Abstract:
After the expansion of the British empire in the 18th century and the establishment of new colonies overseas, the indigenous individuals and their rights constituted a hot topic for the judges and the Common law legal system specialists. The core of this topic was the dilemma of what status indigenous laws and their pre-existing rights should have. Indeed, the indigenous rights became very critical when the indigenous people went to the courts of the Common law itself to seek the help they wanted. In 1992, the Mabo case in the Australian High Court was a tremendous event regarding the indigenous rights issue, and there were two main judicial approaches to rule in that case. Brennan J was the father of the first approach, and Dawson J was the father of the other. The author, in this paper, argues that Brennan J's approach is flexible and consistent with the global context, and pays the required attention to the humanitarian aspect of the law. Additionally, Dawson J's approach is rigid and dehumanizing and restrictively vests the legitimacy only in the Common law principles themselves.
