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Native Title from Mabo to Akiba


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Table of Contents

AcknowledgmentsAbout the Contributors Part One: Legal Dynamics in the Development of Native Title The Idea of Native Title as a Vehicle for Change and Indigenous Empowerment Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill The Legal Shortcomings of Native Title Bret Walker A Judge's Reflections on Native Title Paul Finn The Significance of the Akiba Torres Strait Regional Sea Claim Case Sean Brennan The Right to Resources and the Right to Trade Lisa Strelein The Inalienability of Native Title in Australia: A Conclusion in Search of a Rationale David Yarrow The Mabo `Vibe' and its Many Resonances in Australian Property Law Brendan Edgeworth Dancing with Strangers: Native Title and Australian Understandings of Race Discrimination Jonathon Hunyor Part Two: Native Title as a Vehicle for Indigenous Empowerment Burgeoning Indigenous Land Ownership: Diverse Values and Strategic Potentialities Jon Altman and Francis Markham The Relevance of Statutory Land Rights to Native Title and Empowerment Andrew Chalk and Sean Brennan Native Title, Aboriginal Self-Government and Economic Participation Ciaran O'Faircheallaigh Maximising the Potential for Empowerment: The Sustainability of Indigenous Native Title Corporations Marcia Langton Indigenous Incorporation as a Means to Empowerment Tim Rowse Ancestry and Rights to Country: The Politics of Social Inclusion in Native Title Negotiations David Trigger Hernando De Soto and Empowerment through Land Tenure Reform Leon Terrill Making Use of Payments: A Community Development Model Danielle Campbell and Janet Hunt Negotiating a Noongar Native Title Settlement Glen Kelly and Stuart Bradfield Index

About the Author

Sean Brennan joined UNSW Law in May 2002. He teaches, writes and researches mainly in the areas of constitutional law, native title, land rights and other Indigenous legal issues. Megan Davies is a Professor of Law and an expert member of the United Nations Permanent Forum on Indigenous Issues in New York. Megan is also a Commissioner of the NSW Land and Environment Court and a Fellow of the Australian Academy of Law. Brendan Edgeworth is Professor of Law in the Law School of the University of New South Wales and is currently Director of Postgraduate Studies. Dr Leon Terrill is a lecturer in the UNSW Law School and a Centre Fellow at the Indigenous Law Centre.


This book explores a live, and lively, issue: the extent to which native title can be used to achieve economic empowerment. The question mark in its title is aptly placed, for as the editors note, "[n]ative title is no conveyor belt, automatically transporting people from a place of political or economic marginalisation to somewhere better" (p.2). Here the law is Janus-faced: "both a colonising and a decolonising doctrine", in the words of Lisa Strelein (p.44). ... This absorbing and timely book is highly recommended for anyone with an interest in native title or legal history. Read full review... - Sarah Burnside, Australian Journal of Politics and History, September 2016 This edited book, Native Title from Mabo to Akiba, provides a comprehensive picture of key features of contemporary native title including the context for the shift in how we understand its potential. ... The book does not shy away from explaining the necessary relationship between colonial expansion, and the ongoing artful and awful dispossession of Indigenous Australians. Thus importantly for contemporary debates about constitutional reform and treaty, sovereignty is never far from discussions in this book about land. The organisation of chapters in the first part, and the authors' critical approaches, highlight the connectedness of land, culture, dispossession, law, self-determination, sovereignty, and economic outcomes. This serves as a timely remedy to the tendency of public discussions about 'Indigenous affairs' to segregate varied yet interconnected issues. This book canvasses a range of authorial experiences that cover the field of native title doctrinally, pragmatically and conceptually. Its importance lies, in my view, in collecting in one volume contemporary and progressive thinking about Indigenous empowerment in Australia, hinging off two legal watersheds - as imperfect as they are. The book therefore has wide appeal, and will be accessible to audiences beyond lawyers, legal scholars, legal practitioners and anthropologists. It is a must-read for all involved in Indigenous policy and the layperson who wishes to gain an understanding of the complex landscape native title and beyond. Read review... - Kate Galloway, Alternative Law Journal, Vol 41(2) 2016 Since the passage of the Native Title Act 1993 (Cth) and related law reform, legal rights and interests in a significant and growing estate have been transferred to Aboriginal and Torres Strait Islander groups around Australia. As Jon Altman and Francis Markham explain in their contribution to this edited collection, this estate now comprises more than thirty per cent of the continent, and includes areas with significant mineral deposits as well as other economic development opportunities. Yet frustrations with the native title system remain so strongly felt that the subtitle of this collection - native title as 'a vehicle for change and empowerment' - is presented here in the form of a question. Offering diverse perspectives from legal practitioners and academics, this collection asks why such change and empowerment has proved so difficult to achieve, and what might be done to improve the system. ... A strength of this book is its frank account of the problems of the native title system. Read review... - Richard Martin, Australian Book Review, August 2016 It is nearly a quarter of a century since the momentous High Court decision in Mabo (No 2) v The State of Queensland was handed down. That decision - recognising the existence of native title - remains an important milestone in the history of Indigenous and non-Indigenous communities of Australia. In this timely work, the editors have assembled an impressive array of distinguished authors ... It is a vexed and unresolved question given the momentous act of dispossession that is at the core of the foundation of the Australian nation state. Personally, I found this the most interesting part of the book. And it makes crystal clear that native title is not the panacea to reckon with the legacy and enduring effects of colonial dispossession on Indigenous communities and any advancement remains gradual and is part of a wider political context. Read review... - Richard Edney, InPrint, Law Institute Journal Victoria, July 2016 This collection of essays is greater than the sum of its parts, offering much to interested bystanders as well as to participants in the native title system. It not only presents an overarching analysis of native title, but also allows contributors to focus on different elements of the landscape and air disagreements on some key issues. As a result, its seventeen chapters resonate with ideas and analysis, and display both the vibrant state of native title today and its dizzying complexity. Read full review... - Michael Dillon, Inside Story, July 2015 It has been a little over 20 years since the High Court's recognition of native title in Mabo v Queensland (No 2) and the subsequent enactment of the Commonwealth Native Title Act 1993. Despite high hopes for native title at that time, it has failed to live up to its expectations. The subsequent development of native title by courts and legislators has placed significant constraints on the ability for native title claim groups to gain recognition. This collection of essays traces the development of native title from Mabo to the High Court's recent decision in Akiba v Commonwealth, which appears to adopt a less rigid approach to the existence and extinguishment of native title rights. The authors ask how native title can be better used as a tool to effect change and as a source of empowerment for Indigenous people? This book is divided into two parts. The first part deals with the legal dynamics in the development of native title. It addresses the problems inherent in the current doctrine of native title, such as its inconsistency with other types of property rights; the requirement for maintenance of traditional laws and customs, which does not take adequate account of English settlement; and the High Court's "bundle of rights" approach to native title. The second part considers native title as a vehicle for Indigenous empowerment. Case studies of successful strategies are given, including the Noongar Native Title Settlement with Western Australia. Issues such as self-governance of native title claim groups, the means by which members of a claim group are identified and native title as a means of economic enhancement are also considered. This book is a thorough look at native title from a variety of perspectives, and at the place of native title within a broader conception of property. It is of interest to native title practitioners, law and policy makers, social justice advocates and those with an interest in property law more generally. - Queensland Law Reporter - 3 July 2015 - [2015] 25 QLR

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