Justice and Indigenous Land Rights

Abstract

Political theorists have begun to re-examine claims by indigenous peoples to lands which were expropriated in the course of sixteenth-eighteenth century European expansionism. In Australia, these issues have captured public attention as they emerged in two central High Court cases: Mabo (1992) and Wik (1996), which recognize pre-existing common law rights of native title held by indigenous people prior to European contact and, in some cases, continue to be held to the present day. The theoretical significance of the two Australian cases is examined and the links drawn out between the current debate about Aboriginal land rights in Australia and the wider philosophical debate about indigenous land rights, property rights, and indigenous justice as characterized by Jeremy Waldron and James Tully. Justice towards indigenous groups requires substantial acknowledgement and recognition of the values and institutions of the relevant indigenous group; yet, these values and institutions may not readily fall under the framework of existing state structures. Attempts to redress injustice towards indigenous groups which do not question the justice of existing state institutions will therefore prove to be inadequate responses to indigenous peoples' demands for substantive justice.