This book is the most fundamental analysis of native title in the common law world since McNeil’s Common Law Aboriginal Title in 1989. Through a broad and detailed examination of the jurisprudence across Australia, USA, New Zealand and Canada, it argues that the Australian preoccupation with ‘tradition’ is a deeply flawed approach. Dr Young points to many technical problems and a raft of unfortunate consequences for Indigenous people. He contends for a fundamental rethink.

“Dr. Young’s book fills a huge gap in the legal understanding of Indigenous land rights… While his focus is on Australia, the book’s comparative approach extends its relevance to all common law jurisdictions that are inhabited by Indigenous peoples. Everyone who is concerned with Indigenous rights – Indigenous leaders, judges, lawyers, land-claims negotiators, policy makers – will benefit enormously from reading it.” - Professor Kent McNeil

“Dr Young has undertaken a comprehensive analysis of the ‘traditional laws and customs’ focus that dominates the recognition of native title in Australian law – but the importance of his work extends far beyond the legal sphere. In showing how the ‘tradition’ approach is not supported by the weight of legal principle and is out of step with overseas precedent, he opens the way for a reconsideration of how Indigenous rights to land are, and should be, recognised.” - Ambelin Kwaymullina

CONTENTS

Introduction
Indigenous Change: A Legal Challenge
Overview of this Book
The Nature of the Analysis
Terminology
The Importance of the Issues

Part 1 – The Comparative Context
Native Title in Australia
A Snapshot of the Key Comparative Jurisdictions
A Defence of Comparative Analysis

Part 2 – The Conceptualisation of Native Title in the Key
Comparative Jurisdictions
The United States
Canada
New Zealand
The Basic Tenets of the Comparative Doctrines

Part 3 – Mabo Re-visited
Pre-Mabo Precedent
Laws, Customs and ‘Tradition’ in the Original Mabo Decision

Part 4 – Post-Mabo: The Australian Anomaly
Statutory Intervention
Continuing Encouragement for the ‘Laws and Customs’ Focus
The Excesses in the Australian Case Law

Part 5 – A Reinterpretation of the Australian Native Title
Doctrine
A Final Critique of the Stricter Australian Approach
Glimpses of a less ‘Tradition’-focused Methodology
Three-point Plan: A Way Forward for Native Title in Australia
Concluding Comments