Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night?

Article


Young, Simon. 2009. "Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night?" Land, Rights, Laws: Issues of Native Title. 4 (2), pp. 1-16.
Article Title

Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night?

ERA Journal ID36652
Article CategoryArticle
Authors
AuthorYoung, Simon
Journal TitleLand, Rights, Laws: Issues of Native Title
Journal Citation4 (2), pp. 1-16
Number of Pages16
Year2009
Place of PublicationCanberra, Australia
ISSN1326-0316
Web Address (URL)http://www.aiatsis.gov.au/_files/ntru/publications/issues/ip09v4n2.pdf
Abstract

The Canadian decision of Tsilhqot'in Nation v British Columbia (BC Supreme Court, 2007) was a significant step in the resolution of a long-running timber dispute in western Canada, and the most important judicial exploration of Canadian 'Aboriginal title' since the watershed 2002 decision of Delgamuukw. The primary significance of this recent decision for Canada lies in its quite robust conclusions on provincial jurisdictional limitations, and its wrestle with emerging controversies over the exact areas to which the concept of Aboriginal title can attach. For Australian observers, the primary importance of the decision lies, it would seem, in the Court's disinterest in strict 'continuity' inquiries, its clear and pointed confirmation of the comprehensive and contemporary nature of the Aboriginal title interest, and its dissatisfaction with jurisprudential focus on the notion of 'society'. More broadly speaking, the Tsilhqot'in decision prompts renewed reflection on reconciliation processes in both countries, and in many ways reminds us of the self-evidently valuable nature of comparative study. This paper examines the Tsilhqot'in decision against the backdrop of the Canadian legal history, and attempts to explain its significance from both the Canadian and Australian perspectives.

Keywordsland rights; land title; first peoples; indigenous inhabitants
ANZSRC Field of Research 2020480604. Property law (excl. intellectual property law)
450599. Aboriginal and Torres Strait Islander peoples, society and community not elsewhere classified
480302. Comparative law
Public Notes

This publication is copyright. It may be reproduced in whole or in part for the purposes of study, research, or review, but is subject to the inclusion of an acknowledgment of the source.

Byline AffiliationsUniversity of Western Australia
Institution of OriginUniversity of Southern Queensland
Permalink -

https://research.usq.edu.au/item/q2832/native-title-in-canada-and-australia-post-tsilhqot-in-shared-thinking-or-ships-in-the-night

Download files


Published Version
Young_LRL_v4n2_PV.pdf
File access level: Anyone

  • 1748
    total views
  • 112
    total downloads
  • 5
    views this month
  • 1
    downloads this month

Export as

Related outputs

Indigenous Rights in Freshwater: Mapping the Contested Space in Australia, New Zealand and Canada
Young, Simon, Down, Sarah and Mascher, Sharon. 2023. "Indigenous Rights in Freshwater: Mapping the Contested Space in Australia, New Zealand and Canada." Environmental and Planning Law Journal. 39 (3), pp. 276-301.
The Blue Sky Effect: a repatriation of judicial review or a search for flexibility?
Young, Simon. 2020. "The Blue Sky Effect: a repatriation of judicial review or a search for flexibility?" Australian Journal of Administrative Law. 27 (3), pp. 165-179.
Transparent triage policies during the COVID-19 pandemic: a critical part of medico-legal risk management for clinicians
Close, Eliana, Willmott, Lindy, Cockburn, Tina, Young, Simon, Cairns, Will and White, Ben P.. 2021. "Transparent triage policies during the COVID-19 pandemic: a critical part of medico-legal risk management for clinicians." Medical Journal of Australia. 215 (2), pp. 71-74.e1. https://doi.org/10.5694/mja2.51079
Legal challenges to ICU triage decisions in the COVID-19 pandemic: How effectively does the law regulate bedside rationing decisions in Australia?
Close, Eliana, Young, Simon, Cockburn, Tina, Willmott, Lindy and White, Ben P.. 2021. "Legal challenges to ICU triage decisions in the COVID-19 pandemic: How effectively does the law regulate bedside rationing decisions in Australia?" University of New South Wales Law Journal. 44 (1), pp. 9-59. https://doi.org/10.53637/FSJG1698
If COVID hospitalisations increase, it’s still not clear how patients will be prioritised for ICU beds
Close, Eliana, White, Ben, Willmott, Lindy, Young, Simon, Cockburn, Tina and Cairns, Will. 2021. "If COVID hospitalisations increase, it’s still not clear how patients will be prioritised for ICU beds." The Conversation. 27 October 2021, pp. 1-4.
Commentary: members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Young, Simon. 2021. "Commentary: members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422." Watson, Nicole and Douglas, Heather (ed.) Indigenous legal judgments: bringing Indigenous voices into judicial decision making. Abingdon, Oxon, United Kingdom. Routledge. pp. 92-96
The 'Blue Sky effect': a repatriation of judicial review grounds or a search for flexibility?
Young, Simon. 2020. "The 'Blue Sky effect': a repatriation of judicial review grounds or a search for flexibility?" AIAL Forum. 2020 (98), pp. 54-69.
Constitutional promises of Indigenous recognition: Canada, Vanuatu and the challenges of pluralism
Corrin, Jennifer and Young, Simon. 2019. "Constitutional promises of Indigenous recognition: Canada, Vanuatu and the challenges of pluralism." Common Law World Review. 48 (4), pp. 233-265. https://doi.org/10.1177/1473779519891623
The increments of justice: exploring the outer reach of Akiba's edge towards native title 'ownership'
Young, Simon. 2019. "The increments of justice: exploring the outer reach of Akiba's edge towards native title 'ownership'." University of New South Wales Law Journal. 42 (3), pp. 825-868. https://doi.org/10.53637/PZOJ4201
'The difficulties of communication encountered by Indigenous peoples’: moving beyond Indigenous deficit in the model admission rules for legal practitioners
Burns, Marcelle, Young, Simon and Nielsen, Jennifer. 2018. "'The difficulties of communication encountered by Indigenous peoples’: moving beyond Indigenous deficit in the model admission rules for legal practitioners." Legal Education Review. 28 (2), pp. 1-27.
The evolution of bias: spectrums, species and the weary lay observer
Young, Simon. 2017. "The evolution of bias: spectrums, species and the weary lay observer." Melbourne University Law Review. 41 (2), pp. 928-956.
From the bike to the bus: the Noongar Native Title settlement
Young, Simon. 2013. "From the bike to the bus: the Noongar Native Title settlement." Native Title Newsletter.
The troubled sequel: Canadian aboriginal title revisited in the BC Court of Appeal
Young, Simon. 2012. "The troubled sequel: Canadian aboriginal title revisited in the BC Court of Appeal." Australian Property Law Bulletin. 26 (10), pp. 147-150.
Rights-based 'recognition': the Canadian experience
Mascher, Sharon and Young, Simon. 2016. "Rights-based 'recognition': the Canadian experience." Young, Simon, Nielsen, Jennifer and Patrick, Jeremy (ed.) Constitutional recognition of first peoples in Australia - theories and comparative perspectives. Leichhardt, NSW, Australia. Federation Press. pp. 176-205
Synergy or skirmish? The collaboration of law and anthropology
Young, Simon. 2016. "Synergy or skirmish? The collaboration of law and anthropology." Bright, Susan and Blandy, Sarah (ed.) Researching property law. London, United Kingdom. Palgrave Macmillan. pp. 145-163
A climate for change? The 2009 Native Title report
Young, Simon. 2010. "A climate for change? The 2009 Native Title report." Indigenous Law Bulletin. 7 (18), pp. 20-24.
Privative clauses: politics, legality and the constitutional dimension
Young, Simon. 2014. "Privative clauses: politics, legality and the constitutional dimension." Groves, Matthew (ed.) Modern administrative law in Australia: concepts and context. Port Melbourne. Cambridge University Press. pp. 276-297
Law and anthropology: the unhappy marriage?
Young, Simon. 2014. "Law and anthropology: the unhappy marriage?" Property Law Review. 2014 (3), pp. 236-246.
The trouble with tradition: native title and cultural change
Young, Simon. 2008. The trouble with tradition: native title and cultural change. Sydney, Australia. Federation Press.
Administrative law in Australia
Lane, W. B. and Young, Simon. 2007. Administrative law in Australia. Sydney, Australia. Lawbook Co..
Cultural timelessness and colonial tethers: Australian native title in historical and comparative perspective
Young, Simon. 2008. "Cultural timelessness and colonial tethers: Australian native title in historical and comparative perspective." Australian Indigenous Law Review. 12, pp. 60-68.
Law and custom - 'Tradition': the assembly of a legal microscope [submitted to Australian Law Reform Commission]
Young, Simon. 2009. Law and custom - 'Tradition': the assembly of a legal microscope [submitted to Australian Law Reform Commission]. Unpublished.
Probing the frontiers of administrative law
Johnston, Peter, Young, Simon, Hooker, Richard and Pontre, Tom. 2011. "Probing the frontiers of administrative law." ALIAL Forum. 67, pp. 1-34.
An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia
Young, Simon and Murray, Sarah. 2011. "An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia." Oxford University Commonwealth Law Journal. 11 (2), pp. 117-142.
Tides of history and jurisprudential gulfs: Native title proof and the Noongar Western Australia claim
Young, Simon. 2010. "Tides of history and jurisprudential gulfs: Native title proof and the Noongar Western Australia claim." Indigenous Law Journal. 8 (1), pp. 95-120.
One step forward and one step back: the Noongar South-West Native Title Claim
Young, Simon. 2008. "One step forward and one step back: the Noongar South-West Native Title Claim." Australian Property Law Bulletin. 23 (2), pp. 14-17.