Aboriginals

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ABORIGINES

[Supplemented to January, 1999]Scope NoteThis title covers the law relating to the Aboriginal people of Australia, including aspects ofthe criminal law applying specifically to Aboriginals. Cases on protection legislation, landrights legislation and relics preservation legislation are digested here.Articles, Notes, Etc.Convention Paper. 1979. Serving Our Clients The Disadvantaged: 53 ALJ 509.

Papers. 1978. Aboriginal Land Rights in the Northern Territory: 1 AM & PLJ 399.1980. Aboriginal Land Rights An Update: 2 AM & PLJ 92.1984. Common Roots But Different Evolutions: The Development of Aboriginal Rights atCommon Law in Australia, Asia and North America: 12 Mel LJ 49.1985. Aboriginal Australians and the World Court I Sovereignty by Conquest: [1985]NZLJ 33. Aboriginal Australians and the World Court II The Advisory Jurisdiction of theWorld Court: [1985] NZLJ 64. Aboriginal Land: 15 FL Rev 159. Indigenous Peoples,LandClaims, and Control of Mineral Development: Australian and US Legal Systems Compared:

8 UNSWLJ 271. Land Rights and Land Use A View from the Sidelines: 59 ALJ 413.Articles. 1960. The Application of the Criminal Law to the Aborigines of the NorthernTerritory of Australia: 5 UWA Ann L Rev 1.1963. Aboriginal Languages and the Law: 6 UWAL Rev 1.1967. The Australian Constitution and the Australian Aborigine: 2 FL Rev 17.1972. The Gove Land Rights Case: A Judicial Dispensation for the Taking of AboriginalLands in Australia?: 5 FL Rev 85.1973. A National Aboriginal Legal Service: Government Proposals: 47 Law Inst J 239. TheAborigines and the Law: An Overview: 8 UQLJ 60.1974. Aboriginal Legal Service: 12 Law Soc J 22. Benign Discrimination and The R

ight toEquality: 6 FL Rev 26. Communal Native Title and The Common Law: Further Thoughts onthe Gove Lands Rights Case: 6 FL Rev 150. Administration of Criminal Justice onAboriginal Settlements: 7 Syd LR 257. The Aboriginal Legal Service in New SouthWales: 7Syd LR 237.1975. A Radical Approach to the Elimination of Racial Discrimination: 1 UNSWLJ 56.1976. The Mythical Introduction of "Law" to the Worora Aborigines: 3 UWAL Rev 350; 12UWAL Rev 480. Racial Discrimination: 14 Law Soc J 115.1977. The Anti-Discrimination Act 1977 (NSW): 15 Law Soc J 241. Discrimination i

nEmployment: A Look at Australia in Light of Current Trends: 5 ABLR 130. The "CoorongMassacre": Martial Law and the Aborigines at First Settlement: 6 Adel L Rev 26.1978. The Equal Opportunity Act Tokenism or Prescription for Change?: 11 MULR503.1980. Does Aboriginal Law Now Run in Australia?: 10 FL Rev 161. Benign RacialDiscrimination: Equality and Aborigines: 10 FL Rev 238. TGH Strehlow and AboriginalCustomary Laws: 7 Adel L Rev 172. The Australian Aborigine: Full Commonwealth


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Responsibility Under the Constitution: 12 MULR 516.1981. Native Justice in Australia, Canada and the USA: A Comparative Analysis: 7Mon LR250.1982. The Federal Parliament's External Affairs Power: Koowarta's Case: 56 ALJ 519.Commonwealth Powers with Respect to Racial Discrimination: [1982] ACL AT30. LegalLanguage Across Cultures: Finding the Traditional Aboriginal Owners of Land: 12FL Rev187. The Legislation Relating to Aboriginal Land Rights in Western Australia wit

h ParticularReference to Mining and Petroleum Exploration and Exploitation: 4 AM & PLJ 201.Miningand its Interaction with Commonwealth and State Laws Relating to Environmental andAboriginal Issues: 4 AM & PLJ 55.1983. Aboriginal Land Claims at Common Law: 15 UWAL Rev 293. Aborigines, NaturalResources and the Law: 15 UWAL Rev 245. Access by Australian Aboriginals to theFruitsof Deep Seabed Mining: 15 UWAL Rev 187. Legal Centres in Australia: 6 UNSWLJ 163.1985. Aboriginal Land Rights Conquest or Peaceful Settlement?: 20 Aust Law News (No

5) 14. Aboriginal Land Rights War and Theft: 20 Aust Law News (No 9) 22. Expectationsand Natural Justice: 59 ALJ 33. The Anthropologist On Trial: 15 MULR 360.1986. Aboriginal Rights and Sovereignty: Commonwealth Developments: [1986] NZLJ57.Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case ThatWasn't: 11 Syd LR 5. In the Case of the Lawyers and Anthropologists: 11 LSB 202.Maintaining a Child's Link with Native Parents as a Factor in Custody Decisions:35 ICLQ461. Over Representation of Aboriginal Children in Care Proceedings before the Children'sCourt of South Australia: 2 Aust J of Law & Society (No 2) 11.

Notes. 1967. Racial Discrimination and the Law: 41 ALJ 110.1972. The Aboriginal and Torres Strait Islanders Legal Service (Queensland): 66QJP 71.Aborigines, Melanesians and Dying Declarations: 21 ICLQ 176.1973. Aboriginal Affairs Planning Authority Act (24 of 1972) (WA): 11 UWAL Rev 171.1974. Aboriginal Title to Lands Calder v A-G of British Columbia: 11 UWAL Rev282.1976. The Sydney Williams Case: 50 ALJ 386. Non-Exemption of Aborigines fromAustralian Criminal Jurisdiction: 50 ALJ 496.1977. The Proposed Human Rights Commission: 51 ALJ 60. Reference to the Law ReformCommission of the Question of Aboriginal Customary Law: 51 ALJ 110.

1979. Proposed Treaty between Aborigines and the Commonwealth: 53 ALJ 743.Queensland Inquiry into Aboriginal Access to Legal Aid: 5 QL 96.1980. Problems of Giving Effect to Aboriginal Customary Laws: 54 ALJ 112.1981. Law Reform Commission's Discussion Paper on Recognition of Aboriginal CustomaryLaw: 55 ALJ 58. Aboriginal Legal Aid Report of House of Representatives StandingCommittee on Aboriginal Affairs: 55 ALJ 114. The Pitjantjatjara Solution: 55 ALJ513.1982. The Plenitude of the External Affairs Power: 56 ALJ 381. Aboriginal Law Re


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searchUnit at the University of New South Wales: 56 ALJ 567. Australian Law ReformCommission's Discussion Paper on Aboriginal Customary Law as to Marriage, Children andProperty Distribution: 56 ALJ 566.1986. The Recognition of Aboriginal Customary Laws Report of the Law ReformCommission (Cth): 60 ALJ 655. Seminar on the Rights of Indigenous Peoples underLaw andPractice, Canberra, 1-2 May 1986: 60 ALJ 416.Note and Correspondence. 1971-1972. Communal Native Title: 45 ALJ 333, 773; 46 ALJ 45,

206, 305.Comment. 1974. Chief Justice Marshall and the English Oak: A Comment (AboriginalLandRights): 6 FL Rev 174.Correspondence. 1973. Basic Questions on Native Lands: 46 ALJ 663. Aboriginal LandRights: 47 ALJ 151.1975. Challenge to the Array: 49 ALJ 697.Discussion Papers. 1980. The Law Reform Commission (Cth) has published DiscussionPaper No 17 and a summary of it entitled "Aboriginal Customary Law Recognition?"(November 1980).

1982. The Law Reform Commission (Cth) has published Discussion Paper No 18: AboriginalCustomary Law Marriage, Children and the Distribution of Property (August 1982).1984. The Law Reform Commission (Cth) has published Discussion Paper No 20: AboriginalCustomary Law The Criminal Law, Evidence and Procedure (March 1984).Reports. 1986. The Law Reform Commission (Cth) has published Report No 31: TheRecognition of Aboriginal Customary Laws (Vol 1). The Law Reform Commission (Cth) haspublished Report No 31 (Summary Report): The Recognition of Aboriginal CustomaryLaws.Articles. 1986. Aboriginal Land Rights: The Constitutional Bases of the Present

Regime: 15MULR 737.1987. Aboriginal People and Family Law: The Australian Law Reform Commission'sProposals: 2 AJFL 63. Commonwealth Acts for Victorian Aborigines: 29 ALB 10. Gove StillRules: 27 ALB 4. The Law of the Land: 29 ALB 7. Positive Discrimination and theHighCourt: 17 UWALR 128. "Property" A Positive Statement: [1987] Brief 13.1988. Aboriginal Children and the Placement Principle: 31 ALB 4. Aboriginal CustomaryLaw and Sentencing [The Law Reform Commission's Report]: 30 ALB 13. Aboriginal LandRights in New South Wales: 5 EPLJ 255. Aboriginal Land Rights: Judicial Approach

es inPerspective: 62 ALJ 273. The Aboriginal Legal Heritage: Aboriginal Public Law and theTreaty Proposal: 62 Law Inst J 1174. Aboriginal Women in Custody: A Footnote tothe RoyalCommission: 30 ALB 5. Disadvantage and Discretion: The Results for Aboriginal Youth inRelation to the Adjournment Decision: 11 Adel L Rev 348. The Environment: WorldHeritage Listing 1988: 13 LSB 3. The Forgotten Option Pt III of the AboriginalCouncils


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and Associations Act 1976 (Cth): 32 ALB 11. The Law of the Land: 26 Law Soc J (No 2) 40.The Lawyer's Duty to the Client: A Dilemma for Aboriginal Communities: 26 Law Soc J (No9) 34. NSW Land Rights ... All Just an Act?: 32 ALB 4. Preamble Perils: Commenton theProposed Preamble to Legislation to Establish an Aboriginal and Torres Strait IslanderCommission: 30 ALB 15. The Recognition of Aboriginal Customary Law: Pluralism Beyondthe Colonial Paradigm A Review Article (review of Law Reform Commission 1986

Report): 37 ICLQ 368.1989. Aboriginal Land Claim Litigation: 5 Aust Bar Rev 187. The Aboriginal LegalHeritage:Aboriginal Public Law and the Treaty Proposal: 63 ALJ 392. Aborigines and TorresStraitIslanders and the Australian Constitution: 2 ALB (No 37) 10. Biting the BulletAdministering the Aboriginal and Torres Strait Islander Heritage Protection Act1984 (Cth):2 ALB (No 41) 7. The New NT Sacred Sites Act 1989: 2 ALB (No 39) 10. A PerspectiveFrom the Sacred Sites Authority: 2 ALB (No 39) 11. Power, Policy, Politics and Persuasion:Protecting Aboriginal Heritage under Federal Laws: 6 EPLJ 214. Sacred Sites Unde

r Threat:2 ALB (No 39) 12.1990. Aboriginality, Recognition and Australian Law: Where to from Here?: 1 PLR53.Australian Law: Freedom and Identity: 12 Syd LR 482. Protection of Aboriginal Sacred Sitesin the Northern Territory A Legal Experiment: 19 FL Rev 378. A Question of Title: Hasthe Common Law Been Misapplied to Dispossess the Aboriginals?: 16 Mon LR 91. ResourceDevelopment and the Extinguishment of Aboriginal Title in Canada and Australia:20UWALR 453.

1991. Aboriginal Land Rights History: Western Australia: 2 ALB (No 52) 24. AboriginalLand Rights in South Australia: 2 ALB (No 52) 20. Aboriginal Power Over CulturalHeritage:16 LSB 6. From Terra Nullius to Every Person's Land: Legal Bases for AboriginalInvolvement in National Parks Precedents from the Northern Territory: 2 ALB (No52) 4.Land Rights Under New South Wales Legislation: 2 ALB (No 52) 22. Queensland LandRights: A Derogation From Poor Standards Elsewhere?: 2 ALB (No 52) 16. SentencingAboriginal People in South Australia: 13 Adel L Rev 90. Sovereignty and AboriginalPeoples: 2 ALB (No 53) 5. Who Needs a Community Living Area? The "Need" Requirem

entin NT Excisions Legislation: 2 ALB (No 52) 7.1992. The Aboriginal Land Which May Be Claimed at Common Law: Implications of Mabo:22 UWALR 272. Constitutional Issues Relating to the "Process of Reconciliation"withAborigines and Torres Strait Islanders: 17 UQLJ 111. Moveable Cultural Heritage:3 A &ELJ 9. North Queensland Aborigines and Criminal Justice in the Courts: 17 UQLJ 57.


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Queensland's Aboriginal Land Act 1991: 11 AMPLA Bulletin 17. Tribal Ownership ofAboriginal IH80: 3 A & ELJ 15.1993. Aboriginal and Criminal Justice Issues in the Wake of the Royal Commission: 31 LawSoc J (No 5) 52. Aboriginal Joint Management of National Parks: Why New South WalesStill Has a Long Way to Go: 2 ALB (No 60) 6. Aboriginal Land Rights at Common Law:Mabo v Queensland: 18 Mon LR 251. Aboriginal Land Rights in New South Wales: 10EPLJ398. Aboriginal Land Rights in Queensland and Their Impact on Natural Resources:

10 EPLJ423. Aboriginal Law Does Now Run in Australia: 15 Syd LR 187. Aboriginal Title:EqualRights and Racial Discrimination: 16 UNSWLJ 57. Aborigines and Police: 16 UNSWLJ265.Australian Deaths in Custody, 1980-1989: 159 Med J of Aust 577. Australians andAborigines and the Mabo Decision: Just Who Needs Whom the Most?: 15 Syd LR 168.Canthe States Rewrite Mabo (No 2)? Aboriginal Land Rights and the Racial Discrimination Act:15 Syd LR 247. The Commonwealth's Native Title Bill: 3 ALB (No 65) 4. DelgamuukwvThe Queen: Implications for Australia: 3 ALB (No 64) 13. Extinguishment of Nativ

e Titleand the Constitutional Requirement of Just Terms: 62 ALB (No 3) 11. Fiduciary Obligationsand Native Title: 3 ALB (No 63) 7. The Fiduciary Obligations of the Crown to Aborigines:Lessons from the United States and Canada: 16 UNSWLJ 70. Fishing, Hunting and GatheringRights of Aboriginal Peoples in Australia: 16 UNSWLJ 97. "Genuine Concerns": TheSaga ofBrunette Downs: 3 ALB (No 65) 6. How Far is There to Travel in Achieving IndigenousRights?: 31 Law Soc J (No 5) 30. Indigenous People and Protected Landscapes in Western

Australia: 10 EPLJ 380. Interlocutory Injunctions to Restrain Interference withAboriginalTitle The Balance of Convenience: 17 UQLJ 141. International Law and IndigenousMarine Rights: The Evolving Framework: 10 EPLJ 438. Judicial Revolution or CautiousCorrection? Mabo v Queensland: 16 UNSWLJ 1. Land Claims Strike InterpretationDifficulties and Administrative Negativity Aboriginal Land Rights Act 1983: 31Law SocJ (No 5) 42. Law and Difference: Reflections on Mabo's Case: 15 Syd LR 159. LegalFundamentalism and Mabo: 18 Alt LJ 212. Looking After Country: Legal Recognitionof

Traditional Rights to and Responsibilities for Land: 16 UNSWLJ 161. Mabo and AboriginalTitle in Queensland: 14 Qld Lawyer 15. Mabo and the Racial Discrimination Act: The Limitsof Native Title and Fiduciary Duty Under Australia's Sovereign Parliaments: 15 Syd LR 206.Mabo and the Recognition of Aboriginal Customary Law: [1993] Reform (No 65) 16.TheMabo Decision: 1 APLJ 236. Mabo Explained: 67 Law Inst J 809. Mabo: Extinguishment of


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Native Title and Pastoral Leases Revisited: 3 ALB (No 63) 13. Mabo, International Law,Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence: 19 MULR 195.The Mabo Judgment in the Light of Imperial Land Policy: 16 UNSWLJ 27. Movable CulturalHeritage: 1 A & ELR 1. The Myths of Mabo: 12 AMPLA Bulletin 62. A National AboriginalPolicy?: 16 UNSWLJ 45. Native Title in the Queensland Wet Tropics: 62 ALB (No 3)17."Native Title", Statutory Title and "Special Measures": 3 ALB (No 63) 4. Native

Title toLand in Australia: Recent High Court Decisions: 42 ICLQ 84. Political and LegislativeResponses to Mabo: 23 UWALR 352. Recognition of Aboriginal Customary Law: 31 LawSoc J (No 5) 37. A Reconciliation Odyssey: Negotiating Towards 2001: 9 QUTLJ 81.Reconciliation Restored: Towards Self-determination: 3 ALB (No 64) 19. The RoadfromMabo Towards Autonomy: 18 Alt LJ 12. Self-determination: The Limits of AllowingAboriginal Communities to be a Law Unto Themselves: 16 UNSWLJ 245. Should theAustralian Government Ratify International Labour Organization Convention No 169?: 3ALB (No 64) 3. The Waitangi Tribunal: Towards a Working Treaty Model for Austral

ia: 3ALB (No 64) 16. Wheeling, Dealing and Deconstruction: Aboriginal IH80 and the LandPost-Mabo: 3 A & ELR 5.1994. Aboriginal Child Placement Principle: Customary Law Recognition and FurtherLegislative Reform: 3 ALB (No 71) 13. Aboriginal Employment & Industrial Relations in the90's: 3 ALB (No 66) 6. Aboriginal Hearing Loss and the Criminal Justice System:3 ALB (No65) 9. The Aboriginal Land Rights (Northern Territory) Act 1976: An Overview: [1994] VicBar News (No 91) 33. Blind Justice or Blinkered Vision?: [1994] A & ELR (No 1) 4

. AConspiracy of Silence: The NSW National Parks and Wildlife Service and AboriginalCultural Heritage Sites: 3 ALB (No 67) 4. A Critique and Analysis of the Fiduciary Conceptin Mabo v Queensland: 19 MULR 868. Cultural Diversity Versus Biodiversity: 16 Adel LR99. Customary "Adoption" in Torres Strait Islands Towards Legal Recognition: 3 ALB (No66) 8. Customary Law, Common Law and Statute: 16 Law Soc Bulletin (SA) (No 9) 26. TheFiduciary Duty: The Next Step for Aboriginal Rights?: 19 Alt LJ 72. Genocide andAustralian

Law: 3 ALB (No 70) 6. The Gove Land Rights Case: Hard Cases Make Hard Law: 1 Canb LR97. Impetus for Legislative Protection of Aboriginal Cultural and Intellectual PropertyRights: [1994] A & ELR (No 4) 63. In Defence of Mabo: 1 JCULR 51. Indigenous Peoplesand Environmental Management: A Review of Canadian Regional Agreements and TheirPotential Application to Australia Part 1: 11 EPLJ 320. Indigenous Peoples andEnvironmental Management: A Review of Canadian Regional Agreements and TheirPotential Application to Australia Part 2: 11 EPLJ 320. Indigenous Peoples and


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theCanadian Constitution: Lessons for Australia?: 5 PLR 11. "Is the Native Title LegislationPractical, Efficient and Workable for the Mining and Petroleum Industries?": 13AMPLA124. Kelvin Condren Considered by the AJAC: 3 ALB (No 66) 10. Mabo and Native TitleThe Final Implications: Key Concerns for Miners, Developers, Investors and Financiers: 13AMPLA 158. Mabo and Native Title The Final Implications: Past and Future Titles

Their Validity and Effect 13 AMPLA 71. Mabo: An Inspiration for Australian LandManagement: 1 AJEM 24. Mabo: A Voice from the Past: [1994] Vic Bar News (No 89)34.Mabo Legislation: The Native Title Act: 2 APLJ 150. Mabo Revisited CommonwealthNative Title Act 1993: 13 AMPLA Bulletin 29. Mabo, the Constitution and the Republic: 11Aust Bar Rev 229. The National Native Title Tribunal Early Directions: 5 ADRJ164. TheNative Title Act: A Property Law Perspective: 68 ALJ 285. Native Title Act CommencesOperation: 3 ALB (No 66) 4. Native Title: Act Delivered on Schedule: 19 Alt LJ 41. Native

Title Act 1993 (Cth): "Fine Tuning" Needed: 2 APLJ 245. Native Title and CapitalGainsTax: 6 CCH J of Aust Taxn (No 4) 8. A New Land Title Regime: 29 AL (No 3) 34.Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous)Law inAustralia: 18 UQLJ 15. Queensland's AJAC Initiatives in Criminal Justice: 3 ALB(No 69) 4.September Showdown: Validity of Native Title Legislation: 3 ALB (No 69) 8. A SouthAustralian Perspective on the Native Title Bill: 16 Law Soc Bulletin (SA) (No 2)17. TheTorres Strait Islands: Constitutional and Sovereignty Questions Post-Mabo: 18 UQLJ 38.

Towards a Better Tomorrow: A Perspective of Dispute Resolution in AboriginalCommunities in Queensland: 5 ADRJ 28. Unauthorized Reproduction of TraditionalAboriginal IH80: 17 UNSWLR 327. WA's Snuff Move Under Challenge: Biljabu and Othersv State of Western Australia: 3 ALB (No 67) 8. Way Cleared for National Project[toEnhance Understanding by Judicial Officers of Aboriginal Culture]: 29 AL (No 7)18.Western Australia's Land (Titles and Traditional Usage) Act 1993: Content, Conflicts andChallenges: 24 UWALR 31.1995. Aboriginal Child Welfare: Thanks for the Apology, But What About Real Change?: 3

ALB (No 76) 4. Aboriginal Cultural Heritage Protection in Western Australia: TheUrgentNeed for Protection: 3 ALB (No 76) 9. Aboriginal Land Rights: Further Reflections: [1995]Vic Bar News (No 93) 41. Absent Owners [Native Title]: 20 Alt LJ 20. Between a Rock aHard Place: The Failure of Commonwealth Sacred Sites Protection Legislation: 3 ALB (No74) 13. Bridging the Cultures: "Sacred Site System Needs Reform": 30 AL (No 8) 22. Broken


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Promises: The Crown's Fiduciary Duty to Aboriginal Peoples: 3 ALB (No 75) 4. CommonLaw Aboriginal Knowledge: 77 ALB (No 3) 10. Conducting Effective Interviews WithAboriginal Clients: 33 Law Soc J (No 11) 55. Cross Examination of Aboriginal Children:The Pinkenba Case: 3 ALB (No 75) 10. Determining Native Title Claims LearningFromExperience in Queensland and the Northern Territory: 69 ALJ 510. The Emerging Concept of"Radical Title" in Australia: Implications for Environmental Management: 12 EPLJ183.

Enlightenment or Dreaming? Attempting to Reconcile Aboriginal IH80 and EuropeanLaw:[1995] A & ELR 18. Family Court Initiatives: With Aboriginal and Torres Strait IslanderCommunities: 3 ALB (No 76) 15. The Fiduciary as an Accordion Term: Can the CrownPlaya Different Tune?: 69 ALJ 440. The Forensic Challenge of Native Title: 69 Law Inst J 880.The Great Sandy Region and Aboriginal Aspirations: 12 EPLJ 61. How to Keep a Secret:Building Bridges Between Two "Laws": 77 ALB (No 3) 4. Implementing Native TitleinAustralia: The Implications for Living Resources Management: 14 U Tas LR 1. The

Jurisprudence of Regret: The Search for Standards of Justice in Mabo: 17 Syd LR5. The LostKooris [A History of Aboriginal Child Welfare Policies in New South Wales]: 20 Alt LJ 26.Mabo and Native Title: The Commonwealth Finally Prevails: 22 Brief (No 4) 6. Mabo,Native Title and Compensation: Or How to Enjoy Your Porridge: 21 Mon LR 84. MarryingLaw & Custom: 20 Alt LJ 23. Mineral Exploration, Mining and Native Title: 22 Brief (No 7)32. Money and Power: 20 Alt LJ 41. More Native Title Developments: 10 APLB 29. NativeLand Rights in Australia: The Mabo Case: [1995] Conv 33. The Native Title Act: C

an ItWork?: 17 Law Soc Bulletin (SA) (No 7) 26. Native Title Act Held Valid: The HighCourt'sDecision and Its Consequences: 14 AMPLA 108. Native Title Act Held Valid: The HighCourt's Decision in Western Australia v Commonwealth: 69 ALJ 397. Native TitleDevelopment Waanyi Peoples Claim: 14 AMPLA 221. Native Title: From PragmatismtoEquality Before the Law: 20 MULR 282. Native Title Takes Off: 69 ALJ 8. Native Title:Whose Responsibility?: 77 ALB (No 3) 13. A New Legal Shield [Post-Mabo Common Lawand Statutory Developments in Tasmania]: 20 Alt LJ 32. One Land: Two Laws Abor

iginalFire Management: 12 EPLJ 37. Onus of Proof for Native Title: 3 ALB (No 75) 8. Protectionof Indigenous IH80s and Cultural Expression: 12 Copyright Reporter (No 4) 6. TheProtection of Intellectual Property for Local and Indigenous Communities: 17 EIPR 546.Proving Native Title: A Critical Guide: 3 ALB (No 74) 4. Queensland AJAC: FurtherInitiatives in Criminal Justice: 3 ALB (No 73) 15. Racism and the ConstitutionalProtection


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of Native Title in Australia: The 1995 High Court Decision: 25 UWALR 127. Racismand theWA Govt: 3 ALB (No 73) 8. The Semantics of Mabo: An Essay in Law, Language andInterpretation: 2 JCULR 154. So Long, and Thanks For All the Fish ... [Aboriginal FishingRights and the Commonwealth's Acquisition Power]: 20 Alt LJ 11. Statutory Schemes ofNative Title and Aboriginal Land in Queensland: The Relationship of the QueenslandAboriginal Land Act 1991 with the Commonwealth Native Title Act 1993 and the Native

Title (Queensland) Act 1993: 2 JCULR 109. Stopping the Rip-offs [Protecting Aboriginaland Torres Strait Islander Cultural Expression]: 20 Alt LJ 7. "They Took the Children Away"[Project to Redress Harm Caused by Removal of Aboriginal Children From Their Families]:20 Alt LJ 35. Western Australia v The Commonwealth: 3 ALB (No 73) 4.1996. Aboriginal IH80 and Copyright An Overview and Commentary Concerning RecentDevelopments: [1996] MALR 151. Aboriginal Women as Offenders and Victims: The Caseof Victoria: 3 ALB (No 80) 17. Aborigines and Pastoral Leases Imperial and Colonial

Policy 1826-1855: 19 UNSWLJ 315. ATSIC: Decisions, Decisions (and the Review Blues!):3 AJ Admin L 229. Beneficial Legislation Meets Judicial Discretion and Leaves Land Rightson Shaky Ground: 3 AJ Admin L 164. The Black Sea: 79 ALB (No 3) 4. CopyrightInfringement Under s 37 Directors' Personal Liability: 9 AIPLB 49. Crocodile Farm:Minister for Aboriginal & Torres Strait Islander Affairs v Western Australia: 3ALB (No 82)12. The Development of an Authenticity Trade Mark for Indigenous Artists: 21 AltLJ 38.Developments in the Legal Recognition of Torres Strait Islander Customary Adoption: 3

ALB (No 78) 14. Disclosure: In the Public Interest? [Heritage Legislation]: 21 Alt LJ 19. TheDuty to Negotiate in Good Faith: 3 ALB (No 78) 4. Gratuitous Justice: A Review of theQueensland Criminal Justice Commission's Report Into Aboriginal Witnesses in CriminalCourts: 3 ALB (No 84) 12. Hindmarsh Island Bridge Royal Commission: Fair or Faulty?: 18Law Soc Bulletin (SA) (No 4) 10. Homeland Movement: High and Low Roads: 3 ALB (No83) 4. Improving ATSIC's Decision Making and Review of Decisions: 3 ALB (No 84) 16.Indigenous Culture and Native Title: 21 Alt LJ 2. Indigenous Pre-law Programs: G

riffithUniversity Experience: 3 ALB (No 83) 8. Law, Empowerment and Economic Rationalism: 3ALB (No 81) 12. Legislative and Policy Frameworks for Indigenous Involvement inCulturalHeritage Management in New Zealand and New South Wales: 13 EPLJ 103. Mediation:Towards an Aboriginal Conceptualisation: 3 ALB (No 80) 10. National Native TitleTribunalExpedited Procedure Process: 15 AMPLA 85. Native Title and Pastoral Leases: IsCo-existence Possible?: 16 Proctor (No 7) 18. Native Title Fishing Rights in Coa


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stal Watersand Territorial Seas: 3 ALB (No 81) 16. Native Title Litigation: 26 Q Law Soc J307.Pastoral Leases in Their Historical Context: 3 ALB (No 81) 9. Possessory Title in the Contextof Aboriginal Claimants: 11 QUTLJ 200. Power and Cultural Difference in Native TitleMediation: 3 ALB (No 84) 8. Presenting Aboriginal Knowledge: Using Technology toProgress Native Title Claims: 21 Alt LJ 6. Recognition of Indigenous Customary Law: TheWay Ahead: 68 Reform 46. The "Rejection of Terra Nullius" in Mabo: A Critical An

alysis:18 Syd LR 5. The Relevance of Representative Proceedings to Aboriginal Tribes inArtsCases: [1996] MALR 155. Rights to Offshore Resources After Mabo 1992 and the NativeTitle Act 1993 (Cth): 18 Syd LR 125. Royal Commission Went Wrong: 18 Law Soc Bulletin(SA) (No 4) 15. Some Problems and Issues in the Recognition of Indigenous Customary Law:3 ALB (No 82) 4. The State's Duty to Negotiate in Good Faith: Wally v WA & WMC &NNTT; Taylor v WA & Ors; Collard v WA & Ors; Smith v WA & Ors: 3 ALB (No 82) 14.ATale of Two Cultures: 21 Alt LJ 10. Women's Business and Law: 3 ALB (No 80) 24.

Workability in Whose Interest? The Native Title Amendment Bill 1996: 3 ALB (No 84) 4.Working for the Man: Wages Lost to Queensland Workers "Under the Act" [AboriginalWorkers Under Protection Acts]: 3 ALB (No 81) 4.1997. Aboriginal Community Participation in Sentencing (N Lofgren): (1997) 21 Crim LJ127. Aboriginal Copyright An Update (C Golvan): [1997] MALR 55. AboriginalMediation: One Step Towards Re-empowerment (K L Pringle): (1996) 7 ADRJ 253.Aboriginal Rights in Canada in 1996: An Overview of the Decisions of the SupremeCourt ofCanada (K McNeil): (1997) 4 ILB (No 2) 4. Aborigines, Citizenship and the Australian

Constitution: Did the Constitution Exclude Aboriginal People from Citizenship? (B Galligan& J Chesterman): (1997) 8 PLR 45. Ancient Customs, Legal First (K Derkley): (1997) 71Law Inst J (No 1) 14. Assimilation or Genocide? The Removal of Aboriginal Children fromTheir Families: The Case for Repatriation (T Buti): (1997) 32 AL (No 3) 5. ATSICConcerned Over Native Title Claim Funding (C Kleeberg): (1997) 19 Law Soc Bulletin (SA)(No 3) 18. Attracting Indigenous Lawyers Into Private Law Firms (C Penfold): (1997) 35 LawSoc J (No 8) 40. Beyond the Aboriginal Councils and Associations Act? Part I (CMantziaris): (1997) 4 ILB (No 5) 10. Beyond Waitangi: Comparative Issues in Nati

ve TitleDispute Resolution (I Wilson): (1996) 7 ADRJ 271. Building a Bridge on a ConstitutionalSea Change (F Brennan): (1997) 4 ILB (No 3) 6. Canadian Supreme Court ClarifiesMaboParadox (A Castles & J Gill): (1997) 3 ALB (No 88) 11. Can the Judiciary and LawyersProperly Understand Aboriginal Concerns? (Justice Jackson): (1997) 24 Brief (No4) 12.Citizenship in Australia: An Indigenous Perspective (M Dodson): (1997) 22 Alt LJ


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57.Civilisation and Cultivation: Colonial Policy and Indigenous Peoples in Canada andAustralia (S Dorsett): (1995) 4 ABLR 214. Co-existence Negotiation and Certainty(Preface and Executive Summary): Indigenous Position in Response to the Wik Decision andthe Government's Proposed Amendments to the Native Title Act 1993: (1997) 4 ILB(No 2)10. Co-existence of Indigenous and Non-indigenous Land Rights: Australia and Canada

Compared in Light of the Wik Decision (K McNeil): (1997) 4 ILB (No 5) 4. ACommonwealth Repatriation Odyssey (L Ormond-Parker): (1997) 3 ALB (No 90) 9.Cowboys v Suits (R Goldflam): (1997) 22 Alt LJ 86. Crescent Head Native Title Agreement(S Blackshield): (1997) 3 ALB (No 88) 9. Critique of the 10 Point Plan (NationalIndigenousWorking Group): (1997) 4 ILB (No 3) 10. Custom, Currency and Copyright: Aboriginal IH80and the $10 Note (M E Price & A Brown Price): (1997) 9 AIPLB 150. DiminishedIndigenous Life Expectancy as a Mitigating Factor in Sentencing (N Lofgren): (1997) 4 ILB(No 3) 21. Dispossession by the National Native Title Tribunal (R Bartlett): (1996) 26

UWALR 108. Euthanasia Right Legislation: Wrong Jurisdiction? (C Mackinolty): (1997)22 Alt LJ 68. Grog War (A Wright): (1997) 22 Alt LJ 77. Historic ReconciliationConvention(C Cerexhe): (1997) 4 ILB (No 3) 23. The Impact of Wik on Pastoralists and Miners (SBeckett): (1997) 3 UNSWLJ Forum (No 2) 8. The Impact of Wik Part I: Lessons forPastoralists (B McFarlane & N Haslam): (1997) 19 Law Soc Bulletin (SA) (No 4) 20. TheImpact of Wik Part II: Lessons for Miners (B McFarlane & N Haslam): (1997) 19 Law SocBulletin (SA) (No 6) 10. Implications of the Wik Case for Natural Resource Manag

ement (DYarrow): (1997) 4 ILB (No 3) 17. The Implications of Wik: A Snapshot Guide (J Briggs & ADenholder): (1997) 24 Brief (No 6) 9. The Implications of Wik: A Snapshot Guide(J Briggs& A Denholder): (1997) 17 Proctor (No 1) 24. Implications of Wik for Company Directors(M Love): (1997) 3 UNSWLJ Forum (No 2) 10. Indigenous Cultures, Copyright and theDigital Age (M McMahon): (1997) 3 ALB (No 90) 14. An Indigenous Lawyer's InternationalExperience (N Collings): (1997) 4 ILB (No 4) 8. Indigenous Lawyers: Success or Sacrifice?

(K Dolman): (1997) 4 ILB (No 4) 4. Indigenous Peoples, Access to Land and NegotiatedAgreements: Experiences and Post-Mabo Possibilities for Environmental Management(MTehan): (1997) 14 EPLJ 114. An Indigenous Perspective on Intellectual Property (L Ford):(1997) 3 ALB (No 90) 13. Interlocutory Injunctions and Native Title (G J Koppenol): (1997)17 Proctor (No 1) 26. Is Equality Too Hard for Australia? (R Bartlett): (1997) 3UNSWLJ


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Forum (No 2) 3. Is the Limit of the Equitable Doctrine of Fiduciary Liability Determinable?:Mabo and the Fiduciary Duty Principle in a Non-western Common Law Jurisdiction (H AAmankwah): (1997) 3 JCULR 102. It Just Doesn't Fit: Can the Tiwi Family and theFamilyLaw Act be Reconciled? (R Davis & J Dikstein): (1997) 22 Alt LJ 64. Judicial Activism? TheHigh Court and the Wik Decision (P Hunter): (1997) 4 ILB (No 2) 6. The Label ofAuthenticity: A Certification Trade Mark for Goods and Services of Indigenous Origin (M

Annas): (1997) 3 ALB (No 90) 4. Land and Resource Planning Under Native Title: Towardsan Initial Model (M B Lane, A Brown & A Chase): (1997) 14 EPLJ 249. Longing to ReturnHome: The Progress of the National Inquiry into the "Stolen Generations" (L Allam & JBrooks): (1996) 3 ALB (No 86) 6. Majah: Indigenous Peoples and the Law (Reviewedby GNettheim): (1996) 18 Adel L Rev 331. Maureen and George (K Williams): (1997) 4 ILB (No1) 17. The May 1967 Referendum: 30 Years Down the Track (L O'Donoghue): (1997) 4ILB(No 3) 4. Mediating in Aboriginal Communities (D Spencer): (1997) 3 CDRJ 245. Mi

ningLeases in Queensland and Their Impact on Native Title (D Yarrow): (1996) 8 BondLR (No1) 1. Nailing Down Native Title (G Nettheim): (1997) 4 ILB (No 3) 13. Native Title and theResources Sector After Wik Implications for Governments, Companies, FinanciersandProfessional Advisors (B Horrigan): (1997) 16 AMPLA 44. Native Title: Implications forLand Use and Environmental Planning (M Brennan & C Ireland): (1997) 49 Aust CompanySecretary 266. Native Title Occupies Lawyers' Minds and Hearts: (1997) 35 Law Soc J (No

6) 84. Negotiation Can Work With Native Title (D Kempton): (1997) 17 Proctor (No3) 12.Ngarinyin Response to the Wik Decision (P Neowarra & Kamali Council): (1997) 4 ILB (No1) 16. Noble Salvage: Aboriginal Heritage Protection and the Evatt Review (R Goldflam):(1997) 3 ALB (No 88) 4. Outcomes Statement for the Ministerial Summit on IndigenousDeaths in Custody: (1997) 4 ILB (No 5) 15. An Overview of the Wik Decision (D Gal):(1997) 3 UNSWLJ Forum (No 2) 2. Past Wrongs, Future Rights (L O'Donoghue): (1997) 4ILB (No 1) 18. Preamble and Principles of Indigenous Statement to the Prime Mini

ster 6February 1997: (1997) 4 ILB (No 1) 22. A Property Law Perspective on The Wik Peoples vQueensland (D Skapinker): (1997) 8 PLR 107. A Property Law Perspective on Wik Peoples vQueensland (D Skapinker): (1997) 8 PLR 107. Protecting Secret-sacred DesignsIndigenous Culture and Intellectual Property Law (C O'Brien): [1997] MALR 57. QueenslandPastoral Leases and Native Title: Wik Peoples v Queensland (E Willheim): (1997)3 ALB


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(No 89) 20. The Ramifications of the Wik Decision (P Keane): (1997) 53 Refresher15.Recognition, Rights and Reform (Opinion): (1997) 19 Law Soc Bulletin (SA) (No 3)5.Reconciliation and the Law: Learning Together (M Walsh): (1997) 24 Brief (No 1)34.Redressing the Imbalance Against Aboriginals in the Criminal Justice System (JusticeMildren): (1996) 21 Crim LJ 7. Responding to Wik: First, Define the Problem (G Nettheim):(1997) 4 ILB (No 1) 14. Seeking Redress for the Stolen Generation: (1997) 35 Law

Soc J (No3) 14. Should Parliament Enact the Hindmarsh Island Bill 1996? (J Clarke): (1997) 3 ALB(No 89) 15. Some Signposts from Daguragu (Sir William Deane): (1997) 8 PLR 15. StatutoryRequirement to Negotiate in Good Faith Enforced (D Spencer): (1996) 3 CDRJ 169.TheStolen Generations: More Than Just a Compo Case (M Storey): (1996) 3 ALB (No 86)4.Strong Support for Juvenile Cautioning and Conferencing Scheme: (1997) 35 Law Soc J (No2) 80. The Suffering of Children in Central Australia (J N Turner): (1997) 71 Law Inst J (No

4) 54. To Be or Not To Be (Property): Anglo-Australian Law and the Search for Protection ofIndigenous Cultural Heritage (M Tehan): (1996) 15 U Tas LR 167. Twenty Years ofLandRights Lessons for the Native Title Act (R Levy): (1996) 3 ALB (No 85) 22. Useof aCharitable Trust for Proceeds from Native Title Claims (J J Hockley): (1996) 15AMPLA190. Vampires Round the Campfire (S Gray): (1997) 22 Alt LJ 60. Watch Out for the Native(D Nina): (1997) 22 Alt LJ 17. What Wik Means (T Wilson): (1997) 11 APLB 49. TheWik:A History of Their 400 Year Struggle (N Collings): (1997) 4 ILB (No 1) 4. Wik: C

onfusingMyth With Reality (B Keon-Cohen): (1997) 3 UNSWLJ Forum (No 2) 14. The WikDecision: Advising Your Board (M Love): (1997) 49 Aust Company Secretary 283. The WikDecision and Implications for Resource Development (R Bartlett): (1997) 16 AMPLA27.The Wik Decision: Is Your Corporation Affected? (M Love): (1997) 49 Aust CompanySecretary 236. Wik: Equality and the Fallacy of Extinguishment (R Bartlett): (1997) 4 ILB(No 1) 11. Wik: Implications for Statutory Leases (D Young): (1997) 3 UNSWLJ Forum (No2) 12. Wik: On Invasions, Legal Fictions, Myths and Rational Responses (G Nettheim):

(1997) 3 UNSWLJ Forum (No 2) 5. The `Wik' Peoples of Western Cape York (D F Martin):(1997) 4 ILB (No 1) 8. Wik Why There Will Be No Quick Answers (T Brennan): (1997)11 APLB 77. Women and Land: The Problems Aboriginal Women Face in Providing GenderRestricted Evidence (A Keely): (1996) 3 ALB (No 87) 4. Writs and Rights in the StolenGenerations (NT) Case (B Cummings): (1996) 3 ALB (No 86) 8.1998. Aboriginal Rights and the Draft NT Constitution (A Keely): (1997) 4 ILB (N


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o 8) 10.Accessing Personal and Family Records: Contesting the Gatekeepers (S Smallacombe):(1997) 4 ILB (No 8) 4. All There in Black and White? The Representation of AboriginalIssues in the Australian Media (B Shearer): (1997) 135 CU 18. Assimilation, Gender andLand in the Northern Territory After Kruger v The Commonwealth (B Cummings): (1997) 4UNSWLJ 8. Authors of Our Own History: The Challenge For All Australians Presented by

the Final Report of the Human Rights Commission National Inquiry Into the Separation ofAboriginal and Torres Strait Islander Children From Their Families (N D'Souza):(1997) 4UNSWLJ 2. The Best Interests of the Aboriginal Child in Family Law Proceedings (S Ralph):(1998) 12 AJFL 140. Beyond the Aboriginal Councils and Associations Act? Part II(CMantziaris): (1997) 4 ILB (No 6) 7. The Catch With Native Title Fishing Rights (J Virgo):ALMD Advance No 14, 24/7/98, p 1. `Clear and Plain Intention': Extinguishment ofNativeTitle in Australia and Canada post-Wik (S Dorsett): (1998) 6 GLR 96. Compensatin

g the"Stolen Generation" (S Garkawe): (1997) 22 Alt LJ 277. Compensation for the StolenChildren: Political Judgments and Community Values (R Graycar): (1997) 4 UNSWLJ24.Damages for Loss of Cultural Fulfilment in Indigenous Community Life (G Orr): (1997) 4ILB (No 6) 17. Debating Wik (J Clarke): (1997) 22 Alt LJ 298. Developments in theRecognition of Indigenous Rights in Canada: Implications for Australia? (P Grose): (1997) 4JCULR 68. Disproving Native Title: The Role of Non-Aboriginal Evidence (A Edgar):

ALMD Advance No 23, 4/12/1997, p 3. Is Equality too Hard for Australia? (R Bartlett):(1997) 20 UNSWLJ 492. Escaping the Net: Native Title as a Defence to Breaches ofFishingLaws (P Jeffery): (1997) 20 UNSWLJ 352. A Fairly Honourable Defeat (J Keane): ALMDAdvance, No 18, 18/9/1998, p 3. The Impact of Wik on Pastoralists and Miners (SBeckett):(1997) 20 UNSWLJ 502. Implications of Wik for Company Directors (M Love): (1997)20UNSWLJ 507. Indigenous Children and Family Law (J Dewar): (1997) 19 Adel L Rev 217.The International Implications of the Native Title Act Amendments (G Nettheim):

(1998) 4ILB (No 9) 12. Jabiluka Court Cases (J Katona, D Mortimers & M Fagan): (1998) 4ILB (No14) 14. Kenbi Land Claim: 25 Years On (D Parsons): (1997) 4 ILB (No 8) 15. Kruger andBray and the Common Law (T Buti): (1997) 4 UNSWLJ 15. Kruger v The Commonwealth:Does Genocide Require Malice? (M Storey): (1997) 4 UNSWLJ 11. A Lawyer's Perspectiveon the Use of Fiduciary Duty With Regard to the Stolen Children (M Abrahams): (1997) 4


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UNSWLJ 6. Lessons From the Stolen Generations Litigation (J Cummings, J Blokland& RLa Forgia): (1997) 19 Adel L Rev 25. Mabo, Wik and the Art of Paradigm Management (NBhuta): (1998) 25 MULR 24. The Native Title Act Amendment Bill 1997 (J Clarke):(1997)4 ILB (No 6) 4. The Native Title Amendment Bill: What Happened in the Senate (PBurke):(1998) 4 ILB (No 9) 4. Native Title and the Criminal Law: the Defence of GalarrwuyYunupingu (R Levy): (1998) 4 ILB (No 13) 10. Native Title Payments: Tax Implicat

ions. Part2 Assessability (R O'Connor & J J Hockley): (1997) 24 Brief (No 11) 14. No Right ForAboriginal Land Council to Seek Defamation Remedy (B Ilkovski): ALMD Advance No6,1/4/1998, p 3. An Overview of the Wik Decision (D Gal): (1997) 20 UNSWLJ 488. People ofAny Race: From Mabo to Wik (G Koppenol): (1998) 18 Proctor (No 2) 47. The PerilsofInclusion: The Constitution and the Race Power (J Williams & J Bradsen): (1997)19 Adel LRev 95. Placement of Indigenous Children: Changing the Law (R Chisholm): (1997)4

UNSWLJ 4. The Political Future of Torres Strait (P Jull): (1997) 4 ILB (No 7) 4.TheProprietary Nature of Native Title (R H Bartlett): (1998) 6 APLJ 77. The Race Power: "WhatParliament May Enact It May Repeal" (A Edgar): ALMD Advance No 7, 16/4/1998, p 1.Recasting Old Solutions to Old Problems: Preventive Apprehension Legislation anditsImpact on Aboriginals (G Bernardi): (1998) 23 Alt LJ 112. Recognition of Indigenous LegalAutonomy in Nineteenth Century New South Wales (B Kercher): (1998) 4 ILB (No 13)7.Reforming Juvenile Justice and Creating the Space for Indigenous Self-Determinat

ion (CCunneen): (1997) 4 UNSWLJ 19. Removal of Indigenous Children from Their Families: TheLitigation Path (T Buti): (1998) 27 UWALR 203. Reserved Seats for Indigenous Australians?(J Sutherland & W Russell): (1997) 4 ILB (No 8) 13. Resting in Peace? A Comparison of theLegal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds in Australia(P Vines): (1998) 20 Syd LR 78. A Return to Dispossession and Discrimination: The TenPoint Plan (R Bartlett): (1997) 27 UWALR 44. The Rights of Indigenous Peoples inLands

Once Part of the Old Dominions of the Crown (A Mason): (1997) 46 ICLQ 812. SlowProgress: The Legal Recognition of Torres Strait Islander Customary Adoption Practice (PBan): (1997) 4 ILB (No 7) 11. The Stolen Generations and Reparations (S Pritchard): (1997)4 UNSWLJ 28. The Stolen Generations: In the Aftermath of Kruger, Bray v TheCommonwealth (M D Schaefer): (1997) 4 UNSWLJ 22. Terrestrial Hunting and Gatheringby Aboriginal People in New South Wales: An Assessment of Law and Policy (A J English):


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(1997) 14 EPLJ 437. Torres Strait Islander Land Act 1991 (G Neate): (1997) 4 ILB(No 7) 13.Torres Strait Islanders: A New Deal For Whom? (K Smith & G Lui): (1997) 4 ILB (No 7) 10.Wik: The Aftermath and Implications (Forum): (1997) 20 UNSWLJ 487. Wik and Beyond: AView of Native Title in South Australia From the Perspective of an AboriginalRepresentative Body (T Wooley): (1997) 19 Law Soc Bulletin (SA) (No 12) 20. Wik:Confusing Myth and Reality (B Keon-Cohen): (1997) 20 UNSWLJ 517. Wik: Feudalism,Capitalism and the State. A Revision of Land Law in Australia? (L Godden): (1997) 5 APLJ

162. Wik: Implications for Statutory Lessees (D Young): (1997) 20 UNSWLJ 512. Wik: OnInvasions, Legal Fictions, Myths and Rational Responses (G Nettheim): (1997) 20UNSWLJ495. The Wik Peoples v State of Queensland: Re-examining Australian Land Tenure(SYoung): (1997) 18 Qld Lawyer 96. Women's Business: Sex, Secrets and the HindmarshIsland Affair (J Bourke): (1997) 20 UNSWLJ 333.Reports and Other Publications. 1987. Constitutionalising Aboriginal Rights Canadian Style:25 ALB 6. Indigenous People, Human Rights and Australia: 61 ALJ 291.1989. The Law Reform Commission (Vic): Report No 25, Public Drunkenness. The Law

Reform Commission (WA): Issues Paper on Incitement to Racial Hatred, Project No86.1997. The Aboriginal Child Placement Principle. Law Reform Commission (NSW),Research Report No 7, March 1997. Planning Control and Native Title A QueenslandPerspective (D Yarrow): (1996) 12 QUTLJ 115. Protecting Indigenous IntellectualProperty.Australian Copyright Council Discussion Paper, March 1997.[1] Pt I. General.1. Non-existence of Aboriginal nation exercising sovereignty in Australia Proprietary orpossessory rights in land Colonies founded by settlement .] Held: (1) (by Gibbs and

Aickin JJ) The annexation of the east coast of Australia by Captain Cook in 1770, and thesubsequent acts by which the whole of the Australian continent became part of thedominions of the Crown, are acts of State whose validity cannot be challenged. It isfundamental to our legal system that the Australian colonies became British possessions bysettlement and not by conquest, and this is an issue which cannot be consideredin legalproceedings. (2) (by Gibbs and Aickin JJ) The contention that there is in Australia anAboriginal nation exercising sovereignty, even of a limited kind, cannot be main

tained inlaw. The Aboriginal people are subject to the laws of the Commonwealth and of the States orTerritories in which they respectively reside. It is not the law that the Aboriginal people asholders of any proprietary or possessory rights could not be dispossessed without bilateraltreaty, lawful compensation or lawful international intervention. (3) (by JacobsJ) Thevalidity of the Crown's proclamations of sovereignty over New South Wales and ta


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kingpossession of it and the Crown's sovereign possession are not matters of municipal law andare not cognizable in a court exercising jurisdiction under that sovereignty. Asovereigntyadverse to that of the Crown cannot be set up in such a court. Per Jacobs J There is noactual decision of the High Court or the Privy Council that the Australian colonies weresettled colonies.[(1978) 52 ALJR 334; 18 ALR 592 affd.]

COE V COMMONWEALTH (1979) 53 ALJR 403; 24 ALR 118 (HC). [Discussed in note, 53ALJ 743.]2. No legislative intention to confer enforceable rights upon Aboriginal communityRepresentative action Declaration as to illegality of revocation of reservesWhetherspecial interest in proceedings .] Held: (1) The Aborigines Protection Act 1909 (NSW)(now repealed), the Aborigines Act 1969 and the Crown Lands Consolidation Act 1913provide no right to a member of a class to bring proceedings to enforce compliance with theprovisions of legislation enacted for the benefit of a class because nowhere in

suchlegislation is there evinced any intention to confer any enforceable rights uponeither theAboriginal community as a whole or the individual members thereof. (2) In proceedings for adeclaration, inter alia, that certain Aboriginal reserves had been illegally revoked, a personwho was born an Aboriginal but with no association with any of the reserves in question, norany association with any of whatever may have been the possible detrimental consequencesof revocation of the reserves, lacked any "special interest" in the subject matter of such

proceedings which would otherwise give him the necessary locus standi to bring them.COE V GORDON [1983] 1 NSWLR 419 (NSW Sup Ct, Lee J).3. Right of Aboriginals to protection of criminal law Colony of New South Walesfounded by settlement .] On a charge of murder it was argued for the defence that thecourt had no jurisdiction if, as was alleged, the defendant was a member of theAboriginalrace of Australia. Held: (1) The colony of New South Wales was founded by settlement, notconquest or cession. Upon settlement, there was, in the colony, only one sovereign, namely

the King of England, and only one law, namely English law; and, upon settlement,inconsequence of instructions from the King to Governor Phillip, the Aboriginal people in thecolony became the subjects of the King and, as such, were not only entitled to the protectionof the law, but became liable for breach of the King's peace in accordance withthe law. (2)From the foregoing, it follows (a) that the Aboriginal people of Australia are not a sovereign


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people, but are subject, in New South Wales, to New South Wales law; and (b) that theEnglish law brought to Australia, including New South Wales, applies to all residents of NewSouth Wales, and not only to British settlers. (3) The court, therefore, had jurisdiction to trythe accused on the indictment preferred against him, whether he was an Aboriginal or not,and whether the deceased named in the indictment was an Aboriginal or not.R V WEDGE [1976] 1 NSWLR 581 (NSW Sup Ct, Rath J). [Discussed in note, 50 ALJ 496.]

4. Breach of confidence towards tribal people Publication of matters of religious andcultural significance communicated in secret Interlocutory injunction .] Thedefendantswere the author and publisher of a book containing material which had been communicatedto the author defendant by people using the Pitjantjara aboriginal tongue many years before.The material was of religious and cultural significance, and of a sacred and secret nature. Ithad been communicated in confidence to the author and was such that, if revealedto womenand uninitiated members of the tribal groups, it was feared would result in soci

al disruptionwithin the groups. Members of the Pitjantjara Council applied ex parte for an interlocutoryinjunction to restrain distribution of the book. Held, that the court should, acting inpursuance of its power to grant an injunction where it appeared to be "just or convenient" todo so under s 28 of the Northern Territory Supreme Court Act 1961 (Cth), and forthepurpose of preventing a breach of faith or confidence, grant an interlocutory injunctionagainst distribution of the book in the Northern Territory.FOSTER V MOUNTFORD (1976) 29 FLR 233; 14 ALR 71; [1978] FSR 582 (NT Sup Ct,

Muirhead J).5. Aboriginal social rules and customs Whether recognizable as system of law

Relationship under system of native clans to land Whether recognizable as right ofproperty .] Held, that in the circumstances of the case, the natives had established a subtleand elaborate system of social rules and customs which was highly adapted to thecountry inwhich the people lived and which provided a stable order of society remarkably free from thevagaries of personal whim or influence. The system was recognized as obligatoryby a

definable community of Aboriginals which made ritual and economic use of the areasclaimed. Accordingly, the system established was recognizable as a system of law. However,the relationship of the native clans to the land under that system was not recognizable as aright of property and was not a "right, power or privilege over, or in connexionwith, theland" within the meaning of the definition of "interest" in land contained in s5(1) of the


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Lands Acquisition Act 1955 (Cth), relating to the acquisition of land on just terms. Thenatives had established a recognizable system of law which did not provide for anyproprietary interest in the clans in any part of the areas claimed.MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141;[1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in notes, 45 ALJ 333; andincorrespondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.]6. Admissibility of evidence Testimony of Aboriginal natives of ancestors' statements

About clan rights to particular areas of land About system relating to suchExpertopinion Anthropological testimony .] Held: (1) Testimony by Aboriginal natives ofstatements made by deceased ancestors about the rights of various clans to particular areas ofland and about the system of which those rights formed part, was admissible under theexception to the hearsay rule relating to declarations of deceased persons aboutmatters ofpublic and general rights (commonly known as reputation evidence). The special body of lawknown as the law of "traditional evidence" by which native law and custom may be

established before a tribunal responsible for the administration of such law andcustom doesnot form part of the common law as it is understood in Australia. (2) Evidence from ananthropologist in the form of a proposition of anthropology a conclusion havingsignificance in that field of discourse was not inadmissible (a) as hearsay, by thecircumstance that the evidence was founded partly on statements made to the expert by theAboriginals, (b) as opinion founded on facts which were not apparent, since thefacts wereascertained by the methods and described in terms appropriate to the expert's fi

eld ofknowledge, and (c) as conceptual in terms rather than factual, provided that theexpert spokein terms of concepts appropriate both to his field of knowledge and the court'sunderstanding.MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141;[1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in note, 45 ALJ 333; and incorrespondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.]7. Admissibility of evidence Confidential information as to sacred sites Public interest.] Consideration of the circumstances in which a claim of public interest immunity should

be upheld and, in particular, whether it applied to material about sacred sitessupplied inconfidence by Aborigines.ABORIGINAL SACRED SITES PROTECTION AUTHORITY V MAURICE; REWARUMUNGU LAND CLAIM (1986) 10 FCR 104; 65 ALR 247 (Fed Ct of Aust FC).8. Proof that person Aboriginal .] The licensee of an hotel was charged withsupplyingliquor to an Aboriginal native of Australia. The only evidence as to the race ofthe personsupplied was his own testimony as to his place of birth and parentage and the op


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inionevidence of a police constable. Held, that the evidence of the native was inadmissiblewithout consent, and that there was not sufficient evidence to enable the race of the person tobe determined without recourse to s 48 of the Aborigines Act 1934 (SA).WILLIAMS V WIGHT [1943] SASR 301 (SA Sup Ct, Napier CJ). [Discussed in article,9 UTas LR 205.]9. Who are Aboriginals Aboriginal native married to foreigner .] The marriage of an

Aboriginal woman to a native of Batavia residing within the State of Queenslanddoes notprevent the application of the provisions of the Aboriginals Protection and Restriction of theSale of Opium Act 1897 (Q) to that Aboriginal woman as, although her nationalitymay bechanged, her race is not.[(1914) 8 QJPR 57 affd.]DEMPSEY V RIGG [1914] QSR 245; 8 QJPR 149 (Q Sup Ct FC).80. Determination of Aboriginal descent .] By Letters Patent issued separately by theGovernor-General of the Commonwealth and by the Governor of Queensland, W wasauthorised to inquire into deaths of "Aboriginals and Torres Strait Islanders" i

n custody. Wsought to inquire into the death of a man and ruled that, on the basis of provedAboriginaldescent, the man was an Aborigine whose death was within the terms of reference.The Stateof Queensland contended that the deceased man was not an "Aboriginal" within themeaningof the Letters Patent and that W had no authority to inquire into his death. A judge of theFederal Court so held, on the basis of evidence relating to genetic and social factors. Held,allowing an appeal, that in cases where Aboriginal descent is uncertain or wherethe extent of

Aboriginal descent may be regarded as insignificant, each of the factors of self-recognitionand recognition by persons who are accepted as being Aborigines may have an evidentiaryvalue in the resolution of the question.[(1989) 25 FCR 512; 46 A Crim R 12; 90 ALR 611; 18 ALD 712 revd on this point.]A-G (CTH) V QUEENSLAND (1990) 25 FCR 125; 94 ALR 515 (Fed Ct of Aust FC).81. Determination of Aboriginal descent Degree of descent necessary .] Theresult ofa regional election was contested on the basis that the respondent was not qualified to standfor election because he was not an "Aboriginal person" for the purposes of the Aboriginal

and Torres Strait Islander Commission Act 1989 (Cth). As to the meaning of "Aboriginalperson", Held: (1) In order for someone to be described as an "Aboriginal person" within themeaning of that term in the Act, some degree of Aboriginal descent is essential,although byitself a small degree of such descent is not sufficient. A substantial degree ofAboriginaldescent may, by itself, be enough to require a person to be regarded as an "Aboriginal


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person". (2) Where a person is either wholly of Aboriginal descent or where thedegree ofAboriginal descent is so substantial that the person possesses what would be regarded by thegenerality of the Australian community as clear physical characteristics associated withAboriginals that the person would be described in ordinary speech as "Aboriginal", theperson may be regarded as an "Aboriginal person" for the purposes of the Act. Itis racialorigin, not external physical appearance, that governs whether a person is "Abor

iginal" forthe purposes of the Act. (3) The less the degree of Aboriginal descent, the moreimportantcultural circumstances become in determining whether a person is "Aboriginal".GIBBS V CAPEWELL (1995) 54 FCR 503; 128 ALR 577 (Fed Ct of Aust, Drummond J).82. Customary law Relationship with Commonwealth laws Readjustment of latter inrelation to recognised rights of indigenous peoples Claimed fiduciary duty owed byCommonwealth to indigenous peoples Courts to be cautious in striking out or terminatinglegal proceedings capable of contributing to readjustment process .] By writ and statement

of claim, the plaintiff (an Aboriginal Australian) claimed declaratory relief against theCommonwealth. First, he sought a declaration that the Commonwealth owed "a fiduciaryduty to the original peoples of this land"; second, a declaration that the Commonwealth"move in the United Nations General Assembly for an Advisory Opinion from ... theInternational Court of Justice, as to the separate rights and legal status of the original peoplesof this land"; and, third, a declaration that the Commonwealth negotiate with the plaintiffabout preparation of the proposed case before the International Court. The state

ment of claimmade other generalised assertions including allegations that the Commonwealth hadattempted through force and deceit to impose its laws on the original people, had failed tocomply with their customary law, had failed to enter into a treaty with them, and had failedto stop "genocide" being perpetrated against them. The Commonwealth sought dismissal ofthe plaintiff's process for want of jurisdiction or its striking out for failureto disclose areasonable cause of action or as being frivolous or vexatious, and on other grounds. Held: (1)

The declaration sought in respect of an alleged fiduciary duty could not stand alone, for itamounted to seeking a declaration of legal right not linked to any attempt to administer thelaw in other words, an entirely theoretical pronouncement. Such a claim did not seek anyimmediate right, duty or liability to be established by the High Court's determination andtherefore could not be a "matter" within ss 75 or 76 of the Constitution so as to attract


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jurisdiction. Per curiam The fiduciary relationship held to exist in some circumstancesbetween the United States and indigenous American tribes (a relationship findingsomesupport in Canada as regards indigenous Canadians) has not gathered support in the HighCourt, but, in Australia, the question remains open. (2) Even were the present process anappropriate vehicle to open the fiduciary question, it was inappropriate that the plaintiff bepermitted to undertake what appeared to be a representative action when his righ

t to do sowas neither plain nor pleaded. (3) The claimed declarations for a motion in theGeneralAssembly and negotiations in respect of it could not enliven the relief sought as to allegedbreach of fiduciary duty, for it was not open to the High Court to control the way in whichthe executive government conducts Australia's international relations. The HighCourt hadnever embarked upon such control and should not do so, for the matters in issuewere beyondthe scope of judicial knowledge, defied judicial application, and turned on a multitude of

considerations unknown to the High Court. (4) It was inappropriate to permit amendment ofpleadings in this case, for such extensive revision would be required as to present to the HighCourt a completely new and different claim. Per curiam At a time when Australian law isundergoing a measure of readjustment in relation to indigenous peoples, it is appropriate forcourts to be cautious in striking out or terminating proceedings, including those brought bysuch parties which, in the fullness of time, might, with evidence, elaboration and detailedargument, contribute to the process of readjustment.

[Earlier proceedings see (1997) 71 ALJR 708.]THORPE V COMMONWEALTH [NO 3] (1997) 71 ALJR 767; 144 ALR 677 (HC, Kirby J).[Discussed in article, 4 ILB (No 7) 19.]83. Representative action Aboriginal group seeking to avoid Commonwealth legislation Allegation that statute offensive to oppressed and deprived minority .] Section 22(1) ofthe Australian Bicentennial Authority Act 1980 (Cth) made it an offence for a person to usethe name or prescribed symbols of the Authority in connection with a business, trade,profession of occupation, or in respect of the sale or hire of goods. The plaintiffs sought a

declaration that various sections, including s 22, of the Act were void as beingbeyond thelegislative power of the Commonwealth. They claimed standing to sue on the grounds thatone of them was manufacturing for sale by wholesale to others of them for retailsale ofitems of clothing bearing the Authority's name and prescribed symbols; that theywereAborigines having, as representatives of their class, a special interest in challenging the


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validity of laws concerning a celebration that offended them as an oppressed anddeprivedminority; and that they were taxpayers. The defendants applied to have the paragraphs of thestatement of claim alleging the latter two grounds struck out under O 20, r 29,of the HighCourt Rules as being unnecessary, scandalous, or tending to prejudice, embarrassor delay thefair trial of the action. Held: (1) Those parts of the statement of claim alleging the interests ofa class to challenge the validity of a statute to which that class objected coul

d not bedismissed as frivolous or hopeless, and did suggest a special interest such thatit would bewrong to exclude them. (2) Those parts of the statement of claim dealing with Aborigines asan allegedly oppressed and deprived minority did not disclose any individual sufferingcaused to the plaintiffs, asserted no interest other than an emotional concern going only toexplain the plaintiffs' feelings, and gave rise to issues that could unreasonably prolong thetrial, and would therefore be struck out. (3) The allegation that the plaintiffs, as taxpayers,

had standing to sue in an action challenging the validity of an Act under whichpublic moneywas disbursed was arguable and the relevant paragraphs would not be struck out.DAVIS V COMMONWEALTH (1986) 61 ALJR 32; 68 ALR 18 (HC, Gibbs CJ).84. Bankruptcy Whether Aborigines subject to provisions of bankruptcy legislation .]A debtor opposed the making of a sequestration order upon the presentation of acreditor'spetition on the ground that, being an Aborigine, he was not subject to the jurisdiction of thecourt nor bound by the provisions of the Bankruptcy Act 1966 (Cth). The hearingproceededon the assumption that the debtor was an Aborigine. Held, in making a sequestrat

ion orderagainst the debtor's estate, that the Aboriginal people were subject to the lawsof theCommonwealth and of the States or Territories in which they respectively resided. PerNeaves J Even if it could be argued that the colony of New South Wales was acquired byconquest and not by settlement, the distinction between those forms of acquisition had nosignificance in determining whether, in 1987, descendants of those who in 1770 or 1788were inhabitants of what became the colony of New South Wales, were subject to laws

enacted by the Commonwealth Parliament in exercise of the powers conferred uponit by theConstitution.RE PHILLIPS; EX PARTE ABORIGINAL DEVELOPMENT COMMISSION (1987) 13 FCR384; 72 ALR 508 (Fed Ct of Aust, Neaves J).[2-3] Pt II. Land Rights.[2] Divn 1. At Common Law10. Non-existence of Aboriginal nation exercising sovereignty in Australia Proprietary orpossessory rights in land Colonies founded by settlement .] See [1].


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COE V COMMONWEALTH (1979) 53 ALJR 403; 24 ALR 118 (HC).11. Tribal lands Whether doctrine of communal native title part of common lawapplicable in Australia Circumstances in which native title recognised according to thatdoctrine Extinguishment of title so recognised Whether relationship of Aboriginalclans to particular areas satisfied requirements of doctrine Nature of relationship of clansto land .] Aboriginal natives of Australia representing native clans sued a mining companyand the Commonwealth claiming relief in relation to the possession and enjoyment

of areasof Arnhem Land in the Gove Peninsula over which mineral leases had been grantedby theCommonwealth to the company, which mined for bauxite in the area. The areas consisted ofa number of tracts of land, each linked to a native clan, the total of which exhausted the areasin question. The boundaries between the tracts were not precise but were sufficient for nativepurposes. The natives asserted on behalf of the native clans they represented that those clansand no others had in their several ways occupied the areas from time immemorialas of right.

The natives contended, as "the doctrine of communal native title", that at common law therights under native law or custom of native communities to land within territoryacquired bythe Crown, provided that those rights were intelligible and capable of recognition by thecommon law, were rights which persisted and must be respected by the Crown itself and byits colonizing subjects unless and until they were validly terminated. The natives furthercontended, as part of that doctrine, that those rights could be terminated onlyby the Crown(a) by consent of the native people or by forfeiture after insurrection or, perh

aps, (b) byexplicit legislation or by an act of State, and that the rights of the native people to use andenjoy the land in the manner in which their own law or custom entitled them to do was aright of property. Held, that in the circumstances of the case, the natives hadnot establishedthat, on the balance of probabilities, their predecessors had, at the time of the acquisition oftheir territory by the Crown as part of the colony of New South Wales, the samelinks to thesame areas of land as those claimed by the natives. Customs, beliefs and socialorganization

of the Aboriginal natives of Australia in general, and of the areas claimed in particular,considered. The doctrine of communal native title contended for by the natives did not form,and never had formed, part of the law of any part of Australia. Such a doctrinehad no placein a settled colony except under express statutory provisions. Throughout the history of thesettlement of Australia any consciousness of a native land problem inspired a policy of


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protection and preservation, without provision for the recognition of any communal title toland. There is no principle of law that communal native title can only be extinguished bylegislation by express enactment: extinguishment may be implied. Principles applicable tothe acquisition of colonial territory (both settled or occupied and conquered orceded) andcolonial policies relating to native lands, considered in detail, and in relation thereto thefollowing matters considered: the application of English law in the overseas pos

sessions ofthe Crown; colonial policy with regard to native lands in North America; the common lawbefore and after 1788; American cases since the revolution; Canadian cases; Indian cases;African cases; the law in New Zealand; the Australian authorities; the Australian historicalmaterial.MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141;[1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in note, 45 ALJ 333; and incorrespondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.]12. Tribal lands Effect of proviso in letters patent of 1836 establishing pro

vince of SouthAustralia Reservation of rights of Aboriginal natives to occupation and enjoyment of land Effect of subsequent Imperial legislation granting succession of legislative powers overterritory .] Held, that the Letters Patent of 1836 by which the Province of South Australiawas established and its boundaries defined, by its proviso that nothing thereincontainedshould affect or be construed to affect "the rights of any Aboriginal Natives ofthe saidProvince to the actual occupation or enjoyment in their own persons or in the persons of their

descendants of any Land therein now actually occupied or enjoyed by such Natives", (a) didnot extend to territory which became part of South Australia thereafter, (b) didnot operate asa constitutional guarantee of Aboriginal rights, but (c) was no more than the affirmation of aprinciple of benevolence inserted in the Letters Patent to bestow upon it a suitably dignifiedstatus. Moreover, later Imperial legislation, granting a succession of legislative powerseffective over the areas claimed, necessarily implied the repeal of any constitutionallimitation on legislative power contained in the proviso to the Letters Patent.

MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141;[1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in note, 45 ALJ 333; and incorrespondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.]13. Tribal lands Whether rights to possession and enjoyment established Uponacquisition by Crown of new territory By possession from time immemorial Byestablishment of Aboriginal reserves Interference with tribal lands by miningoperations Whether actionable at suit of Aboriginals .] An action was brought by Aborig


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inalnatives of Australia against a mining company and the Commonwealth, claiming relief inrelation to the possession and enjoyment of certain areas of the Arnhem Land AboriginalReserve in the Gove Peninsula, over which certain mining rights had been grantedby theCommonwealth to the company which was conducting mining operations in the area.Oninterlocutory applications by the defendants, Held, that summary judgment shouldbe

refused, on the ground that it had not been established to the satisfaction of the court thatcontentions of the plaintiffs in the action were unsound, namely, (1) that the Crown, upon theacquisition of a new territory by the Crown, had a legal obligation to respect the interests ofnative inhabitants of the territory, (2) that the plaintiffs had enjoyed possession of the land inquestion from time immemorial, and (3) that legal rights were acquired by the plaintiffs, asAboriginal natives, upon the establishment of the Arnhem Land Aboriginal Reserveand,accordingly, that certain statutory instruments and agreements relating to the a

cquisition bythe Commonwealth and grant to the company of certain interests in the land in question wereinvalid and the mining operations of the company unlawful. Having regard to defects in thestatement of claim it should be struck out, with leave to the plaintiffs to deliver a fresh oneand to join further plaintiffs.MATHAMAN V NABALCO PTY LTD (1969) 14 FLR 10; [1969] ALR 685 (NT Sup Ct,Blackburn J). [Discussed in note, 44 ALJ 174.]85. Common law native title Recognition Where not extinguished Operationof"pastoral leases" in pursuance of State statutes Tests applicable to determine

extinguishment Scope for co-existence of native title and pastoral lease rights Terms ofstatutes and individual leases to be examined case by case .] The Native TitleAct 1993(Cth), s 223, defines the expressions "native title" and "native title rights and interests" byreference to (a) traditional laws and customs; (b) a linked connection with relevant land orwater; and (c) "the rights and interests are recognised by the common law of Australia". TheLand Act 1910 (Q), s 4, and the Land Act 1962 (Q), s 5, define "Crown land" as being "allland in Queensland" with specified exceptions, particularly Crown grants in fee

simple,reserves dedicated for public purposes, or: "Subject to any lease or license [sic] lawfullygranted by the Crown: Provided that land held under an occupation license shallbe deemedto be Crown land". Part III of each Act deals with "Pastoral Tenures": an expressionidentified in the 1962 Act as pastoral leases, occupation licences and stud holdings (the lastnot being included in the 1910 Act). Pastoral leases under the Acts conferred on


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ly the estateor interest authorised by the relative Act. Held (by majority), that the granting of a pastorallease in pursuance of the Land Act 1910 or of the Land Act 1962 did not of itself extinguishnative title subsisting in the leased land. An examination of the terms and circumstances ofeach such lease and its authorising statute would be necessary to determine whether anyextinguishment had been effected. Per Toohey J (on behalf of the majority) Whether there

was extinguishment can only be determined by reference to such particular rightsandinterests as may be asserted and established. If inconsistency is held to existbetween therights and interests conferred by native title and the rights conferred under statutory grants,the native title rights and interest must yield, to that extent, to the rights of the grantees. Perthe majority In respect of the pastoral leases presently under consideration:(a) thefollowing matters would tend to suggest that native title had not been extinguished but mightco-exist with the grant the granting of leases "for pastoral purposes only"; t

he reservationof rights of entry for removal of timber, stone and other natural products; denial of rightsexclusive to the lessee to cut or destroy trees or permit such acts; the grant of pasturage rightsto travelling stock; the lessee's failure to observe onerous conditions attaching to the lease;and the reserved right of entry by "any person duly authorised" for specific purposes; and (b)the following matters would tend to suggest the conferring of rights of exclusive possession the use of "demise", "term", "assigns", "lease" and derivatives of "lease" inthe Acts and

leases themselves; the distinction drawn in the Land Act 1910 between leases andlicences;and the required construction of boundary fences and fulfilment of development conditions.Per Kirby J The search, now necessary to find indications of extinguishment of nativetitle, is conducted at a disadvantage because of its reliance on legal materialswritten in alegal environment of contrary understandings and beliefs. The present must revisit the past toproduce a result, wholly unexpected at the time, which will not cause undue collision in thefuture. Observations on the history, policy and application of doctrines of tenu

res and estatesin Australia, with particular reference to the concepts of radical and allodialtitle; and onvarious forms of authorised land occupancy, including pastoral leases, devised to meet theexpanding needs of Australian regional settlement. Per Gummow J Traditional conceptsof English land law, although radically affected in their country of origin by the Law ofProperty Act 1925 (UK), may still exert in this country a fascination beyond the


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ir utility ininstruction for the task at hand. There is also a need to adjust ingrained habits of thought andunderstanding to what, since 1992, must be accepted as the common law of Australia.Further observations on (a) Colonial Office policy before Responsible Government, and thepolicy of the Government of Colonial Queensland thereafter, concerning the extent to whichthe interests of indigenous land occupants should be recognised and protected; and on (b) the

consequences of the failure of a pastoral lessee to enter into possession, and on the (nowabolished) concept of interesse termini.[(1996) 63 FCR 450; 134 ALR 637 set aside in part.][Earlier proceedings see (1994) 49 FCR 1; 120 ALR 465.]WIK PEOPLES V QUEENSLAND (1996) 187 CLR 1; 71 ALJR 173; 141 ALR 129 (HC).[Discussed in articles, 3 ALB (No 89) 20; 11 APLB 49; 16 AMPLA 27, 44; 19 Law SocBulletin (SA) (No 6) 10; 3 UNSWLJ Forum 2, 3, 5, 8, 10, 12, 14; 24 Brief (No 6)9; 21MULR 343.]86. Common law native title Recognition Where not extinguished Operationof

Crown leases Land entitlement of inhabitants of Murray Islands .] Held (by majority):(1) Australian common law recognises a form of native title which, in the caseswhere it hasnot been extinguished, reflects the entitlements of the indigenous inhabitants,in accordancewith their laws or customs, to their traditional lands. (2) Accordingly, exceptfor theoperation of Crown leases, the land entitlement of the inhabitants of the MurrayIslands, inTorres Strait, is preserved as native title under the law of Queensland. (3) Theland in theMurray Islands is not Crown land within the meaning of that term in the Land Act

1962 (Q),s 5. Observations on: (a) the reception of the common law in Australia, with particularreference to its effect on indigenous people; (b) traditional claims to land under the law of aBritish settled colony; (c) the doctrine of "terra nullius"; (d) Crown powers toextinguishtraditional "titles"; (e) Crown title to colonies and Crown ownership of colonial land; (f)annexation of the Murray Islands and the survival of traditional "title" thereafter; and (g)fiduciary duties owed to traditional occupants of land.[Earlier proceedings see (1988) 166 CLR 186; 63 ALJR 84; 83 ALR 14.]

MABO V QUEENSLAND [NO 2] (1992) 175 CLR 1; 66 ALJR 408; 107 ALR 1 (HC).[Discussed in articles, 17 Alt LJ 157, 162; 2 ALB (No 57) 7; 27 ALN (No 6) 9; 66Law Inst J1105; 22 UWALR 272; 42 ICLQ 84; 144 ACT Law Soc Newsletter 32; 18 Mon LR 251; 67ALJ 442; 15 Syd LR 121, 159, 168, 187, 206; 12 AMPLA Bulletin 62; 31 Law Soc J (No 5)55; 16 UNSWLJ 1; [1993] Vic Bar News (No 87) 20, 29, 47, 61; 67 Law Inst J 1163;2 GLR(No 1) 39; 7 Com LQ (No 4) 13; 21 FL Rev 271; 1 APLJ 236; 11 Aust Bar Rev 229; 24


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UWALR 31; 9 QUTLJ 81; 18 UQLJ 9, 15, 38; 1 JCULR 51.]87. Common law native title Recognition Queensland pastoral leases Whereapplication to be entertained by National Native Title Tribunal .] Circumstances in which,on appeal by specific leave from the Federal Court of Australia (Full Court), itwas orderedthat the National Native Title Tribunal entertain applications claiming traditional title to landin Queensland the subject of specific pastoral leases. Reasons for judgment to follow in duecourse.

[(1995) 61 FCR 1; 132 ALR 565 set aside.]RE NORTH GANALANJA ABORIGINAL CORPORATION; EX PARTE QUEENSLAND(1996) 70 ALJR 174 (HC).88. Common law native title Extinguishment By grant of leasehold interestPastoral leases No implied reservation in favour of Aboriginal people .] Held, that thegrant of a leasehold interest conferring rights of exclusive possession upon thelessee,unqualified by any right of access or reservation in favour of Aboriginal people, isinconsistent with the continuance of native title rights and interests. That general propositionis subject to the terms and conditions of particular leases which, for one reaso

n or another,may negative the characterization of the grant as intending extinguishment. Thus, the shortterm of a lease or wide rights of general public access may defeat a contentionthat it hasextinguished native title. However, where native title is extinguished the common lawposition seems to be that it cannot be revived by the common law.[Affd by (1995) 61 FCR 1; 132 ALR 565.][Earlier proceedings see (1995) 129 ALR 100.]RE WAANYI PEOPLES (1995) 124 FLR 1; sub nom RE WAANYI PEOPLE'S NATIVETITLE APPLICATION 129 ALR 118 (Cth Native Title Trib). [Discussed in article, 3ALB

(No 77) 19.]89. Common law native title Extinguishment By grant of leasehold interestPastoral leases No contract or promise found to limit power of Queensland legislature .] Held, that the power of the Queensland legislature is not limited by contracts, promisesand engagements existing at the time of the enactment of Imperial and local lawsfrom whichQueensland's constitution is derived. Accordingly, there is no limitation on itspower to grantleases without reservations in favour of the Aboriginal inhabitants of the country the subjectof the grant. Nor is there any limitation derived from the terms of the Order in

Council 1859(Q) or the Constitution Act 1867 (Q) on its power to extinguish native title.[Affd by (1995) 61 FCR 1; 132 ALR 565.][Earlier proceedings see (1995) 129 ALR 100.]RE WAAYNI PEOPLES (1995) 124 FLR 1; sub nom RE WAANYI PEOPLE'S NATIVETITLE APPLICATION 129 ALR 118 (Cth Native Title Trib). [Discussed in article, 3ALB(No 77) 19.]90. Common law native title Extinguishment Power of State legislature to extinguish


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native title By legislative or executive action Where breach of fiduciary duty to nativetitle holders Actions not invalid .] Held, that legislative or executive acts sufficient toextinguish native title are not invalid because they constitute a breach of anyfiduciary dutyowed in relation to native title holders.RE WADI WADI PEOPLES (1995) 124 FLR 110; sub nom RE WADI WADI PEOPLE'SNATIVE TITLE APPLICATION 129 ALR 167 (Cth Native Title Trib).91. Common law native title Extinguishment Power of State legislature to extinguish

native title Attempt by Commonwealth Parliament to enact that common law before givendate as to native title has "the force of a law of the Commonwealth" Improperattempt toconfer legislative power on courts Invalid, but severable, portion of Act .]On 1January 1994 the Native Title Act 1993 (Cth) commenced to operate. It specified1 July 1993as the date on and after which native title could be extinguished by the enactment of a lawthat satisfied conditions prescribed by the Act (s 11). The Land (Titles and TraditionalUsage) Act 1993 (WA) purported to extinguish native title and replace it with st

atutory rightsof traditional usage within a regime prescribed by that Act. In particular, s 5purported toconfirm retrospectively the validity of grants of title made after the Racial DiscriminationAct 1975 (Cth) came into operation where those grants sought to extinguish or impair nativetitle. The State challenged the validity of the Commonwealth native title legislation.Interested parties challenged the validity of the State legislation. In the HighCourt three suchmatters were conflated and questions were reserved for the opinion of the Full Court. Held:

(1) Having regard to the circumstances, revealed by history and contemporary documents,surrounding the settlement of Western Australia and its establishment as a colony, thesubmissions of the State, that the Crown originally intended a general extinguishment ofnative title to or over all land within the colonial boundaries defined in Captain Stirling'scommission and instructions, could not be sustained. The Crown's sovereign powerwasintended only to be directed to granting land to immigrant settlers, extinguishing native titleon a parcel by parcel basis. No global extinguishment was contemplated or effect

ed. Percuriam There is no difference in point of law relating to native title betweentheestablishment of the Colony of Western Australia and the establishment of the Colony ofNew South Wales. (2) The Land (Titles and Traditional Usage) Act, s 5, was not invalid asbeing beyond legislative power, but it had no legal operation and was ineffective because ofinconsistency offensive to the Constitution, s 109. (3) The Land (Titles and Tra


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ditionalUsage) Act, s 7, was similarly ineffective for inconsistency with the Racial DiscriminationAct, s 10(1). In all respects, whether under the terms of the Land (Titles and TraditionalUsage) Act, the Mining Act 1978 (WA), the Petroleum Act 1967 (WA), or the Stateprovisions for the granting of compensation on compulsory acquisition of land, there was ademonstrable discrimination between the standing and entitlements of indigenouspeoplevis-a-vis those of other people. The prospective operation of the State Act was

destroyed bythe inconsistency thus created with the rights conferred by the Racial Discrimination Act. (4)The Native Title Act was prima facie supported by the Constitution, s 51(xxvi) (power tomake special laws for people of any race). (5) The Native Title Act was not invalid aspurporting to control the exercise by a State of its legislative power or to render State lawsinvalid contrary to the Constitution, s 107. (6) The Native Title Act was not invalid ascreating an impermissible discrimination against Western Australia or an impermissible

impairment of the ability of Western Australia to function as a State, for the Act did notpurport to affect the machinery of the government of the State or obtrude upon theconstitution of the State's three branches of government. (7) The Native Title Act, s 12,which purported to enact that "Subject to this Act, the common law of Australiain respect ofnative title has, after 30 June 1993, the force of a law of the Commonwealth" was invalid aseither purporting to confer legislative power on the courts or as lacking constitutionalsupport. Its invalidity did not affect the validity of any other provision of th

e Act.WESTERN AUSTRALIA V COMMONWEALTH (1995) 183 CLR 373; 69 ALJR 309; 128ALR 1 (HC). [Discussed in articles, 69 ALJ 397; 22 Brief (No 4) 6; 3 ALB (No 73)4, 8; 14AMPLA 108; and in note, 3 APLJ 142.]92. Common law native title Extinguishment Power of State legislature to extinguishnative title Torres Strait islands Claim to customary land ownership with traditionaltitle and usufructuary rights Purported extinguishment of by State Act withoutcompensation Inconsistency with Racial Discrimination Act 1975 (Cth) .] Theplaintiffs, being native occupants of the Murray Islands group in Torres Straitwithin the

State of Queensland, sought declarations that they owned by custom the island land theyoccupied, and held traditional native title and usufructuary rights in relationto it. Afteraction commenced, the Queensland legislature passed the Queensland Coast IslandsDeclaratory Act 1985 (Q), which declared that the islands, on first becoming part ofQueensland, were vested in the Crown in right of Queensland, and became Crown landsubject to the State's Crown land legislation from time to time, no compensation


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beingpayable in respect of any prior right, title or interest. The plaintiffs contended that, as amatter of construction and for want of legislative power, the Act was invalid. They demurredto the defence in so far as it relied upon the Act. The plaintiffs further contended in supportof their demurrer that the Act was invalid pursuant to s 109 of the CommonwealthConstitution as being inconsistent with the Racial Discrimination Act 1975 (Cth),particularly s 9 (racial discrimination to be unlawful) and s 10 (rights to equa

lity before thelaw). Held, upholding the demurrer: (1) Assuming the traditional legal rights pleaded in thestatement of claim to have existed before 1985, the Act, being declaratory, hadthe capacityto change the law such that courts became bound to accept the law as declared. Prima facie,any traditional rights were accordingly extinguished by the Act. (2) (a) The human rights towhich s 10 of the Racial Discrimination Act refer include the right to own and inheritproperty, and, by extinguishing the traditional rights of the Murray Islanders,the Queensland

Act abrogated the immunity of those people from arbitrary deprivation of their legal rights inand over those islands. The Queensland Act thus impaired their human rights while leavingunimpaired the corresponding human rights of those whose rights in and over those islandsdid not originate in the laws and customs of the Murray Islanders. (b) A State law which, bypurporting to extinguish native title, would limit the immunity of the native ethnic groupfrom legislative interference with their human right to own and inherit property, cannotprevail over s 10(1) of the Racial Discrimination Act, and the attempt of the Qu

eensland Actto extinguish traditional land rights of the Murray Islanders therefore failed.[Further proceedings see (1992) 175 CLR 1; 66 ALJR 408; 107 ALR 1.]MABO V QUEENSLAND (1988) 166 CLR 186; 63 ALJR 84; 83 ALR 14 (HC). [Discussedin articles, 17 MULR 168; 1 PLR 53, 329.]93. Common law native title Extinguishment Standard of proof EvidenceAdmissibility .] The plaintiffs brought proceedings against the State of Queenslandclaiming rights to ownership of lands on the Murray Islands. The plaintiffs claimed that as aconsequence of the continuous application of the laws, customs, traditions and practices ofthe Meriam people they had acquired rights in respect of the lands claimed accor

ding to: (a)local custom; (b) traditional native title; (c) usufructuary rights on account of theirpossession, use and enjoyment of the Murray Islands; (d) fiduciary obligations to which theState of Queensland had become subject in respect of the plaintiffs' claimed rights; and thatthe State of Queensland was bound to recognise those rights. The issues to be determinedwere: (a) the standard of proof to be applied to a claim based on traditional cu


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stom andculture; and (b) the admissibility of assertions by witnesses on the basis of what they hadbeen told by non-witnesses. Held: (1) It could not be accept

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