Statutory interpretation and native title extinguishment: expanding constructional choices

This article examines the scope and application of the statutory construction assessment that underlies the consistency evaluation of native title rights. Introduction Native title jurisprudence is derived from the common law. The concept of native title and its re-institutionalisation into the underlying land law framework emanates from the conclusions of the High Court of Australia in Mabo [No 2]. This decision revised the architecture of the ownership framework underpinning Australian land law. The Court allowed native title rights and interests to be recognised in circumstances where they could be shown to have survived the impact of colonisation and the assertion of sovereignty by the United Kingdom. The conceptualisation of native title was given statutory validation in the Native Title Act 1993 (Cth) (‘NTA’), which outlined the mandatory requirements for establishing native title rights and interests. The statutory validation of native title gave it a strong legislative foundation, and prompted the High Court to reify native title as a statutory rather than a common law concept. One of the most distinct and enduring characteristics of native title rights and interests in Australia is their susceptibility to extinguishment. The scope and range of the doctrine of extinguishment is sweeping. Native title rights and interests may be extinguished by the exercise of an inconsistent grant of sovereign power, whether the inconsistency is express or implied and whether it is manifest through the issuance of a specific grant or through legislative acts. Determining whether an exercise of sovereign power is consistent with the recognition of native title rights and interests is therefore the operational fulcrum underpinning the extinguishment process. In this article, the scope and application of the statutory construction assessment that underlies the consistency evaluation is examined. The focus is upon legislation enacted prior to the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the NTA because these Acts do not attract the NTA validation provisions and therefore must be assessed in accordance with common law processes. The primary contention of this article is that the interpretative strategy for determining the legislative intent of Acts predating the RDA and the NTA needs to be broadly purposive rather than textualist in orientation to ensure that a range of relevant inter-contextual factors and policies are properly considered. A purposive approach to statutory construction provides a more effective foundation for courts in evaluating the underlying objectives connected with the implementation of native title rights and interests. This is despite the fact that their recognition postdates the implementation of the Act under consideration in a particular case

Freedom And Receptivity In Aesthetic Experience

No-one can read far into our subject without finding an author linking aesthetic experience and freedom in one sense or another: Kant, notably of course, but also Schopenhauer, Schiller, and many more. In this article I want first [A] to remind you in a sentence or two of those by now classic ways of connecting concepts of freedom and aesthetic experience, and then [B] to outline some thoughts of my own. Section [C] opens up in more detail a less frequented and less well-charted topic: basically, the many- layered nature of much aesthetic experience, and how that can involve freedom in an ‘improvisatory’ contribution by the apprec iator. Each layer can be thought of as containing a ‘given’—the product of earlier syntheses, plus a new component, in its turn, to be synthesized, whether historical, scientific, religious, or other. This probably occurs most of all in the aesthetic appreciation of nature, since art offers some controlling, ‘mastering’ of the appreciator’s response

Light quark masses from UKQCD's dynamical simulations with O(a)-improved Wilson fermions

I present preliminary results on the light quark masses from a partially quenched analysis of UKQCD's dynamical datasets.Comment: Lattice2002(spectrum), 3 pages, 3 figures, Edinburgh preprint 2002/1

Food abuse : Mealtimes, helplines and 'troubled' eating

Feeding children can be one of the most challenging and frustrating aspects of raising a family. This is often exacerbated by conflicting guidelines over what the ‘correct’ amount of food and ‘proper’ eating actually entails. The issue becomes muddier still when parents are accused of mistreating their children by not feeding them properly, or when eating becomes troubled in some way. Yet how are parents to ‘know’ how much food is enough and when their child is ‘full’? How is food negotiated on a daily level? In this chapter, we show how discursive psychology can provide a way of understanding these issues that goes beyond guidelines and measurements. It enables us to examine the practices within which food is negotiated and used to hold others accountable. Like the other chapters in this section of the book, eating practices can also be situations in which an asymmetry of competence is produced; where one party is treated as being a less-than-valid person (in the case of family practices, this is often the child). As we shall see later, the asymmetry can also be reversed, where one person (adult or child) can claim to have greater ‘access’ to concepts such as ‘appetite’ and ‘hunger’. Not only does this help us to understand the complexity of eating practices; it also highlights features of the parent/child relationshipi and the institutionality of families