The Recognition and Justifiable Infringement of Indigenous Rights in Canada and New Zealand

Abstract

Canada and New Zealand are both nations with substantial indigenous populations, with the Māori in New Zealand constituting around 15 per cent and the Indian, Inuit and Métis peoples in Canada constituting around 4.5 per cent of the total population. Other parallels include a colonization effort that was largely led by England and subsequently Great Britain (for Canada certainly after the defeat of France in the Seven Years War in 1763) which brought with it a legal system that has its foundations primarily in English law. Despite these parallels, it should be noted that the colonization of New Zealand commenced substantially later than the one of Canada and occurred at a time when Great Britain already had a long history of engaging with the indigenous communities of territories it intended to colonize. Finally, while early relations with aboriginal communities in Canada were governed by both general proclamations and a variety of treaties with individual tribes, New Zealand has, in the Treaty of Waitangi (Treaty), a single overarching treaty between the British Crown on the one side and the Māori on the other side.

This paper will look at two elements of the rights of indigenous community. First, it will analyse how the rights of indigenous communities can be recognised. In Canada, this will entail an analysis of the relevant case law that sets out the test needing to be passed for rights to be recognised. For New Zealand, it will look at the various avenues how the Treaty can affect the domestic law of New Zealand. The paper will not look at the obligations of New Zealand and Canada under international frameworks, in particular the United Nations Declaration on the Rights of Indigenous Peoples, and to what extent such frameworks would require them to recognize rights. It will also focus on rights under the Treaty and s 35 of the Canadian constitution, with rights of indigenous communities arising out of common law aboriginal title and customary rights only touched upon sparingly.

Second, it will analyse how such rights can be justifiably infringed. For Canada, this will entail a review of the relevant conditions for such infringement set out by the Supreme Court. For New Zealand, it will analyse the concept of the principles of the Treaty of Waitangi that is incorporated in various statutes and to what extent such principles may affect the Crown when it wishes to make use of assets that are subject to claims by Māori under the Treaty, illustrated by way of New Zealand Māori Council v Attorney-General (Mighty River Power).

Subsequently, it will aim to set out certain lessons that each jurisdiction can learn from the different approach that the other jurisdiction has taken, with the ultimate purpose being to protect the rights of indigenous communities in an effective manner while preserving the government’s ability to infringe on such rights if it can prove that it has a legitimate purpose to do so.