民法科学杂志

抽象的

The Legal Status of Aboriginal Spiritual Beliefs

Ernst Willheim

What should be the legal status of Aboriginal spiritual belief, for example, rights and obligations under Aboriginal spiritual beliefs to access land to conduct traditional ceremony. Conventional common law property rights do not ordinarily extend to protection of spiritual beliefs. The article contends, however, that where common law and statutory law recognizes a system of native title, the content of native title is to be found not in the traditional principles of the common law but in the relevant native title traditions and customs. Spiritual elements, including rights and obligations to access sacred sites for traditional ceremony may be an integral component of native title. The issue is illustrated by analysis and rejection of the Commonwealth’s argument in a High Court case.