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Native Title, NT Questions, Problem, Definitiins in Act?, Overturned?,…

- - - - Modification of customs is acceptable. Motor boats to hunt crocodiles.
    - - It doesn't depend on physical continuity but only considers laws and customs that relate to use of land or waters. Tough to nprove with dispossion.
        
        Knowledge of laws and observance of customs, not continued occupation or use of those lands or waters.
        
        If they followed it as far as possible off their land and passed down knowledge os it.
    - - Acknowledgement and observance NOT continued access
  - - - Dispossed in 1788, wiped out by illness, stolen generation = tides of history
      - 42 ancestral members who had been taken to a missiion petitioned the government. Their old way of life is 'not in keeping with the instructions we hyave received'. By Who? They wanted some land to settle down to 'more orderly habits'.
        
        This was the point where tides of history washed away culture
    - - Olney took a frozen in time apporoach
      - At what point is there too much change for native title?
        
        rejected based on members 100 years ago saying that their way of life was outdated and they rejected it tides of history bit despite current members trying to revive customs
      - Not allowed, dissenting
        
        Majorit YY failed to continuously observe the laws and customs
        
        GOdwin and Kirby disagreed saying that the requirement for substantial continuity can't be found in Sectioin 223
        
        Important I think
- - - - NTA s11 2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:
        
        (b) by validating past acts, or intermediate period acts, in relation to the native title.”
        
        Section 11 NTA overrides state legislation because of s109 Cth Constitution.
        
        (a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or
    - - Brennan
        
        Can be extinguished by executive action even if there is not executive authority for that actionsomething.
        
        Makes NT more vulnerable than crown granted because those can only be extinguished with statutory authority.
        
        Must show a clear intention to extinguish that because of the severity of the consequences.
        
        Or an interest has already been granted that isn't consistent with NT rights. extinguished to the extent of inconsistency
        
        Uncertainty regarding how these two standards relate.
        
        NT not the same as other property rights as those are granted by the crown and NT are not.
    - - Decided how the granting of pastoral leases affect Native Title
        
        Crown granted lease other than fee simple. 42%of land in Australia. Not necessarily a lease in the common law sense. In Wik, not equivelant to CL lease no exclusive posession, more like grazing rights
        
        They said thaty it must show a 'clear and plain in tention' to extinguish NT
        
        Inconsistent with some but not all NT rights
        
        right to access for hunting or ceremonial purposes can coexist
        
        no right to control access or burn off the land
        
        Brennan (minority)
        
        Crown acquired fee simple upon reversion of the lkease
        
        Lease inconsistent with al,l possible NT rights
        
        All judges: 'inconsistency of incidents'. Have to examine the rights granted by leases and establish exactly what is inconsistent with NT claim.
    - - Formal rule that a crown granted interest overides NT
    - - Can a ststutory provision extinguish an NT right
      - Finn 2010
        
        Non-exclusive NT rights to remain in and use their marine territories and those shared with others
        
        the right to access resources and take those resources for any purpose
      - 2012 QLD and Cth
        
        permit for commercil fishing extinguished NT right to trade their catch
        
        appeal to full federal court
        
        varied to exclude commercil fishing, Finn overturned
      - 2013 High Court
        
        Legislation regulated thye way that NT rights could be excercised without extinguishing them
    - - Reaffirmed Fejo
    - - Do mineral leases extinguish?
- - - - The High Court found that Indigenous interests in traditiinal lands are recognised as Native Title in common law
      - Because of the dissent it is difficult to identify the ratiion for future cases
      - Brennan
        
        Tenure - When The Imperial Empire took over the islands it
        
        a) Acquired sovereignty
        
        b) the laws of QLD including common applied
        
        c) radical title subject to the rights that were held by the Indigenous populationm
        
        If Indig had land rights at that time then those rights will contiunue until they are extinguished or abandoned
        
        Doctrine of tenure - native title can exist without it.
        
        NT isn't granted by CL it is recognised by it.
        
        NT originates in the original laws of the indig inhabitants, not the crown or CL.
        
        It must be recognised as a 'matter of fact' according to those laws and customs.
        
        NT is a property right
      - Deane and Gaudron
        
        Cummunal rather than individual rights.
        
        They are inaliable and can't be assigned poutside of the group.
        
        NT is a personal right.
    - - QLD Coast Islands Declaration Act 1985 QLD Said all of the land belonged to the crowd and native title was extinguished
        
        Mabo 1 1988 the high court held that this act contravened the racial discrimination act 1975 Commonwealth
- - - - (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
      - (c) the rights and interests are recognised by the common law of Australia.
        
        Rights that existed at sovereignty
      - (a) the rights and interest are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
        
        Prove substantially the same as at crown acquisition
        
        Prove substantially uninterrupted
- - - - Frozen in time challenge during Yorta Yorta?