From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward
AbstractThe case which recognised native title in Australia, Mabo v Queensland [No 2] generated many debates over the extent to which, and on what basis, it had changed property law in Australia. In this article, the author argues that in the case law since Mabo, the High Court has not demonstrated the flexibility or the imagination required to transform the recognition of native title into a doctrine that confronts the intrinsic injustices to Indigenous peoples in Australian property law. If Mabo was founded on a jurisprudence of regret, opening up the possibility of a break from the past, the case law that has followed it, progressively closing off potential means to develop the new jurisprudence, marks a profound failure of the common law, a regrettable jurisprudence. To make out this case, the author argues that High Court decisions since Mabo, most recently Ward v Western Australia, have unduly restricted the potential scope of native title. |