First Nations Cultural Loss: Whiteness and the Timber Creek Judgment

Legalities ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 68-90
Author(s):  
Greta Bird ◽  
Jo Bird
Keyword(s):  
First Nations ◽  
High Court ◽  
Native Title ◽  
Terra Nullius ◽  
First Time ◽  
Meaningful Sense

The Ngaliwurru and Nungali Peoples of the Country known in white law as Timber Creek commenced three proceedings under the Native Title Act 1993 (Cth) (NTA) in 1999 and 2000. The final judgment in the High Court was hailed as progressive. It was the first time that the Court had awarded damages inter alia for cultural loss under the NTA. The article contends that the compensation awarded was inadequate, being based on white, neo-liberal notions of property that do not acknowledge Aboriginal sovereignty, the depth of connection to country and loss suffered. The case also denied that a fiduciary obligation existed on behalf of the Crown, a possibility that was raised in Mabo and other cases but allowed to atrophy. Given this, it is argued that the judgment is a continuation of the colonial project based on the ‘ terra nullius’ doctrine and can be critiqued from the perspective of the white cultural privilege embedded throughout. The judgment does not disturb the skeleton of white Australia's claims to sovereignty: the taking of the land without consent, the failure to recognise First Nations sovereignty, the neglect to enter into treaties or to provide compensation in any meaningful sense.

Earthing Theology

2021 ◽  
Vol 4 (2) ◽  
pp. 275-289
Author(s):  
John D’Arcy May
Keyword(s):  
First Nations ◽  
Ecological Crisis ◽  
Aboriginal Australians ◽  
Native Title ◽  
Terra Nullius ◽  
Christian Churches ◽  
Land Disputes ◽  
Religious Meaning ◽  
Indigenous Spirituality

Abstract The encounter of Aboriginal Australians with European settlers led to appalling injustices, in which Christian churches were in part complicit. At the root of these injustices was the failure to comprehend the Aborigines’ relationship to the land. In their mythic vision, known as The Dreaming, land is suffused with religious meaning and therefore sacred. It took two hundred years for this to be acknowledged in British-Australian law (Mabo judgement, 1992). This abrogated the doctrine of terra nullius (the land belongs to no-one) and recognized native title to land, based on continuous occupation and ritual use. But land disputes continue, and at a deeper level, there is little appreciation of the Indigenous spirituality of the land and the significance it could have for reconciliation with First Nations and the ecological crisis. Aboriginal theologies can help Christians to appreciate the riches of this spirituality and work towards justice.

The Australian High Court's Use of the Western Sahara Case in Mabo

1996 ◽  
Vol 45 (4) ◽  
pp. 923-927
Author(s):  
Shirley Scott
Keyword(s):  
International Law ◽  
Indigenous People ◽  
Legal Rights ◽  
Privy Council ◽  
Western Sahara ◽  
High Court ◽  
Terra Nullius ◽  
Law And Politics ◽  
High Court Of Australia ◽  
First Time

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1 Crucial to the reasoning in the leading judgment of the landmark 1992 Mabo case,2 by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not been terra nullius at the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council in Cooper v. Stuart.3 In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4 This had given rise to the assumption, confirmed by Milurrpum v. Nabalco Ltd (the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5 The leading judgment in Mabo went on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6 Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7

Love in the High Court: Implications for Indigenous Constitutional Recognition

2021 ◽  
pp. 0067205X2110165
Author(s):  
Shireen Morris
Keyword(s):  
First Nations ◽  
Indigenous Identity ◽  
High Court ◽  
The People ◽  
Australian State ◽  
Proposal A ◽  
Policy Suggestions ◽  
New Race ◽  
High Level ◽  
Policy Incentives

This article considers implications of the recent Love decision in the High Court for the debate about Indigenous constitutional recognition and a First Nations constitutional voice. Conceptually, it considers how the differing judgments reconcile the sui generis position of Indigenous peoples under Australian law with the theoretical ideal of equality—concepts which are in tension both in the judicial reasoning and in constitutional recognition debates. It also discusses the judgments’ limited findings on Indigenous sovereignty, demonstrating the extent to which this is predominantly a political question that cannot be adequately resolved by courts. Surviving First Nations sovereignty can best be recognised and peacefully reconciled with Australian state sovereignty through constitutional reform authorised by Parliament and the people. The article then discusses political ramifications. It argues that allegations of judicial activism enlivened by this case, rather than demonstrating the risks of a First Nations voice, in fact illustrate the foresight of the proposal: a First Nations voice was specifically designed to be non-justiciable and therefore intended to address such concerns. Similarly, objections that this case introduced a new, race-based distinction into the Constitution are misplaced. Such race-based distinctions already exist in the Constitution’s text and operation. The article then briefly offers high-level policy suggestions address two practical issues arising from Love. With respect to the three-part test of Indigenous identity, it suggests a First Nations voice should avoid the unjustly onerous burdens of proof that are perpetuated in some of the reasoning in Love. It also proposes policy incentives to encourage Indigenous non-citizens resident in Australia to seek Australian citizenship, helping to prevent threats of deportation that faced Love and Thoms.

scholarly journals Linking First Nations data to administrative health data within Manitoba

2018 ◽  
Vol 3 (4) ◽  
Author(s):  
Venkata Shravan Ramayanam ◽  
Leona Star
Keyword(s):  
First Nations ◽  
Health Information ◽  
Personal Health Information ◽  
Personal Health ◽  
Data Governance ◽  
Information Research ◽  
University Of Manitoba ◽  
Manitoba Health ◽  
First Time ◽  
Administrative Datasets

IntroductionFirst Nation peoples (FNs) were unable to track their own health care trends due to limitations in datasets. The key linked file enables FNs to identify themselves within administrative datasets and work with Crown governments to bring equity in all services and departments to support FNs understanding of wellness. Objectives and ApproachFirst Nations Health and Social Secretariat of Manitoba (FNHSSM) was established by 2013 resolution of Assembly of Manitoba Chiefs (AMC) and incorporated in 2014. FNHSSM leads and supports research according to FNs criteria approved by the Chiefs in Assembly. Information Sharing Agreements (ISA) have been developed with federal and provincial governments to mandate the processes for data linkage. The ISA allows Indian Status Register (ISR) data of Department of Indigenous Services Canada (DISC) to be transferred to FNHSSM to provide oversight, and link to Provincial Personal Health Information Numbers (PHINs) to create the de-identified, scrambled, and encrypted Key Linked file. ResultsPrevious linkages were done in early 2000s with FNs approval and oversight. The 2018 linkage is the first time that ISAs have been formally developed. ISA-1 is between FNHSSM and Manitoba Health Seniors and Active Living (MHSAL) to create Key Linked file. ISA-2 is between FNHSSM, MHSAL and Manitoba Centre for Health Policy (MCHP) at University of Manitoba, to create the FNs Research File. This research file can only be accessed with application to and approval by the MFNs Health Information Research Governance Committee. This key linked file allows FNHSSM to prepare community health profiles specifically and only for each FN, to respect FNs Data Governance under Chief and Council. A regional report on Manitoba FNs will be created for all MFNs, FNHSSM and MHSAL. Conclusion/ImplicationsLinking datasets helps to strengthen FNs data governance in re-building nations, recognizing FNs inherent right to self-determination. Linking files help to provide meaningful data to advocate for FNs rights and access to the resources and social determinants of health needed to achieve equity in Manitoba.

scholarly journals The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge towards Native Title ‘Ownership’

2019 ◽  
Author(s):  
Simon Young
Keyword(s):  
Court Decision ◽  
Current Regulation ◽  
High Court ◽  
Native Title ◽  
First Peoples ◽  
New Challenges ◽  
Torres Strait ◽  
The Many

The Torres Strait regional sea claim, culminating in the High Court decision of Akiba v Commonwealth, signalled a new respect for the holistic relationships and dominion that underlay First Peoples’ custodianship of land and waters. The ‘Akiba correction’ centred upon a distinction between ‘underlying rights’ and specific exercises of them – and produced in that case a surviving right to take resources for any purpose (subject to current regulation). The correction emerged from extinguishment disputes, but the significance of this edge towards ‘ownership’ was soon evident in ‘content’ cases on the mainland. Yet there are new challenges coming in the wake of Akiba. What of the many native title determinations that have been settled or adjudicated on pre-Akiba thinking? And what does this renaissance in native title law offer to the communities that will fail (or have failed) the rigorous threshold tests of continuity – also crafted with the older mindset?

Meeting the Doctors

1997 ◽  
Vol 3 (5) ◽  
pp. 148-151
Author(s):  
Michael Bolger
Keyword(s):  
Health Authority ◽  
Medical Negligence ◽  
High Court ◽  
Senior Consultant ◽  
Face To Face ◽  
Local Contact ◽  
Hospital Doctors ◽  
The Impact ◽  
First Time

Michael Bolger is an AVMA Director and local contact. As a result of medical negligence, he is paraplegic and confined to a wheelchair for the rest of his life. He won substantial damages in the High Court after suing the Health Authority and senior consultant concerned. Michael has written several articles and has been interviewed on radio and television about his experience as a victim of medical negligence and as a plaintiff and has views on the need for change. In this article, Michael describes the seminar at which he was the lead speaker at the AVMA Medical Negligence Conference, held on 4–5th July 1997, where he discussed the impact of medical negligence on victims and doctors with a group of senior hospital doctors and consultants, the first time that a face-to-face discussion of this kind has taken place.

AUSTRALIA—SOVEREIGN RISK AND THE PETROLEUM INDUSTRY

2005 ◽  
Vol 45 (1) ◽  
pp. 191
Author(s):  
D. Young ◽  
R. Brockett ◽  
J. Smart
Keyword(s):  
National Parks ◽  
Petroleum Industry ◽  
Country Risk ◽  
Seismic Exploration ◽  
Sovereign Risk ◽  
High Court ◽  
Native Title ◽  
Risk Rating ◽  
The Usa ◽  
History Of

Australia has rejoiced in its reputation for having low sovereign risk and corresponding rating, for decades. This reputation was bruised in the first decade after the High Court introduced Native Title into Australian law by the legislative response of the then Government, but has since recovered, and enjoys the world’s lowest country risk rating, and shares the worlds best sovereign risk rating with the USA. A number of government precipitated occurrences in recent times, however, raise the question: for how long can this continue?This paper tracks the long history of occasional broken resource commitments—for both petroleum and mining interests—by governments at both State and Federal level, and the policies which have driven these breaches. It also discusses the notorious recent cancellation of a resource lease by the Queensland Government, first by purporting to cancel the bauxite lease and, after legal action had commenced, by a special Act of Parliament to repeal a State Agreement Act. This has raised concerns in boardrooms around the world of the security of assets held in Australia on a retention, or care and maintenance basis.The paper also looks at the cancellation of the offshore prospecting rights held by WMC, with no compensation. This was a result of the concept that rights extinguished by the Commonwealth, with no gain to the Commonwealth or any other party do not constitute an acquisition of property, thereby denying access to the constitutional guarantee of ’just terms’ supposedly enshrined in the Australian Constitution where an acquisition has occurred.Some other examples are the prohibition on exploration in Queensland national parks last November. This cost some companies with existing tenures a lot of money as exploration permits were granted, but then permission to do seismic exploration refused (Victoria). Several losses of rights occurred as a result of the new Queensland Petroleum and Other Acts Amendment Act after investments have been made.Changes in fiscal policy can also impact on project viability, and some instances of this are considered.This paper also explores ways these risks can be minimised, and how and when compensation might be recovered.

scholarly journals The condition of recognition: Gothic intimations in Andrew McGahan's The White Earth

2016 ◽  
Vol 23 (1) ◽  
pp. 84-94
Author(s):  
Stephanie Green
Keyword(s):  
Common Law ◽  
Place Identity ◽  
Literary Fiction ◽  
The Novel ◽  
Native Title ◽  
Post Colonial ◽  
Terra Nullius ◽  
Rational Explanation ◽  
Historical Moment ◽  
White Earth

AbstractThis article discusses the evocation of the Gothic as a narrative interrogation of the intersections between place, identity and power in Andrew McGahan's The White Earth (2004). The novel deploys common techniques of Gothic literary fiction to create a sense of disassociation from the grip of a European colonial sensibility. It achieves this in various ways, including by representing its central architectural figure of colonial dominance, Kuran House, as an emblem of aristocratic pastoral decline, then by invoking intimations of an ancient supernatural presence which intercedes in the linear descent of colonial possession and, ultimately, by providing a rational explanation for the novel's events. The White Earth further demonstrates the inherently adaptive qualities of Gothic narrative technique as a means of confronting the limits to white belonging in post-colonial Australia by referencing a key historical moment, the 1992 Mabo judgment, which rejected the concept of terra nullius and recognised native title under Australian common law. At once discursive and performative, the sustained way in which the work employs the tropic power of Gothic anxiety serves to reveal the uncertain terms in which its characters negotiate what it means to be Australian, more than 200 years after colonial invasion.

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