Indigenous Peoples' Environmental Rights: Evolving Common Law Perspectives in Canada, Australia, and the United States

Abstract

Common law decisions on the environment-related interests of indigenous peoples that have emerged from the high courts of Canada, Australia, and the United States over the past several decades show a spectrum of approaches to fundamental issues. These issues include the questions of whether sovereign nations should acknowledge such environmental interests as legal rights and, if so, how they may do so in a manner that is both fair to indigenous peoples and achievable in the face of competing nonindigenous interests. In tracing the development of common law on indigenous peoples’ environmental rights in the three nations, this Article offers a discussion of key cases that establish the three high courts’ perspectives on matters such as the sovereign obligation of nations toward indigenous persons, the judiciary’s duty to embrace a tribal perspective on land and natural resources, and the difªculties inherent in translating indigenous peoples’ environment-related historical traditions into nonindigenous forms of evidence and other proof requirements.