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dc.contributor.advisorMalbon, Justin
dc.contributor.authorNg, Mei Lin
dc.date.accessioned2018-01-23T02:51:22Z
dc.date.available2018-01-23T02:51:22Z
dc.date.issued2006
dc.identifier.doi10.25904/1912/324
dc.identifier.urihttp://hdl.handle.net/10072/367204
dc.description.abstractThe thesis explores the interactions of the common law with indigenous law in three jurisdictions: Australia, New Zealand and Canada. Case law involving family, criminal and land law is examined in detail, to establish how the common law has interacted with indigenous law. Two aspects of common law interactions are explored: judicial approaches to the recognition of indigenous law; and, judicial perceptions about the relationship between the common law and indigenous law. Courts faced with indigenous law have taken one of three approaches to recognising it. These are respectively referred to in the thesis as the non-recognition approach, the accommodation approach and the recognition approach. With regard to judicial perceptions about the relationship between the common law and indigenous law, the case law reveals seven different perceptions. They are: no relationship; mere acknowledgement; separate but capable of recognition; adjustment; assimilation/domination; assimilation/search for partnership; and absorption. Where a relationship is acknowledged, although perceptions may vary, essentially they can be placed in one of three categories. Courts may regard the relationship as one between two separate bodies of law, with points of intersection. They may regard it as one of convergence, perhaps even partial integration, between separate legal traditions. Finally, they may regard indigenous law as having been absorbed into the dominant legal system. Courts with this latter perception regard indigenous law as analogous to English local customs. Having identified more than one approach to the recognition of indigenous law, consideration is given to the circumstances in which the approaches are used, exploring differences arising out of the subject area in question and the jurisdiction in which the case is considered. The thesis also demonstrates that some correlation exists between the judicial approach to recognition of indigenous law and judicial perceptions about the relationship of the common law with indigenous law, though this correlation cannot be demonstrated in all cases. Lastly, the capacity of the common law to recognise changes to indigenous law is considered, where the case law reveals that both the judicial approach to recognition of indigenous law, and judicial perceptions about the relationship between the common law and indigenous law have a bearing on the capacity of the courts to recognise change. The thesis demonstrates that both the judicial approach to recognition of indigenous law and judicial perceptions about the relationship between the common law and indigenous law affect common law interactions with indigenous law.
dc.languageEnglish
dc.publisherGriffith University
dc.publisher.placeBrisbane
dc.rights.copyrightThe author owns the copyright in this thesis, unless stated otherwise.
dc.subject.keywordsCommon law
dc.subject.keywordsindigenous law
dc.subject.keywordsCanada
dc.subject.keywordsNew Zealand
dc.subject.keywordsAustralia
dc.titleIn Search of the 'Golden Thread': Common Law Interactions With Indigenous Law in Canada, Australia and New Zealand
dc.typeGriffith thesis
gro.facultyArts, Education and Law
gro.rights.copyrightThe author owns the copyright in this thesis, unless stated otherwise.
gro.hasfulltextFull Text
dc.contributor.otheradvisorBerns, Sandra
dc.contributor.otheradvisorBartlett, Richard
dc.contributor.otheradvisorLee, Robert
dc.rights.accessRightsPublic
gro.identifier.gurtIDgu1335141314339
gro.identifier.ADTnumberadt-QGU20070314.163150
gro.source.ADTshelfnoADT0496
gro.source.GURTshelfnoGURT
gro.thesis.degreelevelThesis (PhD Doctorate)
gro.thesis.degreeprogramDoctor of Philosophy (PhD)
gro.departmentGriffith Law School
gro.griffith.authorNg, Mei Lin


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