Reconciling dispossession?: The legal and political accommodation of Native title in Canada and Australia

Because increasing numbers of Indigenous people are choosing to work within the legal and political institutions of their colonisers to achieve native title recognition and respect, a critical question is: can (post-)colonial legal and political institutions meaningfully redress the historic and ongoing dispossession of Indigenous Peoples or does the colonial nature of these institutions inherently predispose them to (intentionally or unintentionally) perpetuate dispossession? This study seeks to answer this critical question by analyzing the legal and political accommodation of native title in Canada and Australia using the neo-institutional lens of path dependence as an explanatory analytic framework. In sum, characterizing native title's legal and political accommodation as a selfreinforcing path dependent sequence, this study argues that the different degrees of recognition and accommodation afforded native title by the legal and political institutions of (post-)colonial Canada and Australia can be meaningfully explained with reference to these countries' different (and historically contingent) recognition and accommodation of indigenous rights to land during their earliest years of colonial settlement. This interpretation of events not only provides a meaningful explanation for colonial history's continuing role in the legal and political accommodation of native title in Canada and Australia, it also provides a meaningful explanation for this study's four central findings: (i) the legal and political recognition of native title is relatively more extensive and secure in the Canadian case than it is in the Australian case; (ii) the judicial construction of native title at common law has produced a relatively stronger real property right in the Canadian case than it has in the Australian case; (iii) Canada's comprehensive claims policy has given Indigenous Peoples a relatively stronger ability to assert and defend claims of continuing native title than has Australia's Native Title Act; and, (iv) the ability of Indigenous Peoples to procure formal legal and/or political con3rmation of their unique territorial rights (i.e. continuing native title) is little different today than it was prior to the recognition of native title at common law and the subsequent recognition of native title in central government policy.