Case note: Jones v Public Trustee of Queensland [2004] QCA 269 (6 August 2004) Recognition of Aboriginal customary law and the Mabo principle

Abstract

Since the High Court’s decision in Mabo v Queensland (No 2),[1] some commentators have argued that, at common law, recognition of Aboriginal land rights entails recognition of other aspects of Aboriginal customary law.[2] Indeed, although there have been a number of post-Mabo decisions refusing to extend recognition of Aboriginal law, on the basis of the Mabo principle, beyond rights and interests in land,[3] there is also judicial support for such an extension: the decision of Mr Gillies SM in Colin James Goodsell v James Galarrwuy Yunupingu[4] falling within the latter category.

Aboriginal customary entitlements beyond those relating to land — for example, customs and practices relating to marriage, custody of children and crime and punishment — are undoubtedly as important as land rights from the perspective of the preservation of Aboriginal cultural identity. Nevertheless, the recent Queensland Court of Appeal’s decision in Jones v Public Trustee of Queensland[5] shows that the independent recognition of Aboriginal customary rights to land in Mabo is in no sense arbitrary: the Court observing that the appellant’s non-land Aboriginal customary law submission ‘appears to be based on a misconception of what was decided by the High Court in [Mabo].’