...The implications of overseas law for native title in Australia...
The important cases from jurisdictions such as the United States, Canada and New Zealand, as well as decisions of the British Courts concerning former colonies, were great influences in the High Court judgement in Mabo v Queensland. The High Court is not obliged to follow developments in any of these countries but they do provide a useful resource from which the Court may draw. There were very few Australian cases upon which the Court could rely and, in contrast, superior courts from other jurisdictions had spent many years developing their own conception of Aboriginal title. It was, therefore, useful for the High Court to examine the way these courts had treated similar issues. This process is also reciprocated with the High Court's decision in Mabo being taken into consideration by other courts, for example in the Supreme Court of Canada's decision in Delgamuukw.
However, Justice Kirby warned against over-reliance upon overseas cases in developing arguments before the High Court. In the Fejo case, Justice Kirby stated that:
'...the ways in which each of the former colonies and territories of the Crown addressed the reconciliation between native title and the legal doctrine of tenure sustaining estates in land varied so markedly from one former territory to the other and were so affected by local considerations (legal and otherwise) that it is virtually impossible to derive generally applicable common themes of legal principle. Still less can a common principle be detected which affords guidance for the laws of this country.
This should not mean that the ways in which the law has developed overseas are no longer relevant, or that something cannot be learned from the wisdom of judges from other jurisdictions. However, the High Court has developed its own conception of native title, appropriate and adapted to the historical, legal and constitutional circumstances of Australia. There remain significant similarities in common law traditions and in the process of colonisation that do give rise to similar issues and the High Court is likely to continue to examine the treatment of those issues in other countries.'
However, Justice Kirby warned against over-reliance upon overseas cases in developing arguments before the High Court. In the Fejo case, Justice Kirby stated that:
'...the ways in which each of the former colonies and territories of the Crown addressed the reconciliation between native title and the legal doctrine of tenure sustaining estates in land varied so markedly from one former territory to the other and were so affected by local considerations (legal and otherwise) that it is virtually impossible to derive generally applicable common themes of legal principle. Still less can a common principle be detected which affords guidance for the laws of this country.
This should not mean that the ways in which the law has developed overseas are no longer relevant, or that something cannot be learned from the wisdom of judges from other jurisdictions. However, the High Court has developed its own conception of native title, appropriate and adapted to the historical, legal and constitutional circumstances of Australia. There remain significant similarities in common law traditions and in the process of colonisation that do give rise to similar issues and the High Court is likely to continue to examine the treatment of those issues in other countries.'
Keywords: Australian Court Case, Britain, Canada, Delgamuukw v British Columbia, Fejo v Northern Territory (1998), International Court Case, International law, Kirby, Justice Michael, Mabo v Queensland No.2, New Zealand (Aotearoa), Queensland Government, Supreme Court of Canada, United States of America
Still:Justice Kirby. Courtesy of High Court of Australia.
Author: Strelein, Lisa
Author: Strelein, Lisa