“Extinguished is a Latin word. Something is inflamed or on fire, and it is put out. Silenced.
It means to blot out of existence. To totally do away with; to annihilate, cut off, bring to an end. To kill.
The word is related to extinct. That which has ceased to burn or shine. Vanished. Without progressive succession. Having no living representative. There is a vast emptiness.”
The forementioned statement is a quote from Leslie Hall Pinder, a lawyer who represented the claimants in the famous Canadian aboriginal land rights case of Delgamuukw v British Columbia . It is part of a speech Pinder delivered to the British Columbia Library Association Annual General Meeting in April 1991 after the judgment of first instance was handed down by Chief Justice McEachern.
The quote introduces the reader to extinguishment, especially the extinguishment of aboriginal rights and interests and thus to the topic of this research paper. This essay concentrates on two countries: Australia and Canada, and compares their law in relation to extinguishment of aboriginal rights and interests. First, it examines how these two countries approach the subject. Then, the paper draws a conclusion as to the question of similarities and differences between Australian and Canadian law.
Table of Contents
I. Introduction
II. Extinguishment of Aboriginal Rights under Canadian Law
1. Common Law
a) Calder v Attorney-General (British Columbia)
aa) History of the Case
bb) Findings of the Case
b) R v Sparrow
aa) History of the Case
bb) Findings of the Case
c) Delgamuukw v British Columbia (1997)
aa) History of the Case
bb) Findings of the Case
2. Legislation
3. Summary of the Extinguishment of Aboriginal Rights under Canadian Law
III. Extinguishment of Native Title under Australian Law
1. Common Law
a) Mabo v Queensland
aa) History of the Cases
bb) Findings of the Cases
b) Wik Peoples v Queensland (1996)
aa) History of the Case
bb) Findings of the Case
c) Fejo v Northern Territory (1998)
aa) History of the Case
bb) Findings of the Case
d) Western Australia v Ward (2002)
aa) History of the Case
bb) Findings of the Case
e) Summary of the Common Law in Australia
2. Legislation
3. Summary of the Extinguishment of Native Title under Australian Law
IV. Conclusion
Research Objectives and Focus Areas
This paper examines and compares the legal frameworks and judicial approaches concerning the extinguishment of Aboriginal rights and interests in Australia and Canada, aiming to identify key similarities and fundamental differences in the protection afforded to indigenous land rights.
- The historical development of Aboriginal land rights and common law doctrines in both nations.
- The application of the "clear and plain intention" test in Canadian judicial decisions.
- The evolving criteria for the extinguishment of native title within the Australian legal system.
- A comparative evaluation of the legal security and protection standards for indigenous titles in both jurisdictions.
Excerpt from the Book
I. Introduction
“Extinguished is a Latin word. Something is inflamed or on fire, and it is put out. Silenced. It means to blot out of existence. To totally do away with; to annihilate, cut off, bring to an end. To kill. The word is related to extinct. That which has ceased to burn or shine. Vanished. Without progressive succession. Having no living representative. There is a vast emptiness.”
The forementioned statement is a quote from Leslie Hall Pinder, a lawyer who represented the claimants in the famous Canadian aboriginal land rights case of Delgamuukw v British Columbia. It is part of a speech Pinder delivered to the British Columbia Library Association Annual General Meeting in April 1991 after the judgment of first instance was handed down by Chief Justice McEachern.
The quote introduces the reader to extinguishment, especially the extinguishment of aboriginal rights and interests and thus to the topic of this research paper. This essay concentrates on two countries: Australia and Canada, and compares their law in relation to extinguishment of aboriginal rights and interests. First, it examines how these two countries approach the subject. Then, the paper draws a conclusion as to the question of similarities and differences between Australian and Canadian law.
Summary of Chapters
I. Introduction: This chapter introduces the concept of extinguishment and outlines the research objective, which is to compare the legal approaches regarding Aboriginal land rights in Australia and Canada.
II. Extinguishment of Aboriginal Rights under Canadian Law: This section details Canadian case law and legislation, highlighting the "clear and plain intention" test as a mandatory prerequisite for the extinguishment of Aboriginal rights.
III. Extinguishment of Native Title under Australian Law: This chapter explores the Australian dual-pillar approach (common law and statute), analyzing landmark cases such as Mabo, Wik, and Ward to determine the criteria for the extinguishment of native title.
IV. Conclusion: This chapter synthesizes the comparison, concluding that Australia provides less legal protection for indigenous land rights compared to Canada and suggesting potential policy improvements.
Keywords
Aboriginal rights, Native title, Extinguishment, Canada, Australia, Comparative Law, Clear and plain intention, Land claims, Common Law, Constitution Act, Property rights, Indigenous land, Legislation, Judicial interpretation.
Frequently Asked Questions
What is the core focus of this research?
The research focuses on the legal mechanisms and principles surrounding the extinguishment of Aboriginal and indigenous land rights, comparing how the Australian and Canadian legal systems handle these issues.
Which countries are analyzed in the study?
The comparative study exclusively examines the legal frameworks of Australia and Canada.
What is the primary research goal?
The primary goal is to analyze the similarities and differences in how these two nations approach the extinguishment of Aboriginal rights, particularly evaluating which system offers stronger legal protections.
What scientific methods are applied?
The work employs a legal-comparative method, analyzing landmark judicial decisions (case law) and relevant constitutional and statutory legislation in both jurisdictions.
What topics are discussed in the main body?
The body chapters detail specific court cases like Calder, Sparrow, and Delgamuukw in Canada, and Mabo, Wik, and Ward in Australia, while evaluating the development of legal tests such as the "clear and plain intention" approach versus the "inconsistency of incidents" test.
Which keywords characterize this paper?
Central keywords include Aboriginal rights, native title, extinguishment, comparative law, constitutional protection, and property law.
How does the Canadian "clear and plain intention" test differ from the Australian approach?
In Canada, the Sovereign must express a clear and plain intention to extinguish rights. In Australia, the High Court has increasingly moved toward an "inconsistency of incidents" test, where extinguishment can occur automatically if a Crown grant is legally inconsistent with native title, even without explicit intent.
What conclusion does the author reach regarding the protection of indigenous rights?
The author concludes that Australian law provides significantly weaker protection for indigenous interests than Canadian law, as Australian native title can be extinguished more easily and permanently without explicit legislative intention.
- Quote paper
- Dr. Stefanie M. Bausch (Author), 2004, The Extinguishment of Aboriginal Rights and Interests - A Comparative Study of Australian and Canadian Law, Munich, GRIN Verlag, https://www.grin.com/document/29780
