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

Groundwater investigation Buntine-Marchagee Natural Diversity Recovery Catchment

A groundwater investigation was initiated in the Buntine-Marchagee Natural Diversity Recovery Catchment 200 kms north-east of Perth, Western Australia in 2002. The investigation aimed to install a regional groundwater monitoring network and characterise the regolith throughout the catchment. Drill site selection was based on establishing a series of transects to enable construction of hydrogeological cross-sections to enhance conceptual understanding of the catchment

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

Murine liver allograft transplantation: Tolerance and donor cell chimerism

Nonarterialized orthotopic liver transplantation with no immunosuppression was performed in 13 mouse‐strain combinations. Two strain combinations with major histocompatibility complex class I and class II and minor histocompatibility complex disparity had 20% and 33% survival of more than 100 days, but the other 11 combinations, including four that were fully allogeneic and all with only class I, class II or minor disparities, yielded 45% to 100% survival of more than 100 days. Long‐living recipients permanently accepted donor‐strain heterotopic hearts transplanted on the same day or donor‐strain skin 3 mo after liver transplantation, in spite of detectable antidonor in vitro activity with mixed lymphocyte reaction and cellmediated lymphocytotoxicity testing (split tolerance). In further donor‐specific experiments, liver grafts were not rejected by presensitized major histocompatibility complex class I‐disparate recipients and they protected donor‐strain skin grafts from second set (or any) rejection. Less frequently, liver transplantation rescued rejecting skin grafts placed 1 wk earlier in major histocompatibility complex class I, class II and minor histocompatibility complex, class II or minor histocompatibility complex‐disparate strain combinations. Donor‐derived leukocyte migration to the central lymphoid organs occurred within 1 to 2 hr after liver transplantation in all animals examined, persisted in the surviving animals until they were killed (>375 days), and was demonstrated with double‐immunolabeling to be multilineage. The relation of these findings to so‐called hepatic tolerogenicity and to tolerance in general is discussed. (HEPATOLOGY 1994;19:916–924.) Copyright © 1994 American Association for the Study of Liver Disease

On the Repugnance of Customary Law

The Constitution of Papua New Guinea (PNG) features a peculiar artifact of colonial-era law known as a repugnancy clause. This type of clause, used elsewhere as a neutral mechanism to identify conflicts between legal provisions, has in PNG become a tool for the moral-aesthetic evaluation of “customary law.” In this article, I follow the history of the PNG repugnancy clause from its colonial origins and through the relevant case law since the country's independence in order to ask both how the clause acquired its non-legal meaning through legal usage, and why it has been retained in its original form in PNG when so many postcolonial legal regimes have discarded it. Comparative material from Indonesia, sub-Saharan Africa, and especially Australia is used to contextualize the durability of the PNG repugnancy clause, and theoretical material on the affect of disgust and shame is brought to bear in order to understand the use of repugnancy in its moral-aesthetic sense. The article concludes with a meditation on the way the repugnancy clause has enabled the judiciary of PNG to distance the law of the country not simply from an uneducated or inadequately Christian general populace, but also from a history in which all Papua New Guineans were regarded as a contaminating threat to the European colonizers whose legal system the country has inherited

Developing Terra Nullius: colonialism, nationalism, and indigeneity in the Andaman Islands

This article explores in detail the legal structures and discursive framings informing the governance of one particular ‘backward’ region of India, the Andaman Islands. It traces the shifting patterns of occupation and development of the Islands in the colonial and post colonial periods, with a special focus on the changes wrought by independence in 1947 and the eventual history of planned development. It demonstrates how intersecting discourses of indigenous savagery/primitivism and the geographical emptiness was repeatedly mobilised in colonial era surveys and post-colonial policy documents. Post colonial visions of developing the Andaman Islands ushered in a settler-colonial governmentality, infused with genocidal fantasies of the ‘dying savage’. Laws professing to protect aboriginal Jarawas actually worked to unilaterally extend Indian sovereignty over the lands and bodies of a community clearly hostile to such incorporation. It questions the current exclusion of India from the global geographies of settler-colonialism and argues that the violent and continuing history of indigenous marginalisation in the Andaman Islands represents a de facto operation of a logic of terra nullius

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

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

IntroductionAboriginal 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.Method and analysisMayi Kuwayu: The National Study of Aboriginal and Torres Strait Islander Wellbeing (Mayi Kuwayu Study) will be a large-scale, national longitudinal study of Aboriginal and Torres Strait Islander adults, with linkage to health-related administrative records. The baseline survey was developed through extensive community consultation, and includes items on: cultural practice and expression, sociodemographic factors, health and wellbeing, health behaviours, experiences and environments, and family support and connection. The baseline survey will be mailed to 200 000 Aboriginal and Torres Strait Islander adults (≥16 years), yielding an estimated 16 000-40 000 participants, supplemented through face-to-face recruitment. Follow-up surveys will be conducted every 3-5 years, or as funding allows. The Mayi Kuwayu Study will contribute to filling key evidence gaps, including quantifying the contribution of cultural factors to wellbeing, alongside standard elements of health and risk.Ethics and disseminationThis study has received approval from national Human Research Ethics Committees, and from State and Territory committees, including relevant Aboriginal and Torres Strait Islander organisations. The study was developed and is conducted in partnership with Aboriginal and Torres Strait Islander organisations across states and territories. It will provide an enduring and shared infrastructure to underpin programme and policy development, based on measures and values important to Aboriginal and Torres Strait Islander peoples. Approved researchers can access confidentialised data and disseminate findings according to study data access and governance protocols.Roxanne Jones, Katherine A Thurber, Jan Chapman, Catherine D, Este, Terry Dunbar, Mark Wenitong, Sandra J Eades, Lisa Strelein, Maureen Davey, Wei Du, Anna Olsen, Janet K Smylie, Emily Banks, Raymond Lovett, on behalf of the Mayi Kuwayu Study Tea