Sunday, March 20, 2011
Sean Brennan (New South Wales) has posted Statutory Interpretation and Indigenous Property Rights (Public Law Review) on SSRN. Here's the abstract:
Four recent decisions concerning a) native title and b) statutory land rights confirm that the approach of the High Court to statutory interpretation has become a focal point in defining the relationship between indigenous peoples and the wider Australian community. These recent decisions and the longer-range judicial development of Australian law on Indigenous property rights raise questions about the consistency with which traditional common law principles of interpretation have been applied. After more than three decades of statutory land rights in the Northern Territory, recent developments suggest a perhaps higher than suspected capacity for Australian law and politics to accommodate strong Aboriginal property rights and decision-making power. This raises questions whether the legal containment of native title by judges and politicians in the aftermath of Mabo (No. 2) was an over-reaction to uncertainty and somewhat of a missed opportunity.