DOCSLIB.ORG

Native Title and the Tide of History: Shifting the Sands

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Native Title and the Tide of History: Shifting the Sands Native Title And The Tide of History: Shifting The Sands BY BROOKE HALL B.A. Adelaide University, 1994 LL.B. (Hons.) Northern Territory University, 1998 GCLP. University of South Australia, 1998 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIRMENTS FOR THE DEGREE OF MASTER OF LAWS In THE FACULTY OF GRADUATE STUDIES FACULTY OF LAW We accept this thesis as conforming to the required standard Professor Michael Jdcjf.so'n Q.C. Associate Professor Douglas C. Harris THE UNIVERISTY OF BRITISH COLUMBIA August 2002 © BROOKE HALL 2002 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of Law The University of British Columbia Vancouver, Canada Date: August 2002 Native Title And The Tide of History: Shifting The Sands Abstract This thesis is designed to contribute to the discussion of the issues confronting Australian Courts by evaluating the process of recognition and protection of native title and to delineate how it is being shaped. The High Court of Australia's decision in Mabo v. The State of Queensland [No.2] (1992) C.L.R. 1 and the subsequent Native Title Act 1993 (Cth) in Australia have begun the process of recognition and protection of native title. This thesis looks at the scope of the High Court and some Federal Court of Australia decisions since Mabo [No.2], and examines the relationships at law that underlay a theoretical foundation for those decisions. Two relationships underlay the Courts' reasons: relationships to history, and relationships to land. Australian Courts are articulating a particular conception of these relationships, and the foundation of this thesis is to propose a shift in native title discourse to include indigenous perspectives when determining native title claims. ii Table of Contents Abstract ii Table of Contents iii Acknowledgements . v Chapter One: Introduction: Defining Relationships 1 Chapter Two: Methodology: Australian decisions & the appropriateness of comparative reference 7 2.1 THE METHOD 7 2.2 AUSTRALIAN JURISPRUDENCE 7 2.2.1 COMMON LAW RECOGNITION OF NATIVE TITLE 8 2.2.2 THE TEN YEARS SINCE MABO[NO.2] (1992-2002) 14 2.2.3 THE RUBRIC OF NATIVE TITLE 28 2.3 CANADIAN JURISPRUDENCE 30 2.3.1 THE CONSTITUTIONAL FRAMEWORK 3 2 2.3.2 THE EVOLUTION OF SECTION 35(1) 34 2.3.3 THE INTERPRETATIVE PRINCIPLES OF SECTION 35 45 Chapter Three: The Tide of History: Winning the battle yet frozen at war 47 3.1 RELATIONSHIPS TO HISTORY 47 3.2 THE GUIDEPOSTS OF MABO [NO.2] 50 3.3 THE BIAS OF HISTORY IN NATIVE TITLE CLAIMS 62 3.4 THE EVIDENTIARY ASPECTS 68 3.4.1 THE NATURE OF NATIVE TITLE PROCEEDINGS 68 3.4.2 THE INHERENT EVIDENTIARY DIFFICULTIES 70 3.5 THE CANADIAN EXPERIENCE 87 3.6 THE CONTEXTUAL APPROACH 95 Chapter Four: Property Regimes: something old & something new for the coexistence of peoples 97 4.1 RELATIONSHIPS TO LAND 97 4.1.1 THE ABORIGINAL RELATIONSHIP TO LAND 98 4.1.2 THE NON-INDIGENOUS RELATIONSHIP TO PROPERTY 103 4.2 THE INTERSECTION AND COEXISTENCE OF RELATIONSHIPS TO PROPERTY 107 4.2.1 THE APPLICATION OF ABSTRACT PRINCIPLES OF PROPERTY 107 4.2.2 COEXISTENCE 117 4.2.3 LEGAL PLURALISM? 123 4.3 NATIVE TITLE IS A RELATIONSHIP WITH LAND 125 Chapter Five: Conclusion: Shifting the Sands 128 BIBLIOGRAPHY 133 PRIMARY SOURCES 133 CASE LAW 133 LEGISLATION 133 SECONDARY SOURCES 139 SECONDARY MATERIAL: MONOGRAPHS 139 SECONDARY MATERIAL: ARTICLES AND REPORTS 141 iv Acknowledgements This thesis has been supported by a fellowship from the Law Foundation of British Columbia and the kindness and academic wisdom of Professors Michael Jackson and Douglas Harris. Thanks also to Professor Ruth Buchanan. Chapter One Introduction: Defining Relationships The common law is articulating native title. The purpose of this paper is to step inside that sphere of articulation and delineate how it is being shaped. This thesis is an examination of the two relationships at law that underlay a theoretical foundation for Australian decisions. It looks at the scope of the High Court and some Federal Court of Australia decisions since Mabo [No.2] v. Queensland} [hereinafter Mabo [No.2]] and the two relationships lying behind the decisions: the relationships between indigenous and non-indigenous Australians to their shared and separate histories, and to the territory which they share. Australian Courts are allowing the non-indigenous conception of these relationships to overwhelm the indigenous perspective. There is a tendency, often unconscious, to import or define Aboriginal culture in native title claims in terms of western knowledge. Such an approach is erroneous and irrelevant to Aboriginal people, because it creates and articulates an artificial characteristic in the tradition, custom or practice of native title. To understand why, one needs to observe the disparate foundations of Aboriginal and western culture. In western liberal theory, society is comprised of individuals who are autonomous. Liberal theory is dominant. This describes the core of western relationships to history, land and society. It provides the corner stone for the western social fabric. History more often than not depicts winners, and is written by winners. Land is all about ownership. Society is constructed around these notions of "ownership" and the individualistic society is one far removed from indigenous perspectives. This individualistic notion of rights and interests can be contrasted with a more communal perception of society that is constructed upon stewardship for the land and 1 (1992) 175 C.L.R. 1; 107 A.L.R. 1 [cited to C.L.R.]. 2 Ownership is a difficult concept. It is most commonly used as a statement of relations between people with respect to a thing. In this discourse that thing is land. See Chapter Four. In Yanner v. Eaton (1999) 201 C.L.R. 351; 166 A.L.R. 258 [cited to A.L.R.] at 266 the High Court observed 1 responsibilities. That foundation dictates comparative perceptions of history, land and society. Immediately there is a tension between a stewardship of rights and obligations that knit the indigenous social fabric and that of western society that advocates the rights of the individual. These opposite views reflect the disparity between indigenous and non- indigenous views. Colonial history and conceptions of English property are at the forefront of native title claims. Yet Aboriginal tradition derives from a different regime, from a different relationship with history and land. Furthermore, it remains malleable. The High Court is being asked not to blur the distinction, but to visualise and accommodate it in the determination of native title claims.3 There are a number of contextual historical factors that Australian Courts have yet to fully embrace such as the competing written and oral histories in demanding proof of native title. An examination of the more contemporary understandings of history in chapter three reveals the significance of relationships to land. How that relationship is constructed and visualised by the Court impacts heavily upon the articulation of native title and is more often than not the point of division amongst members of the bench. Property as an analytical tool is complex. At common law the theoretical foundations of property vary. The principal deponents in native title claims such as the Crown, third parties and claimants have different perspectives of land, and land as property. To date the Aboriginal relationship to land as articulated by the Courts has oscillated between common law theories of property as an interest in land or a bundle of rights. This thesis seeks to shift the discourse in native title to include indigenous perspectives. The shifting of the sands towards a more contextual approach is proposed in two ways, first by looking at indigenous relationships to history, and secondly, to land as a legal relationship that can recognise and protect indigenous relationships to traditional territories. A shift to a more contextual approach where indigenous relationships to land and property are evaluated within the indigenous paradigm will ensure the Aboriginal the term connotes a legal right "to have and to dispose of possession and enjoyment" of the subject matter. For example see Yorta Yorta Aboriginal Community v. Victoria (2001) 110 F.C.R. 244, 180 A.L.R. 655; heard by the High Court in May 2002. The decision of the High Court is reserved. 2 \ perspective is not further washed away by the tide of history. I set these indicia out as practical guidelines to those trying to understand the decisions and for those making such decisions. Later in this paper I will argue that a broad multi disciplinary approach by the Courts is desirable in order to provide legal and conceptual space for legal pluralism in Australia. I will also argue that the Courts are articulating particular conceptions of these relationships that are void of indigenous perspectives. It will be my contention that three issues are emerging before the Court, and those issues result from the preconceptions of the two identified relationships. The first is evidentiary: Aboriginal rights and interests are at the risk of being frozen in time if the Courts ignore indigenous perspectives. Some members of the judiciary demand a "timeless quality".4 The second is that conceptions of property are the catalyst for division on the bench.
Load more

Recommended publications
  • Ocean Management: the Legal Framework
    Assessment Report Ocean management the legal framework > Healthy wisely for the Healthy oceans: for the The South-east Regional Marine Plan Title: Ocean management – the legal framework The South-east Regional Marine Plan Assessment Reports Copyright: National Oceans Office 2002 Disclaimer: This report was prepared by the National Oceans Office to assist with consultation on the development of the South-east Regional Marine Plan, as part of the Commonwealth Government’s Australia’s Oceans Policy. The views expressed in this report are not necessarily those of the Commonwealth. The Commonwealth does not accept responsibility for the contents of this report. Sourcing: Copies of this report are available from: The National Oceans Office Level 1, 80 Elizabeth St, Hobart GPO Box 2139 Hobart TAS 7001 Tel: +61 3 6221 5000 Fax: +61 3 6221 5050 www.oceans.gov.au For further information about this report, contact Ester Guerzoni, Public Affairs Officer, tel (03) 6221 5000. Reproduction: Information in this report may be reproduced in whole or in part for study or training purposes, subject to the inclusion of acknowledgment of the source and provided no commercial usage or sale of the material occurs. Reproduction for purposes other than those given above requires written permission from the National Oceans Office. Requests for permission should be addressed to the Public Affairs Officer, National Oceans Office, GPO Box 2139, Hobart TAS 7001. Credits: Design: CSIRO Marine Research Prepress: Photolith Printing: Printing Authority of Tasmania Published by the National Oceans Office Photographs: Ship in rough seas, cray pots © CSIRO Marine Research Division; king prawn tail © Karen Gowlett- Holmes; puffer fish and ship’s anchor © Dave Stephenson State Library Ref: Ocean management – the legal framework South-east Regional Marine Plan Assessment Reports 1-877043-20-6 The National Oceans Office is an Executive Agency of the Commonwealth Government of Australia Ocean management Contents Executive Summary .
    [Show full text]
  • Annual Report 2007–2008
    07 08 NATIONAL NATIVE TITLE TRIBUNAL CONTACT DETAILS Annual Report 2007–2008 Tribunal National Native Title PRINCIPAL REGISTRY (PERTH) NEW SOUTH WALES AND AUSTRALIAN Level 4, Commonwealth Law Courts Building CAPITAL TERRITORY 1 Victoria Avenue Level 25 Perth WA 6000 25 Bligh Street Sydney NSW 2000 GPO Box 9973, Perth WA 6848 GPO Box 9973, Sydney NSW 2001 Telephone: (08) 9268 7272 Facsimile: (08) 9268 7299 Telephone: (02) 9235 6300 Facsimile: (02) 9233 5613 VICTORIA AND TASMANIA Level 8 SOUTH AUSTRALIA 310 King Street Level 10, Chesser House Annual Report Melbourne Vic. 3000 91 Grenfell Street Adelaide SA 5000 GPO Box 9973, Melbourne Vic. 3001 GPO Box 9973, Adelaide SA 5001 Telephone: (03) 9920 3000 2007–2008 Facsimile: (03) 9606 0680 Telephone: (08) 8306 1230 Facsimile: (08) 8224 0939 NORTHERN TERRITORY Level 5, NT House WESTERN AUSTRALIA 22 Mitchell Street Level 11, East Point Plaza Darwin NT 0800 233 Adelaide Terrace Perth WA 6000 GPO Box 9973, Darwin NT 0801 GPO Box 9973, Perth WA 6848 Telephone: (08) 8936 1600 Facsimile: (08) 8981 7982 Telephone: (08) 9268 9700 Facsimile: (08) 9221 7158 QUEENSLAND Level 30, 239 George Street NATIONAL FREECALL NUMBER: 1800 640 501 Brisbane Qld 4000 WEBSITE: www.nntt.gov.au GPO Box 9973, Brisbane Qld 4001 National Native Title Tribunal office hours: Telephone: (07) 3226 8200 8.30am – 5.00pm Facsimile: (07) 3226 8235 8.00am – 4.30pm (Northern Territory) CAIRNS (REGIONAL OFFICE) Level 14, Cairns Corporate Tower 15 Lake Street Cairns Qld 4870 PO Box 9973, Cairns Qld 4870 Telephone: (07) 4048 1500 Facsimile: (07) 4051 3660 Resolution of native title issues over land and waters.
    [Show full text]
  • 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
    [Show full text]
  • 4. Defining Native Title
    4. Defining Native Title Contents Summary 73 Establishing native title rights and interests 73 Recognition of native title in Mabo [No 2] 73 Defining native title in the Native Title Act: s 223(1) 74 Section 223(1)(a): Traditional laws and customs 76 Section 223(1)(b): Connection with land or waters 79 Section 223(1)(c): Recognised by the common law 81 Problems of proof 82 Proof in native title 83 A presumption in relation to proof? 84 Summary 4.1 This chapter sets out the legal requirements to establish native title rights and interests. It outlines the definition of native title in s 223 of the Native Title Act and sets out major judicial statements on its interpretation. The chapter then discusses problems in relation to proof of native title and considers whether a presumption of continuity should be introduced. The ALRC does not propose that there be a presumption of continuity. Instead, it proposes a number of amendments to the definition of native title to address the technicality and complexity of establishing native title rights and interests. These proposals are made in later chapters of this paper. Establishing native title rights and interests Recognition of native title in Mabo [No 2] 4.2 In Mabo v Queensland [No 2] (‘Mabo [No 2]’), the High Court found that pre- existing rights and interests in land held by Aboriginal and Torres Strait Islander peoples—native title—survived the assertion of sovereignty by the Crown.1 4.3 As noted in Chapter 2, native title has its source in the traditional laws and customs of the relevant Aboriginal and Torres Strait Islander peoples.
    [Show full text]
  • Native Title Rights to Exclusive Possession, Use and Enjoyment and the Yindjibarndi
    92 NATIVE TITLE RIGHTS TO EXCLUSIVE POSSESSION, USE AND ENJOYMENT AND THE YINDJIBARNDI RICHARD BARTLETT* I THE YINDJIBARNDI AND FORTESCUE METALS The recent trial court determination of the rights of the Yindjibarndi people to their traditional lands, Warrie (on behalf of the Yindjibarndi People) v State of Western Australia (Yindjibarndi No 2),1 attracted extensive media coverage. The reason for the extensive coverage was because Fortescue Metals had recently established a large iron ore mine on the traditional lands the subject of the determination without any agreement with the native title claimants. The mine is projected to have revenues of $280 billion over 40 years. The case drew attention to the rights of exclusive possession which the native title claimants were able to establish. Fortescue Metals announced very shortly after the trial judgement that the decision would be appealed, the chief executive officer saying that “the court’s decision appeared to be based on a very different interpretation of exclusive native title possession, and could have major implications” beyond the immediate case2. The chief executive officer voiced concern as to the compensation that might be payable, and the rights the Yindjibarndi could exercise over the land. This paper traces developments with respect to native title rights to exclusive possession, in particular how the Federal Court has interpreted the requirements of proof with respect to traditional laws and customs in a way which has served to benefit native title holders, rather than, as is commonly the case, limiting3 * Professor of Law, The University of Western Australia. 1 Warrie (on behalf of the Yindjibarndi People) v State of Western Australia (Yindjibarndi No 2) [2017] FCA 803.
    [Show full text]
  • Australian Bar Review Ten Years in the High Court
    AUSTRALIAN BAR REVIEW TEN YEARS IN THE HIGH COURT - CONTINUITY & CHANGE* The Hon Justice Michael Kirby AC CMG** WHAT IS IT REALLY LIKE? It is almost ten years since my appointment as a Justice of the High Court of Australia. Not long after I had first taken my seat, I addressed a constitutional law class at the University of Sydney. My lecture was titled "What Is It Really Like to be a Justice of the High Court of Australia?". The lecture was later published1. Now, from the advantage of a decade's service, I will describe the changes I have witnessed. A barrister who keeps abreast of the case law necessarily enters the minds of the Justices of the High Court and lives, in a sense, with their values, attitudes and habits of reasoning. Inevitably, not a few speculate on what it would be like to live and work in the great * Text of a talk given to the Bar Readers course, NSW Bar Association, Sydney, 17 October 2005. ** Justice of the High Court of Australia. 1 (1997) 19 Sydney Law Review 514. 2. courthouse in Canberra, by Lake Burley Griffin. There is nothing wrong with aspiration. Some, more ambitious, imagine themselves, decades hence, occupying one of the chambers on the ninth level of that building. However, the numbers called are very few2. In the history of the Court, I was but the fortieth Justice. When Justice McHugh leaves the Court on 31 October 2005, Justice Susan Crennan, the forty-fifth Justice will be sworn3. Forty-five is not many in little more than a century.
    [Show full text]
  • Track Project 6.2 Indigenous Rights in Water in Stralia Northern Au
    NAILSMA ­ TRaCK Project 6.2 Indigenous Rights in Water in Northern Australia Michael O’Donnell Barrister‐at‐Law John Toohey Chambers DARWIN NT 0800 March (Photo courtesy of W. Nikolakis) 2011 (Photo: North Australian Indigenous Experts Water Futures Forum. NAILSMA © 2009) Disclaimer TRaCK has published the information contained in this publication to assist public knowledge and discussion and to help improve the sustainable management of Australia’s tropical rivers and coasts. Where technical information has been prepared by or contributed by authors external to TRaCK, readers should contact the author(s), and conduct their own enquiries, before making use of that information. No person should act on the contents of this publication whether as to matters of fact or opinion or other content, without first obtaining specific independent professional advice which confirms the information contained within this publication. While all reasonable efforts have been made to ensure that the information in this publication is correct, matters covered by the publication are subject to change. Charles Darwin University does not assume and hereby disclaims any express or implied liability whatsoever to any party for any loss or damage caused by errors or omissions, whether these errors or omissions result from negligence, accident or any other cause. Copyright This publication is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review as permitted under the Copyright Act, no part may be reproduced, by any process, without written permission from the publisher, Enquiries should be made to the publisher, Charles Darwin University, c/­ TRaCK, Casuarina Campus, Building Red 1 Level 3, Darwin NT 0909.
    [Show full text]
  • 1. Introduction
    1. Introduction Contents Review of the Native Title Act 1993 (Cth) 35 Connection to Country: Overview 35 The law reform brief 37 The scope of the Inquiry 37 Other reviews 40 Why reform is needed 40 Law reform process 45 Community consultation 45 Appointed experts 47 Matters outside the Inquiry 47 The guiding principles for the Inquiry 50 Structure of the Report 55 Review of the Native Title Act 1993 (Cth) Connection to Country: Overview 1.1 This Report marks the first major review of the law governing ‘connection’ in native title claims since the introduction of the Native Title Act 1993 (Cth) (‘Native Title Act’). In tandem it examines authorisation of persons bringing claims and joinder of parties to a native title claim. The recognition of native title in Mabo v Queensland [No 2] (‘Mabo [No 2]’),1 and the introduction of the Native Title Act, marked a significant shift in Australia’s relationship with Aboriginal and Torres Strait Islander peoples. It is important that the claims process for determining native title effectively recognises and protects native title rights and interests, while balancing the wide range of other interests that are affected by a native title determination. 1.2 On 3 August 2013, the then Attorney-General of Australia, the Hon Mark Dreyfus QC MP, requested that the Australian Law Reform Commission (ALRC) conduct an Inquiry into, and report on Commonwealth native title laws and legal frameworks in the following areas: · connection requirements relating to the recognition and scope of native title rights and interests; and · any barriers imposed by the Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.
    [Show full text]
  • The Crown's Radical Title and Native Title: Lessons from the Sea Part
    THE CROWN’S RADICAL TITLE AND NATIVE TITLE: LESSONS FROM THE SEA PART ONE — THE POSITION BEFORE YARMIRR ULLA SECHER* [The High Court’s decision in Commonwealth v Yarmirr raised the important question of whether the Crown’s acquisition of sovereignty over the territorial sea was accompanied by the vesting of radical title which could thus be burdened by native title. Prior to this decision, the High Court in Common- wealth v WMC Resources Ltd had considered the Crown’s title to the continental shelf beyond the territorial sea and, in doing so, declared that the Crown’s radical title does not exist below low-water mark. Consequently, in Yarmirr, the majority of the High Court drew a distinction between the Crown’s radical title to land and the Crown’s ‘sovereign rights and interests’ to the territorial sea. Nevertheless, the Yarmirr High Court indicated, without deciding, that as a result of legislation effecting the offshore constitutional settlement, radical title may now be the appropriate ‘tool’ with which to analyse the Crown’s rights to the territorial sea. Indeed, as a member of the Full Federal Court in Yarmirr, Merkel J specifically referred to Brennan CJ’s key reference to radical title in WMC, and suggested that the two concepts, radical title and ‘sovereign rights and interests’, are analogous. This two part article, therefore, examines the legal nature of the Crown’s title to the sea (including the intertidal zone and the territorial sea as well as the continental shelf and the Exclusive Economic Zone beyond the territorial sea) to determine whether any analogy can be drawn between such title and the Crown’s title to land.
    [Show full text]
  • Maximising Special Leave Performance in the High Court of Australia 731
    2007 Speech: Maximising Special Leave Performance in the High Court of Australia 731 MAXIMISING SPECIAL LEAVE PERFORMANCE IN THE HIGH COURT OF AUSTRALIA THE HONOURABLE JUSTICE MICHAEL KIRBY AC CMG* I NATURE AND NURTURE Some attributes of successful advocates are probably genetic. Intelligence, verbal dexterity, appearance, height and ability to perform under stressful pressure are all written in the genes. No matter how clever and experienced, none of us can alter these basic building blocks of our natures. Any ‘rules’ can only be useful as they help us make the most of our genetics.1 Nature itself does not observe the principle of equal opportunity. I will not pretend that the process of judging special leave applications is wholly logical or scientific. An inescapable element of intuition, wrapped in experience, within an exercise of judgment produces the outcomes. As lawyers and judges, we may strive to minimise the human elements, with their risks of personal attitudes and values. Yet we deceive ourselves if we think that we can eliminate them altogether from the equation. Relatively little has been written about the neurobiology of judicial decision- making. Until recently, most judges reassuringly pretended that the entire process was objective and mechanical, producing inevitable outcomes. Inspired by a recent decision of the High Court of Australia,2 two neurologists (one of whom has now ventured into law) lately analysed the process of judicial decision- making in sentencing decisions from the standpoint of the debate as to whether it involves an ‘instinctive synthesis’ or a ‘staged approach’ that maximises consistency and transparency. In the end, the neurologists endorsed a comment of my own, written extra-judicially in 1998, about ‘the moment of decision’:3 * Justice of the High Court of Australia, 1996-present; President of the Court of Appeal of the Supreme Court of New South Wales, 1984-96.
    [Show full text]
  • 2. Framework for Review: Historical and International Perspectives
    2. Framework for Review: Historical and International Perspectives Contents Summary 59 Recognition as the foundation for native title 60 Native title in its historical context 61 The first land claim case: Milirrpum v Nabalco 65 Statutory land rights 66 The recognition and continuity doctrines revisited 66 The framework: Mabo [No 2] 67 Native title: continuity and proof 69 After the Mabo decision 70 The Native Title Act 71 Negotiating the legislation 71 Overview of the Act 72 Construing s 223 of the Native Title Act 73 Interpretation of s 223(1) 74 Traditional laws and customs 75 Continuity over an extended time frame 75 The scope of native title rights and interests 76 A society united in and by its acknowledgment of laws and customs 77 Laws, customs and change 78 International law 79 International law and Indigenous peoples 79 Adoption of treaties relevant to native title 80 United Nations Declaration on the Rights of Indigenous Peoples 82 Summary 2.1 The Terms of Reference ask the ALRC to examine the ‘connection requirements, relating to the recognition and scope of native title’. In that context, this chapter outlines a framework for review of the relevant provisions of the Native Title Act 1993 (Cth) (‘Native Title Act’). 2.2 This chapter first places native title law in Australia in an historical context by reference to the derivation of native title in common law jurisprudence. It canvasses the factors leading to the recognition of native title in Mabo v Queensland [No 2] (‘Mabo 60 Connection to Country: Review of the Native Title Act 1993 (Cth) [No 2]’).1 The second section discusses the Native Title Act and the subsequent interpretation of s 223 of the Act.
    [Show full text]
  • The Sydney Law Review Contents
    Volume 26 Number 3 September 2004 the sydney law review contents articles Robb Evans of Robb Evans and ‘Sovereignty’ and its Relevance to Associates v European Bank Ltd Treaty-Making Between Indigenous Matthew Burston Peoples and Australian Governments 439 Sean Brennan, Brenda Gunn and George Williams The Human Genome, Property of All: 307 Opportunities Under the ALRC Inquiry into Gene Patenting and Human History, Memory and Judgment: Health Holocaust Denial, The History Wars John Paul Hinojosa and Law’s Problems with the Past 447 Lawrence McNamara 353 book review Wealth by Stealth: Corporate Crime, Family-friendly Work Practices and Corporate Law and the Perversion of The Law Democracy by Harry Glasbeek Belinda Smith and Joellen Riley Joellen Riley 395 456 cases and comments Choice of Law on the High Seas: Blunden v Commonwealth Alison Mutton 427 EDITORIAL BOARD Patrick Parkinson (Editor) Emma Armson Fleur Johns Mary Crock Les McCrimmon Saul Fridman Jenni Millbank STUDENT EDITORIAL COMMITTEE Charlotte Ahearne Stephen Brancatisano Juliet Curtin Edwina Dunn Rebecca Dunn Carol Elliott Lucinda Flanagan Louise Martin Karen Mok Kelly Ngo Brendan Smith Ryan Thorne Coordinator of the Review: Joanna Howse Contributions and correspondence should be addressed to: The Editor Sydney Law Review Sydney University Law School 173–175 Phillip Street SYDNEY NSW 2000 AUSTRALIA Fax +61 2 9351 0200 Email [email protected] or, [email protected] The Sydney Law Review is a refereed journal. The Sydney Law Review Online http://www.law.usyd.edu.au/~slr Text of Before the High Court Special Issue Feature page Article and Case Note synopses Indices for Volume 14 onwards Text of Style Guide Back Issue Order Form ‘Sovereignty’ and its Relevance to Treaty-Making Between Indigenous Peoples and Australian Governments SEAN BRENNAN,* BRENDA GUNN** AND GEORGE WILLIAMS*** Abstract The idea of a treaty or treaties between Indigenous peoples and Australian governments has long been a subject of debate.
    [Show full text]