International and Comparative Law Quarterly

Articles

DISENTANGLING THE SOURCES AND NATURE OF INDIGENOUS RIGHTS: A CRITICAL EXAMINATION OF COMMON LAW JURISPRUDENCE

Arif Bulkan

Lecturer, Faculty of Law, University of the West Indies, St. Augustine campus, Trinidad and Tobago, Arif.Bulkan@sta.uwi.edu.

Abstract

The ‘indigenous renaissance’ of the last few decades continues to generate copious litigation around the Commonwealth. While courts frequently invoke common principles, it would be going too far to say that a unified jurisprudence exists. Moreover, modern jurisprudence in this area is arguably inconsistent and frequently discriminatory, which means that borrowing across jurisdictions should proceed cautiously, mindful of localized nuances and limitations. This article argues that any suggestion that the common law as it has evolved in any particular jurisdiction should be emulated as a model indigenous rights theory must be rigorously scrutinized, for indiscriminate application of doctrines could lead to discordant outcomes.

Key words

  • aboriginal title;
  • continuity doctrine;
  • extinguishment principles;
  • indigenous peoples;
  • land rights