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  • International and Comparative Law Quarterly, Volume 61, Issue 4
  • October 2012, pp. 823-853

DISENTANGLING THE SOURCES AND NATURE OF INDIGENOUS RIGHTS: A CRITICAL EXAMINATION OF COMMON LAW JURISPRUDENCE

  • Arif Bulkan (a1)
  • DOI: http://dx.doi.org/10.1017/S0020589312000474
  • Published online: 26 October 2012
Abstract
Abstract

The ‘indigenous renaissance’ of the last few decades continues to generate copious litigation around the Commonwealth. While courts frequently invoke common principles, it would be going too far to say that a unified jurisprudence exists. Moreover, modern jurisprudence in this area is arguably inconsistent and frequently discriminatory, which means that borrowing across jurisdictions should proceed cautiously, mindful of localized nuances and limitations. This article argues that any suggestion that the common law as it has evolved in any particular jurisdiction should be emulated as a model indigenous rights theory must be rigorously scrutinized, for indiscriminate application of doctrines could lead to discordant outcomes.

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M Stuckey, ‘Not by Discovery But by Conquest: The Use of History and the Meaning of “Justice” in Australian Native Title Cases’ (2005) 34 CLWR 24

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International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
  • URL: /core/journals/international-and-comparative-law-quarterly
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