From Mabo to Yorta Yorta: Native Title Law in Australia

In more than a decade since Mabo v. Queensland II’s recognition of Indigenous peoples’ rights to their traditional lands, the jurisprudence of native title has undergone significant development. The High Court of Australia decisions in Ward and Yorta Yorta in 2002 sought to clarify the nature of native title and its place within Australian property law, and within the legal system more generally. Since these decisions, lower courts have had time to apply them to native title issues across the country. This Essay briefly examines the history of the doctrine of discovery in Australia as a background to the delayed recognition of Indigenous rights in lands and resources. It further examines the way the Mabo decision sought to reconcile the recognition of rights with the protection of the interests of the state. In doing so, the Essay examines two strands of developing native title jurisprudence that have significantly limited the potential of native title for Indigenous peoples—the doctrine of extinguishment and the role of law and custom in the proof of native title

Australia's nation-building: renegotiating the relationship between Indigenous peoples and the state

By the time of Australia's Federation in 1901, the colonies had established a long tradition of discrimination against Indigenous peoples. As a colonial country, racism was a founding value of Australian society - it justified the wholesale denial of Indigenous peoples' rights to retain their social, economic and political structures, while denying their rights to participate in the polity that was under construction. This beginning helped to establish the fundamental disrespect for Indigenous peoples that underpins Australia's legal and political development. Disrespect occurs not just in the relationship between the state and Indigenous peoples, but has engendered a more personal disrespect that is experienced by Indigenous people on a daily basis. It is the ongoing tolerance of disrespect that maintains racism as a core value of Australian society. Achieving justice for Indigenous peoples therefore requires fundamental change at every level. As Australia moves into its second century as an independent state, an examination of the vestiges of Australia's colonial origins should move us toward rectifying the fundamental injustices that continue to undermine the foundations of Australian nationhood. Nation-building is an ongoing process. It requires constant reinforcement of values and identity. It is not sufficient to relegate the failure to respect Indigenous peoples as equals to the vagaries of history, because that history constantly informs Australia's identity, values and governance. This paper looks back at those foundations but also at recent public policy debates concerning Indigenous peoples' rights. We identify the shortcomings of recent policies as stemming from the failure to approach Indigenous issues within the context of the structural relationship between Indigenous peoples and the colonial state. We suggest that Indigenous policy can no longer suffer the absence of a process that has the capacity to tear at the institutionalised racism and discrimination of the Australian state and build respect for Indigenous peoples as the first peoples of this land

Indigenous self-determination claims and the common law in Australia

With the decision in Mabo v Queensland [No. 2] in 1992, the courts cemented their role in the self-determination strategies of Indigenous peoples in Australia. More than merely recognising a form of title to traditional lands, the tenor of the judgements in Mabo's case respected Indigenous peoples and offered the protection of the common law. However, the expectations of many Indigenous people for change have not since been met. This thesis examines the usefulness of the courts and the common law in particular for the self-determination claims of Indigenous peoples. I examine the theoretical and institutional limitations on the courts that have resulted in a doctrinal history which has generally excluded Indigenous peoples. I also analyse the potential for the common law to accommodate self-determination claims. I argue that the courts require familiar concepts upon which to base their decisions. I identify the notion of equality of peoples as a proper foundation for the courts to structure the relationship between Indigenous peoples and the state. Equality of peoples has roots in the fundamental principles of the common law and maintains the integrity of Indigenous peoples’ claims

Study protocol: Our Cultures Count, the Mayi Kuwayu Study, a national longitudinal study of Aboriginal and Torres Strait Islander wellbeing

Introduction Aboriginal and Torres Strait Islander peoples are Australia’s first peoples and have been connected to the land for ≥65 000 years. Their enduring cultures and values are considered critical to health and wellbeing, alongside physical, psychological and social factors. We currently lack large-scale data that adequately represent the experiences of Aboriginal and Torres Strait Islander people; the absence of evidence on cultural practice and expression is particularly striking, given its foundational importance to wellbeing.This work was supported by the Lowitja Institute (grant number: 1344) and the National Health and Medical Research Council of Australia (NHMRC, grant number: 1122274). RL and EB are supported by the NHMRC (references: 1088366 and 1042717, respectively). KAT is supported by the Lowitja Institute (reference: 1344). RJ is supported by an Australian Government Research Training Program (RTP) scholarship

The Vagaries of Native Title: Partial Recognition of Aboriginal Law in the Alice Springs Native Title Case%Hayes v Northern Territory. by Lisa Strelein

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