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T-Space at The University of Toronto Libraries >
Indigenous Law Journal >
Fall 2005, Volume 4, No. 1 >

Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/17124

Title: Sovereignty in Law: The Justiciability of Indigenous Sovereignty in Australia, the United States and Canada
Authors: Popic, Linda
Issue Date: 1-Oct-2005
Publisher: Indigenous Law Journal
Abstract: Despite recognizing Indigenous title to land in the early 1990s,1 Australia’s domestic law has consistently refused to accommodate Indigenous claims of sovereignty or self-government. Unlike other common law countries, Australia’s High Court continues to propagate the legacy of terra nullius by maintaining that sovereignty claims are non-justiciable by the courts of that state. It claims that the original assertion of sovereignty over Australia by the British is an “act of state” that cannot be challenged. By comparing the reasoning of the Australian High Court with that of the US Supreme Court and Canadian courts, I argue that the High Court’s unwillingness to draw these claims into domestic jurisdiction reflects a construction of sovereignty that is unsustainable and unconvincing. Like its common law neighbours, Australia’s highest court should acknowledge that the structure of authority in a state is a legitimate issue for its courts, and should deal substantively with the claims of Indigenous Australians.
URI: http://hdl.handle.net/1807/17124
ISSN: 1703-4566
Rights: Indigenous Law Journal
Appears in Collections:Fall 2005, Volume 4, No. 1

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