Indigenous self-determination claims and the common law in Australia

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. Show more