Indigenous self-determination claims and the common law in Australia
Date
1998
Authors
Strelein, Lisa Mary
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Abstract
With the decision in Mabo v Queensland [No. 2] in 1992, the courts cemented their
role in the self-determination strategies of Indigenous peoples in Australia. More
than merely recognising a form of title to traditional lands, the tenor of the
judgements in Mabo's case respected Indigenous peoples and offered the protection
of the common law. However, the expectations of many Indigenous people for
change have not since been met. This thesis examines the usefulness of the courts
and the common law in particular for the self-determination claims of Indigenous
peoples. I examine the theoretical and institutional limitations on the courts that have
resulted in a doctrinal history which has generally excluded Indigenous peoples. I
also analyse the potential for the common law to accommodate self-determination
claims. I argue that the courts require familiar concepts upon which to base their
decisions. I identify the notion of equality of peoples as a proper foundation for the
courts to structure the relationship between Indigenous peoples and the state.
Equality of peoples has roots in the fundamental principles of the common law and
maintains the integrity of Indigenous peoples’ claims.
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self-determination, Indigenous peoples, Australia, Mabo v Queensland, 1992, title, traditional lands, protection, common law, theoretical, institutional, limitations, courts
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