Claim, culture and effect: Property relations and the native title process (original) (raw)

Defining native title - Indigenous cultural knowledge and the Native Title Act

2003

This article argues that the definition of native title in the Native Title Act 1993 (Cth) has been interpreted by the High Court to contain at least two restrictions. This argument is advanced through an examination of the protection of Indigenous cultural knowledge by the native title regime. Part 1 outlines a definition of cultural knowledge, establishes a proposed categorisation of rights in relation to that knowledge and identifies arguments for their protection. Part 2 introduces the Native Title Act 1993 (Cth) in the context of the development of native title jurisprudence in Australia, sets out the statutory definition of native title and the relevant part of the majority’s reasons in Western Australia v Ward (2002) 191 ALR 1. Part 3 is a discussion of that definition and its treatment by the High Court in Ward. Two concepts are identified and discussed – the requirement of specificity in defining a claim and an implied restriction favouring a physical connection to land or ...

The Nature of Aboriginal Title

2000

Introduction The concept of aboriginal title is an autonomous concept of Canadian common law that bridges the gulf between aboriginal land systems and imported European land systems.1 It does not stem from aboriginal customary law, English common law or French civil law. It coordinates the interaction between these systems, without forming part of them.2 Aboriginal title is thus a sui generis concept—one that does not fit into pre-existing legal categories.3 The unique character of aboriginal title is explained by the distinctive history of aboriginal lands in North America during the formative era extending into the nineteenth century. This history can be divided into four phases:

The common law construct of native title: a 're-feudalisation' of Australian land law

Faculty of Law Papers, 1999

Recent scholarship has interpreted the recognition of native title in Mabo and Wik as bringing about a decisive break between Australian land law and its feudal past. In this article we argue that once attention is shifted from the Crown's interest in native title land to the interest of the native title holders themselves, a very different picture emerges. This article argues that the common law construct of native title constitutes a 're-feudalisation' of Australian land law. We assert that native title can be understood as a product of a series of dialectics: public and private; stasis and dynamism; and transcendence and enslavement. We demonstrate that the dialectic nature of native title gives it the hallmarks of a feudal interest in land, that is, an interest that is contingent, limited and susceptible to coexistence with other interests. Introduction-The landmark High Court cases dealing with the rights of Indigenous peoples in land in Australia-Mabo v Queensland (No 2) and Wik Peoples v Queenslandwere each met with a legislative response in the form of the Native Title Act 1993 (Cth) and the Native Title Amendment Act 1998 (Cth),' respectively. However, the Native Title Act continues to use as its fundament in the recognition, protection and extinguishment of Indigenous rights in * Lecturer, Faculty of Law, University of Wollongong ** Senior Lecturer, Faculty of Law, University of Wollongong * This article is the product of a larger project on the legal concept of native title conducted by the authors with the support of an Australian Research Council Small Grant. We thank David Jones for his research assistance in relation to that project. This article has also benefited from the presentation of a paper at the 17th Annual Law and History Conference: Empires/Colonies/Legal Cultures, Melbourne, 3-5 July 1998. 1 Mabo v Queensland (No 2) (1992) 175 CLR 1 (hereafter Mabo). 2 Wik Peoples v Queensland (1996) 187 CLR 1 (hereafter Wik). 3 See Yarmirr v Northern Territory (1998) 156 ALR 370 (hereafter Yarmirr) at 385. 4 See RH Bartlett, 'A Return to Dispossession and Discrimination: The Ten Point Plan' (1997b) 27 UWALR 44, pp 49-51, for a consideration of the history of, and the motivation behind, the Native Title Amendment Bill 1997, the precursor to the Native Title Amendment Act 1998 (Cth). HeinOnline-8 Griffith L. Rev. 50 1999 GR TTAN & McNAMAR. COMMON LAW CONSTRUCT OF NA TIVE TITLE 51 land' the concept of native title as expounded by the common law.' And this conceptwhich we refer to in this paper as the 'common law construct of native title'7-has in recent times been the subject of judicial attention in Australia on several occasions. The Federal Court has handed down three lengthy judgments concerning native title: Yarmirr v Northern Territory, Ward v Western Australia; and Yorta Yorta Aboriginal Community v Victoria' The High Court has again contributed to the jurisprudence with its decision in Fejo v Northern Territory.' In Canada as well, the nature of Indigenous ownership of land has been reexamined by that country's Supreme Court in Delgamuukw v British Columbia' The implications of that decision are still being debated." These developments reveal that the process of 'unpacking' and explaining the nature of the common law construct of native title is an ongoing one. 5 See, for example, Native Title Act ss 10-13. 6 See the definition of 'native title' and 'native title rights and interests' in the Native Title Acts 223 (1). Also see Yarmirr at 386-387. It must be noted that in Yarmirr, Olney J held that the Native Title Act allows for the recognition of native title in at least one context where native title would not be recognised by the Australian common law. According to his Honour, the Act permits the recognition of native title in offshore waters (at 388-389). This is despite the fact that the common law would not afford such recognition because the common law of Australia does not extend offshore. His Honour held that the Act provides a statutory basis for the recognition of such offshore rights, provided they are of a type that would have been recognised by the common law had the territorial restriction not applied. 7 We prefer to describe 'native title' as a common law construct because the reception of native title into the common law has not been an act of passive recognition of Indigenous relationships with land as they exist under relevant Indigenous law. Instead, in transforming Indigenous relationships with land through the institution of native title, by giving those relationships characteristics they do not have under Indigenous lawsuch as susceptibility to extinguishment-the courts have initiated a process of creation (or construction). See I Hunter (1994) 'Native Title: Acts of State and the Rule of Law' in M Groot and T Rowse (eds) Make a Better Offer:

The Social Construction of Indigenous `Native Title' Land Rights in Australia

Current Sociology, 2007

Legal scholars and political theorists dominate academic writing on the issue of indigenous peoples' rights. This article, however, adopts a sociological approach, analysing indigenous rights in Australia as a socially constructed phenomenon, the product of ideals, entrenched colonial structures and the balance of power between political interests. It shows how, during rights institutionalization processes, ably aided by a receptive government and media, commercial lobby groups constructed propaganda campaigns to further their interests to the detriment of indigenous interests. The resultant legislation was an exercise in rights limitation behind a veneer of agrarian reform. The article concludes by highlighting the tension between national rights regimes of this nature and international human rights norms and suggests an approach that could overcome this problem.

The social effects of native title: recognition, translation, coexistence

ANU Press eBooks, 2007

Native title has had a profound social impact in Australia. Its effects have been felt from the local level through to the national level ever since the success of the Mabo No.2 case in the Federal Court. But despite the involvement of large numbers of anthropologists in the field of native title practice (alongside lawyers, historians, archaeologists and others trained in the social sciences and humanities) there has been surprisingly little reflection on the social effects of native title. Native title law and native title claims, negotiation of Indigenous Land Use Agreements (ILUAs) and other processes associated with the Native Title Act 1993 (Cth) (NTA) and its amendments all present themselves as candidates for analysis by social scientists. But although there is now an extensive literature on native title, almost all of this literature is concerned with Native Title practice. 1 Far fewer scholars and practitioners-many of whom are publishing academics as well as consultants or employees of various agencies engaged in native title work-have engaged with native title as a social phenomenon potentially (we would argue necessarily) deserving of critical reflection. This collection seeks to make a contribution towards the study of the social effects of native title. Based on a workshop which took place in November 2005 at The Australian National University, convened by the Centre for Aboriginal Economic Policy Research, the collection includes papers by anthropologists, claimants and other practitioners and scholars dealing with the direct and indirect effects of native title on particular places and people. In particular the collection provides a range of responses to widespread complaints by Aboriginal Australians and Torres Strait Islanders that native title delivers little in the way of meaningful recognition of customary property rights (or the systems of 'law and custom' in which these rights are embedded), that where such 'recognition' occurs it 1 There is, however, a more developed anthropological literature-which includes a significant critical dimension-on Australia's various State and Territory Aboriginal Land Rights Acts; see, for example,

Prior Occupation and Schismatic Principles: Toward a Normative Theorization of Aboriginal Title

Alberta Law Review

There are two divergent principles underlying theconstitutional recognition of Aboriginal title in s. 35(1) of the <i>Constitution Act, 1982</i> the historically-oriented principle of "prior occupation, " and the forward-looking principle of "reconciliation. " A closer look at the principle of "prior occupation " reveals several possible rationales behind its requirement in the test for Aboriginal title: to promote economic efficiency; to ground a natural right of ownership; and to function as a proxy for the protection of individual or group identity. However, each of these rationales fails to adequately respond to both previous jurisprudence in the area and the need to achieve a just and legally sound system for determining future claims. If "prior occupation" is instead understood as a proxy for "community connections to land," then the primary interests at stake are more clearly revealed. It is then possible to devel...