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Title: 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]
Contributor(s): Burns, Marcelle  (author)orcid 
Publication Date: 2011-05
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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 comparative 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.
Publication Type: Journal Article
Source of Publication: Land, Rights, Laws: Issues of Native Title, 4(7), p. 1-16
Publisher: Australian Institute of Aboriginal and Torres Strait Islander Studies
Place of Publication: Australia
ISSN: 1326-0316
Field of Research (FOR): 180101 Aboriginal and Torres Strait Islander Law
Peer Reviewed: Yes
HERDC Category Description: C1 Refereed Article in a Scholarly Journal
Appears in Collections:Journal Article
School of Law

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