The paper considers the place of Indigenous laws and customs in the recognition of rights to traditional land. The study is undertaken in a comparative context considering Australian law in comparison with that of the United States and Canada. The study examines the degree to which the source of rights to traditional land in Indigenous laws and customs is considered to justify the denial of principles of equality and full respect. The degree to which the regard for and requirements with respect to Indigenous laws and customs are warranted and justifiable is considered. The paper concludes that there is an unprincipled preoccupation in Australian law, both in the common law and under the Native Title Act, with Indigenous laws and customs which results in the denial of equality, particularly in the context of extinguishment, undue demands with respect to proof, and the restriction of the content of native title. Australian law reveals a museum mentality and affords a considerable contrast to that of the North American jurisprudence.
|Journal||Australian Property Law Journal|
|Publication status||Published - 2003|