The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference

Abstract

The authors trace the development of the use of the term sui generis to describe Aboriginal legal rights, noting that this is not in fact a recent phenomenon. They explain the doctrine as a balance between common law and Aboriginal conceptions, acting as an aid to the development of the common law in a manner which accommodates cultural differences and unique Aboriginal legal rights. The authors critically analyze recent judicial employment of the doctrine, and offer suggestions as to how it could best be employed to reconcile unique Aboriginal issues with the framework of the common law.