The nature of the law and Indigenous peoples: definition, loss of rights and legal recognition: HSC Legal Studies

What this dot point is asking

Nature of the law and indigenous peoples is the first part of the Indigenous Peoples option of the Legal Studies Stage 6 Syllabus (2009). This page covers three of its four dot points: the definition of "indigenous peoples", the loss of rights of indigenous peoples over time and the legal recognition of indigenous peoples. The syllabus asks you to define Indigenous peoples, outline the loss of rights of Indigenous peoples globally and outline the need for legal recognition. The fourth dot point, the importance of the right to self-determination, has its own page.

The option's principal focus is to investigate "the effectiveness of legal and non-legal processes in achieving justice for indigenous peoples globally". NESA's feedback in 2023, 2024 and 2025 repeatedly asked students to use examples from beyond Australia, such as Canada, New Zealand, Scandinavia, Brazil and Chile. The themes are state sovereignty, compliance and non-compliance, laws as a reflection of changing values and ethical standards, law reform in recognising the rights of Indigenous peoples and the effectiveness of legal and non-legal responses.

A note on terms. The syllabus writes "indigenous peoples"; current usage, including NESA's recent exam papers, capitalises Indigenous Peoples as a mark of respect for distinct peoples. In Australia, "Aboriginal and Torres Strait Islander peoples" or "First Nations peoples" is preferred to a single collective term, and people often identify with their own nation or clan.

The answer

Defining Indigenous peoples

The UN has deliberately not adopted a formal definition, because Indigenous peoples themselves argued that any definition imposed by states could be used to exclude them. Instead, international law identifies Indigenous peoples by a set of criteria.

• The Martínez Cobo study (1986). The UN Special Rapporteur José R. Martínez Cobo proposed a working definition: Indigenous communities, peoples and nations are those which, "having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories". He added that they are non-dominant and determined to preserve, develop and pass on their territories and identity.
• ILO Convention 169 (1989), article 1. Applies to peoples regarded as Indigenous because they descend from the populations that lived in the country at the time of conquest, colonisation or the establishment of present state boundaries, and who retain some or all of their own social, economic, cultural and political institutions. Article 1(2) makes self-identification a fundamental criterion.
• UNDRIP (2007), article 33. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.

Key elements to include in a definition: prior occupation (historical continuity with pre-colonial societies); distinct cultures, languages, laws and institutions; special connection to land and territory; non-dominance within the state; and self-identification. The UN estimates there are more than 476 million Indigenous people in about 90 countries, around 6 per cent of the world's population, including the Sámi of northern Europe, the Māori of Aotearoa New Zealand, First Nations, Inuit and Métis peoples in Canada, Native Americans, the Indigenous peoples of the Amazon and the Andes, and many peoples in Africa and Asia.

In Australia. Aboriginal and Torres Strait Islander peoples are the Indigenous peoples of Australia, comprising hundreds of distinct nations with their own languages and laws. Governments use a three-part working definition, drawn from Deane J in Commonwealth v Tasmania (1983): a person of Aboriginal or Torres Strait Islander descent, who identifies as an Aboriginal or Torres Strait Islander person, and is accepted as such by the community in which they live. The 2021 Census counted 812,728 Aboriginal and Torres Strait Islander people, 3.2 per cent of the population.

The loss of rights of Indigenous peoples over time

The syllabus asks for the loss of rights globally. The pattern repeats across colonised countries, although the details differ.

1. Denial of sovereignty and ownership

European powers justified colonisation with the doctrine of discovery, drawn from 15th century papal bulls, which held that Christian states acquired rights over lands they "discovered". The doctrine was absorbed into law, for example by the United States Supreme Court in Johnson v M'Intosh (1823). On 30 March 2023 the Vatican formally repudiated it. In Australia, the British treated the continent as terra nullius ("land belonging to no one"), so British law applied from 1788 and Aboriginal and Torres Strait Islander ownership was not recognised until Mabo v Queensland (No 2) (1992).

2. Dispossession of land

Loss of land meant loss of economy, law, spiritual connection and the basis of culture. In Aotearoa New Zealand, land was confiscated after the New Zealand Wars and transferred through the Native Land Court despite the Treaty of Waitangi (1840); in the Americas, reservations and allotment reduced Indigenous territories; in Australia, pastoral leases and settlement pushed people off their country, often through frontier violence.

3. Protection and control

Governments passed laws to "protect" Indigenous peoples that in practice controlled them. In NSW, the Aborigines Protection Act 1909 (NSW) gave a board power over where Aboriginal people lived, and later over their children; similar Acts in other states controlled marriage, movement, employment and wages, and many people's wages were withheld ("stolen wages").

4. Assimilation and removal of children

The most damaging laws sought to end Indigenous cultures by removing children:

• Australia. The Bringing Them Home report (1997) found that between one in three and one in ten Aboriginal and Torres Strait Islander children were forcibly removed from their families between about 1910 and 1970 (the Stolen Generations). Prime Minister Kevin Rudd delivered the National Apology on 13 February 2008.
• Canada. About 150,000 First Nations, Inuit and Métis children attended residential schools, where they were punished for speaking their languages. The Truth and Reconciliation Commission (final report 2015) called the system cultural genocide and made 94 Calls to Action.
• United States. Federal Indian boarding schools pursued the same goals; President Biden formally apologised in October 2024.
• Scandinavia. Norway's "Norwegianisation" policies suppressed Sámi language and culture in schools.

5. Denial of political and civil rights. Indigenous peoples were often denied the vote, full citizenship and equality before the law. In Australia, the Constitution originally excluded Aboriginal people from the Commonwealth's race power (s 51(xxvi)) and from population counts (s 127); Aboriginal people could not vote in federal elections in all states until 1962.

The legacy. The loss of rights has continuing effects. In Australia, the Productivity Commission's Closing the Gap Annual Data Compilation Report (July 2026) found that of 19 targets, 1 had been met, 3 were on track, 5 were improving but not on track and 4 were worsening, including adult imprisonment and children in out-of-home care.

The need for legal recognition

Legal recognition means the law formally acknowledging Indigenous peoples as distinct peoples with their own rights, rather than only as individual citizens. It is needed because:

1. The law caused the loss of rights, so the law must be part of the remedy. Terra nullius and assimilation were legal doctrines and statutes.
2. Rights need a legal basis to be enforced. Recognition of land rights (native title) or cultural rights gives Indigenous peoples something they can enforce in court.
3. Self-determination depends on it. Recognised institutions (Sámi Parliaments, treaties, representative bodies) give Indigenous peoples a say in decisions that affect them.
4. Equality requires difference to be recognised. Formal equality has not produced equal outcomes; special measures are consistent with the Racial Discrimination Act 1975 (Cth) and the Convention on the Elimination of Racial Discrimination.
5. Truth and reconciliation. Recognising the past supports healing and a shared national identity.

Forms of legal recognition around the world

Australia's constitutional recognition. The 1967 referendum, carried with 90.77 per cent Yes and in every state, removed the exclusions in s 51(xxvi) and s 127 but did not recognise Aboriginal and Torres Strait Islander peoples in the Constitution. After the Uluru Statement from the Heart (2017) called for a constitutionally enshrined Voice, the referendum on 14 October 2023 was defeated: 60.06 per cent No, with No majorities in all six states. Recognition has since advanced at state level: Victoria's Statewide Treaty Act 2025 and treaty signed on 13 November 2025, and South Australia's First Nations Voice Act 2023. It has also gone backwards: Queensland repealed its Path to Treaty Act in November 2024.

Recognition contested elsewhere. In Aotearoa New Zealand, the Treaty Principles Bill, which sought to redefine the principles of the Treaty of Waitangi, prompted a hīkoi (march) of tens of thousands of people to Parliament in November 2024 and was defeated at its second reading on 10 April 2025.

Changing values and ethical standards

Laws about Indigenous peoples have moved through three broad stages that reflect changing values: protection and segregation (late 19th and early 20th centuries), assimilation (to the 1960s), and self-determination and recognition (from the 1970s). International values changed too: ILO Convention 107 (1957) was assimilationist; ILO Convention 169 (1989) and UNDRIP (2007) reject assimilation. Community values remain divided, as the Voice referendum, the NZ Treaty Principles Bill and the repeal of Queensland's treaty law show, which is why legal recognition can be won and then lost.

Evaluating legal recognition

Judgement. Legal recognition is necessary but not sufficient. Where it is enforceable and backed by resources and Indigenous control, it restores rights and improves outcomes, as land rights in Canada, Norway and Australia show. Where it is symbolic, non-binding or dependent on the government of the day, it has limited effect and can be reversed. The challenge in 2026 is turning recognition into self-determination, the subject of the next page.

In one sentence

Indigenous peoples, defined internationally by prior occupation, distinctness, non-dominance and self-identification, lost their lands, self-government, cultures and political rights through the doctrine of discovery, terra nullius and assimilation laws, and although constitutional, treaty, legislative, judicial and international recognition has restored some rights, it works only where it is enforceable and survives shifts in community values.

Try this

Q1. Identify THREE elements of the definition of Indigenous peoples. (3 marks)

• What the marker wants. For example, historical continuity with pre-colonial societies, distinctness and non-dominance, and self-identification.

Q2. Outline the loss of rights of Indigenous peoples globally. (6 marks)

• What the marker wants. Sovereignty, land, culture and political rights, with examples from at least two countries.

Q3. Explain the need for legal recognition of Indigenous peoples. (6 marks)

• What the marker wants. Why the law must recognise Indigenous peoples, with examples of recognition (Canada s 35, treaties, Mabo) and a limitation (the 2023 referendum).