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The Registration, Recording Or Noting of Native Title

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The Registration, Recording Or Noting of Native Title The Registration, Recording or Noting of Native Title Jennifer Sue Jude Bachelor of Arts Macquarie University, 1979 Graduate Diploma of Librarianship University of New South Wales, 1980 Bachelor of Laws (Hons) University of Technology Sydney, 1986 Master of Laws Sydney University, 2003 A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2018 TC Beirne School of Law Abstract This thesis argues that the registration system for native title is not comprehensive, certain or current. It is out of date in at least two of the three Registers and is selective in the information that is registered. Accordingly, one is required to search in numerous places to achieve any level of certainty in relation to whether native title exists over Crown land and water. There are serious omissions from the Native Title Act 1993 (Cth) (‘Native Title Act’), which do not assist. There is nothing in the Native Title Act that prevents the States and Territories from duplicating the registered information concerning native title in land and indeed New South Wales has to some degree done this already. Queensland has taken a different approach and has established separate registers for different types of Crown land, which is not ideal from a registration or titling perspective where the ideal is to have one conclusive register in which all interests are registered or recorded. These differing approaches by States add another layer of uncertainty. The major deficiencies with the current system could be addressed if native title was recorded on the title to Crown land. The regime related to water is slightly more complex, due to the lack of an existing registration system. In relation to native title in inland water, native title could be the subject of a separate geospatial layer, section or register and be recorded on the registers established under the various Water Acts of the States and Territories. Native title in the sea would require the development of a new register and an accompanying conclusive three-dimensional marine cadastre in which to record all interests including native title rights and interests. The three-dimensional aspect of the sea would be catered for and interests in the layers of the sea, being the surface, the water column and the sea bed, would be addressed in the cadastre. For example, the rights of navigation and access, including native title access, are exercised in at least two layers, being the surface and the water column. Other rights such as gathering are exercised in the three layers of the sea. Development would be complex and geospatial experts would be invaluable but the end result would justify the expenditure. It is recommended that a Commonwealth working group be established to investigate this recommendation. This thesis will add to the literature in the area of native title, titling and registration, filling a crucial gap in this area. It is also anticipated that the findings of this thesis will be of great interest to the Commonwealth and State governments as they continue to grapple with how best to communicate information on native title. The implementation of the recommendations herein will also deliver economic benefits because with greater conclusiveness, currency and certainty regarding this information, the costs of development on Indigenous land would be lower. i Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 (Cth) unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co-authors for any jointly authored works included in the thesis. ii Publications included in this thesis No publications are included in this thesis iii Submitted manuscripts included in this thesis No manuscripts are submitted for publication. Other publications during candidature No other publications Contributions by others to the thesis Dr Justine Bell-James, Senior Lecturer, TC Beirne School of Law, University of Queensland, contribution for supervision Dr Sean Sexton, Senior Lawyer, Native Title Services Victoria, contribution for supervision Associate Professor Margaret Stephenson, University of Queensland, contribution for supervision iv Statement of parts of the thesis submitted to qualify for the award of another degree No works submitted towards another degree have been included in this thesis. Research Involving Human or Animal Subjects No animal or human subjects were involved in this research. v Acknowledgements Dr Justine Bell-James, Senior Lecturer, T C Beirne School of Law, University of Queensland, for supervision, commentary and support on confirmation document, final chapters, thesis review and thesis submission; Dr Sean Sexton, Senior Lawyer, Native Title Services Victoria, for supervision, support and commentary throughout; Associate Professor Margaret Stephenson, University of Queensland, for supervision, support and commentary up to and including mid-candidature review; M/s Robyn Kent, Accredited Editor, RAK Editing Services, Golden Beach, Qld 4551; Professor Bill Duncan, QUT Brisbane, for commentary on confirmation document; Professor Graeme Orr, TC Beirne School of Law, University of Queensland, for commentary on confirmation document; Professor Peter Butt, c/- Sydney University, for reference; Dr Arthur Glass, Visiting Professional Fellow, University of New South Wales, for reference; Mr Bob Gowenlock of Counsel, Sydney Bar Association, for reference; Dr Salvatore Lenti, General Practitioner, Paddington Medical Service, for valued support; Ms Tess Brinums, speech pathologist, for on-going support and practice with oral presentation; TC Beirne School of Law, University of Queensland, for support, assistance, accommodation and equipment; Graduate School, University of Queensland, for support and financial assistance; Mr Bill Lemson for on-going support and driving to University in final year; Disability Services Queensland and Student Services, The University of Queensland, for assistance with accommodation, disability services and recommendations regarding equipment in final year. vi Financial support Financial support provided in the way of a scholarship being a University of Queensland Research Scholarship Keywords Registration, register, recording, Torrens Title, Mabo, Crown land, Crown water, native title, Nisga’a People, Metis People. vii Australian and New Zealand Standard Research Classifications (ANZSRC) Provide data that links your thesis to the disciplines and discipline clusters in the Federal Government’s Excellence in Research for Australia (ERA) initiative. ANZSRC code: 180101, Aboriginal and Torres Strait Islander Law 60% ANZSRC code: 180124 Property Law 40% Fields of Research (FoR) Classification Allows for categorisation of the thesis according to the field of research. FoR code: 1801, Law and Legal Studies 100% 18 September 2018 viii Table of Contents CHAPTER 1 INTRODUCTION ...................................................................................................... 1 1.1 Overview of problem ............................................................................................................. 1 1.2 The main concerns................................................................................................................. 4 1.3 Thesis structure ...................................................................................................................... 6 1.4 Methodology ......................................................................................................................... 7 1.5 Research problem .................................................................................................................. 7 1.5.1 Comprehensiveness ........................................................................................................ 7 1.6 Research questions to be addressed....................................................................................... 9 1.7 Original contribution ........................................................................................................... 11 1.8
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