NATIVE TITLE Flashcards
WHAT ARE THE NATIVE TITLE ACT 1993 AIMS?
- aimed to codify principles in cases such as Mabo 1992
- aimed to (states in the preamble) recognise native people have been dispossessed of their land intended to recognise their land fully
- the law attempted to put past wrongs right
what are the criticisms of the native title act 1993?
it does not set out to achieve its aims. although it proposes to protect indigenous rights, case law does not reflect this.
it leaves huge room for ambiguity, for example s233; this section claims to protect native title rights but under the three satisfaction criteria, ‘must prove a connection with land’ there are so many question as to what satisfy as ‘a connection’
what sections are important in the native title act?
s223 - offers protection for native title rights if the indigenous people can satisfy three things including a ‘connection’
S3&4 - native title rights can be extinguished
S11 -
MILLIRRPUM V NABALCO 1971
this case was the first case in Australia concerning native title rights. this involved a community of elonga persons who brought a claim against the corporation who had been granted a 12 year mining lease over their land. this claim was UNSUCCESSFUL. no native rights at this time were recognised at all. upholding the principle of terra nullius
WESTERN AUSTRALIA V WARD 2002
as the Native Title act 1993 suggests there is room for extinguishing native title, this was tested in the Ward case in 2002 and it set out the guidelines for the criteria. the indiginous people wanted to recognition for their title in land, of which some land was owned by the crown- found n the basis of terra nullius. the gov granted leases over this land for people to work on. at first this claim was allowed; in favor of the indigenous people but on appeal the second tie it was rejected and extinguishable was clarified, there can be PARTIAL EXTINGUISHABLE. using INCONSISTENCY TEST. instead of viewing the rights as a block of rights they were seen as a bundle of rights, being able to be separated.
YORTA YORTA V ABORIGINAL COMMUNITY V VICTORIA 2002
this was a case concerning s223 NTA 1993. the ambiguous term ‘connection’ was tested in this case, what would ‘prove’ a connection and how. the court interpreted s223 as a ‘CONTINUOUS CONNECTION’ which Yorta Yorta could not prove after all of their best efforts. this case was unsuccessful as they couldnt prove their continuous connection to the disputed land
wayne atkinson
“Whilst the removal of old barrier were encouraging, the construction of new ones are disheartening”
R V LOWE 1827
despite growing criticism, terra nullius was restored.
JAMES LOCKE’S THEORY
to own land you have to have worked on that land.
Aboriginal land right ( northern territory ) [1976]
was created in response to the millirrpum V Nabalco [1971] case where any recognition for native title rights were dismissed.
This act gave back some large areas of land to indigenous peoples. A negative of this was that the claims process was largely ineffective and claims very limited because this act required ‘traditional association’ with land. (how do you prove that?)
CORONATION HILL
land miners and indigenous persons were in constant conflict, this is an example of how indigenous persons were living in a time of uncertainty of legal rights.
TERRA NULLIUS
‘nomans land’
the crown and their possession rights.
the crown held the absolute right to indigenous land over any inhabitants. the law was always in favour of the crown over native title.
this was upheld throughout and has never been rectified no matter how much native title has been recognised; the closest case to not demonstrating that was western aus v ward 2002 where there was a partial extinguished right to native land, where they lost to the crown over control on that land.
