...a 'recognition concept'...
Noel Pearson described native title as 'a recognition concept', where two legal systems come together each recognising the existence and legitimacy of the other. Native title is therefore a concept that straddles both systems and is not wholly borne of one or the other:
'Fundamentally I proceed from the notion that native title is a 'recognition concept'. The High Court tells us in Mabo that native title is not a common law title but is instead a title recognised by the common law. What they failed to tell us, and something which we have failed to appreciate, is that neither is native title an Aboriginal law title. Because patently Aboriginal law will recognise title where the common law will not. Native title is therefore the space between the two systems, where there is recognition.'
'Fundamentally I proceed from the notion that native title is a 'recognition concept'. The High Court tells us in Mabo that native title is not a common law title but is instead a title recognised by the common law. What they failed to tell us, and something which we have failed to appreciate, is that neither is native title an Aboriginal law title. Because patently Aboriginal law will recognise title where the common law will not. Native title is therefore the space between the two systems, where there is recognition.'
Keywords: legal pluralism, native title, Pearson, Noel, recognition, 1992
Author: Strelein, Lisa
Source: Pearson, Noel
Source: Pearson, Noel