INTRODUCTION
… In this chapter I address the issues created by the failure to properly address the needs of Indigenous Australians in respect of succession law since the common law arrived on our shores. We all know well the failings of the common law in its inability to recognise the sophistication of the First Nations civilisations it encountered. The fact that the land was argued to be ‘terra nullius’ relied on assumptions about what civilisation, law and government looked like – assumptions that were useful to the colonists and detrimental to the first inhabitants. The inability and self-interested unwillingness to recognise the inhabitants as people worthy of respect led to massacres, wholesale dispossession and wrongs that continue to reverberate today. However, in a few cases, and then Mabo, there developed a gradual recognition that ‘terra nullius was false and that the assumptions it was based on were problematic. These developments have been discussed elsewhere, but in this chapter I want to draw on the fact that Mabo made it possible to talk coherently about customary law in ways beyond native title …
Prue Vines, First Nations Heritage: Land Rights, Cultural Integrity and Succession Law in B McDonald, B Chen and J Gordon eds, Dynamic and Principled: the Influence of Sir Anthony Mason (Federation Press, 2022).
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