Recognition of aboriginal rights and title in Commonwealth courts has flowed from a common law concept of the continuity of the law of acquired territories. Recent decisions of the high courts of Australia and Canada, however, have dealt with the effect of discontinuity in the exercise and enjoyment, by aboriginal peoples, of aboriginal rights and title. The High Court of Australia, relying on positivist legal theory, has concluded that such discontinuity is destructive of aboriginal entitlement, which may be washed away by ‘the tide of history.’ This view, however, is unsupported by prior authority and incompatible with the notion of ‘traditional law’ upon which aboriginal entitlement is based.
Document Type: Research Article
Publication date: January 1, 2007
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The Oxford University Commonwealth Law Journal (OUCLJ) is the flagship journal of Oxford University's postgraduate law community, produced under the aegis of the Law Faculty. It is published twice-yearly and endeavours to foster international academic debate and exchange on a wide range of legal topics of interest throughout the Commonwealth.