Constitutional conflicts and aboriginal rights: hunting, fishing and gathering rights in Canada, New Zealand and the United States

Abstract

Judicial resolution of non-aboriginal conflicts was crucial to the vindication of indigenous rights within the new state as the determination of the nature and quality of aboriginal legal interests and entitlements involved fundamental questions of land ownership, secure legal title for settler alienation, as well as governmental priority and competence. If not for these disputes, court decisions and common law doctrine solicitous of indigenous interests based on the idea of indigenous occupancy, use and possession of their territory, and the creation of law based on colonial and imperial policy -- which incorporated notions of indigenous sovereignty and supported pluralist legal relations -- would have been discarded by the courts due to the underlying dynamism and logic of colonialism. Using a recent judicial decision by the highest court in each jurisdiction as a window to discuss the various approaches courts have taken to usufructuary rights, this thesis discusses the major components of the legal doctrine of hunting, fishing and gathering rights in Canada, New Zealand and the United States. It argues that the judicial protection of these aboriginal or treaty rights have been profoundly affected by non-aboriginal disputes over the constitution and the nature of national polity. At the same time the analysis suggests that values ―external to the law are not the sole determinant of judicial outcomes over time. Rather in certain instances the legal doctrine and decisions implicate values inherent to the legal system, such as a conceptual commitment to a logical internal structure, a respect for precedent and previous governmental policy as well as the principle that courts are disinterested dispensers of neutral justice. These internal values comingle with deep-seated commitments held by individual decision-makers and the judiciary more generally, regarding the constitutional structure of the state and the role of the judiciary.