6
in each of the countries of the New World with which we are most familiar, United
States, Canada, Australia and New Zealand, the accommodation of indigenous
peoples within the state has resulted directly from judicial prompting.
This is classic judge-made constitutional development. The concepts of domestic
dependent nations, aboriginal autonomy, aboriginal rights and treaty partnership are
all from the bench over a period of about 170 years. They turn give effect to
principles tracing back to the 15th century.
To my mind, these decisions on the status of indigenous people involved the
quintessential application of the rule of law. The issues concerned the
accommodation of peoples within the state in ways that most protected their liberty
and the necessary constraint upon the state having regard to long established
principles of colonial common law.
The Courts have also managed, in multi-cultural context, the remaining principle that
Mr Dicey raised, that all are equal before the law. As many have made clear, Justice
Mary Gaudron especially, multiculturalism reminds us that equality is relative and
depends upon the recognition of difference.3
The international community has struggled with the recognition of group rights. This
may be due to the long focus on individual rights since that was all that was required
in the homogeneous, Old World. I suggest that today, it may be pretentious not to
recognise that group rights exist. For example, the right in s 20 of the New Zealand
Bill of Rights Act to enjoy ones culture, in community with other members of the
group, is generally seen as an individual right. However, its effective exercise may
depend on the recognition that is given to the group.
However, there are some concerns about group rights that do need to be confronted.
One is that the groups own laws may conflict with certain fundamental standards
accepted by the State. Does the group provide fairly for women or adequately protect
3
See the collection of articles honouring Justice Mary Gaudron in (2004) 15 PLR 261.