26 Melb. U. L. Rev. 32 (2002)
Since Time Immemorial: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry

handle is hein.journals/mulr26 and id is 40 raw text is: 'SINCE TIME IMMEMORIAL': A STORY OF COMMON
LAW JURISDICTION, NATIVE TITLE AND THE CASE OF
TANISTRY
SHAUNNAGH DORSETT*
[In the 10h anniversary year of the decision in Mabo, this article offers one possible account of the
relationship between native title and the common law The article provides a description of this
relationship, based on an account of common law jurisdiction and the ways in which the common
law historically used the concept ofjurisdiction in order to supplant other sites of adjudication and
authority. The article traces the jurisdictional story of the common law, from its origins as one of
many decentralised legal spaces, through the important first colonial context of Ireland, to the new
settlement of New South Wales, and the first encounters with 'the natives'. It then examines the
decisions in Mabo, Wik and others, and concludes that in 'recognising 'and constructing the interest
of native title, the common law relied on the same techniques which characterised its earlier
encounters with the 'other' in the English domestic and Irish colonial contexts. It is only by
understanding the way in which native title has come to be at common law that we can explore its
possibilities and limitations as a vehicle for justice.]
CONTENTS
I     In tro d u ctio n  ............................................................................................................... 33
I1    Ju risd ictio n  ................................................................................................................ 3 4
IIl   Com m on  Law  Jurisdiction  ...................................................................................  36
A   Tim e  Im m em orial ..................................................................................... 36
B   L ocal  C ustom   ............................................................................................... 39
IV    The  Colonial Context: The  Case  of  Tanistry ............................................................. 44
V     A ustralia: The  Initial Assertion  of Jurisdiction ......................................................... 50
VI    Multiple Legal Spaces: Native Title and the Common Law ..................................... 53
A   A lternative  N orm ative  Orders .................................................................  53
B   The Foundation of Native Title at Common Law ........................................ 57
V II  C o n clu sio n  ................................................................................................................ 5 8
[T]he ... Common Law assumes divers Denominations, yet they are but
Branches and Parts of it; like as the same Ocean, tho' it many times receives a
different Name from the Province, Shire, Island or Country to which it is con-
tiguous, yet these are but Parts of the same Ocean.l
BA, LLB (Hons) (Tas), LLM (Calg): Senior Lecturer, Faculty of Law, Griffith University. I
would like to thank Shaun McVeigh and Lee Godden for our ongoing conversations; of course,
all errors are my own. An earlier version of this article was presented at the Brehon Law Project
Symposium, held at King's Inn, Dublin, on 11-14 January 2002.
Sir Matthew Hale, The History of the Common Law of England (first published 1713, Charles
Gray ed, 1971) 18.

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