Tides of history and jurisprudential gulfs: Native title proof and the Noongar Western Australia claim

Young, Simon (2010) Tides of history and jurisprudential gulfs: Native title proof and the Noongar Western Australia claim. Indigenous Law Journal, 8 (1). pp. 95-120. ISSN 1703-4566

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Recent native title litigation in Australia, over the important Noongar claim to areas in the south west of the country, highlight some persistent difficulties and troubling trends in Australian native title law. The Federal Court trial and appeal decisions (of 2006 and 2008 respectively) provide telling confirmation that the Australian approach to proof of native title entitlement is a mix of foundational ambiguity, theoretical complexity, moral controversy and practical uncertainty. This article traces the development of the relevant principles in Australian law, up to and including the dissonant Noongar decisions, and advances some potential doctrinal clarifications. It also seeks to underline the risk that prolonged litigation in this field can be an expensive and unhelpful distraction from meaningful progress.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: This publication is copyright. It may be reproduced in whole or in part for the purposes of study, research, or review, but is subject to the inclusion of an acknowledgment of the source.
Faculty/School / Institute/Centre: Historic - Faculty of Business - School of Law
Date Deposited: 23 Jul 2014 07:46
Last Modified: 05 Feb 2015 01:33
Uncontrolled Keywords: Australia; indigenous land rights; traditional owners; Federal Court decision; ambiguity
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180124 Property Law (excl. Intellectual Property Law)
18 Law and Legal Studies > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940406 Legal Processes
URI: http://eprints.usq.edu.au/id/eprint/25608

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