Abstract
Introduction: For many years the Indigenous peoples of Australia, Canada and New Zealand were precluded from seeking redress from the courts for the loss of their lands. In Canada and New Zealand a principle of non-justiciability arose from the courts' differential attitude towards Crown sovereignty and a failure to accept that the laws and customs of Indigenous peoples could be recognised by common law courts. In Australia the terra nullius fiction generated a similar result.
Recently, this has changed. The highest appellate courts in Australia, Canada and New Zealand have now recognised Indigenous land rights pursuant to the common law doctrine of native title: Mabo v Queensland (No 2) in the High Court of Australia, Delgamuukw v British Columbia in the Supreme Court of Canada, and Attorney-General v Ngati Apa in the New Zealand Court of Appeal. These decisions were highly celebrated and heralded as 'landmark' cases within their respective jurisdictions.
However, despite the aura of celebration that surrounds these cases, a stark truth has surfaced in all three countries- that Indigenous land rights remain inherently vulnerable to the political majority. Criticisms have been targeted at the Australian and Canadian courts for flouting their constitutional roles and deciding the Mabo and Delgamuukw cases, not in line with legal principle and precedent, but according to political and economic considerations. The vulnerability of Indigenous land rights was also confirmed in New Zealand in recent years where the controversial issue has been whether Māori, the Indigenous peoples of New Zealand, should be allowed the opportunity to prove customary ownership of the foreshore and seabed. While the Court of Appeal in Ngati Apa affirmed they should, the New Zealand Government replied by enacting legislation, the Foreshore and Seabed Act 2004, which effectively annulled that decision. The foreshore and seabed debate has illustrated that although the New Zealand Court of Appeal could not be subject to the same criticisms as Canadian and Australian courts, the end-point is much the same because New Zealand's constitutional framework does little to protect Māori land rights.
From within this background, and focussing on the role of the common law courts, the themes that permeate this paper are:
• Indigenous land rights and the legitimacy of society;
• The vulnerability of Indigenous land rights to the political majority; and
• The significance of constitutional choices to the protection of Indigenous land rights.
Chapter one places Indigenous land rights within a contemporary theoretical discourse which challenges nations to confront Indigenous legal issues within their territories. The chapter then examines the Australian and Canadian landmark cases of Mabo and Delgamuukw, followed by a précis of the recent academic attack of these cases.
Chapter two introduces Ngati Apa, New Zealand's landmark case on the common law doctrine of native title. In order to elucidate the significance of Ngati Apa chapter two delineates the background to the common law doctrine of native title within New Zealand's unique legal system and demonstrates how that doctrine came to be perceived as obsolete. A descriptive account of Ngati Apa is then advanced within the context of a recent judicial revival of native rights.
Chapter three analyses the separate judgments in Ngati Apa with an emphasis on comments pertaining to extinguishment of native title. This exposes Ngati Apa as a politically brave decision, unlike the landmark cases of Mabo and Delgamuukw.
Chapter four considers the implications of a brave judicial decision within New Zealand's constitutional framework. Government's response to Ngati Apa is examined from the orthodox context of Parliamentary sovereignty. Chapter four then contests this orthodox position from a variety of perspectives unique to New Zealand. Whilst concluding that these circumstances call for a different notion of legitimacy and an improved constitutional structure, the chapter concedes that New Zealand's current political climate means that constitutional changes are unlikely to be on Parliament's agenda. This has implications for the continued vulnerability of Indigenous land rights.
The final chapter concludes this paper reflects on the combined lessons of Indigenous land rights in Australia, Canada and New Zealand to suggest possible ways forward.