How should the ‘right to own property’ be interpreted under s 10?
The full Court disagreed with the trial judge’s approach to property rights and held that the ‘right to own property alone as well as in association with others’[8] should be interpreted in light of international jurisprudence rather than being restricted to ‘ownership of kind analogous to forms of property which have been inherited or adapted from the English system of property law or conferred by statute’.[9] In particular, the full Court had regard to the jurisprudence of the Inter-American Court of Human Rights, which recognises the proprietary nature of communal rights in several Latin American indigenous communities. • ‘Rights’ are not absolute The full Court held, however, that the right to own property is not absolute.[10] The full Court noted that ‘it has long been recognised in human rights jurisprudence that all rights in a democratic society must be balanced against other competing rights and values, and the precise content of the relevant right or freedom must accommodate
