Peeking into Pandora's box: Common Law Recognition of Native Title to Aboriginal Art

This article explores whether legislative or judicial recognition of Indigenous laws can usefully be extrapolated beyond the context of native title and land rights to inform legal understanding of Indigenous rights in art. Through a careful reading of the High Court's decision of Mabo and Others v Queensland (No 2) (1992), and subsequent case law, the article details the contexts in which Indigenous customary laws have been recognised as having survived the introduction of the common law. The article argues that it may be preferable for some Indigenous people to argue that traditional rights in art are separate from native title rights in land rather than a 'nature and incident' of such title. Some of the problems that may arise when Indigenous intellectual property laws are infringed are highlighted, and it is suggested that the Native Title Tribunal would be an appropriate venue for dispute resolution. The article concludes by arguing that recognition by the Australian legal system that aspects of Aboriginal law other than land rights have survived the colonisation process would not only aid Aboriginal people in the difficult task of maintaining their culture, but would also be consistent with Australia's obligations under international law.