Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night?

Young, Simon (2009) Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night? Land, Rights, Laws: Issues of Native Title, 4 (2). pp. 1-16. ISSN 1236-0316

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The Canadian decision of Tsilhqot'in Nation v British Columbia (BC Supreme Court, 2007) was a significant step in the resolution of a long-running timber dispute in western Canada, and the most important judicial exploration of Canadian 'Aboriginal title' since the watershed 2002 decision of Delgamuukw. The primary significance of this recent decision for Canada lies in its quite robust conclusions on provincial jurisdictional limitations, and its wrestle with emerging controversies over the exact areas to which the concept of Aboriginal title can attach. For Australian observers, the primary importance of the decision lies, it would seem, in the Court's disinterest in strict 'continuity' inquiries, its clear and pointed confirmation of the comprehensive and contemporary nature of the Aboriginal title interest, and its dissatisfaction with jurisprudential focus on the notion of 'society'. More broadly speaking, the Tsilhqot'in decision prompts renewed reflection on reconciliation processes in both countries, and in many ways reminds us of the self-evidently valuable nature of comparative study. This paper examines the Tsilhqot'in decision against the backdrop of the Canadian legal history, and attempts to explain its significance from both the Canadian and Australian perspectives.

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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: 24 Jul 2014 05:57
Last Modified: 16 Sep 2014 06:13
Uncontrolled Keywords: land rights; land title; first peoples; indigenous inhabitants
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 > 180106 Comparative Law
Socio-Economic Objective: C Society > 95 Cultural Understanding > 9505 Understanding Past Societies > 950503 Understanding Australia's Past

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