Case note: Jones v Public Trustee of Queensland  QCA 269 (6 August 2004) Recognition of Aboriginal customary law and the Mabo principle
Secher, Ulla (2004) Case note: Jones v Public Trustee of Queensland  QCA 269 (6 August 2004) Recognition of Aboriginal customary law and the Mabo principle. James Cook University Law Review, 11. pp. 215-220.
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Since the High Court’s decision in Mabo v Queensland (No 2), some commentators have argued that, at common law, recognition of Aboriginal land rights entails recognition of other aspects of Aboriginal customary law. Indeed, although there have been a number of post-Mabo decisions refusing to extend recognition of Aboriginal law, on the basis of the Mabo principle, beyond rights and interests in land, there is also judicial support for such an extension: the decision of Mr Gillies SM in Colin James Goodsell v James Galarrwuy Yunupingu falling within the latter category.
Aboriginal customary entitlements beyond those relating to land — for example, customs and practices relating to marriage, custody of children and crime and punishment — are undoubtedly as important as land rights from the perspective of the preservation of Aboriginal cultural identity. Nevertheless, the recent Queensland Court of Appeal’s decision in Jones v Public Trustee of Queensland shows that the independent recognition of Aboriginal customary rights to land in Mabo is in no sense arbitrary: the Court observing that the appellant’s non-land Aboriginal customary law submission ‘appears to be based on a misconception of what was decided by the High Court in [Mabo].’
|Item Type:||Article (Refereed Research - C1)|
Reproduced with permission from James Cook Univeristy Law Review.
|Date Deposited:||01 Sep 2009 22:41|
|FoR Codes:||18 LAW AND LEGAL STUDIES > 1801 Law @ 100%|
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