DOCSLIB.ORG

Wik Peoples V Queensland ("Pastoral Leases Case") [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129; (1996) 71 ALJR 173 (23 December 1996)

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Wik Peoples V Queensland ( Wik Peoples v Queensland ("Pastoral Leases case") [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129; (1996) 71 ALJR 173 (23 December 1996) HIGH COURT OF AUSTRALIA BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ ______________________ Matter No B8 of 1996 THE WIK PEOPLES APPELLANTS AND THE STATE OF QUEENSLAND & ORS RESPONDENTS Matter No B9 of 1996 THE THAYORRE PEOPLE APPELLANTS AND THE STATE OF QUEENSLAND & ORS RESPONDENTS ORDER 1. Each appeal allowed in part. 2. Set aside the answers given by Drummond J to Question 1B(b), (c) and (d) and Question 1C(b), (c) and (d). Affirm the answers given by Drummond J to Question 1C(a), Question 4 and Question 5. 3. Answer Questions 1B, 1C, 4 and 5 as follows: Question 1B " If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding a copy of which is attached hereto (pastoral lease): (a) [not pressed] (b) does the pastoral lease confer rights to exclusive possession on the grantee? If the answer to (a) is 'no' and the answer to (b) is 'yes': (c) does the creation of the pastoral lease that has these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Wik Peoples and their predecessors in title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales? (d) did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the pastoral lease?" Answer (b) No. (c) Does not arise. (d) Strictly does not arise but is properly answered No. Question 1C " If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral leases in respect of the Mitchellton Pastoral Holding No 2464 and the Mitchellton Pastoral Holding No 2540 copies of which are attached hereto (Mitchellton Pastoral Leases): (a) was either of the Mitchellton Pastoral Leases subject to a reservation in favour of the Thayorre People and their predecessors in title of any rights or interests which might comprise such Aboriginal title or possessory title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales? (b) did either of the Mitchellton Pastoral Leases confer rights to exclusive possession on the grantee? If the answer to (a) is 'no' and the answer to (b) is 'yes': (c) does the creation of the Mitchellton Pastoral Leases that had these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Thayorre People and their predecessors in title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales? (d) did the grant of either of the Mitchellton Pastoral Leases necessarily extinguish all incidents of Aboriginal title or possessory title of the Thayorre People in respect of the land demised under either of the Mitchellton Pastoral Leases?" Answer (a) No. (b) No. (c) Does not arise. (d) Strictly does not arise but is properly answered No. Question 4 " May any of the claims in paras 48A to 53, 54 to 58(a), 59 to 61, 61A to 64 and 65 to 68 of the further amended statement of claim [being claims of alleged breach of fiduciary duty and failure to accord natural justice] be maintained against the State of Queensland or Comalco Aluminium Limited notwithstanding the enactment of the Comalco Act, the making of the Comalco Agreement, the publication in the Queensland Government Gazette of 22 March 1958 pursuant to s 5 of the Comalco Act of the proclamation that the agreement authorised by the Comalco Act was made on 16 December 1957 and the grant of Special Bauxite Mining Lease No 1?" Answer No. Question 5 " May any of the claims in paras 112 to 116, 117 to 121, 122 to 124, 125 to 127, 128 to 132, and 141 to 143 of the further amended statement of claim [being claims of alleged breach of fiduciary duty and failure to accord natural justice] be maintained against the State of Queensland or Aluminium Pechiney Holdings Pty Ltd notwithstanding the enactment of the Aurukun Associates Agreement Act 1975, the making of the Aurukun Associates Agreement, the publication in the Queensland Government Gazette of the proclamation of the making of the agreement pursuant to the Act and the grant of Special Bauxite Mining Lease No 9?" Answer No. 4. The respondents who opposed the orders sought in relation to Question 1B(b), (c) and (d) pay the costs of the proceedings in this Court of the Wik Peoples relating to that question. 5. The respondents who opposed the orders sought in relation to Question 1C(b), (c) and (d) pay the costs of the proceedings in this Court of the Thayorre People and the Wik Peoples relating to that question. The Thayorre People pay the costs of the proceedings in this Court of the respondents relating to Question 1C(a). 6. The Wik Peoples pay the respondents' costs of the proceedings in this Court relating to Questions 4 and 5. 7. Remit the matters to the Federal Court with respect to the costs of the proceedings before Drummond J or otherwise in that Court. 23 December 1996 On appeal from the Federal Court of Australia. Representation: W Sofronoff, QC, with R W Blowes and G C Newton for the appellants in B8/96 and for the nineteenth respondents in B9/96 (instructed by Ebsworth & Ebsworth) M H Byers, QC, with J W Greenwood, QC, G E Hiley, QC and P M McDermott for the appellants in B9/96 and for the nineteenth respondents in B8/96 (instructed by Bottoms English) P A Keane, QC, Solicitor-General for the State of Queensland, with G J Gibson, QC, G J Koppenol and D A Mullins for the first and third respondents in each matter (instructed by B T Dunphy, Crown Solicitor for the State of Queensland) G Griffith, QC, Solicitor-General for the Commonwealth, with D J McGill, SC and M A Perry for the second respondent in each matter (instructed by the Australian Government Solicitor) H B Fraser, QC, with P L O'Shea and J K Bond for the fourth respondent in each matter (instructed by Blake Dawson Waldron) G A Thompson for the fifth respondent in each matter (instructed by Feez Ruthning) No appearance for the sixth respondent G M G McIntyre for the seventh respondent in each matter (instructed by S M Coates) P J Favell for the eighth respondent in each matter (instructed by Farrellys) D J S Jackson, QC, with J D McKenna for the ninth to twelfth respondents and the fourteenth to eighteenth respondents in each matter (instructed by Corrs Chambers Westgarth) S L Doyle, SC for the thirteenth respondent in each matter (instructed by Clayton Utz) Interveners: D Graham, QC, Solicitor-General for the State of Victoria, with M Sloss intervening on behalf of the Attorney-General for the State of Victoria (instructed by R C Beazley, Victorian Government Solicitor) R J Meadows, QC, Solicitor-General for the State of Western Australia, with C A Wheeler, QC and K M Pettit intervening on behalf of the Attorney-General for the State of Western Australia (instructed by P A Panegyres, Crown Solicitor for Western Australia) B M Selway, QC, Solicitor-General for the State of South Australia, with E E David intervening on behalf of the Attorney-General for the State of South Australia (instructed by M D Walter, Crown Solicitor for South Australia) D M J Bennett, QC, with R J Webb intervening on behalf of the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory) J L Sher, QC, with B A Keon-Cohen intervening for the Northern Land Council and the Central Land Council (instructed by B Midena, Principal Legal Officer of the Northern Land Council) G M G McIntyre intervening on behalf of the Kimberley Land Council, the Nanga-Ngoona Moora-Joonga Association Aboriginal Corporation, the Western Desert Punturkurnuparna Aboriginal Corporation and the Ngaanyatjarra Land Council (instructed by the DCH Legal Group) R H Bartlett intervening on behalf of Ben Ward, John Toby, Jimmy Ward, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Paddy Carlton, Rita Gerrard, Murphy Simon, Sheba Dignari, Joe Lissadell, Chocolate Thomas and Peter Newry on behalf of the Miriuwung and Gajerrong People (instructed by the Aboriginal Legal Service of Western Australia) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS The Wik Peoples v The State of Queensland & Ors The Thayorre People v The State of Queensland & Ors Aborigines - Native Title- Grant of pastoral leases pursuant to Land Act 1910 (Q) and Land Act 1962 (Q) - History of pastoral tenures and disposal of Crown land considered - Whether leases conferred rights to exclusive possession - Application of principles of statutory construction - Whether legislative intention to confer possession to exclusion of holders of native title rights - Rights and obligations of pastoral lessees determined by reference to the language of the statute authorising the grant and terms of the grant - Grant for "pastoral purposes only" - Whether grant of pastoral lease necessarily extinguished all incidents of Aboriginal title - Whether clear and plain intention to extinguish exists - Inconsistency of native title rights and rights conferred on pastoral lessees - Whether grant or exercise of the rights may operate to extinguish - Whether reversion to the Crown - Whether reversion inconsistent with continued existence of native title rights - Effect of non-entry into possession of lease.
Load more

Recommended publications
  • Many Voices Queensland Aboriginal and Torres Strait Islander Languages Action Plan
    Yetimarala Yidinji Yi rawarka lba Yima Yawa n Yir bina ach Wik-Keyangan Wik- Yiron Yam Wik Pa Me'nh W t ga pom inda rnn k Om rungu Wik Adinda Wik Elk Win ala r Wi ay Wa en Wik da ji Y har rrgam Epa Wir an at Wa angkumara Wapabura Wik i W al Ng arra W Iya ulg Y ik nam nh ar nu W a Wa haayorre Thaynakwit Wi uk ke arr thiggi T h Tjung k M ab ay luw eppa und un a h Wa g T N ji To g W ak a lan tta dornd rre ka ul Y kk ibe ta Pi orin s S n i W u a Tar Pit anh Mu Nga tra W u g W riya n Mpalitj lgu Moon dja it ik li in ka Pir ondja djan n N Cre N W al ak nd Mo Mpa un ol ga u g W ga iyan andandanji Margany M litja uk e T th th Ya u an M lgu M ayi-K nh ul ur a a ig yk ka nda ulan M N ru n th dj O ha Ma Kunjen Kutha M ul ya b i a gi it rra haypan nt Kuu ayi gu w u W y i M ba ku-T k Tha -Ku M ay l U a wa d an Ku ayo tu ul g m j a oo M angan rre na ur i O p ad y k u a-Dy K M id y i l N ita m Kuk uu a ji k la W u M a nh Kaantju K ku yi M an U yi k i M i a abi K Y -Th u g r n u in al Y abi a u a n a a a n g w gu Kal K k g n d a u in a Ku owair Jirandali aw u u ka d h N M ai a a Jar K u rt n P i W n r r ngg aw n i M i a i M ca i Ja aw gk M rr j M g h da a a u iy d ia n n Ya r yi n a a m u ga Ja K i L -Y u g a b N ra l Girramay G al a a n P N ri a u ga iaba ithab a m l j it e g Ja iri G al w i a t in M i ay Giy L a M li a r M u j G a a la a P o K d ar Go g m M h n ng e a y it d m n ka m np w a i- u t n u i u u u Y ra a r r r l Y L a o iw m I a a G a a p l u i G ull u r a d e a a tch b K d i g b M g w u b a M N n rr y B thim Ayabadhu i l il M M u i a a
    [Show full text]
  • From Mabo to Yorta Yorta: Native Title Law in Australia
    Washington University Journal of Law & Policy Volume 19 Access to Justice: The Social Responsibility of Lawyers | Contemporary and Comparative Perspectives on the Rights of Indigenous Peoples January 2005 From Mabo to Yorta Yorta: Native Title Law in Australia Lisa Strelein Australian Institute of Aboriginal and Torres Strait Islander Studies Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Indian and Aboriginal Law Commons Recommended Citation Lisa Strelein, From Mabo to Yorta Yorta: Native Title Law in Australia, 19 WASH. U. J. L. & POL’Y 225 (2005), https://openscholarship.wustl.edu/law_journal_law_policy/vol19/iss1/14 This Rights of Indigenous Peoples - Essay is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. From Mabo to Yorta Yorta: Native Title Law in Australia Dr. Lisa Strelein* INTRODUCTION In more than a decade since Mabo v. Queensland II’s1 recognition of Indigenous peoples’ rights to their traditional lands, the jurisprudence of native title has undergone significant development. The High Court of Australia decisions in Ward2 and Yorta Yorta3 in 2002 sought to clarify the nature of native title and its place within Australian property law, and within the legal system more generally. Since these decisions, lower courts have had time to apply them to native title issues across the country. This Article briefly examines the history of the doctrine of discovery in Australia as a background to the delayed recognition of Indigenous rights in lands and resources.
    [Show full text]
  • SCOTUS and the Origins of Australia's Scabrous Constitutional Signature Benjamen Franklen Guss
    Br. J. Am. Leg. Studies 10(1) (2021), DOI: 10.2478/bjals-2021-0001 The Engineers Case Centenary: SCOTUS and the Origins of Australia’s Scabrous Constitutional Signature Benjamen Franklen Gussen* Sahar Araghi** ABSTRACT Since the Engineers Case decision in 1920, the role of the United States Constitution in interpreting the Australian Constitution has been diminished, leading to inefficiencies in High Court of Australia (HCA) dealing with constitutional issues. To explain this thesis, the article looks at the 7,657 cases decided by the HCA, from the first case in 1903, to the 31st of August 2020, the centenary of the Engineers Case. The analysis identifies outliers that have much higher complexity (in terms of word- length) than the other judgments. This complexity has one common denominator: comparative analysis with the United States Constitution. The article explains why this common denominator has resulted in such complexity, and concludes with possible research extensions on the roles of the Australian judiciary in embracing SCOTUS jurisprudence when interpreting the Australian Constitution. KEYWORDS High Court of Australia (HCA), Supreme Court of the United States (SCOTUS), The Engineers Case, Constitutional Signature, Complexity CONTENTS I. Introduction ....................................................................................... 29 II. Overview of High Court Cases 1903-2020 ...................................... 31 III. First Tier Outliers .......................................................................... 33 1
    [Show full text]
  • A Regional Approach to Managing Aboriginal Land Title on Cape York1
    Chapter Thirteen A Regional Approach to Managing Aboriginal Land Title on Cape York1 Paul Memmott, Peter Blackwood and Scott McDougall In 1992 the High Court of Australia for the first time gave legal recognition to the common law native title land rights of the continent's indigenous people.2 The following year the Commonwealth Government of Australia passed the Native Title Act 1993 (NTA), which introduced a statutory scheme for the recognition of native title in those areas where Aboriginal groups have been able to maintain a traditional connection to land and where the actions of governments have not otherwise extinguished their prior title. Native title as it is codified in the NTA differs from Western forms of title in three significant ways. Firstly, it is premised on the group or communal ownership of land, rather than on private property rights; secondly, it is a recognition and registration of rights and interests in relation to areas of land which pre-date British sovereignty, rather than a formal grant of title by government (QDNRM 2005: 3); thirdly, it may coexist with forms of granted statutory title, such as pastoral leases, over the same tracts of land. While native title is a formal recognition of indigenous landownership and sets up a process of registration for such interests, it remains a codification within the Western legal framework, and as such is distinct from, though related to, Aboriginal systems of land tenure as perceived by Aboriginal groups themselves. This distinction is exemplified in the sentiment often expressed by Aboriginal people that their connection to country, and the rules and responsibilities attaching to this connection, continue to apply, irrespective of the legal title of the land under `whitefellow law'.
    [Show full text]
  • Seeing Visions and Dreaming Dreams Judicial Conference of Australia
    Seeing Visions and Dreaming Dreams Judicial Conference of Australia Colloquium Chief Justice Robert French AC 7 October 2016, Canberra Thank you for inviting me to deliver the opening address at this Colloquium. It is the first and last time I will do so as Chief Justice. The soft pink tones of the constitutional sunset are deepening and the dusk of impending judicial irrelevance is advancing upon me. In a few weeks' time, on 25 November, it will have been thirty years to the day since I was commissioned as a Judge of the Federal Court of Australia. The great Australian legal figures who sat on the Bench at my official welcome on 10 December 1986 have all gone from our midst — Sir Ronald Wilson, John Toohey, Sir Nigel Bowen and Sir Francis Burt. Two of my articled clerks from the 1970s are now on the Supreme Court of Western Australia. One of them has recently been appointed President of the Court of Appeal. They say you know you are getting old when policemen start looking young — a fortiori when the President of a Court of Appeal looks to you as though he has just emerged from Law School. The same trick of perspective leads me to see the Judicial Conference of Australia ('JCA') as a relatively recent innovation. Six years into my judicial career, in 1992, I attended a Supreme and Federal Courts Judges' Conference at which Justices Richard McGarvie and Ian Sheppard were talking about the establishment of a body to represent the common interests and concerns of judges, to defend the judiciary as an institution and, where appropriate, to defend individual judges who were the target of unfair and unwarranted criticisms.
    [Show full text]
  • Of the Barrister Class by the Hon Michael Mchugh AC, Introduction
    THE RISE (AND FALL?) OF THE BARRISTER CLASS BY THE HON MICHAEL McHUGH AC INTRODUCTION* The Hon Justice Michael Kirby AC CMG As barristers go, Michael McHugh's career was unusual. There was little about it that was privileged - except his intellect and drive. Born in Newcastle, he moved with his family to North Queensland at the age of seven because his father was seeking wartime work in the mines. On his return to Newcastle, at the age of thirteen, he attended the Marist Brothers' school. There, and from his father Jim, he learned two Irish Catholic lessons that were to remain with him throughout his life in the law. First, that there are rules to be obeyed. And secondly, that civil liberties matter. To the disappointment of Jim McHugh, the young Michael left school at age fifteen. He took odd jobs, including that of the proverbial telegram boy. But his questioning intellect soon took him back to the * Notes on which were based remarks in the Common Room of the New South Wales Bar Association on 20 August 2007 on the delivery by the Hon Michael McHugh AC of a Lecture in the series on Rhetoric. 2. Hamilton High School at night. He gained his matriculation. In 1958 he commenced studies for the Barristers' Admission Board, working during the day as a clerk for the Broken Hill Proprietary Co. Michael McHugh was admitted to the New South Wales Bar in 1961. He read with two fine advocates who once frequented this common room: John Wiliams QC, himself from Newcastle, and John Kearney QC.
    [Show full text]
  • 82 3.3.4.4.3 Ecogeographic Studies of the Cranial Shape The
    82 3.3.4.4.3 Ecogeographic studies of the cranial shape The measurement of the human head of both the living and dead has long been a matter of interest to a variety of professions from artists to physicians and latterly to anthropologists (for a review see Spencer 1997c). The shape of the cranium, in particular, became an important factor in schemes of racial typology from the late 18th Century (Blumenbach 1795; Deniker 1898; Dixon 1923; Haddon 1925; Huxley 1870). Following the formulation of the cranial index by Retzius in 1843 (see also Sjovold 1997), the classification of humans by skull shape became a positive fashion. Of course such classifications were predicated on the assumption that cranial shape was an immutable racial trait. However, it had long been known that cranial shape could be altered quite substantially during growth, whether due to congenital defect or morbidity or through cultural practices such as cradling and artificial cranial deformation (for reviews see (Dingwall 1931; Lindsell 1995). Thus the use of cranial index of racial identity was suspect. Another nail in the coffin of the Cranial Index's use as a classificatory trait was presented in Coon (1955), where he suggested that head form was subject to long term climatic selection. In particular he thought that rounder, or more brachycephalic, heads were an adaptation to cold. Although it was plausible that the head, being a major source of heat loss in humans (Porter 1993), could be subject to climatic selection, the situation became somewhat clouded when Beilicki and Welon demonstrated in 1964 that the trend towards brachycepahlisation was continuous between the 12th and 20th centuries in East- Central Europe and thus could not have been due to climatic selection (Bielicki & Welon 1964).
    [Show full text]
  • Managing Indigenous Pastoral Lands
    module three land information MANAGING INDIGENOUS PASTORAL LANDS Pub no. 14/019 McClelland Rural Services Pty Ltd MODULE 3 land information Contents Introduction 3 List of Tables Indigenous Land Rights and Pastoral Figure 3.1 Map of Northern Territory Land Holdings 5 Aboriginal Land 7 Land Rights 5 Figure 3.2 Map of Queensland Indigenous Pastoral Land Holdings 5 Aboriginal Land 8 Land Tenure 10 Figure 3.3 Map of Western Australian Indigenous Lands - Aboriginal Land (Kimberley & Pilbara) 9 Definitions and Complexities 10 Indigenous Land Holding Arrangements List of Photos in the Northern Territory 11 Cover Photo – Ghost gums Legal Framework 11 Permitted Land Uses 11 Indigenous Land Holding Arrangements in Queensland 12 Legal Framework 12 Forms of Land Acquisition 12 Renewals of Pastoral Leases 13 Indigenous Land Holding Arrangements in Western Australia 14 Legal Framework 14 Forms of Land Acquisition 14 Pastoral Lease Reform 15 Renewals of Pastoral Leases 15 Role of Land Councils 18 Overview 18 Northern Territory 18 Queensland 18 Western Australia 19 Land Use Agreements 20 Mining Tenures and Income from Mining on Indigenous Land 22 Mining Tenures 22 Mining Income 24 2 MODULE 3 land information Introduction Module 3 describes the rights and obligations of Indigenous land holders in the northern Australia pastoral industry. Indigenous land tenure is administered differently in the Northern Territory (NT), Queensland (Qld) and Western Australia (WA) which has resulted in a high degree of complexity. In addition, this whole area is undergoing a great deal of change. • In November 2012, the Northern Australia Ministerial Forum (NAMF) initiated a review of land tenure management across northern Australia.
    [Show full text]
  • Critical Australian Indigenous Histories
    Transgressions critical Australian Indigenous histories Transgressions critical Australian Indigenous histories Ingereth Macfarlane and Mark Hannah (editors) Published by ANU E Press and Aboriginal History Incorporated Aboriginal History Monograph 16 National Library of Australia Cataloguing-in-Publication entry Title: Transgressions [electronic resource] : critical Australian Indigenous histories / editors, Ingereth Macfarlane ; Mark Hannah. Publisher: Acton, A.C.T. : ANU E Press, 2007. ISBN: 9781921313448 (pbk.) 9781921313431 (online) Series: Aboriginal history monograph Notes: Bibliography. Subjects: Indigenous peoples–Australia–History. Aboriginal Australians, Treatment of–History. Colonies in literature. Australia–Colonization–History. Australia–Historiography. Other Authors: Macfarlane, Ingereth. Hannah, Mark. Dewey Number: 994 Aboriginal History is administered by an Editorial Board which is responsible for all unsigned material. Views and opinions expressed by the author are not necessarily shared by Board members. The Committee of Management and the Editorial Board Peter Read (Chair), Rob Paton (Treasurer/Public Officer), Ingereth Macfarlane (Secretary/ Managing Editor), Richard Baker, Gordon Briscoe, Ann Curthoys, Brian Egloff, Geoff Gray, Niel Gunson, Christine Hansen, Luise Hercus, David Johnston, Steven Kinnane, Harold Koch, Isabel McBryde, Ann McGrath, Frances Peters- Little, Kaye Price, Deborah Bird Rose, Peter Radoll, Tiffany Shellam Editors Ingereth Macfarlane and Mark Hannah Copy Editors Geoff Hunt and Bernadette Hince Contacting Aboriginal History All correspondence should be addressed to Aboriginal History, Box 2837 GPO Canberra, 2601, Australia. Sales and orders for journals and monographs, and journal subscriptions: T Boekel, email: [email protected], tel or fax: +61 2 6230 7054 www.aboriginalhistory.org ANU E Press All correspondence should be addressed to: ANU E Press, The Australian National University, Canberra ACT 0200, Australia Email: [email protected], http://epress.anu.edu.au Aboriginal History Inc.
    [Show full text]
  • Surviving Common Law: Silence and the Violence Internal to the Legal Sign
    SURVIVING COMMON LAW: SILENCE AND THE VIOLENCE INTERNAL TO THE LEGAL SIGN Peter D. Rush* It is a not uncommon situation nowadays: an indigenous person comes before the common law courts in Australia and asks for a response to the demands of injustice suffered. She is a member of the stolen generations and asks for relief.1 Another is accused of a crime and questions the jurisdiction of the court to hear and determine his claim. He appears before the High Court of Australia as “Denis Bruce Walker, Bejam, Kunminarra, Jarlow, Nanaka Kabool, of Moongalba, via Goompie, Minjerribah, Quandamooka. I am the son of Oodgeroo of the tribe Noonuccal, custodian of the land Minjerribah.” He wants to be adjudged not only by the judges of the common law but also by the council of the Noonuccal. “I suspect you and your friends are trifling with me,” interjects the judge.2 Another tells the court that current as well as past and future governments are the heirs-at-law of the dispossession and death of the Wiradjuri people. Declarations recognizing aboriginal sovereignty and granting reparation for the appropriation of land and for the genocide of the Wiradjuri are requested. The High Court judge directly rejects the idea that any * Professor of Law, Law School, University of Melbourne, Melbourne, Australia. This article was presented at the Derrida/America conference held at the Benajmin N. Cardozo School of Law, New York, February 20-21, 2005. Thank you to Nasser Hussain for extensively discussing the thesis of the article and making sure that it did not get lost in the writing, and to Tom Dumm.
    [Show full text]
  • Dialogue and Indigenous Policy in Australia
    Dialogue and Indigenous Policy in Australia Darryl Cronin A thesis in fulfilment of the Requirements for the degree of Doctor of Philosophy Social Policy Research Centre Faculty of Arts & Social Sciences September 2015 ABSTRACT My thesis examines whether dialogue is useful for negotiating Indigenous rights and solving intercultural conflict over Indigenous claims for recognition within Australia. As a social and political practice, dialogue has been put forward as a method for identifying and solving difficult problems and for promoting processes of understanding and accommodation. Dialogue in a genuine form has never been attempted with Indigenous people in Australia. Australian constitutionalism is unable to resolve Indigenous claims for recognition because there is no practice of dialogue in Indigenous policy. A key barrier in that regard is the underlying colonial assumptions about Indigenous people and their cultures which have accumulated in various ways over the course of history. I examine where these assumptions about Indigenous people originate and demonstrate how they have become barriers to dialogue between Indigenous people and governments. I investigate historical and contemporary episodes where Indigenous people have challenged those assumptions through their claims for recognition. Indigenous people have attempted to engage in dialogue with governments over their claims for recognition but these attempts have largely been rejected on the basis of those assumptions. There is potential for dialogue in Australia however genuine dialogue between Indigenous people and the Australian state is impossible under a colonial relationship. A genuine dialogue must first repudiate colonial and contemporary assumptions and attitudes about Indigenous people. It must also deconstruct the existing colonial relationship between Indigenous people and government.
    [Show full text]
  • Wik Peoples V. State of Queensland: a Restrained Expansion of Aboriginal Land Rights Gilda C
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of North Carolina School of Law NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW AND COMMERCIAL REGULATION Volume 23 | Number 3 Article 6 Summer 1998 Wik Peoples v. State of Queensland: A Restrained Expansion of Aboriginal Land Rights Gilda C. Rodriguez Follow this and additional works at: http://scholarship.law.unc.edu/ncilj Recommended Citation Gilda C. Rodriguez, Wik Peoples v. State of Queensland: A Restrained Expansion of Aboriginal Land Rights, 23 N.C. J. Int'l L. & Com. Reg. 711 (1997). Available at: http://scholarship.law.unc.edu/ncilj/vol23/iss3/6 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law and Commercial Regulation by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Wik Peoples v. State of Queensland: A Restrained Expansion of Aboriginal Land Rights Cover Page Footnote International Law; Commercial Law; Law This note is available in North Carolina Journal of International Law and Commercial Regulation: http://scholarship.law.unc.edu/ ncilj/vol23/iss3/6 Wik Peoples v. State of Queensland:' A Restrained Expansion of Aboriginal Land Rights I. Introduction In the past decade, Aborigines in Australia have gone from owning title to fourteen percent of the land in Australia to potentially being able to claim seventy-nine percent of it.' These figures become even more staggering and meaningful given that the Aboriginal population constitutes only about two percent of Australia's population.' Prior to 1992, Australia recognized virtually no Aboriginal land rights.4 The Australian common law accepted the notion that no one owned the land prior to European colonization.
    [Show full text]