Cultureless rights : the cultural framework for indigenous rights in the Canadian and Australian judiciaries

• Main Author: Paterson, Travis
• Language: English
• Published: University of British Columbia 2010
• Online Access: http://hdl.handle.net/2429/28606

The relationship between the common law of Canada and Australia and Indigenous peoples has been one plagued by the logic of dispossession and domination. For over 200 years colonial courts effectively ignored Indigenous claims to the continued existence of their rights to traditional lands and self-government. In their respective attempts to address their own colonial histories, the Canadian and Australian courts have both begun to recognize the rights and title of Indigenous peoples to their traditional land-bases. Initially this gesture appeared to promise greater rights and freedoms for Indigenous peoples, including entitlement to self-government and the right to manage and benefit from traditional lands without the need for external authorization. Unfortunately, however, in a number of recent decisions the progress demonstrated by the courts in earlier cases has stalled, even reversed. This thesis will demonstrate that where the Canadian and Australian courts have recognized Indigenous rights and title they have done so by applying a culturalist framework. I argue that this culturalist framework has served to arbitrarily circumscribe the scope of Indigenous rights to a narrowly conceived bundle of “cultural” rights which privileges the sovereignty and title of the state over that of Indigenous peoples. Because of their reliance on a cultural approach to the interpretation of Aboriginal rights, common law courts have proven to be severely restricted in their capacity to recognize rights that would translate into greater freedom and equality for Indigenous peoples. In light of this, I conclude that although the law can be a powerful tool for furthering Indigenous rights, the courts cannot be the primary source of greater freedom and equality. Because of their inherently conservative nature courts often follow precedent and generally rely on norms and rules already accepted in the greater society. For this reason, although they can protect and encourage certain rights movements, the courts must radically alter their conceptual framework before significant changes and improvements can be made to Indigenous title jurisprudence.