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Aboriginal TitleThe Modern Jurisprudence of Tribal Land Rights$
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P.G. McHugh

Print publication date: 2011

Print ISBN-13: 9780199699414

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199699414.001.0001

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

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

Chapter:
(p.106) 3 Doctrinal Pathways in Canada and Australia—The Devil in the Detail of a Maturing Jurisprudence
Source:
Aboriginal Title
Author(s):

Dr. P. G. McHugh

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199699414.003.0003

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

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