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  and Bodney v Bennell 
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  and Bodney v Bennell . Land, Rights, Laws : Issues of Native Title, 4(7), pp. 1-16.
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  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  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.
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|Item Type:||Journal Article|
|Keywords:||Native title, Proof, Legal theory, Indigenous law|
|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:||23 Jun 2011 22:04|
|Last Modified:||26 Jun 2011 00:18|
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