This chapter looks at key predicates of the doctrine as it began to be articulated, in particular its emphasis upon the role of the Crown and the core distinction between imperium (sovereignty) and dominium (ownership). It looks at the traditional non-receptivity of courts to tribal land claims and their depiction of these as encompassed by a non-justiciable Crown guardianship. With the political impasse of the post-assimilation era of the 1970s legal scholars turned to the courts, assembling the legal argumentation to reverse their previous pattern. The chapter looks at the pre-history and...

This chapter looks at key predicates of the doctrine as it began to be articulated, in particular its emphasis upon the role of the Crown and the core distinction between imperium (sovereignty) and dominium (ownership). It looks at the traditional non-receptivity of courts to tribal land claims and their depiction of these as encompassed by a non-justiciable Crown guardianship. With the political impasse of the post-assimilation era of the 1970s legal scholars turned to the courts, assembling the legal argumentation to reverse their previous pattern. The chapter looks at the pre-history and chronological sequence of breakthrough cases in Canada, New Zealand, and Australia by which aboriginal title burst onto the legal scene and drove governments towards new and unaccustomed as well as legally compelled policies of accommodation. Courts became poised to elaborate the tribal proprietary rights and as new brokers of the tribes relations with governments.