QUT ePrints

Challenging the assumptions of positivism : an analysis of the concept of society in Sampi on behalf of the Bardi and Jawi people v Western Australia [2010] and Bodney v Bennell [2008]

Burns, Marcelle J. (2011) Challenging the assumptions of positivism : an analysis of the concept of society in Sampi on behalf of the Bardi and Jawi people v Western Australia [2010] and Bodney v Bennell [2008]. Land, Rights, Laws : Issues of Native Title, 4(7), pp. 1-16.

View at publisher

Abstract

The requirement to prove a society united by a body of law and customs to establish native title rights has been identified as a major hurdle to achieving native title recognition. The recent appeal decision of the Federal Court in Sampi on behalf of the Bardi and Jawi People v Western Australia [2010] opens the potential for a new judicial interpretation of society based on the internal view of native title claimants. The decision draws on defining features of legal positivism to inform the court’s findings as to the existence of a single Bardi Jawi society of ‘one people’ living under ‘one law’. The case of Bodney v Bennell [2008] is analysed through comparitive study of how the application of the received positivist framework may limit native title recognition. This paper argues that the framing of Indigenous law by reference to Western legal norms is problematic due to the assumptions of legal positivism and that an internal view based on Indigenous worldviews, which see law as intrinsically linked to the spiritual and ancestral connection to country, is more appropriate to determine proof in native title claims.

Impact and interest:

Citation countsare sourced monthly from Scopus and Web of Science® citation databases.

These databases contain citations from different subsets of available publications and different time periods and thus the citation count from each is usually different. Some works are not in either database and no count is displayed. Scopus includes citations from articles published in 1996 onwards, and Web of Science® generally from 1980 onwards.

Citations counts from the Google Scholar™ indexing service can be viewed at the linked Google Scholar™ search.

Full-text downloads:

437 since deposited on 23 Jun 2011
158 in the past twelve months

Full-text downloadsdisplays the total number of times this work’s files (e.g., a PDF) have been downloaded from QUT ePrints as well as the number of downloads in the previous 365 days. The count includes downloads for all files if a work has more than one.

ID Code: 42111
Item Type: Journal Article
Additional URLs:
Keywords: Native title, Proof, Legal theory, Indigenous law
ISSN: 1326-0316
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Aboriginal and Torres Strait Islander Law (180101)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Legal Theory Jurisprudence and Legal Interpretation (180122)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright in the publication is held by AIATSIS subject to standard QUT addendum.
Copyright Statement: Copyright in Land,Rights,Laws: Issues of Native Title is held by AIATSIS.
Deposited On: 24 Jun 2011 08:04
Last Modified: 26 Jun 2011 10:18

Export: EndNote | Dublin Core | BibTeX

Repository Staff Only: item control page