Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking (original) (raw)
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[It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.] CONTENTS
Asia-Pacific Journal on Human Rights and the Law, 2013
This article considers the origin and development of native title law in Australia since the Mabo decision. It examines native title litigation in the decisions of the Federal and High Court in an attempt to determine whether such litigation has delivered on the principal objectives defined by Mabo, or has moved forward. The aim of the article is to establish whether Mabo is simply a correction of history intended to bring Australia into line with the developments adopted by other jurisdictions, or whether it is a true ‘judicial revolution’. Finally, the article makes a critical and comparative examination of native title in the United States, Canada and New Zealand, which reveals that the Australian approach to native title is far removed from the flexible approaches of those other jurisdictions.
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 limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia
2010
Mark Finnane, The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia,Palgrave Macmillan, reproduced with permission of Palgrave Macmillan Finnane: Limits of jurisdiction 2 The limits of jurisdiction: law, governance and Indigenous peoples in colonised Australia Mark Finnane In events well known and controversial in Australia, the last year of the Howard Government (1996-2007) saw a federal "intervention" in one of its own territories with the aim of restoring order in Aboriginal communities. Under the mandate of an "Emergency Response" the government designed a comprehensive program of policing (including military aid to the civil power), welfare reform and criminal law amendment. The response comprised both material and symbolic elements. Among the latter was a widely publicised announcement that "customary law" would no longer be an excuse for criminal behaviour. Some months later the Commonwealth Parliament amended the Crimes Act to delete a requirement passed only in 1994 (with bi-partisan support) that a court take account of "cultural background" in sentencing decisions. Today the Crimes Act directs that "a court must not take into account any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates." 1 Such a determined government attack on "customary law and cultural practice" more than two centuries after the British settlement of Australia prompts us to consider how such traces of Indigenous authority and even assertions of jurisdiction have survived. For it will be argued here that far from being resolved in 1836, the question of Indigenous amenability to imported British criminal law in Australia remained surprisingly open. Historians as well as jurists have generally agreed that when the New South Wales Supreme Court affirmed in the case of R v Jack Congo
The Politics of Remembering and Forgetting: Native Title Law and Reconciliation in Australia
Cosmopolitan Civil Societies: An Interdisciplinary Journal, 2009
The post-Mabo era was to be the age of reconciliation and the end of unjust dispossession of Indigenous peoples' lands. However, as the more recent cases in native title show this vision did not become the reality. In this paper, I will examine Mabo in its historical context. In particular I will examine the claim that Mabo was a product of the 'new history' movement in Australia. This movement developed in response to the silence that had shrouded the history of colonial relations between Indigenous and non-Indigenous peoples for most of the 19th and 20th centuries. Through the writing of these histories, new historians have raised awareness of the history of colonization in Australia and the impact it has had on Indigenous peoples in particular. In the paper I will outline the ways in which Mabo is a product of this history. However, if Mabo did not bring to an end to the injustice and inequality facing Indigenous peoples in the context of land law in Australia, it is because of the traces of another history informing that decision and the events that followed it. In this paper I will refer to this history as the 'old history' of Australia. In this history Indigenous peoples are placed in a paradoxical position: they are inferior, but still seen as threat to the colonial enterprise. The paper will explore how this 'history' is repeated in Mabo and continues to inform the High Court's approach to native title law.
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 ...