Year

2010

Degree Name

Doctor of Philosophy

Department

Faculty of Law

Abstract

The recognition of native title in Australia contained in the Mabo (No 2) decision, in the Native Title Act 1993 (Cth) and in the following judicial and legislative creations, has been defined as the recognition of traditional interests in land arising from the traditions of Australian Indigenous peoples and given content by the traditional Indigenous laws and customs in which they find their origin. The native title discourse, therefore, represents - at least in theory - a point of intersection between distinct legal systems that are articulated within different ontologies, epistemologies and world views.

This thesis undertakes a study of the theoretical premises upon which this recognition of native title rests from the perspective of comparative law. In looking closely at the assumptions of this recognition, a critique of the native title discourse can be offered. This critique questions the conceptual process of identification of the boundaries of the legal contained in this supposed intersection of legal systems. Furthermore, it investigates this intersection between distinct legal systems as it is characterised by the unilateral translation of traditional normative protocols into legal propositions capable of being recognised by the Australian common law for the purpose of recognising the traditional interests in land that they articulate. In challenging the inconsistencies of the current epistemological and methodological perspective on native title, the theoretical and practical shortcomings of an incomplete and unilateral articulation of this process of recognition are considered, and the detrimental impact that native title has on traditional legal protocols is revealed. In reflecting on the difficulties in undertaking a comparative legal analysis and the danger of legalism as a form of cultural imposition, this thesis positions itself within the broader field of comparative legal studies rather than purely within the boundaries of native title discourse.

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Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong.