Indigenous polities, self-government, law, citizenship and property rights : inside-out, outside-in : a comparative study of the United States of America, Canada and New Zealand

Abstract

This thesis is a legal comparative study of the effect of law in the process of British imperial expansion and colonisation of the USA, Canada and New Zealand. My interest in comparing these different countries is to demonstrate how the British law of colonisation was developed by each of these colonial states to justify indigenous dispossession. In Part A, of this thesis I consider how, through the imposition of classical international law and municipal law theories and rules, many indigenous polities in the USA, Canada and New Zealand lost their international personality and temporarily had disrupted their pre-existing sovereignty and rights, aspects of which should have continued into the common law through the doctrine of continuity. In Parts B and C, I consider how the USA, and the Crown in Canada and New Zealand centralised control over indigenous affairs and colonisation and how the British scheme of government for their new territories/ diminished the pre-existing status of indigenous polities by restricting indigenous government and law. Following the advent of "responsible colonial government" similar practices to those employed by the British were adopted and continued by these colonial states. Instruments such as charters, letters patents, royal instructions, treaties and other instruments of empire were combined with colonial law to create a legal framework that would further diminish pre-existing indigenous status and rights. This framework was then used by the colonial states of USA, Canada and New Zealand to justify indigenous dispossession of their property during colonisation. But, despite these actions, indigenous polities and their citizens resisted the imposition of colonial rule and assimilation. Through this resistance there is in the common law of all three countries, remnants of the British law of colonisation which always recognised the right of indigenous peoples to exercise their own inherent sovereignty as it informs their right to self-government in relation to matters inter-se. In addition the common law still continues to recognise elements of their pre-existing jurisdiction and law, citizenship and property rights. Finally, these developments lead me to conclude that the process of reversing the effects of colonisation has began. Indigenous polities are moving towards re-establishing and recovering their pre-existing status and rights. They are moving outside-in.