Judicial Review of Indigenous Decision-Makers in Three Administrative Law Jurisdictions

Indigenous decision-makers have long been part of the public law of three common-law jurisdictions: Australia, Canada and New Zealand. Each has needed to confront their colonial legal history, rectify historic wrongs, and try to define a new and better relationship between Indigenous peoples and the state in which they are located. This paper examines how each jurisdiction has confronted this challenge in terms of judicial review in administrative law. It examines the initial conception of the legal status of Indigenous authorities in the nineteenth century, how later cases followed or rejected this initial conception, and how current jurisprudence is struggling to reject harmful propositions from the past or extend helpful bridges to a better future. This paper seeks to learn how related legal systems have treated Indigenous decision-makers; more importantly, it also hopes to ensure that any ‘borrowings’ across these jurisdictions are sensitive to crucial similarities and differences.