STUCK BETWEEN A ROCK AND A HARD PLACE: RECOGNIZING INDIGENOUS LAND CLAIMS IN A WESTERN LEGAL SYSTEM
STUCK BETWEEN A ROCK AND A HARD PLACE: RECOGNIZING INDIGENOUS LAND CLAIMS IN A WESTERN LEGAL SYSTEM.* Emily Kelleher This article argues that the Western common law legal tradition implemented in a modern Australia should recognize Indigenous land claims. This recognition would follow a comparable development and recognition of the rights and interests provided to the United States’ Native Americans through treaties. Australia, in developing this more accommodating land system, must ensure that native title would receive the same status and protection as other recognized common law land interests. This essay evaluates the historical processes of both Australian and United States jurisdictions, both sharing British origins, and how the current applications of Indigenous land rights differ. Secondly, this essay argues that Australia’s modern system and subsequent developments of indigenous land claims is disadvantageous in comparison to that of the United States’. Finally, the importance of self-determination in indigenous traditions will be discussed in accommodating land claims within Australia. To begin, this article will detail the history and development from colonial periods in Australia and the United States. A discussion about the significance of these developments in shaping indigenous land claims in each legal system will follow.
HISTORY AND DEVELOPMENT In most countries of the world there have often been more disadvantages afforded to indigenous legal traditions, especially those subject to the processes of colonization. Indigenous legal traditions in this sense are those established from a time prior to this colonialization 1. Australia’s history began by pushing its Indigenous people and their culture aside in order to establish British legal traditions2. It was inevitable that they started from a legally inferior position compared to the United States’ Native Americans as Australia was declared terra nullius3. Indigenous Australians had no legal basis to make land claims against the Crown as they were not recognized as possessing such rights 4. It wasn’t until 1972 that indigenous property rights were recognized when the Whitlam Labor government enacted federal laws acknowledging them; this occurred after the acknowledgement of the rights of Indigenous *
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1
Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford University Press, 5th ed, 2014) 62. Dan Tarlock, ‘Australian and United States Law of Aboriginal Land Rights: A Comparative Perspective’ (1999) 1 Vermont Journal of Environmental Law 51, 54. 2
3
Ibid 59.
4
Ibid 58
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