...and comin'!

[ciroccoj]

How do Canada, the US and Australia deal with the idea of sovereignty for indigenous peoples within their borders? Do they comply with the UN/other international groups’ ideas? Why or why not?

a) Indigenous Sovereignty in Australia

[Anything on who are Australian Aborigines?] Within Australia, the exercise of indigenous sovereignty has been shaped in the last few decades by decisions such as Mabo in 1992, Wik in 1996, and [Yorta Yorta in XXXX], as well as legislation such as the Native Title Act and tht Native Title Amendment Act of 1998.

The case that began modern upheaval in the area of Australian land title and sovereignty over the land was the Mabo case of 1992, in which the High Court of Australia held that where indigenous claim to the land had not been explicitly extinguished, Aborigines were entitled to their traditional lands in accordance with their customary regimes." The Court held that "... the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands." Moreover, the judgment provided that there could be "other areas of Australia where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title." Brennan used strong language to condemn Australia's history of dispossession of indigenous land, and urged Australians to overcome their history, in which colonialists "... spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame. ... The acts and events ... (of Aboriginal) dispossession ... constitute the darkest aspect of the history of this nation... The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices."

Despite this, however, the court stopped short of equating Aboriginal claim to the land as "sovereignty", stating that "[a]ny shift of interpretation on the question of sovereignty would, in the view of the Court, lead to unacceptable damage to the legal system." It confirmed the sovereignty of wider non-indigenous Australian governments, acquired during settlement, and upheld the government's right to extinguish native land title, as long as they did so explicitly and stayed within the bounds of the law.

The Mabo case sparked much controversy and alarm among business interests, such as pastoral and mining industries, who began to lobby against what they viewed as an outrageous encroachment on established land rights. Sections of the mining and pastoral industries, and conservative politicians, reacted angrily to the High Court's decision and urged the Commonwealth Government to overturn it by legislation. They conducted a massive fear campaign against the newly-established land rights of Indigenous Australians.

Despite this, in December of 1993 the Federal Parliament passed the Native Title Act, which put much of the principles from the Mabo decision into legislation and made it possible for indigenous people to have an avenue to address land claims. Indigenous people also won the right to negotiate developments on native title lands, though they did not have the power to veto them.

A major issue left unresolved in both Mabo and the Native Title Act was native title on pastoral land (which at the time covered about 42% of Australian land). The Wik decision of 1996 decided the issue, ruling that native title rights could exist side by side with the rights of pastoralists, though the pastoral rights would prevail if the two were in conflict. Pastoralists had an exclusive right to pasture, but not exclusive right to possession of the land, and were no longer able to completely lock out thousands of Aboriginal people who had been locked out in the late 1960s and early 1970s. The Court commented that "[e]nforced absence does not invalidate the rights of Aboriginals people to share (not take over) the land from which their grandparents were ejected."

The Wik decision led to the demand that native title be extinguished on pastoral leases, and led to the passing the Native Title Amendment Bill in 1998, based on the "Ten Point Plan" for native title. The Amendment was a major setback for Aboriginal people. For example, with respect to land which had native title attached to it, pastoralists could diversify their land use (eg from grazing to tourism, forestry, etc) without consulting native title interests; Aboriginals also lost the right to negotiate over development of towns or mining operations; and native title on various land tenures was extinguished; allowing granting of interests in air space and water. The Plan resulted in the United Nations Committee for the Elimination of Racial Discrimination asking the Australian government to explain its changes to the United Nations.