Aboriginal Land Rights Essay

Aboriginal Land Rights Essay

Aboriginal Land Rights

Aboriginal Australians have always had an eternal bond with the land.
For the 50,000 years or more, they have occupied the continent; the
land provided not only the basic needs, but also the spiritual
beliefs. In the Dreaming, the forms of the land, mountains, rivers,
landscapes and animals took shape and the spirit of ancestors resided
in places that became sacred sites to the Aboriginal people. The land
to these people were their most precious commodity.

When white settlement began in Australia in 1788, the concept of terra
nullius {the land belonging to no-one} was adopted by the British.
This was assumed because the Aboriginals had not cultivated the land,
so it was uninhabited. However, the Mabo Case in 1992 changed this

The Mabo Case 1992

In May 1982, Eddie Mabo and four other Meriam people of the Murray
Islands in the Torres Strait area went to the High Court of Australia,
seeking confirmation of their traditional land rights. They claim that
Murray Island or Mer, and the surrounding islands and reefs had been
continuously inhabited by the Meriam people, but accepted it as part
of Queensland. However, they believe their native title rights still

This case was heard over ten years through the High Court and the
Queensland Supreme Court. On June 3 1992, the High Court ruled by a
majority of six to one that the claim that the lands of Australia were
not terra nullius and that the Meriam people were entitled to the land
of the Murray Islands.

The common belief that Australia was terra nullius was struck down and
that native titles overruled settlement. The judgment contained the
statement that the common law was unjust and did not respect
Aboriginals as equals before the law. It also found it was out of step
with international human rights and that Aboriginals had been
dispossessed of their land rights unlawfully.

Native Title Act 1993

After the Mabo case which recognised the existence of native title
rights, Land Councils lobbied the Federal Government to legislate to
protect any native title that had survived 200 years of colonisation.

The Native Title Act 1993 is part of the Commonwealth Government's
response to that historic High Court decision. The Native Title Act
came into operation on 1 January 1994

The Act does five things:

* It recognises and protects native title.

* It provides a regime to enable future dealings in native title
lands and imposes conditions on those dealings

* It provides for the validation of any past grants of land that may
otherwise have been invalid because of the existence of native

* It establishes a regime to ascertain where native title exists,
who holds it and what it is, and to determine compensation for

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The problem of aboriginal rights and land claims is one of the most serious problems modern Canada is currently facing. In actuality, this problem is the result of the long-lasting discrimination and deprivation of the native population of Canada of its rights. Basically, the discrimination affected practically all spheres of life of aboriginal people, including economic, social, political, and even cultural. At the same time, the rights of aboriginal people and their land claims are basically motivated by their natural desire to have the equal rights compared to the rest of Canadians, have larger economic and political opportunities in order to be able to maintain the normal life of their communities without permanent hopes for the help of the national government. In such a way, the problem of aboriginal rights and land claims are closely interlinked for aboriginal people of Canada do want to have equal rights but they cannot fully realize their rights, which they may formally have, if they do not have real opportunities to realize and protect their rights. In this respect, they apparently need the economic basis, which they could use simply to maintain the socio-economic development and survival of their communities and which, therefore, could provide them an opportunity to protect their rights more effectively. What is more important is the fact that the satisfaction of land claims and increasing economic power of aboriginal people of Canada will give them a substantial political power or, at any rate, a chance to protect their rights on the political level, through the implementation of the new legislation, for instance. In such a way, it is obvious that aboriginal rights and land claims involve legal, economic and political issues, which will be analyzed in terms of this paper.


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Historical background
Obviously, it is hardly possible to understand the current problems of aboriginal people of Canada without the brief analysis of the historical background of these problems. To put it more precisely, the current problems of aboriginal people, such as the violation of their basic rights, as well as the land claims that are now the subject of heat discussions are the result of the historical development of relationship between the native population of Canada and European colonizers, whose descendants actually occupy the dominant position in Canadian society.

First of all, it should be said that the discrimination of aboriginal people has accompanied the development of Canada since the creation of this state or, to put it more precisely, since the start of European colonization. It is worthy of noting that it is only in the second half of the 20th century that some positive changes have started to occur under the pressure of the local communities, basically that of native people, and even under the pressure of international community. Such a pressure was basically determined by two facts. On the one hand, the civil rights consciousness of aboriginal people grew stronger as they got more and more integrated in Canadian society and, therefore, acquiring the knowledge about their civil rights and fully realizing the enormous gap that existed between them and the ruling elite of Canada as well as the rest of Canadian society. On the other hand, there was a growing socio-economic pressure, especially from the part of large corporations, including multinational ones, on aboriginal communities. As the result, their rights, limited they were, were oppressed even more since their economic opportunities became scarce.

Gradually, aboriginal people of Canada faced a dilemma they had to solve: either to continue the lifestyle they had led before and gradually became fully integrated in Canadian society and totally lost their unique culture and traditions, or, alternatively, to struggle for their civil rights and opportunities which should be based on preservation of their communities, uniqueness, national culture and traditions. The latter was apparently impossible in the situation when aboriginal people were simply forced to leave their land either because of the low economic opportunities for the elementary survival or because of the official decisions taken by authorities.

As a result, the struggle of aboriginal people for their rights and land claims became a natural consequence of the dramatic deterioration of their socio-economic position and practically permanent and systematic violation of their human rights they were conscious of.

The legal status of aboriginal people and land claims
As it has been already mentioned, aboriginal people were traditionally discriminated and occupied the lower places in Canadian socio-economic hierarchy. At the same time, their legal status proved to be quite different from the rest of Canadians to the extent that it was even possible to speak about the existence of unique communities which lived in accordance with different laws compared to other Canadians. Such a situation was actually also determined by the historical development of Canada and aboriginal people.

In fact, it should be said that various conflicts between aboriginal people and Canadian authorities as well as Canadian companies were quite often and traditionally such conflicts were solved by means of negation. In other words, when aboriginal people had some claims they needed to negotiate with the government in order to achieve the goal they were striving for. In practice, this means that the relationships between aboriginal people and Canadian authorities were built not on the set of legal acts and norms but was rather a subject of discussions and, unfortunately, to a significant extent, this trend is relevant even nowadays (Asch, 126). As a result, it was only when a community of aboriginal people managed to raise the claim concerning land, for instance, than it was only in this case the officials would negotiated and attempt to find some solution of the problem of aboriginal people while other communities, which might have the similar problem but did not claim, would simply ignored. In other words, the rights of aboriginal people were not really protected by the legislation and the law was not common for absolutely all aboriginal communities while it was only due to negotiations claims of aboriginal people could be satisfied and their protected.

Naturally, such a situation was totally unacceptable for a democratic country and aboriginal people started to struggle actively for their rights and land claims became one of the major subjects and consistent part of this struggle. In this respect, it should be said that Canada first established policies on aboriginal claims only in 1973 (DuCharme, 3) and negotiations were used to solve these claims. In fact, this approach is still widely applied to claims of aboriginal people in Canada. It should be said that now these are optional processes that provide aboriginal people with an alternative to going to court to resolve their claims. This means that nowadays the legislation does work and aboriginal communities can protect their rights and satisfy their claims, including land claims appealing to the court.

At the same time, in the current situation, negotiations are the best way out of the problematic situations, especially concerning land claims because in such a way both aboriginal and non-aboriginal people can find mutually acceptable ways to resolve these claims (Asch, 131). Specialists estimate that, at the present moment, negotiations lead to the situations, when all parties win that naturally maintain the balance of rights of all Canadians, including aboriginal people (Usher et al, 113).

In actuality, it is possible to estimate that that land claims of aboriginal people are an effective legal way of the protection of their rights either through negotiations or courts rulings. In this respect, it should be said that land claims of aboriginal people are based on the their rights and legislative acts implemented mainly in the second half of the 20th century. In this respect, the Constitution Act of 1982 is particularly important because the existing aboriginal and treaties rights of aboriginal people have been recognized and affirmed under the section 35 of this act (Asch, 215). On the other hand, it is necessary to underline that the common law concept of aboriginal rights has been recognized by courts.

Speaking about the claims, it should be pointed out that they may be divided into two major categories: comprehensive claims and specific claims. Comprehensive claims mainly deal with unfinished businesses of treaty-making in Canada. As a rule, these claims arise in areas of Canada where aboriginal land rights have not been dealt by with treaty or with other legal means. In such situations, modern, forward-looking treaties are negotiated the aboriginal group, Canada and the territory or province.

These treaties are enshrined in legislation and provide a clear, certain and long-lasting definition of land rights for all Canadians, naturally including aboriginal people (Usher et al, 122). The treaties include certainty about the ownership, use and management of land and natural resources for all parties, while some treaties even include provisions relating to aboriginal self-government (Asch, 179). Obviously, this provides aboriginal people with opportunities to protect and realize their rights since the legal status of land and the rights of aboriginal people are clearly defined. Consequently, aboriginal people receive an excellent possibility to get equal rights and opportunities to other Canadians. It is worthy of mention that since 1973, twenty modern treaties have been negotiated across the country. They involve over 90 aboriginal communities with over 70,000 members. What is more, negations are still continued and remain the major tool of resolving aboriginal people’s claims, including land claims.

Also, there are specific claims which basically deal with past grievances of aboriginal people, which may be also called as First Nations. These grievances relate to Canada’s obligations under historic treaties or the way it managed First Nations funds or other assets (Miller, 134). Specific claims also arise from the improper administration of lands under the Indian Act or other formal agreements. It should be said that over 460 specific claims have been concluded to date across the country (Asch, 237).

Political and economic factors of land claims
Obviously, the land claims of aboriginal people resulting in negotiations or court decisions are the result of the growing civil rights consciousness of aboriginal people. At the same time, land claims also have socio-economic and political background, which naturally affects the legal decisions of the problems of aboriginal people. To put it more precisely, land claims are often motivated by socio-economic factors because aboriginal people naturally want to benefit from the use and management of land that historically belonged to them. Moreover, in the current situation, the ownership and use of land may become a source of the socio-economic prosperity of aboriginal community. On the other hand, it is necessary to remember about the possibility of the misuse of land by non-aboriginal people. What is meant here is the fact that there were the cases when lands, which aboriginal people claimed to be of their own, were used by some companies in their own interests, for instance, for output of natural resources. Naturally, such exploitation could lead to the deterioration of the environmental situation, prevention of aboriginal communities of performing traditional socio-economic activities such as agriculture or hunting, and, what is more, aboriginal communities were simply left aside of the profits from the exploitation of the lands. As a result, they raised land claims.

In this respect, political factor is also quite important since aboriginal communities naturally need the political support from the part of legislators who could improve the existing legislation and guarantee aboriginal people the protection of their rights and equal opportunities but aboriginal people, to a significant extent remain underrepresented.

Thus, taking into account all above mentioned, it is possible to conclude that aboriginal rights and land claims are closely interlinked. In fact, land claims may be viewed as the attempt of aboriginal people to protect their civil rights and get to be really equal to other Canadians. At the same time, the resolution of land claims in favor of aboriginal people create a socio-economic basis for their equality, though this basis should be extended on the political level in order to make aboriginal people wider represented in the national politics.

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