'Since Time Immemorial': A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry

Abstract

In the 10 th 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 of jurisdiction 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.