Indigenous Peoples and the law (and a useful new LibGuide!)

By | 8 May 2013

LibGuide screenshot_002

By Francesca Marsden

I thought that I would take the opportunity, having done a lot of research for my soon-to-be-published LibGuide on the topic, to share a few interesting pieces of international legislation and highlight a significant case concerning indigenous peoples that I discovered along the way. Also, it may be a (not so subtle) attempt draw attention to the new guide! The LibGuide focuses on physical and electronic resources for indigenous peoples in a public international law dimension, as well as having pages devoted to resources on indigenous peoples in the jurisdictions of Australia, Africa, Canada, Europe, Latin America, the Middle East, New Zealand and the USA.  These include physical resources held in the Law Library, and online res0urces, which are either free or available through library subscription using an Oxford Single Sign On username and password. Through working on the guide, I came to understand how the legislation affecting, and the social and political position of, indigenous peoples varies considerably between jurisdictions. Take a look, and see if you find anything useful! Note the OED definition of indigenous: ‘ born…naturally in a land or region; native or belonging naturally to’ .

The struggle of indigenous peoples throughout history and today, to lay claim to their human rights as the natural peoples of lands across the world has become an important concern in international human rights law in recent years. The implementation of the United Nations Declaration on the Rights of Indigenous Peoples has highlighted their push for rights and representation in areas including land, language, culture, education, health and housing. United Nations also has several bodies which advise on, support, and monitor indigenous rights. The United Nations Permanent Forum on Indigenous Issues informs the UN Economic and Social Council on matters relating to indigenous peoples. The Expert Mechanism on the Rights of Indigenous Peoples advises the UN Human Rights Council on indigenous issues, and the Special Rapporteur on the Rights of Indigenous Peoples promotes and reports on issues of concern. Additionally, there is a be a UN World Conference on Indigenous Peoples in 2014. The LibGuide has links to numerous titles held in the law library and electronic resources, discussing United Nations in relation to indigenous issues.

Photograph by David Jackmanson. Depicts the Australian, Queensland, Aboriginal and Torres Strait Islander flags at the Queensland parliament.

Photograph by David Jackmanson. Depicts the Australian, Queensland, Aboriginal and Torres Strait Islander flags at the Queensland parliament.

A famous, historic High Court case involving Australian Aboriginal land rights is Mabo v. Queensland [No.2], which is available electronically on Westlaw AU (access through OxLIP+) and in hardcopy in the Commonwealth Law Reports, (1992) 175 CLR 1. The case involved five Torres Strait Islander Aboriginals of the Murray Islands, headed by Eddie Mabo, arguing for their rights to the land on which they lived, given their traditional ownership and connection to it. (They have been self-sufficient, with their own laws for centuries.) In 1879, the land was assigned to the Queensland government under terra nullius, further confirmed by the Queensland Coast Islands Declaration Act 1985. However, Mabo v Queensland No 1 in 1988 found this act to be in breach of the Racial Discrimination Act 1975. The case was brought to court again in 1992, and it ruled that, given their connection to the land and their traditional ownership, the land was not terra nullius, and native title (Aboriginal right to traditional land because of historical connection)  should be and could be recognised under common law.  It had a profound impact on legislation in relation to land in Australia, resulting in the Native Title Act 1993.  The Act recognises and protects native title. Notably, Aboriginals and Torres Strait Islander Aboriginals are still not recognised in the Australian Constitution, although this looks set to be rectified in the near future, as the Australian House of Representatives has recently passed an indigenous recognition bill.

This just one example (and a brief overview at that) of numerous high-profile (and not so high profile) cases of indigenous peoples fighting discriminatory laws. The challenge for indigenous peoples across the world is an ongoing one, and much material can be found in the Law Library documenting this. Remember, you can always contact the library at for any research help (and take a look at the Lib Guide – look out for a tweet announcing its publication!)

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