Paul Keating – critique of native title as applied after his government passed Native Title Act

2011 Lowitja O’Donoghue Oration
with The Hon Paul Keating

Lowitja O’Donoghue and Native Title:
Leadership pointing the way to identity, inclusion and justice

Lowitja O’Donoghue Oration
Don Dunstan Foundation
University of Adelaide
31 May 2011

Indeed, it is worth my taking this opportunity to say that as Prime Minister, I had always intended that native title be determined by the common law principles laid out in Mabo (No 2). That is, I saw the Native Title Act giving expression to native title as native title had evolved; in the same organic and dynamic sense that the common law itself had evolved. The common law, derived from European custom and tradition, was never frozen nor did its development stop with Federation. So too, native title should not be viewed as some museum-like strain of law which, snap frozen, requires defrosting around anthropological principles, documentary records that rarely exist, if they ever existed and an onus of proof built within rules of evidence which are calibrated so as never being able to helpfully apply.

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