [2011] Tennessee Research and Creative Exchange 1, 2.

[7] Mabo v. Queensland (no. 2) [1992] 175 CLR 1.

[8] Stewart Motha and Irene Watson, ‘The History of a Lie: The Mabo Case After 30 Years’ (Countersign Podcast, 31 May 2022) <https://countersignisapodcast.com/podcasts/the-history-of-a-lie-the-mabo-case-after-30-years/> accessed 02 April 2023.

[9] Jalata (n 7) 2.

[10] Phillip Darby, Three Faces of Imperialism: British and American Approaches to Asia and Africa (Yale University Press 1870).; Sally Engle Merry, ‘Law and Colonialism’ (1991) 25(4) Law & Society Review 889.

[11] Sally Engle Merry, ‘Law and Colonialism’ (1991) 25(4) Law & Society Review 889, 890.

[12] Cormier (n 3) 43.

[13] Barbara Ward Jackson, ‘Britain’s Imperial Legacy’ (1957) 35 Foreign Affairs 412, 413.

[14] ibid.

[15] Jackson (n 14).

[16] ibid.

[17] Colonial Laws Validity Act 1865, s 2.

[18] Russel Barsh, ‘Indian Land Claims Policy in the United States’ (1982) 58 North Dakota Law Review 8.

[19] ibid.

[20] Lewis Meriam, The Problem of Indian Administration (Johns Hopkins Press, 1928) 19.

[21] Ewout Frankema, ‘The Colonial Roots of Land Inequality: Geography, Factor Endowments, or Institutions?’ (2010) 63(2) Economic History Review 418, 418-419.

[22] Cormier (n 3) 43.

[23] ibid.

[24] Aki-Kwe/Mary Turpel, ‘Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges’ (1989) 10(2) Canadian Woman Studies 149, 150.

[25] Jackson (n 14) 420.

[26] Turpel (n 25) 153.

[27] Turpel (n 25) 150.

[28] Cormier (n 3) 43.

[29] Turpel (n 25) 150.

[30] Office of the High Commissioner for Human Rights, ‘UN Declaration on the Rights of Indigenous Peoples’ (United Nations, 13 September 2007) <https://www.ohchr.org/en/indigenous-peoples/un-declaration-rights-indigenous-peoples> accessed 12 August 2023.

[31] UN Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) 61/295, art 40.

[32] UN Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) 61/295, art 8.

[33] UN Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) 61/295, art 10.

[34] Office of the High Commissioner for Human Rights (n 31).

[35] Cormier (n 3) 43.

[36] Jackson (n 14) 419.

[37] Indian Claims Commission Act Amendment: Hearings Before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 94th Cong., 2d Sess. 39 (1976) (Statement by Frank Fools Crow of the Lakota Treaty Council); Barsh (n 19) 11.

[38] Cormier (n 3) 39.

[39] Barsh (n 19) 9.

[40] Parliament of Canada, ‘INAN Report – Indigenous Land Rights: Towards Respect And Implementation’ <https://www.ourcommons.ca/DocumentViewer/en/42-1/INAN/report-12/page-24#_ftn2> accessed 12 August 2023.

[41] Government of Canada, ‘Specific Claims’ (Government of Canada, 09 March 2023) <https://www.rcaanc-cirnac.gc.ca/eng/1100100030291/1539617582343> accessed 06 August 2023.

[42] ibid.

[43] Turpel (n 25) 151.

[44] Australian Government, ‘Information booklet: Recognising Aboriginal and Torres Strait Islander peoples through a Voice’ (Voice.gov.au, 06 April 2023) < https://voice.gov.au/resources/information-booklet&gt; accessed 04 September 2023.

[45] Sarah Collard, ‘Australia’s Indigenous Voice to Parliament Referendum’ (The Guardian, 03 August 2023) < https://www.theguardian.com/world/2023/aug/03/australias-indigenous-voice-to-parliament-referendum-explained-in-30-seconds&gt; accessed 11 September 2023.

[46] Mabo v. Queensland (n 8) [66].

[47] ibid.

[48] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58.

[49] Western Australia v Ward [2002] HCA 28 [574].

[50] R v Van der Peet [1996] 2 SCR 507.

[51] Wik Peoples v Queensland [1996] 187 CLR 1.

[52] Jeff Kildea, ‘Native Title: A Simple Guide, A Paper for those who wish to understand Mabo, the Native Title Act, Wik and the Ten Point Plan’ (1998) <https://www.academia.edu/42995356/Native_Title_A_Simple_Guide_A_Paper_for_those_who_wish_to_understand_Mabo_the_Native_Title_Act_Wik_and_the_Ten_Point_Plan> accessed 08 August 2023.

[53] Ward (n 50).

[54] Ward (n 50) [36].

[55] Kate Stoeckel, ‘Western Australia v Ward & Ors’ (2003) 25(2) Sydney Law Review 255.

[56] Ward (n 50) [181].

[57] R v Sparrow [1990] 1 SCR 1075.

[58] Michael Asch and Patrick Macklem, ‘Aboriginal Rights and Canadian Sovereignty: An Essay on R v Sparrow’ (1991) 29(2) Alberta Law Review 498.

[59] Constitution Act 1982, Part II, s. 35(1).

[60] Sparrow (n 58) 1077.

[61] Sparrow (n 58) 1091.

[62] Asch and Macklem (n 59) 500.

[63] Asch and Macklem (n 59) 501.

[64] This phrase is one that Dr Tatiana Flessas famously repeated throughout her lectures on Property Law; for LSE Law students, the quote has become synonymous with the topic.

[65] Motha and Watson (n 9) at 28:55.

[66] Victoria Tauli-Corpuz, referenced in United Nations, ‘GA/SHC/4265: Full Access to Justice through State, Traditional Systems Required for Upholding Indigenous Peoples’ Rights, Special Rapporteur Tells Third Committee’ (United Nations Meetings Coverage and Press Releases, 11 October 2019) https://press.un.org/en/2019/gashc4265.doc.htm accessed 11 September 2023.

[67] United Nations, ‘GA/SHC/4265: Full Access to Justice through State, Traditional Systems Required for Upholding Indigenous Peoples’ Rights, Special Rapporteur Tells Third Committee’ (United Nations Meetings Coverage and Press Releases, 11 October 2019) https://press.un.org/en/2019/gashc4265.doc.htm accessed 11 September 2023.