Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 10: Comparative Constitutional Law and Indigenous Peoples: Canada, New Zealand and the USA
Claire Charters 1 INTRODUCTION In formerly colonial states, such as Canada, New Zealand and the USA, almost all state law relevant to Indigenous peoples is constitutional in nature in that it is inextricably linked to the state’s historical and ongoing constitutive processes. Assumptions of the legitimacy of colonial assertions of sovereignty are inherent in state attempts to exercise authority over Indigenous peoples. Consequently, the amount of law, and topics, potentially caught within an analysis of comparative constitutional law and Indigenous peoples is huge. In this chapter, I provide an overview of comparative constitutional law as it relates to Indigenous peoples in Canada, New Zealand and the USA, also commenting on relevant comparative legal scholarship. It is limited, for reasons of size, to the most fundamental of constitutional issues, with a focus on: the demographic, historical, political, social and cultural influences on constitutional law relevant to Indigenous peoples; the foundations of state constitutional law relating to Indigenous peoples; the constitutional and legal significance of treaties with Indigenous peoples as parties; land rights; the relationship between human rights and Indigenous peoples’ rights; and projections about the potential significance of evolving international law on Indigenous peoples on constitutional law in Canada, New Zealand and the USA. It finishes with some brief comments on the contemporary direction of constitutional law as it relates to Indigenous peoples in the three jurisdictions. 2 2.1 CONTEXT Demographic, Historical, Political, Social and Cultural Influences on Constitutional Law and Indigenous Peoples Canadian, New Zealand and USA constitutional law relevant...
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