Akiba V Cth .Pdf
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
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. -
Tripartite Test
HIGH COURT OF AUSTRALIA 11 February 2020 LOVE v COMMONWEALTH OF AUSTRALIA; THOMS v COMMONWEALTH OF AUSTRALIA [2020] HCA 3 Today, the High Court, by majority, answered a question in two special cases to the effect that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) are not within the reach of the power to make laws with respect to aliens, conferred on the Commonwealth Parliament by s 51(xix) of the Constitution ("the aliens power"). That is the case even if the Aboriginal Australian holds foreign citizenship and is not an Australian citizen under the Australian Citizenship Act 2007 (Cth). The tripartite test requires demonstration of biological descent from an indigenous people together with mutual recognition of the person's membership of the indigenous people by the person and by the elders or other persons enjoying traditional authority among those people. The plaintiffs, Mr Thoms and Mr Love, were both born outside Australia and are not Australian citizens. Mr Thoms was born in New Zealand on 16 October 1988 and became a New Zealand citizen by birth. He has resided permanently in Australia since 23 November 1994. Mr Thoms is a descendant of the Gunggari People through his maternal grandmother. He identifies as a member of that community and is accepted as such by members of the Gunggari People. He is also a common law holder of native title. Mr Love was born on 25 June 1979 in the Independent State of Papua New Guinea. He is a citizen of that country but has been a permanent resident of Australia since 25 December 1984. -
Native Title and the 'Acquisition of Property' Under the Australian
—M.U.L.R- Brennan - final proof (pre-press completed).doc — Native Title — printed 19/05/04 at 21:14 — page 28 of 52 NATIVE TITLE AND THE ‘ACQUISITION OF PROPERTY’ UNDER THE AUSTRALIAN CONSTITUTION ∗ SEAN BRENNAN [The ‘just terms’ guarantee in s 51(xxxi) of the Constitution offers protection for the property rights of Australians, but does this protection extend to indigenous people who have native title rights and interests in land? Gummow J of the High Court has suggested the answer is no, at least where native title is extinguished by the grant of inconsistent rights over the same land to third parties. This article reviews recent case law on the meaning of ‘property’ and ‘acquisition’ under s 51(xxxi). The Australian law on native title — in particular its characterisation, its content and its extinguishment — is examined and assessed against the law on s 51(xxxi). The conclusion drawn is that in general the extinguishment of native title answers the description of an ‘acquisition of property’. Gum- mow J’s analysis that native title is inherently defeasible, and therefore that the ‘just terms’ guarantee does not apply to its extinguishment by inconsistent grant, should be rejected on the basis of precedent and principle.] CONTENTS I Introduction...............................................................................................................29 II Native Title as ‘Property’..........................................................................................30 A Conceptualising Native Title: Different Streams of Thought.......................30 -
Australian Aboriginal Land Rights in Transition
University of Arkansas System Division of Agriculture [email protected] | (479) 575-7646 An Agricultural Law Research Article The Mabo Decision: Australian Aboriginal Land Rights in Transition by Gary D. Meyers & John Mugambwa Originally published in ENVIRONMENTAL LAW 23 ENVTL. L. 1203 (1993) www.NationalAgLawCenter.org ARTICLE THE MABO DECISION: AUSTRALIAN ABORIGINAL LAND RIGHTS IN TRANSITION By GARY D. MEYERS* AND JOHN MUGAMBWA** In Eddie Mabo and Others v. The State of Queensland, the High Court of Australia recognized the existence of native title to lands hitherto annexed under Imperial Authority. In so doing, the Court rejected the fiction of terra nullius and found that native title was not inconsistent with the Crown's radical title over its acquired lands. The existence of native title, the Court held, does not depend upon positive acts of recognition, rather it arises from proof that a group has a right to use or occupy particular land including uses tied to the community's traditional lifestyle. In drawing upon international law to bolster its conclusions, the High Court ushers in a new era for aboriginal land claims and portends new directions for Australian jurisprudence. I. INTRODUCTION No English words are good enough to provide a sense of the link between an Aboriginal group and its homeland. Our word 'home,' • Senior Lecturer in Law, School of Law, Murdoch University, Perth, West ern Australia. LL.M. 1991, University of Pennsylvania; J.D. 1982, Northwestern School of Law of Lewis and Clark College; B.A., cum laude 1970, University of Southern California. •• Senior Lecturer in Law, School of Law, Murdoch University, Perth, West ern Australia. -
Mabo Misinterpreted: the Unfortunate Legacy of Legislative Distortion of Justice Brennan’S Judgment
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2012 Mabo Misinterpreted: The Unfortunate Legacy of Legislative Distortion of Justice Brennan’s Judgment Kent McNeil Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Part of the Indian and Aboriginal Law Commons Repository Citation McNeil, Kent, "Mabo Misinterpreted: The Unfortunate Legacy of Legislative Distortion of Justice Brennan’s Judgment" (2012). Articles & Book Chapters. 2533. https://digitalcommons.osgoode.yorku.ca/scholarly_works/2533 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Mabo and Native Title 20 Years On Edited by Toni Bauman and Lydia Glick AIATSIS AUSTRALIAN INSTITUTE OF ABORIGINAL AND TORRES STRAIT ISLANDER STUDIES CONTENTS First published in 2012 by AIATSIS Research Publications © the Australian Institute of Aboriginal and Torres Strait Islander Studies in the vi collection, 2012. Foreword © in individual chapters is held by the contributors, 2012. Lowitja O'Donoghue All rights reserved. Apart from any fair dealing for the purpose of private study, research, Editors and Contributors viii criticism or review, as permitted under the Copyright Act 1968 (the Act), no part of this article Introduction: The Limits of Change xvii may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, Mick Dodson without prior permission in writing from the publisher. -
Indigenous Equality: the Long Road
INDIGENOUS EQUALITY: THE LONG ROAD GREG MCINTYRE SC This essay identifies some of incremental progress towards substantive racial equality in Australia for First Nations Peoples observed in the course of a legal practice extending over the past 44 years, affected by cases brought before the courts, particularly the case of Mabo v Queensland. It discusses the impact on that progress of legislation, particularly the Native Title Act. It concludes that recognition of the fiduciary duty of the Government towards its First Nations Peoples may be a necessary prerequisite to according them self determination and equality within the Australian nation. LLB (UWA) 1974, Barrister, Michael Kirby Chambers, Western Australia, Adjunct Professor, UNDA and UWA. INDIGENOUS EQUALITY: THE LONG ROAD VOL 8(2) 2021 CONTENTS I INTRODUCTION...........................................................................................................................2 II MY INTRODUCTION TO INDIGENOUS EQUALITY...........................................................................3 III LITIGATION OR LEGISLATION……………………….........................................................................5 IV LEGISLATING NATIVE TITLE........................................................................................................5 V PUSHING BACK THE STATES........................................................................................................6 VI PASTORAL LEASES V NATIVE TITLE............................................................................................7 -
Indigenous People's Rights: Mabo and Others V. State of Queensland - the Australian High Court Addresses 200 Years of Oppression
Denver Journal of International Law & Policy Volume 21 Number 2 Winter Article 4 May 2020 Indigenous People's Rights: Mabo and Others v. State of Queensland - The Australian High Court Addresses 200 Years of Oppression Gerald McGinley Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Gerald McGinley, Indigenous People's Rights: Mabo and Others v. State of Queensland - The Australian High Court Addresses 200 Years of Oppression, 21 Denv. J. Int'l L. & Pol'y 311 (1993). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. Indigenous Peoples' Rights: Mabo and Others v. State of Queensland1 - The Australian High Court Addresses 200 Years of Oppression GERALD P. MCGINLEY I. INTRODUCTION Australian Aboriginals share the common heritage of indigenous peo- ples. It is a history of violent dispossession, followed by alternating neg- lect and paternalism, culminating in belated and bewildered concern.' An international movement has evolved to rectify these wrongs.' 1993 is to be the International Year of the World's Indigenous Peoples" during which * Senior Lecturer in International Law, University of Adelaide. 1. Mabo v. Queensland, 107 A.L.R. 1 (1992). 2. See JANINE ROBERTS, MASSACRES TO MINING 13-19 (1981)[hereinafter ROBERTS]; MARC GUMBERT, NEITHER JUSTICE NOR REASON 15-25 (1984); HENRY REYNOLDS, DISPOSSES- SION (1989)[hereinafter REYNOLDS]. For a discussion of the history and problems of other indigenous peoples, see Raidza Torres, The Rights of Indigenous Populations:The Emerg- ing InternationalNorm, 16 YALE J. -
Native Title in Queensland Twenty-Five Years Post-Mabo
NATIVE TITLE IN QUEENSLAND TWENTY-FIVE YEARS POST-MABO DR CHRIS DAVIES ABSTRACT The Mabo decision was undoubtedly one of the most significant in Australian legal history, removing the fiction that the land had been settled as terra nullius, and recognising that native title to land had survived the acquisition of sovereignty. Subsequent cases established the principles of law in regard to questions such as whether pastoral leases extinguished native title. An examination of the 2017 Federal Court cases relating to native title claims in Queensland has highlighted that, frequently, the main issue was whether the claimants could prove continuity with their traditional laws and customs. The High Court decision in Yorta Yorta v Victoria established the principles relevant to this question and is the case that is most likely to be cited in present day native title decisions. The successful claims have recognised native title rights such as hunting, carrying out ceremonies and maintaining sacred sites. These rights, however, have not been granted as exclusive rights, with local councils and mining companies being some of the groups that have maintained concurrent rights. I INTRODUCTION It is now 25 years since Mabo v Queensland [No 2] (‘Mabo’)1 established that native title exists in Australia. The decision was undoubtedly one of the most significant in Australia’s legal history and brought Australia into line with the rest of the world in regard to the issue of indigenous land rights. Subsequent to the decision, the Native Title Act 1993 (Cth) (‘NTA’) was enacted. It now states what native title is in Australia. -
2011 Mabo Oration: Terri Janke
2011 Mabo Oration: Terri Janke Mrs Bonita Mabo, the Mabo family, Commissioner Kevin Cocks, Bryan Keon-Kohen QC, Bill Lowah, fellow Torres Strait Islanders and Aboriginal people, and those who have come to celebrate the opening of The Torres Strait Islands: A Celebration. I acknowledge the Anti- Discrimination Commission Queensland and the Queensland Performing Arts Centre for hosting tonight's oration. I pay respect to all the traditional owners of the Brisbane area, and all elders past and present. Thank you Eddie Ruska for your welcome to country. Whenever I hear a welcome to country given from the heart, I feel strengthened and encouraged. I am honoured to present the Mabo Oration, not only as a lawyer, but as a Torres Strait Islander. I have two grandmothers who were born in the Torres Strait. My paternal grandmother is Agnes Blanco. She was born in 1921 on Murray Island in the village of Gigrid, of the Peibre clan. She was the daughter of Azzie Leyah, a Meriam woman and Victor Blanco. Victor's mother Annie, who married Juan Blanco from the Phillipines, was from Old Mapoon in Cape York. Grandma Agnes attended Sacred Heart Convent on Thursday Island (TI), before moving to the mainland during the Second World War. My maternal grandmother is Modesta (Maudie) Mayo who was born on TI and her Torres Strait Islander heritage can be traced back to Gebar Island. She too attended Sacred Heart Convent. Maudie married Kitchell Anno, of Wuthathi and Malay descent. He was also born on TI. They moved to Cairns in the 1940s where my mother and father were born. -
UNSWLJ Issue 38(2)
2015 Statutory Interpretation and Native Title Extinguishment 587 STATUTORY INTERPRETATION AND NATIVE TITLE EXTINGUISHMENT: EXPANDING CONSTRUCTIONAL CHOICES * SAMANTHA HEPBURNP1047F I INTRODUCTION [P]urposive construction to ascertain whether a statute extinguishes native title rights or interests is not without difficulty where the statute was enacted prior to this Court’s decision in Mabo [No 2] that the common law could recognise native 1 title.P1048F 2 Native title jurisprudence is derived from the common law.P1049F P The concept of native title and its re-institutionalisation into the underlying land law framework 3 emanates from the conclusions of the High Court of Australia in Mabo [No 2].P1050F P This decision revised the architecture of the ownership framework underpinning Australian land law. The Court allowed native title rights and interests to be recognised in circumstances where they could be shown to have survived the 4 impact of colonisation and the assertion of sovereignty by the United Kingdom.P1051F P The conceptualisation of native title was given statutory validation in the Native * Professor, School of Law, Deakin University. The author would like to thank the anonymous referees for all of their comments and the editors for their careful assistance with the preparation of this article. 1 Akiba v Commonwealth (2013) 250 CLR 209, 229–30 [31] (French CJ and Crennan J). 2 The origins of native title were outlined in Mabo v Queensland [No 2] (1992) 175 CLR 1, 51 (‘Mabo [No 2])’ by Brennan J who stated: Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown’s radical title when the Crown acquires sovereignty over that territory. -
Native Title Information Handbook : Queensland / Australian Institute of Aboriginal and Torres Strait Islander Studies
Native Title Information Handbook Queensland 2016 © Australian Institute of Aboriginal and Torres Strait Islander Studies AIATSIS acknowledges the funding support of the Department of the Prime Minister and Cabinet. The Native Title Research Unit (NTRU) acknowledges the generous contributions of peer reviewers and welcomes suggestions and comments about the content of the Native Title Information Handbook (the Handbook). The Handbook seeks to collate publicly available information about native title and related matters. The Handbook is intended as an introductory guide only and is not intended to be, nor should it be, relied upon as a substitute for legal or other professional advice. If you are aware that this publication contains any errors or omissions please contact us. Views expressed in the Handbook are not necessarily those of AIATSIS. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) GPO Box 553, Canberra ACT 2601 Phone 02 6261 4223 Fax 02 6249 7714 Email [email protected] Web www.aiatsis.gov.au National Library of Australia Cataloguing-in-Publication entry Title: Native title information handbook : Queensland / Australian Institute of Aboriginal and Torres Strait Islander Studies. Native Title Research Unit. ISBN: 9781922102539 (ebook) Subjects: Native title (Australia)--Queensland--Handbooks, manuals, etc. Aboriginal Australians--Land tenure--Queensland. Land use--Law and legislation--Queensland. Aboriginal Australians--Queensland. Other Creators/Contributors: Australian Institute of Aboriginal -
Land Tenure Systems and Issues of Cape York Peninsula
CAPE YORK PENINSULA LAND USE STRATEGY LAND USE PROGRAM LAND TENURE SYSTEMS AND ISSUES OF CAPE YORK PENINSULA M. Hardy, R. Nelson & Professor J.H. Holmes Queensland Department of Lands CYPLUS Taskforce UniQuest - University of Queensland 1995 CYPLUS is joint initiative of the Queensland and Conlmonwealth Governments CAPE YORK PENINSULA LAND USE STRATEGY , (CYPLUS) Land Use Program LAND TENURE SYSTEMS AND ISSUES OF -r CAPE YORK PENINSULA M. Hardy Queensland Department of Lands R. Nelson CYPLUS Taskforce Professor J.H. Holmes UniQuest - University of Quensland 1995 CYPLUS is a joint initiative of the Queensland and Commonwealth Governments Recommended citation: Hardy, M., Nelson, R. & Holmes, J.H. (1995). 'Land Tenure Systems and Issues in . Cape York Peninsula'. (Cape York Peninsula Land Use Strategy, Office of the Co-ordinator General of Queensland, Brisbane, Department of the Environment, Sport and Territories, Canberra, Queensland Department of Lands and UniQuest - University of Queensland.) Note: Due to the timing of publication, reports on other CYPLUS projects may not be fully cited in the BIBLIOGRAPHY section. However, they should be able to be located by author, agency or subject. ISBN 0 7242 6226 1 @ The State of Queensland and Commonwealth of Australia 1995. Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, no part may be reproduced by any means without the prior written permission of the Office of the Co-ordinator General of Queensland and the Australian Government Publishing Service. Requests and inquiries concerning reproduction and rights should be addressed to: Office of the Co-ordinator General, Government of Queensland PO Box 185 BRISBANE ALBERT STREET Q 4002 or The Manager, Commonwealth Information Services GPO Box 84 CANBERRA ACT 2601 CAPE YORK PENINSULA LAND.USE STRATEGY STAGE I PREFACE TO PROJECT REPORTS Cape York Peninsula Land Use Strategy (CYPLUS) is an initiative to provide a basis for public participation in planning for the ecologically sustainable development of Cape York -, Peninsula.