Brennan, Sean --- "Statutory Interpretation and Indigenous Property Rights" [2011] UNSWLRS 19

Last Updated: 11 March 2011

Statutory Interpretation and Indigenous Property Rights

Sean Brennan, University of New South Wales

This paper is available for download at http://law.bepress.com/unswwps/flrps11/art19/

Citation

This article was published in the Public Law Review (2010) 21 pp. 239-262.

Abstract

Four recent decisions concerning native title and 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 raises 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.