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This chapter addresses the tensions that have arisen, in the Canadian context, between Native peoples’ (or First Nations peoples’) quest for political self-determination and the demand by some Native women that their sexual equality rights be protected through federal law (specifically, Canada’s 1982 Charter of Rights and Freedoms). It discusses the ambivalent relationship Native peoples have had with respect to the language of individual rights, consent, and sexual equality, and reflects on the difficulties this presents for protecting Native women. The chapter also illuminates the potential injustices that can arise both when dominant cultural groups fail to recognize the distinctive self-understandings of minority communities as well as when more powerful members of cultural communities attempt to silence vulnerable and less powerful group members.

Explores the possibilities of reconciling the demands of aboriginal peoples in Canada for forms of self‐government that will reflect and protect their distinct cultural traditions with the idea of a shared Canadian citizenship based on equality and political unity. It outlines the long history of the use of Canadian citizenship as a tool of coercive assimilation of First Nations people in Canada and argues that this history justifies considerable wariness on their part toward any project of civic integration. It also considers the question of whether the cultural differences between aboriginal people and other Canadians would warrant some limitations on the application of the Charter of Rights and Freedoms (Canada's Bill of Rights) to aboriginal people. Finally, the chapter argues that a unitary model of citizenship is bound to fail to achieve the civic integration of aboriginal people. It contends that a version of differentiated citizenship that makes dialogue over justice and cultural difference central is the best hope for achieving civic integration, though it is an approach that carries its own risks.

This chapter examines the situations of the aboriginal people of Canada during the conquest of New France. At the time of the conquest most of Canada was aboriginal territory. The aborigines initially challenged colonial rule but when the settler dominance was established during the latter half of the 19th century their capacity for resistance was severely reduced. Despite this, the settlers had difficulty in dealing with them because of their diversity and their varied environments and resources.

This chapter explores the continual adoption of the principles of Discovery into contemporary Australian law. It looks at the overturning of the terra nullius element in the Mabo case in 1992 but also looks at how the Doctrine of Discovery still leaves a legacy in Australian law whereby the rights of indigenous peoples remain unprotected.

This introductory chapter begins with a discussion of the focus of the book, which is the history of the encounter between the aboriginal peoples of North America and Australasia and the common law that British colonialism transplanted into their lands. It then discusses law and colonialism, aboriginal histories and common law, how the common law treats its own past, the idea of law in the Marshall judgments on Indian status (1823-1832), and aboriginal societies and the common law in the pre-modern era.

Green movements on the Western European model need to be more aware that their predilection for open public debate and transparency of government decision‐making can be insensitive to the interests of aboriginal peoples who do not share that predilection. While both environmentalists and aboriginals have a common cause in defending against encroachments by the forces of industrialism, there is an inherent paradox in the Green political concept of ‘defence of place’ arising from the fact that their cultural conceptions, of what is to be preserved and why, may conflict with those of the aboriginal peoples actually living there. An instructive case study of the protests over logging practices in Clayoquot Sound on the west coast of Vancouver Island in British Columbia is presented. The initial alignment between environmental activists and the Nuu‐chah‐nulth aboriginals gave way to estrangement when, after hundreds of the former had been arrested, fined, or jailed, the representatives of the latter arrived at a political understanding with the authorities in respect of land claims and forest management practices. The shock experienced by some environmentalists over the independent direction taken by the Nuu‐chah‐nulth may suggest that environmentalists and aboriginals were, in fact, operating with quite different images of the forest as property. A greater degree of cultural sensitivity is required to prevent such misunderstandings in future. It is also important to recognize how politicization can change culture—a deliberate political campaign to defend a traditional culture can itself change the culture being defended. It is entirely conceivable for a defence of place—through its own political and cultural dynamics—to undermine the very culture that has given the place its unique meaning and value.

This chapter addresses Canadian sentencing circles in domestic violence situations. It is argued that Aboriginal communities expect sentencing circles to serve certain political goals in addition to the traditional restorative justice goals—such as educating the broader society about historical and social contributors to criminality, promoting Aboriginal self-governance and incorporating Aboriginal dispute resolution into mainstream dispute resolution. The tension between these political goals and the traditional restorative justice goal limits the effectiveness of sentencing circles. Aboriginal victims of domestic abuse might not criticize the sentencing circles’ failure to address their harms as victims because this might undermine the legitimacy of Aboriginal dispute resolution methods. However, if this tension is recognized, better methods can be devised, to improve the effectiveness of sentencing circles, and minimize domestic abuse in Aboriginal families.

‘Reconciliation’ emerged in the early 1990s as a new theme driving relations between aboriginal peoples and the settler-states of North America and Australasia. This was a theme that did not posit closure and finality in those relations, but signified a more conscious attempt within each settler-state to erect structures for the management of an ongoing relationship with its tribal peoples. Reconciliation could not be possible without recognition. Recognition entailed not only the conferral by the settler-state legal system of substantive aboriginal rights. For aboriginal peoples it also involved the acknowledgment by the settler-state of the impropriety of past conduct in breach of those rights. This chapter discusses a jurisprudence of reconciliation, reconciliation through claims settlement; and claims mechanisms in Canada, New Zealand, and Australia.

This chapter explores the ways in which the Doctrine of Discovery was used to justify the assertion of British sovereignty over Australia and its indigenous peoples, and is continued to be used to justify its colonization. It looks particularly at the development of the legal fiction of terra nullius.

This chapter examines the struggle of Canadian indigenous peoples to achieve ‘true reparations’. It analyzes Canada's experience of reparations for non-Aboriginal Canadians, then evaluates the national practice of reparations for injustices to indigenous peoples, concentrating in particular on the key issue of restoration of lands (including land claims currently under negotiation). It examines another crucial sector in which First Nations, Inuit, and Métis peoples have actively pressed for action for many years, i.e., self-government or, in broader terms, ‘full control over their lives’, providing a comprehensive assessment of the relevant self-government agreements. The chapter concludes that the reality of Canada is that it remains a land that was colonized illegally and has never been decolonized. Canadian Aboriginal peoples must be allowed to fulfil their wish to regain control of their lives and their lands so as to refurbish their spiritual link and to resume their responsibilities as stewards of this space.

This chapter discusses the ways in which Aboriginal people in southeastern Australia since the 1880s have incorporated Queen Victoria as a narrative device into the stories they tell and the statements they make about their situation under British colonisation. By tracing the contexts and occasions on which references to Queen Victoria are made, the chapter examines how Aboriginal people in Australia’s south-east implicated the figure of Queen Victoria in their lives and predicaments, and the ways in which each new generation recycled and reworked inherited stories about her according to their own times and situations. It concludes that the name of Queen Victoria served multiple “memory-making” uses, not least of which was remembering Aboriginal people’s own histories of political activism as they sought redress for their dispossession.

This chapter illustrates how, in the last few years, Australian society has tried to compensate Aboriginal peoples for the past governmental policy aimed at speeding up their extinction, which was seen as a natural consequence of the human evolutionary process. It gives special attention to the shameful practice of the ‘Stolen Generation’, for which the State of Tasmania has very recently announced a compensation package. It looks at the practice of compensation for indigenous property rights in Australia, representing a key issue to emerge from the Australian High Court's decision in Mabo v State of Queensland (No 2) of 1992. It is argued that, despite the incremental ‘pockets’ of compensation which have recently emerged for Aboriginal peoples in the areas of property, constitutional, labour, and tort law, the inadequacies of the contemporary Australian legal system in this context are a consequence of the absence of a federal Bill of Rights in Australia.

This chapter explores a framework that deals with the archaeology and heritage of cross-cultural interactions in the cattle and sheep ranching (‘pastoral’) industries of Australia. It first provides a historical background on government policies on aboriginal people and pastoral labour in Australia between 1788 and 1988 before suggesting some ways in which archaeology might address idealised notions of ‘coloniser’ and ‘colonised’. It then outlines the various strategic and mundane ways in which both colonised and coloniser engage with their social and Indigenous worlds, express notions of individual and group identity, and at the same time deal with the very real inequalities and conflicts that characterise colonial and postcolonial relations of difference.

This chapter discusses Aboriginal sovereignty, which covers a spectrum of claims that can be conceptualized into three categories: equality rights, indigenous rights, and empowerment rights. Equality rights include the right not to be discriminated against and the rights to equal access to services, infrastructure, and opportunity. Indigenous rights include the rights to culture, heritage, language, and native title. Empowerment rights include the rights to make decisions and have control over the decisions that affect the lives of Aboriginal people. Finding the framework to achieve the aspiration of Aboriginal sovereignty requires the development of ways to ensure the enjoyment of each of these types of rights.

A new image of empire changed the kind of enterprise the English, and subsequently the British, Empire was to become. It also meant that English relations with, and attitudes towards, the aboriginal peoples of the Americas was different from that of the Spanish. One of the foundational conceptions which the modern empires in Europe had inherited from their classical, and subsequently their Christian, ancestors was the conviction, moral as much as legal, that every expansionist state was required to legitimate its actions by appeal to some law, in most cases of either supposedly natural or divine origin. Legitimation only became a pressing moral and political concern when prolonged warfare became a necessary condition of expansion. Then all the British Imperial adventurers were troubled by Marcus Tullius Cicero's assertion that ‘the best state never undertakes war except to keep faith or in defence of its safety’.

This chapter reviews the historical development and current legislative framework of archaeological heritage resource protection in Canada. This chapter takes into account the founding of the Western Canadian Archaeological Council in 1960 as the Canadian legislation to protect archaeological heritage resources was woefully inadequate prior to the 1960s, and archaeologists urgently needed to find ways to protect and preserve the diminishing record of this legislation. This chapter highlights several initiatives taken by Canada towards heritage resource protection. It concludes that if there is to be effective archaeological heritage preservation legislation at all government levels in Canada, it is crucial that government, archaeologists, and Aboriginal people recognize and respect the validity of each other's values. They must acknowledge the differences and find common ground to achieve what is essentially the same underlying objective for all concerned.

This chapter examines how the apology of the Australian government to Aboriginal and Torres Strait Islander peoples in Australia for laws which resulted in their forced separation from their families assumed that the State possessed the power to pass the laws. As a result, the apology was limited to expressing sorrow for the consequences of the laws of removal, and in no way intimated that the State might have lacked the power to pass them. The laws were acknowledged to be bad, even evil in their conception, but they remained, according to the terms of the apology, compatible with the fundamental principle of the rule of law that sustains parliamentary government. By construing the laws in this way, the Australian government was able to preserve its sovereign power.