22 Jan Prisons of Culture: Judicial Constructions of Indigenous Rights in Australia Canada and New Zealand

The article examines the manner in which High Courts in Australia, Canada and New Zealand define indigenous rights in relation to the traditional laws, customs, and practices of pre-contact indigenous societies. One of the great disappointments of this interpretive framework has been its deployment as a means of limiting or denying indigenous rights claims when the laws, customs or practices which are the subject of, or which govern the right in question, have been substantially changed, interrupted or disrupted – regardless of the source of the alteration in question. The article argues that this cultural continuity model of recognition is both unreasonable and discriminatory, and not a particularly effective means of structuring a jurisprudence of state-indigenous reconciliation.

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