Courts, IGOs, NGOs and the media in achieving justice for Indigenous peoples: HSC Legal Studies

What this dot point is asking

This page covers the rest of the responses to indigenous peoples: the roles of courts, intergovernmental organisations (IGOs), non-government organisations (NGOs) and the media. It also covers the syllabus outcome to evaluate the effectiveness of legal and non-legal measures in achieving justice for indigenous peoples. The first responses (sovereignty, the UN and international instruments) are on the sovereignty and international responses page.

In 2023, NESA asked students to "assess the roles of the United Nations and courts in achieving justice for Indigenous Peoples". Its feedback praised responses using court decisions and documents such as UNDRIP and ILO Convention 169 from Canada, Brazil, New Zealand, Chile and Scandinavia, and asked students to judge the institutions rather than narrate cases. This page therefore gives you a bank of accurate cases from several regions.

The answer

Courts

Courts can recognise rights that legislatures have ignored, interpret legislation in favour of Indigenous peoples, award compensation and hold governments to their own laws. Their decisions bind the parties, which makes them the most powerful legal response. Their limits are cost, delay, proof requirements and dependence on state compliance.

Australia.

• Milirrpum v Nabalco (1971): the Yolŋu of Gove challenged bauxite mining; Blackburn J found they had a system of laws but held that Australian law did not recognise communal native title. The loss led to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
• Mabo v Queensland (No 2) (1992) (decided 3 June 1992): the High Court (6 to 1) rejected terra nullius and recognised native title for the Meriam people of Mer (Murray Island), leading to the Native Title Act 1993 (Cth).
• Wik Peoples v Queensland (1996): native title can coexist with pastoral leases, with the lease prevailing in a conflict; Parliament responded with the restrictive Native Title Amendment Act 1998.
• Members of the Yorta Yorta Aboriginal Community v Victoria (2002): native title failed because the claimants could not prove continuous observance of traditional laws and customs since colonisation, showing how dispossession defeats claims.
• Northern Territory v Griffiths (2019) (Timber Creek): the first High Court assessment of native title compensation, about $2.5 million, including about $1.3 million for cultural and spiritual loss.
• Love v Commonwealth; Thoms v Commonwealth (2020): by 4 to 3, Aboriginal Australians who satisfy the three-part test are not "aliens" under s 51(xix) and cannot be deported.
• Commonwealth v Yunupingu [2025] HCA 6 (12 March 2025): native title is property, and its extinguishment by the Commonwealth in the Northern Territory (on the Gove Peninsula, in connection with the same bauxite mining as Milirrpum) attracted the constitutional guarantee of just terms compensation, opening the way to compensation for acts before 1975.

Canada. Section 35 of the Constitution Act 1982 gives Canadian courts a constitutional basis to protect Aboriginal rights.

• Calder v British Columbia (1973) recognised that Aboriginal title existed before colonisation, prompting Canada's land claims policy.
• Delgamuukw v British Columbia (1997) defined Aboriginal title and accepted oral histories as evidence.
• Haida Nation v British Columbia (2004) established the Crown's duty to consult and accommodate before decisions affecting asserted rights.
• Tsilhqot'in Nation v British Columbia (2014) made the first declaration of Aboriginal title over a specific area (about 1,750 square kilometres).
• Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (2024 SCC 5) upheld federal legislation recognising Indigenous jurisdiction over child and family services.
• Cowichan Tribes v Canada (2025 BCSC 1490) (7 August 2025): the BC Supreme Court recognised Aboriginal title over land in Richmond, including land held in fee simple, the first time a court had done so; the province announced an appeal.

Aotearoa New Zealand

In New Zealand Maori Council v Attorney-General (1987) (the Lands case) the Court of Appeal held that the Treaty of Waitangi created a relationship "akin to a partnership". In Ellis v R [2022] NZSC 114 the Supreme Court recognised that tikanga Māori is part of New Zealand's common law.

United States

In McGirt v Oklahoma (2020) the Supreme Court held that the Muscogee (Creek) reservation had never been disestablished, so much of eastern Oklahoma remains "Indian country" for federal criminal law. In Haaland v Brackeen (2023) it upheld the Indian Child Welfare Act 1978, which gives preference to placing Native American children with their families and tribes.

Norway

On 11 October 2021 the Supreme Court of Norway held that the licences for two large wind farms on the Fosen peninsula violated Sámi reindeer herders' right to enjoy their culture under ICCPR art 27. The turbines kept operating for more than two years, prompting protests led by young Sámi in 2023, until settlements were reached with the herders (the last in March 2024) that left the turbines running with compensation and new winter grazing land. It shows both the power of a court to declare a violation and the limits of enforcement.

Brazil

The Supreme Federal Court rejected the "marco temporal" (time frame) thesis in September 2023, which would have limited Indigenous land claims to land occupied on 5 October 1988. Congress then passed Law 14.701/2023 to impose it; in December 2025 the Court declared its key provisions unconstitutional.

Regional human rights courts

Judgments of these courts bind states that have accepted their jurisdiction.

• Mayagna (Sumo) Awas Tingni Community v Nicaragua (Inter-American Court, 2001): the right to property protects Indigenous communal land; Nicaragua had to demarcate and title it.
• Saramaka People v Suriname (2007): logging and mining concessions required effective participation, benefit-sharing and prior impact assessment.
• Kichwa Indigenous People of Sarayaku v Ecuador (2012): Ecuador breached the right to prior consultation by allowing oil exploration on Sarayaku land.
• Endorois v Kenya (African Commission on Human and Peoples' Rights, 2010): eviction from land around Lake Bogoria violated the Endorois' rights.
• African Commission v Kenya (Ogiek) (African Court on Human and Peoples' Rights, 2017; reparations 2022): evictions from the Mau Forest violated the Ogiek's rights to land, culture and religion.
• Maya Leaders Alliance v Attorney General of Belize (Caribbean Court of Justice, 2015): recognised Maya customary land tenure.

Intergovernmental organisations

IGOs are bodies whose members are states. Beyond the UN mechanisms, several matter for Indigenous peoples:

• The International Labour Organization created the only binding treaties specifically on Indigenous peoples (Conventions 107 and 169) and supervises compliance.
• The World Bank requires projects it finances to meet Environmental and Social Standard 7 (Indigenous Peoples), including free, prior and informed consent in certain circumstances, so its lending can protect communities affected by dams, mines and roads.
• The Arctic Council (1996) gives Indigenous organisations, such as the Saami Council and the Inuit Circumpolar Council, Permanent Participant status with full consultation rights alongside the eight Arctic states.
• The Organization of American States adopted the American Declaration on the Rights of Indigenous Peoples (2016); its Inter-American Commission refers cases to the Inter-American Court.
• WIPO negotiates protection for traditional knowledge and cultural expressions and adopted a treaty on genetic resources and associated traditional knowledge in 2024 (see intellectual property).

IGOs are effective at standard-setting and participation but depend on states and, in the World Bank's case, apply only where it lends.

Non-government organisations

• International. Amnesty International and Human Rights Watch investigate and report; Survival International and Cultural Survival campaign for tribal and Indigenous peoples' land and rights; the International Work Group for Indigenous Affairs publishes The Indigenous World yearbook.
• Indigenous organisations. Many of the most effective NGOs are Indigenous-led: the Coalition of Aboriginal and Torres Strait Islander Community Controlled Peak Organisations (a party to the National Agreement on Closing the Gap), the National Aboriginal and Torres Strait Islander Legal Services (NATSILS) and the Aboriginal Legal Service NSW/ACT, the First Nations Heritage Protection Alliance, and in Aotearoa the organisers of the 2024 hīkoi against the Treaty Principles Bill.
• Non-Indigenous allies. ANTAR and Reconciliation Australia promote reconciliation, treaty and truth-telling.

NGOs provide advocacy, legal representation, research and public education, and they carry Indigenous voices to the UN. They cannot make or enforce law and depend on donations and grants.

The media

The media shapes public values, which drive law reform:

• ABC Four Corners, "Australia's Shame" (July 2016) showed the treatment of children at Don Dale Youth Detention Centre; the Royal Commission into the Protection and Detention of Children in the Northern Territory was announced the next day.
• Juukan Gorge (May 2020). Coverage of Rio Tinto's lawful destruction of 46,000-year-old rock shelters forced the resignation of its chief executive and a parliamentary inquiry.
• Kamloops (May 2021). The Tk'emlúps te Secwépemc First Nation's announcement that ground-penetrating radar had identified potential unmarked graves at a former residential school drew worldwide attention and pressure on Canada.
• Indigenous media. NITV (National Indigenous Television), the Koori Mail and the National Indigenous Times give Indigenous people control of their own stories.

Limits. Coverage can be sensational and short-lived, and misinformation spread widely on social media during the 2023 Voice referendum campaign.

Evaluating legal and non-legal measures

Judgement. Legal measures, especially court decisions, have been the most effective at achieving concrete justice for Indigenous peoples because they bind governments: Mabo, Tsilhqot'in and the regional court decisions changed the law of land ownership across several countries. But courts can only decide the cases before them, often decades after the harm, and states can limit or delay compliance, as Fosen shows. Non-legal measures have been essential in changing values and creating pressure for legal change, and Indigenous-led organisations increasingly shape policy directly. Together they have achieved significant but incomplete justice: the continuing gaps in Closing the Gap outcomes show how far there is to go.

In one sentence

Courts in Australia, Canada, Aotearoa, the United States, Norway, Brazil and regional human rights systems have delivered the most concrete justice for Indigenous peoples because their judgments bind states, while IGOs, NGOs and the media set standards, amplify Indigenous voices and change the values that make legal reform possible, but all depend on states to comply and none has yet closed the gap in outcomes.

Try this

Q1. Outline the significance of ONE court decision for Indigenous peoples outside Australia. (4 marks)

• What the marker wants. For example Tsilhqot'in (2014): facts, decision (first declaration of Aboriginal title) and effect.

Q2. Explain the role of NGOs in achieving justice for Indigenous peoples. (5 marks)

• What the marker wants. Advocacy, representation and UN engagement, with specific Indigenous-led and international NGOs.

Q3. Assess the roles of courts and the media in achieving justice for Indigenous peoples. (10 marks)

• What the marker wants. Cases from several jurisdictions, media examples that triggered legal change, the limits of each, and a judgement.