Chapter

Doctrinal Pathways in Canada and Australia—The Devil in the Detail of a Maturing Jurisprudence

Dr. P. G. McHugh

in Aboriginal Title

Published in print August 2011 | ISBN: 9780199699414
Published online January 2012 | e-ISBN: 9780191732133 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199699414.003.0003
Doctrinal Pathways in Canada and Australia—The Devil in the Detail of a Maturing Jurisprudence

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Canada and Australia were the two busiest jurisdictions where courts embarked upon construction of the proprietary parameters of aboriginal title and built major national jurisprudences. Canada took a ‘transformation’ approach whilst the Australian courts took an ‘acknowledgement’ one. Inside the proprietary paradigm and shaped juridically by the adjudicative and adversarial mode of rights-design, the cut of these parallel jurisprudences became constrictive such that the adjective ‘aboriginal’ captured a limitation rather than an enablement of the right. This chapter looks at pathways of the key Canadian and Australian case-law through the assembling steps of recognition, proof, content, and extinguishment. It suggests that national jurisdictions are exploring new ways out of the corner into which that case-law has painted itself.

Keywords: recognition; proof; content; extinguishment; aboriginal title; native title; aboriginal rights; duty to consult

Chapter.  46885 words. 

Subjects: Public International Law

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