Debate

Debate

Introduction

In the last two or three decades, the rights, claims and expectations (requirements) of indigenous people once again began to attract widespread attention. The following is a brief overview of a typical judicial practice in cases of proprietary rights of indigenous peoples in Canada, the United States, and Australia, and briefly discusses the relationship between the situation in the national judicial systems in these countries, and changes in international bodies. Of course, things are changing in other countries, but the volume does not permit to dwell on them. In general, paper is not theoretical, and descriptive.

To protect your rights and interests within the national legal systems of indigenous peoples are still often forced to resort to legal doctrines times of colonialism. Doctrines are often seen as an indigenous people known to be second-rate and justify colonialism, which makes them unacceptable to many indigenous groups.

The Debate of Indigenous Peoples

United States of America

In the U.S. the right of indigenous peoples to continue to own and use the occupied territories was legally enshrined in the 1820-1830's on the decisions of Chief Justice John Marshall (John Marshall). However, these solutions have been interpreted in a way that preserved for Congress unlimited powers to stop such "rights" of Indian tribes. In the 1955 Supreme Court decision in the case Tee-Hit-Ton Indians v. United States reaffirmed that the Fifth Amendment to the U.S. Constitution gives no right to claim compensation for the termination of such rights, the decision met with fierce criticism and is probably largely due to the fact that U.S. courts generally avoid raising some fundamental questions of policy towards the Indians, leaving them at the discretion of Congress and an executive.

Canada

Partially based on the precedent decision Justice Marshall in the United States, as well as the Royal Declaration on the Rights of the land from the Indians in 1763, Canadian courts have played a leading role in the institutional development of modern jurisprudence on the rights of indigenous peoples, including indigenous peoples' claim to the title.

The federal government was serious about the legal title of indigenous peoples after the Supreme Court of Canada in the case of Calder v. AG of British Columbia ([the leader] Kelder against the Attorney General of British Columbia), when six of the seven judges agreed with the principle on which the title is not discontinued the indigenous people recognized part of the normal [indigenous] rights, although on the facts of the particular case, only three of the They supported the claims of the tribe nishga. The influence of this principle was particularly evident in British Columbia, where the state, on the one hand, it did not support the conclusion of treaties with indigenous peoples, on the other - not actively sought a "termination" of title of indigenous peoples.

Native title is not equivalent to freehold: it is the right sui generis and, not least because this right is inalienable and the community, except in the state. The judge also decided Leymer important issue, ruling that the tribes ...