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24 results

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  • 10 - The Challenge of Indigenous Polities

  • from III - Public Authorities in Encounter
  • Edited by Peter Cane, University of Cambridge, Lisa Ford, University of New South Wales, Sydney, Mark McMillan
  • Book: The Cambridge Legal History of Australia
  • Published online: 04 August 2022
  • Print publication: 18 August 2022, pp 227-257

  • Summary

    In this chapter we look at the ways in which the Australian settler-colonial constitutional order has recognised, and denied, the status of Aboriginal and Torres Strait Islander peoples as polities. We aim to show that in settler law traditional owner communities, alone or in aggregation, are largely characterised as racial groups, not as bodies politic. We trace developments in the recognition of traditional ownership, and (in glimpses) of traditional law and custom, in Australian law since the 1960s. The story is largely one of settler resistance to Indigenous legal and political authority, in the face of sustained intergenerational Indigenous advocacy. We point in particular to the fact that because they are mischaracterised as racial communities, the efforts of Aboriginal and Torres Strait Islander People to self-determine are made vulnerable to claims that their distinctive rights and institutions discriminate against non-Indigenous Australians.

  • The Potential Impact of Indigenous Rights on the International Law of Nationality

  • Part of
  • Kirsty Gover
  • Journal: AJIL Unbound / Volume 115 / 2021
  • Published online by Cambridge University Press: 29 March 2021, pp. 135-139
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  • International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

  • 10 - The Fiduciary Crown

  • from Part III - Political Trust and Fiduciary Government
  • Edited by Paul B. Miller, University of Notre Dame, Indiana, Matthew Harding, University of Melbourne
  • Book: Fiduciaries and Trust
  • Published online: 13 March 2020
  • Print publication: 02 April 2020, pp 198-222

  • Summary

    This chapter argues that enforceable fiduciary obligations owed by states to Indigenous peoples are best understood as private duties. The private character of state fiduciary duties is unnecessarily obscured by judicial findings that analogise them to private law ones and characterise the relationship as ‘sui generis’. We argue that there is little to be gained by characterising state-Indigenous fiduciary duties, expressly or by implication, as public duties. The private rights and duties generated within state-Indigenous relationships are structurally and substantively distinct from, and sometimes methodologically and normatively opposed to, the more general relationship between state and subjects that underpins public law and liberal political theory. For Indigenous peoples the crucial utility and promise of the state-Indigenous fiduciary relationship depends on the orthodoxy that the state does not, in general, owe fiduciary duties to its subjects. State-Indigenous fiduciary duties can and should function as a corrective to general public and administrative law, one that preserves space for this unique relationship and enables the enforcement of the distinctive rights and duties that attend it. For these reasons we argue that state Indigenous examples should not be used to model an emergent public fiduciary law or fiduciary political theory.

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