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Australian Indigenous Law Review
Number of Followers: 22

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ISSN (Print) 1835-0186
Published by RMIT Publishing

[399 journals]

Volume 19 Issue 1 - Indigenous child welfare post bringing them home: From
aspirations for self-determination to neoliberal assimilation
- Abstract: Libesman, Terri
  In 1997 the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families ('National Inquiry') released its report 'Bringing Them Home ('BTH')'. The National Inquiry found that almost every Indigenous family in Australia is affected by former government policies which enabled the removal of children from their families on the basis of their Indigeneity. About a third of 'BTH' addresses contemporary removals under child welfare, juvenile justice and family law. The National Inquiry found that human rights based law and policy reforms must be implemented to ensure that Indigenous families and communities in Australia never again suffer the forcible removal of their children because of their ethnicity.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Surveillance, stigma, removal: Indigenous child
welfare and juvenile justice in the age of neoliberalism
- Abstract: Cunneen, Chris
  This article explores the changes in Indigenous child welfare and juvenile justice in the context of neoliberalism. Neoliberalism is associated with a free market economy involving deregulation, government austerity, free trade and privatisation. One outcome of this has been the greater concentration of wealth and power. This paper is primarily concerned with the values and ideas that underpin neoliberalism. It is argued that neoliberalism has seen a disavowal of colonialism in understanding both child welfare and juvenile justice and is fundamentally assimilationist when it comes to Indigenous people. Two issues in particular stand out when considering the transformation of child welfare and juvenile justice under neoliberalism. The first is the role of managerialism and the related ascendancy of risk-thinking. The second is the rise of responsibilisation and welfare conditionality and its links with criminalisation. Both have led to a growing punitiveness in responses to Indigenous children.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Neoliberalism, settler colonialism and the history of
indigenous child removal in Australia
- Abstract: Haebich, Anna
  The publication in 1997 of the 'Bringing Them Home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families', was a crucial breakthrough in recognition of the genocidal treatment of Indigenous children in Australian history. Tony Birch commented at the time that the public emotional outpourings that followed were 'a reaction of the moment', and he cited Slavoj Zizek's observation that 'in order to forget an event, we must first summon up the strength to remember it properly'. For some white historians, remembering 'properly' began with the commitment to painstakingly research and document the systematic forced removals in settler colonial history. For many remembering 'properly' was ignited by Indigenous testimony to the National Inquiry and reading published autobiographies,5 whose ways of telling and remembering challenge the discourse of western historiography and illuminate the resilience of generations of Indigenous individuals, families and communities.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Social movements and the law: Addressing engrained
government-based racial discrimination against indigenous children
- Abstract: Blackstock, Cindy
  Is the law enough to end longstanding racial discrimination perpetrated by a government against Indigenous children or do legal cases need to be situated in a social movement' The Canadian Human Rights Tribunal ('Tribunal') retains jurisdiction in a case brought by the First Nations Child and Family Caring Society ('Caring Society'), and the Assembly of First Nations, alleging the Canadian Government's provision of flawed and inequitable child welfare services on reserves is racially discriminatory contrary to the Canadian Human Rights Act, RSC 1985, c H-6.3 In January 2016, the Tribunal issued a landmark decision substantiating the complaint, and ordering Aboriginal Affairs and Northern Development Canada ('AANDC') to remedy the discrimination. However, a binding Tribunal order in the children's favor may not be enough to improve the children's lives as the Canadian government has vigorously fought this case using a plethora of legal, and on three occasions illegal, strategies to try to derail the case.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Foreword
- Abstract: Libesman, Terri
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Lessons from the United States on building more
effective means of addressing indigenous child welfare issues
- Abstract: Tatum, Melissa L
  As is unfortunately true for Indigenous children around the world, the statistics describing American Indian and Alaska Native children are devastating. Thirty-six percent of American Indian and Alaska Native children live below the poverty line, as compared to 22 per cent for the population as a whole. Native children have the highest rates of mental health and substance abuse problems; the highest rate of alcohol abuse, the highest rate of gang involvement, and the highest rate of victimisation. Native youth in the U.S. are twice as likely to commit suicide as white youth and three times as likely to commit suicide as other minority youth.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Child wellbeing and protection as a regulatory system
in the neoliberal age: Forms of aboriginal agency and resistance engaged
to confront the challenges for aboriginal people and community-based
aboriginal organisations
- Abstract: Howard-Wagner, Deirdre
  Nearly 20 years ago, 'Bringing Them Home' acknowledged that, while varying in their aspirations, capacities and awareness of options, community-based Aboriginal organisations are best placed to provide for the wellbeing of Aboriginal families, children and young people. Today, the 'promising practices' of many community-based Aboriginal organisations continue to evidence their important, nonpareil role, which extends beyond functional service delivery - including intercultural mediation between Aboriginal peoples and the state, reconciling the two domains - while achieving the aspirations of Aboriginal people and communities who aspire for a 'deep transformation' of the child wellbeing and protection system. Nonetheless, recognition of the capacity of communitybased Aboriginal organisations still remains under-realised and services relating to the wellbeing and protection of the Aboriginal child and young person remain fragmented.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - The protection of cultural identity in aboriginal and
Torres Strait islander children exiting from statutory out of home care
via permanent care orders: Further observations on the risk of cultural
disconnection to inform a policy and legislative reform framework
- Abstract: Cripps, Kyllie; Laurens, Julian
  Aboriginal and Torres Strait Islander children continue to be significantly overrepresented across all age groups in the Australian Out-of-Home Care system ('OOHC'). Recent data from the Australian Institute of Health and Welfare paints a worrying trend. From 2010 to 30 June 2015, the rate by which Indigenous children were placed in OOHC care rose from 40.4 to 52.5 per 1000 children. For the same period, the non-Indigenous rate rose only slightly from 5.1 to 5.5 per 1000 children. This disparity was evident across all jurisdictions, though there were fluctuations. Overall, nationally the rate of Indigenous children entering OOHC was 9.5 times that for non-Indigenous children. Of the 43 399 children in OOHC at June 2015, 15 455 were Aboriginal or Torres Strait Islander.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 1 - Situating the erosion of rights of indigenous children
- Abstract: Briskman, Linda
  The paper discusses rights erosion affecting Indigenous children, past and present. It does so by first examining normative human rights exclusions and their impacts. It then turns to discussing how exclusion from core human rights has created systemic exceptionalism. Systematic exceptionalism is demonstrated by examining: first, how Indigenous peoples have been 'banished' from the rights accorded to others, including through physical exile and denigration of identities; and second, how racism and its underpinning of white privilege have been markers of rights erosion in post-colonial Australia. The paper concludes by ruminating on the future. It contemplates whether emotional responses to Indigenous children might be a forerunner to a transformative approach that is emancipatory for Indigenous children and families. Such an approach calls for a new type of conversation that may create more effective engagement of the mainstream with Indigenous Australians and organisations that represent them. It also accords with the way Indigenous peoples have shown they can walk in the shoes of others, an ethic from which non-Indigenous societies can learn.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - Reciprocal accountability and fiduciary duty:
Implications for indigenous health in Canada, New Zealand and Australia
- Abstract: Kornelsen, Derek; Boyer, Yvonne; Lavoie, Josee; Dwyer, Judith
  There is growing interest among public servants, Indigenous organisations, and scholars in Canada, Australia, and New Zealand in the idea of shifting from classical New Public Management accountability models to models that reflect mutual or reciprocal accountability as a means of delivering more effective and responsive health care to Indigenous communities. However, little progress has been made with respect to developing and implementing workable reciprocal accountability models. In this paper, we argue that a consideration of Indigenous perspectives on reciprocity and accountability is an essential, yet mainly overlooked, component of the development of effective and appropriate accountability models between Indigenous peoples and statebased funders. Indeed, many Indigenous peoples have long histories of engaging in reciprocity-based relationships with each other and their environments. Drawing from Indigenous knowledge in this regard offers novel insights that can inform how models of reciprocity are constructed and understood. More specifically, we argue that consideration of Indigenous perspectives on treaties and treaty-making as a way to interpret the substance of mutual roles and responsibilities enables a shift to models of reciprocal accountability that are based on the mutual building of long-term, trust-based relationships, while also providing a frame that emphasises the maintenance of the sovereignty of the entities that are party to such relationships.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - Placing country at the centre: Decolonising justice
- Abstract: Blagg, Harry; Tulich, Tamara; Bush, Zoe
  After decades of neglect, attention in Australia has recently focused on the inter-generational impact of longterm alcohol use in the form of Foetal Alcohol Spectrum Disorders ('FASD'), and the lack of responsiveness of the justice system to the needs of persons with FASD. FASD is a non-diagnostic umbrella term encompassing a spectrum of disorders caused by prenatal alcohol exposure, including Foetal Alcohol Syndrome ('FAS'), Partial FAS ('pFAS') and alcohol-related neurodevelopmental disorder. While Australian data is limited, the prevalence of FASD in Indigenous communities is indicatively greater than non- Indigenous communities. In 2015, rates of FAS/pFAS of 12 per 100 children were reported in Fitzroy Crossing in the West Kimberley region of Western Australia.4 This is the highest reported prevalence in Australia and on par with the highest rates internationally.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - Judicial indigenous cross-cultural training: What is
available, how good is it and can it be improved'
- Abstract: Cavanagh, Vanessa; Marchetti, Elena
  Australian Indigenous focused cross-cultural professional development for the judiciary is an evolving area. In other professional service sectors, such as health and education, cultural safety is becoming the benchmark. However, for the Australian justice sector cultural awareness, and to a lesser extent cultural competency, dominate discussion, and cultural safety is only an emerging discourse. Most judicial officers (indeed most Australian public servants and legal practitioners) would be familiar with the concept of Indigenous cultural awareness as part of their standard professional development training, however, the significance of cultural competency, and the application of cultural safety principles are less well recognised. This paper documents the extent to which Australian judges and magistrates are trained or guided in accommodating the cultural needs of Indigenous courtroom participants. In particular, we review and critique the extent to which Indigenous specific cross-cultural education (in the form of short courses, seminars, conferences, cultural immersion tours, site visits, and as contained in bench books) is currently available for Australian judicial officers. In documenting current practice, we consider whether cultural awareness, cultural competency or cultural safety can be achieved by way of current judicial training and court practice guidelines. Taking into account the experiences of all Indigenous participants in the courtroom, as well as the fact that the over-representation of Indigenous offenders in the Australian criminal justice system continues to be a significant and complex issue, we conclude that it is necessary for judicial officers to be equipped with the capacity to ensure that their courtrooms are culturally safe when having to accommodate the needs of all Indigenous participants.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - Indigenous young people and the NSW children's court:
Magistrates' perceptions of the court's criminal jurisdiction
- Abstract: Bartels, Lorana; Bolitho, Jane; Richards, Kelly
  This article presents the findings of a component of the National Assessment of Australia's Children's Courts (the 'national study'). Specifically, this article focuses on the perceptions of magistrates in the New South Wales (NSW) Children's Court ('NSWCC' or the 'Court') in relation to the issues facing Indigenous young people in the Court's criminal jurisdiction generally, and the potential of Indigenous youth courts more specifically. Part II outlines the method for the national study from which this article stems, as well as the method for the NSW component of the study. Part III provides an analysis of NSWCC magistrates' perceptions of challenges and reforms in the Court's criminal jurisdiction as they relate to Indigenous young people specifically, and discusses our analysis in light of findings from the national study from other states and territories. Finally, Part IV briefly considers the key findings of our analysis in light of the current Koori Youth Court pilot.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - The 2016 Sir Frank Kitto lecture: Whither native
title'
- Abstract: Webb, Raelene
  '[T]he Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.' On 3 June 1992, with those words, it is said that the High Court freed Australia from the concept of 'terra nullius'. The decision in 'Mabo' that the common law recognised and protected Indigenous rights in land that existed at the time Britain acquired sovereignty was truly a watershed moment in Australian legal history, shaking the foundation of land law on which British claims to possession of Australia were based.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - 'Two systems of law side by side': The role of
indigenous customary law in sentencing
- Abstract: Maxwell, Jack
  Customary law is an integral part of the lives and identities of Indigenous people across contemporary Australia. But its existence alongside Australian criminal law raises complex questions of law and political morality. It seems difficult to reconcile these two systems of law with the principle that all Australians stand equal before the law, and the intuition that people should not be subjected to different criminal sanctions on the basis of race or ethnicity.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - Incarcerating aboriginal and Torres Strait Islander
women in Australia: Finding a balance in defining the 'just prison'
- Abstract: Leeson, Sjharn; Rynne, John; Smith, Catrin; Adams, Yolonda
  The over-representation of First Peoples, generally, and women specifically, in Australian prisons is beyond debate. However, Australia has seen a revalorisation of the prison and punitive measures like incarceration as the primary solution to social problems and social disadvantage, despite an array of abolitionist and prison rights campaigns, particularly across New South Wales and Victoria, that have impacted upon governmental and correctional penal reform policies.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 19 Issue 2 - 'Pilki' and 'Birriliburu': Commercial native title
rights after 'Akiba'
- Abstract: McCabe, Patrick
  The failure of Australian native title jurisprudence to develop any scope for the recognition of commercial native title rights has been much lamented. This article first briefly summarises that failure, and then turns to describe the Akiba litigation that culminated in the High Court's 2013 decision of 'Akiba v Commonwealth' ('Akiba HC'), and explains how that decision presents an opportunity at last to develop the jurisprudence in a direction more amenable to the recognition of commercial native title rights. I briefly note that the opportunity has not been seized in some recent native title judgments, probably because they were mostly argued prior to 'Akiba HC', before proceeding to discuss the 2014 Federal Court cases of 'Willis on behalf of the Pilki People v Western Australia' ('Pilki'), and 'BP (deceased) on behalf of the Birriliburu People v Western Australia' ('Birriliburu'), the former of which has now been upheld by the Full Court of the Federal Court. These decisions represent the first fruit of the tortuously slow development of the jurisprudence in this area. This article attempts to glean some lessons from those cases that can be applied to future claims for commercial native title rights, before finally looking to the practical ramifications of this development in the law.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Two sides of the same coin: Outstations policy and
land tenure reform
- Abstract: Marks, Greg
  This article deals with the Northern Territory where the Commonwealth's role in respect of Indigenous policy is clearest, and its influence strongest. This allows for a focus on the Commonwealth's land tenure reform and related policies without having to account for the role of the states. Whilst the role of the Northern Territory Government in Indigenous affairs is very important, ultimately the Commonwealth has power and, as in the Northern Territory Emergency Response of 2007 ('NTER') has demonstrated, a willingness to exercise it unilaterally. Despite the achievement of Self- Government in 1978, the Northern Territory legislature remains subordinate to the Commonwealth Parliament.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - The language we use to debate aboriginal land reform
in Australia
- Abstract: Terrill, Leon
  The last decade has witnessed the introduction of widespread reforms to Aboriginal land ownership in Australia. These reforms have occurred at a time of significant upheaval in Aboriginal policy, more generally. Arguing that earlier policies had failed, Australian governments have been actively looking for new ways of addressing the problems faced by Aboriginal communities. The introduction of land reform has been presented as one key component of the new approach. As such, the reforms are significant both in themselves and for what they reflect about the new direction of Aboriginal policy.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - 'Normalising' what': A qualitative analysis of
aboriginal land tenure reform in the Northern Territory
- Abstract: Howey, Kirsty
  Few Indigenous policy initiatives have garnered more attention in the last decade than the reform of tenure arrangements on land owned under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('Land Rights Act') in the Northern Territory ('Aboriginal land'). Three principal reforms were introduced between 2006 and 2008 and have been implemented to varying degrees in the years since: long term (generally 99-year) leases to a federal government entity over whole communities located on Aboriginal land ('Township Leases'); the compulsory acquisition by the federal government of 5-year leases of Aboriginal land as part of the controversial intervention into Aboriginal communities in the Northern Territory ('5-year Intervention Leases'); and 40-year leases of Aboriginal land to a Northern Territory government entity for housing and associated purposes ('40-year Housing Leases').
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Foreword
- Abstract: Iskander, Marie
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Implementing restorative justice to address indigenous
youth recidivism and over-incarceration in the act: Navigating law reform
dynamics
- Abstract: Yi,, Sarah Xin; Foley, Tony
  There is a recurrent and intensifying problem of over-incarceration and recidivism among Indigenous youths in Australia. Although less than five per cent of young Australians are Indigenous, they account for almost half of the youths in detention. The Australian Institute of Health and Welfare found that between 2009 and 2013 the level of Indigenous over-representation among detained youths increased from 26 to 31 times the non-Indigenous rate. The latest Indigenous disadvantage report corroborates this trend, finding that the daily average detention rate for Aboriginal and Torres Strait Islander youth increased sharply between 2000-01 and 2007-08 and remained high in 2012-13 at 365 per 100 000 10-17 year olds, around 24 times the rate for non-Indigenous youth. Moreover, Indigenous youth re-offending rates remain consistently high. Between 2003-08, 53 per cent of young Indigenous people who had been arrested were repeat offenders.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Does an intersectional understanding of international
human rights law represent the way forward in the prevention and redress
of domestic violence against indigenous women in Australia'
- Abstract: Buxton-Namisnyk, Emma
  In recent decades domestic violence has gained increasing attention under international human rights law as a form of gender-based discrimination and a violation of women's human rights. This has been expressed through a number of international instruments and measures designed to provide redress and remedy for private sphere violence primarily affecting women, including, but not limited to, the adoption of the United Nations ('UN') Convention on the Elimination of All Forms of Discrimination Against Women ('CEDAW'), and its associated recommendations. Similarly, but comparatively recently, human rights specifically attaching to Indigenous peoples have been increasingly considered by the international human rights community, identifying Indigenous discrimination as warranting special consideration due to the historical dimensions associated with Indigenous dispossession and the legacy of post-colonial discrimination.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Compulsory income management, indigenous peoples and
structural violence - implications for citizenship and autonomy
- Abstract: Bielefeld, Shelley
  This article critically analyses the role of law in the process of 'structural violence'. It considers racial discrimination against Indigenous peoples in the context of compulsory income management. Australia has a long history of racial discrimination towards Indigenous peoples that includes placing restrictions on their spending patterns. Historical investigation reveals that past colonial laws created impoverished conditions for many Aboriginal peoples and a paternalistic style of governance resulted in further reinforcement of negative colonial stereotypes. The enactment of income management laws was also intricately connected to economic rationalism and the creation of industries of micromanagement on the basis of race. These industries were instrumental in transferring the wealth that rightfully belonged to Indigenous peoples to government treasuries. This article critiques the racist assumptions underpinning laws of this type, and highlights the way that these sorts of laws reproduce 'structural violence'. The article also explores the contemporary resurgence of compulsory income management, which includes restrictions on spending patterns, and the impact that these laws and policies have upon Indigenous welfare recipients living in the Northern Territory. It contends that these restrictions have a deleterious impact upon the autonomy and citizenship rights of those affected by them, despite the fact that the government has ostensibly enacted income management laws to improve the well-being of welfare recipients.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Traditional owner agreement-making in Victoria: The
right people for country program
- Abstract: Bauman, Toni; Smith, Sally; Lenffer, Anoushka; Kelly, Tony; Carter, Rodney; Harding, Mick
  In Australia, since the High Court decision in the 1992 Mabo Case and the subsequent passage of the Native Title Act 1993 (Cth) ('NT Act'), there has been growing recognition of Aboriginal and Torres Strait Islander peoples as traditional owners of specific countries from which distinct rights and interests arise. One of the key features of these processes of recognition has been the normalisation, if somewhat uneven, of a culture of non-adversarial agreement-making between Aboriginal peoples and other interested parties including states, resource extraction companies and other industry developers. Overlapping and competing native title claims are not uncommon, and there has been a growing realisation of the limitations of the historical record in reconstructing native title land tenure, traditional laws and customs, and the affiliations of Aboriginal peoples at the time of colonisation, as required by the NT Act, to resolve questions of 'whose traditional country''.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 1 - Storytelling, social movements, and the 'evolution' of
indigenous land tenure
- Abstract: Baxter, Jamie
  There is substantial support - in theory and practice - for the idea that mismatched land tenure institutions can be key impediments to economic and community development. But most scholars in this field would readily admit that we still know remarkably little about the dynamics that actually shape institutional persistence and change, especially in transitions between property regimes. This article asks what insights we can gain about the dynamics of those transitions from studying modern social movement events, drawing on the recent Idle No More campaign in Canada as an emerging case study of diverse actors and communities engaged in strategic coordination and dissent to shape institutional change.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Human Safaris: A foucauldian alternative to the law's
treatment of the indigenous Andaman Jarawa
- Abstract: Liljeblad, Jonathan
  In early 2012 international news media released a series of videos showing 'human safaris' in India's Andaman Islands in which tourists and tourism operators enticed members of the Indigenous Jarawa people to dance in exchange for food. The videos incited international furore over what appeared to be an act of exploitation that treated the Jarawa as exhibits for tourist amusement and led to allegations that the 'human safaris' constituted violations of international human rights law as well as India's own laws regarding the treatment of Indigenous peoples. The resulting outcry resulted in calls for the Indian state to take action to rectify the plight of the Jarawa in 'human safaris.' Such calls, however, require determination of antecedent questions regarding: 1) what aspects of the tourists' relations with the Jarawa are problematic; and 2) what state actions are preferable in addressing such problems. These questions are of a normative nature in that they involve issues about what constitutes 'appropriate' interactions between tourists and the Jarawa that direct what the government's policies and laws should be seeking in its treatment of India's Indigenous peoples. This suggests that the Indian state can find guidance in formulating a response to the issue of 'human safaris' by a consideration of the normative aspects of the issues involving tourist relations with the Jarawa.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Foreword
- PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - The role of state governments in native title
negotiations: A tale of two agreements
- Abstract: O'Neill, Lily
  A key question in contemporary Australian Aboriginal policy is how to turn wealth derived from resource extraction on Aboriginal land into economic and social prosperity. Large amounts of mineral wealth are being extracted from or near Aboriginal communities, yet Aboriginal people continue to be less educated, live shorter lives and pass on less wealth to their children than their non-Aboriginal counterparts. One method used by Australian Aboriginal people to redress this paradox of 'poverty in the midst of plenty' is agreement-making through negotiation with resource companies. This has been shown to reap great benefits for Aboriginal groups. It has also been demonstrated, however, that traditional owners can encounter significant pitfalls when negotiating agreements with resource companies. This agreement making is largely conducted pursuant to legislation - the 'Native Title Act 1993' (Cth) ('Native Title Act') and land rights legislation - although it can also occur where there is no legislative imperative.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Invisible female indigenous offenders in the youth
justice system: What's the problem': An illustration from the northern
territory perspective
- Abstract: Ng, Clement
  Aboriginal girls have been regarded as victims in recent years, with many studies examining the systemic abuses and widespread disadvantages in Indigenous communities. However, little is known about their tendency to become perpetrators of crime and their actual involvement in the criminal justice system as offenders. One obvious explanation is that most offences are committed by male youths. In the Northern Territory context, juvenile offenders are mostly Indigenous males. Because of the dominance of Indigenous male delinquents in the youth justice jurisdiction, the experiences of Indigenous female offenders are arguably marginalised and rendered 'invisible'.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Australia's reconciliation process in its
international context: Recognition and the health and wellbeing of
Australia's Aboriginal and Torres strait islander peoples
- Abstract: Davis, Megan
  Australia's reconciliation process is unlike any other in the world. Eschewing the twin pillars of truth and justice - the foundation of reconciliation movements globally - post- 2001 the debate has almost singularly focused on citizenship rights. Reconciliation Action Plans (RAPs) developed by Reconciliation Australia (the post-reconciliation-era entity created to continue the work of reconciliation) are targeted at improving the disparity in employment outcomes in the private and public sector. However, this approach has ostensibly replaced the 'unfinished business' between the state and Aboriginal and Torres Strait Islander peoples, as the core business of reconciliation. The focus on citizenship rights and statistical equality - particularly evident in the post-Howard era - as opposed to Indigenous rights, has permitted the nation to delay and avoid the uncomfortable conversations required to address the anguished disengagement of the first peoples.3 The proliferation of RAPs to the exclusion of the bread and butter of reconciliation movements, truth and justice, is uniquely Australian. It continues despite the displeasure of many with the current reconciliation agenda and RAPs supplanting the aspirations of Aboriginal and Torres Strait Islander peoples which are the genesis of the reconciliation movement. The taxpayerfunded campaign for constitutional recognition, Recognise, similarly animates disquiet within the indigenous polity that Australia is seeking to recognise in the Constitution.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Indigenous communities, environmental protection and
restorative justice
- Abstract: White, Rob
  The aim of this article is to discuss the application of restorative justice in the NSW Land and Environment Court ['Land and Environment Court'] in a case dealing with environmental harm that affected a specific Indigenous community. This case is important for several reasons, not the least of which because it remains the only instance in which the Land and Environment Court has utilised restorative justice as part of its proceedings. Of particular interest, as well, is that the case brings to attention several issues pertaining to the status of the non-human victim as well as the human in instances involving environmental harm. These are explored in the latter part of this paper.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Should the Australian constitution establish an
indigenous advisory body'
- Abstract: Williams, George
  Australia's long-running debate on whether to recognise Aboriginal and Torres Strait Islander peoples in the nation's Constitution has been shaped by two central ideas. The first is that Indigenous peoples should be recognised by inserting new text into the Constitution that, by way of symbolic language, acknowledges them and their long and continuing habitation of Australia's lands and waters. For example, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples suggested in its final report that the following words be included in the Constitution to preface a new federal power with respect to Indigenous peoples.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Constitutionalising an indigenous voice in Australian
law-making: Some institutional design challenges
- Abstract: Appleby, Gabrielle
  There is currently bipartisan support for Indigenous recognition in Australia. A poll released by Recognise in May 2015 indicates that 75 per cent of Australian voters would support constitutional recognition for Indigenous peoples.1 However, there remains division over the proposed model for constitutional recognition. It is generally accepted that recognition must be more than symbolic. A positive statement of recognition must be accompanied by a guarantee in some form that the Commonwealth will not be able to discriminate against Indigenous peoples. Discrimination and failure of recognition scar Australia's history and it is important that the amendment prevents this from occurring in the future.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Indigenous recognition, race and section 51(XXVI):
Constitutional law conundrums and possibilities
- Abstract: McAnearney, Lisa
  A unique and historic opportunity to 'recognise' Aboriginal and Torres Strait Islander peoples (Indigenous Australians) in the Commonwealth Constitution1 beckons. This recognition would serve as a positive step in the 'journey to perfect [the Australian Commonwealth] and the unity it is intended to represent.' Constitutional recognition of Indigenous Australians aims to achieve two broad goals: the 'righting of historic wrongs' and the removal of 'racebased provisions' from the Constitution.3 The fulfilment of these important national goals involves solving complex and varied constitutional law conundrums.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 18 Issue 2 - Lessons from New Zealand: Towards a better working
relationship between indigenous peoples and the state
- Abstract: Morris, Shireen
  This paper examines the ways in which Maori are recognised through New Zealand's legal and political institutions, and draws lessons that are applicable to the complex challenge of Indigenous constitutional recognition in Australia. It argues that Indigenous recognition can occur through constitutional reform, but also through institutional and legislative reform: recognition could be a package of constitutional and other reforms. The New Zealand example demonstrates that Indigenous recognition seeks to address the functional, working relationship between Indigenous peoples and the state, to make it fairer than it has been in the past. It shows that Indigenous recognition can and should be practical and ongoing, rather than purely symbolic and static.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Affirmative action and the legal recognition of
customary land rights in peninsular Malaysia: The Orang Asli experience
- Abstract: Subramaniam, Yogeswaran
  In Malaysia, constitutional protection for its Indigenous minority, Orang Asli (in the English version of the Federal Constitution (Malaysia), 'Aborigines') principally takes the form of affirmative action provisions for their 'protection, well-being or advancement'. However, this constitutional protection has not resulted in the effective legislative or executive recognition and protection of Orang Asli customary land rights. This state of affairs persists, notwithstanding the common law recognition of Orang Asli customary land rights by the Malaysian courts and Malaysia's unequivocal votes for the 2007 United Nations Declaration on the Rights of Indigenous Peoples ('UNDRIP'). Instead, the federal and state governments use their extensive legal powers over Orang Asli peoples and Orang Asli lands to determine state priorities for land and resource ownership, management and use. The exercise of these powers adversely affects Orang Asli land rights.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Is a specific legal framework for indigenous third
sector broadcasting necessary': A look at the Australian experience
- Abstract: Powell, Fernando Mendez
  In recent years there has been a strong call for the legal recognition of third sector (non-state, non-commercial) forms of broadcasting. The establishment of a dedicated spectrum frequency allocation, a specific licensing processes and a special regulatory framework for these forms of broadcasting can be deemed a requirement of the principle of equality and the internationally recognised right to freedom of expression. Since forms of broadcasting which can be considered third sector can be very different in nature and purpose from each other, it may also be necessary to give specific legal recognition to different categories of third sector broadcasting, such as Indigenous broadcasting and provide them with their own frequencies reserve, licensing and regulatory frameworks. Australia does not have at present a specific legal framework for Indigenous broadcasting. However, the desirability of recognising the Indigenous sector as a separate category of broadcasting has been widely debated in the country. This article looks at the Australian experience and discusses the reasons why providing legal recognition to Indigenous broadcasting would be desirable. Although the focus is on the Australian experience, the exercise also serves to illustrate why the possibility of recognising Indigenous broadcasting as a separate legal category should at least be taken into consideration by policy makers from any country with significant Indigenous populations within its territory.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - The (non-)role of Aboriginal customary law in
sentencing in the northern territory
- Abstract: Goldflam, Russell
  The title of the 2013 National Indigenous Legal Conference, 'Atnengkerre Atherre Akwete-Two Laws Together', succinctly reflected the aspiration of many Aboriginal people, particularly in Northern Australia, for the mutual recognition and respect of mainstream law and traditional Indigenous laws in Australia. It is an uncomfortable fact, however, that this aspiration has never seemed more out of kilter with prevailing legal norms.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Reforming the native title act: Baby steps or dancing
the running man'
- Abstract: Duff, Nick
  In the mid-1980s, a new hip hop dance hit New York: the Running Man. The dancer vigorously moves their feet back and forth in a running motion, giving the impression of great activity while in fact going nowhere. After years of consultations, submissions, hearings and draft amendments to the Native Title Act 1993 (Cth), many in the native title sector have been left wondering whether this might be an apt characterisation of the reform process under the last government.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Approaches to the design and provision of prison
accommodation and facilities for Australian indigenous prisoners after the
royal commission into aboriginal deaths in custody
- Abstract: Grant, Elizabeth
  The Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') investigated the deaths of 99 Aboriginal people in police and prison custody. Each of the individual reports poignantly outlines someone's life and the circumstances of their death in prison or police custody. Many of the custodial environments where the people were detained were unpleasant, inappropriate, unsafe or even inhumane.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Law reforming lawyers and aboriginal social controls:
The case of the western Australian Aboriginal communities act
- Abstract: Brady, Maggie
  The proclamation of the Aboriginal Communities Act 1979 (WA) ('Act') made it possible for Aboriginal community councils to make and enforce by-laws in an attempt to limit civil disobedience and to enable them to regulate matters of concern to Aboriginal people on their own lands. A bylaw only applies within the boundaries of the community and can only be made by a unanimous vote of all council members. Initially the Act was restricted to two Aboriginal communities in the Kimberley region (La Grange and One Arm Point), followed by three more (Beagle Bay, Lombadina and Balgo). Following a positive review by John Hedges in 1986, the Act was extended further afield to other Aboriginal communities in Western Australia including communities which lie in the east of the State, bordering the Northern Territory and South Australia. These are the Ngaanyatjarra lands, where traditional owners were particularly interested in the power given to them under the Act to create local by-laws to deal with alcohol-related troubles and petrol sniffing. The communities of the region had struggled since the 1970s to manage chronic petrol sniffing2 which was a cause of substantial morbidity and mortality among young people.3 Petrol sniffing had spread rapidly amid a highly mobile population, so that between 1980 and 1988 sniffing was associated with at least 14 deaths in the Ngaanyatjarra lands,4 several of them from horrific burn injuries, car accidents, septicaemia and chronic lead poisoning. There were five deaths in Warburton alone over 14 months between 1988 and 1989. Sorry (grieving) camps, abandoned houses and continual funerals were all regular features of life in that period. The communities also had to deal with the disruptive effects of liquor imported from outlets many kilometres away to the east and the southwest. These substance abuses were matters of grave concern to the communities themselves.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Silence rights
- Abstract: Dixon, David; Cowdery, Nicholas
  A distinctive characteristic of criminal justice based on the English common law is the centrality of several fundamental principles. These include the presumption of innocence, the right to trial by jury, the requirement for the Crown to prove an allegation beyond reasonable doubt, the right to legal representation, the right to confront an accuser by crossexamination and the right to silence. These principles are inter-locking and mutually reinforcing.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 1 - Changing tack: Akiba and the way forward for
indigenous governance of sea country
- Abstract: Butterly, Lauren
  'The Torres Strait Regional Authority (TSRA) Acting Chairman, Mr Aven Noah ... welcomed the [Akiba] decision handed down after ten years of legal proceedings as a significant victory for the original claimants, the people of the Torres Strait and the future application of native title Australia wide.' 'The recognition in Commonwealth law that our people have native title rights over the sea, as determined in the Blue Mud Bay case is important but disappointing.'
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 2 - A limited right to equality: Evaluating the
effectiveness of racial discrimination law for indigenous Australians
through an access to justice lens
- Abstract: Allison, Fiona
  From the 1960s and 1970s and over a 30 year period, State, Territory and Federal governments in Australia have introduced legislation prohibiting discrimination. Human rights enshrined within this legislation include a right to be treated equally, regardless of one's gender, age, disability and/or racial background, inter alia. This article seeks to explore what has been achieved by and for Indigenous people in terms of a right to equality as the result of the introduction of racial discrimination law.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 2 - Rights-based judicial review and subtantive equality
for aboriginal peoples: The case of Canada
- Abstract: Richez, Emmanuelle
  In their attempts to obtain differential treatment under the law, Aboriginal peoples are increasingly choosing rights-based judicial review as a promising alternative to political negotiations. However, it remains to be seen to what extent, and under what conditions, rights-based judicial review will live up to the expectations Aboriginal people have vested in choosing this route. In order to measure the effectiveness of rights-based judicial review for Aboriginal peoples, this article proposes to study Canadian case law. More specifically, it reviews the constitutional jurisprudence of the Supreme Court of Canada pertaining to five key Aboriginal rights issues: fishing and hunting rights, institutional representation, welfare policies, land rights and self-government. It also considers how this jurisprudence was received and applied by governmental authorities. The article reveals that the constitutional recognition of specific Aboriginal rights, which go beyond fundamental political and civil rights brings about positive political change for Canada's Aboriginal communities, even though these rights have been given a narrow interpretation. However, in this climate of positive political change, the inability for Aboriginal peoples to obtain self-government through judicial review emerges as a clear problem. The article comes to the conclusion that institutional nation-building objectives may limit judicial review's potential for recognising a deep level of substantive equality for Aboriginal peoples.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 2 - Affirmative action as a form of special measures in
Australia: Canvassing the hidden issues
- Abstract: Barac, Antony; Kelly, Loretta
  Most nations of the world have now chosen to be bound by international law that prohibits racial discrimination. Indeed the Universal Declaration of Human Rights states: 'Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 2 - Indigenous as 'not-indigenous' as 'us'': A
dissident insider's views on pushing the bounds for what constitutes 'our
mob'
- Abstract: Chalmers, Gordon
  In australia, 'Aboriginality' is often defined by people in constrictive ways that are heavily influenced by the coloniser's epistemological frameworks. An essential component of this is a 'racial' categorisation of peoples that marks sameness and difference, thereby influencing insider and outsider status. In one sense, this categorisation of people acts to exclude non-aboriginal 'others' from participation in preinvasion indigenous ontologies, ways of living that may not have contained such restrictive identity categories and were thereby highly inclusive of outsiders. One of the effects of this is that aboriginal peoples' efforts for 'advancement' - either out of 'disadvantage' and/or towards political independence (ie, sovereignty) - become confined and restricted by what is deemed possible within the coloniser's epistemological frameworks. This is so much so that aboriginal people are at risk of only reinforcing and upholding the very systems that resulted in their original and continuing dispossession.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 2 - Northern territory indigenous community sentencing
mechanisms: An order for substantive equality
- Abstract: Anthony, Thalia; Crawford, Will
  Indigenous Community Courts and Law and Justice Groups in the Northern Territory have channelled Indigenous perspectives into the sentencing process. They fashion a two-way form of justice in which Indigenous and mainstream notions of justice can meet. Indigenous community input promotes substantive equality by informing the court of factors relevant to the experiences of Indigenous defendants, advising the court on community-based sentencing options, and enabling defendants to more fully understand the ramifications of their offending. In the formal courts, lawyers filter the community context of the Indigenous defendant and the defendant is disconnected from the community's response to his or her offending. This prevents Indigenous defendants from having their unique community circumstances understood and properly accounted for in sentencing.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 17 Issue 2 - Foreword
- Abstract: Davis, Megan
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - Integrating indigenous justice into alternative
dispute resolution practices: A case study of the aboriginal care circle
pilot program in Nowra
- Abstract: Ciftci, Sarah; Howard-Wagner, Deirdre
  The paper considers the Aboriginal Care Circle Pilot Program ('Care Circle pilot') in Nowra as an alternative, 'culturally appropriate' step within the court process for deciding Aboriginal child protection care matters, taken by the courts in the context of Aboriginal dispute resolution models. The Care Circle pilot has been established using the alternative dispute resolution ('ADR') provisions under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Care Circle pilot aims to empower Aboriginal families and communities and reduce barriers between Aboriginal people and the courts, through facilitating Aboriginal peoples' participation in child protection decision-making.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - A language for buying biscuits': Maori as a civic
language in the modern New Zealand parliament
- Abstract: Stephens, Mamari; Monk, Phoebe
  There are two kinds of language in New Zealand: private and civic. Private language can be heard and read in the private sphere. It is the language in which conversations of all hues take place: the language of the classroom, of the reality TV show, of the church service; the raucous chatter of the sports bar, the hushed tones in the law school library. At any given hour, this kind of language can be heard, usually in English, sometimes in Maori, sometimes in other tongues, in private and in public settings. Civic language, by contrast, is the language of the enactment of state law, of government, administration, politics and the economy. This language ultimately determines the rights and obligations of New Zealand citizenship. Almost exclusively, English is the civic language of New Zealand. While Maori has remained the dominant language of the pre-eminent Maori civic realm, the marae atea, Maori has not had a civic role in the New Zealand state for over a century.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - Welcome to country: Legal meanings and cultural
implications
- Abstract: Pelizzon, Alessandro; Kennedy, Jade
  The act of acknowledging Country prior to public events has become commonplace in Australia. Indigenous language groups and tribal boundaries are named and an apparent recognition of traditional owners is voiced. Too often, however, the legal and political implications of the act of acknowledging Country are ignored. Furthermore, such an acknowledgment is rarely explored and deconstructed in order to understand its traditional cultural and normative significance.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - The family responsibilities commission: An agent for
positive social change in Australian discrete indigenous communities
- Abstract: Le Marseny, Stuart
  This paper will present the growing body of evidence regarding the success of the Family Responsibilities Commission ('FRC') in the Indigenous community of Aurukun. In particular, it will indicate how the FRC has achieved its objectives of: - supporting the restoration of socially responsible standards of behaviour and local authority in welfare reform community areas; and - helping people in welfare reform community areas to resume primary responsibility for the wellbeing of their community and the individuals and families of the community.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - Racist, offensive, and degrading police behaviour
against aboriginal people in New South Wales: Modern challenges to the
findings of the royal commission into aboriginal deaths in custody
- Abstract: Harvey, Ryan
  On 10 August 1987, then Prime Minister Bob Hawke called a Royal Commission which would ultimately investigate the deaths of 99 Aboriginal people in police custody from 1 January 1980 to 31 May 1989. The investigation that followed was extensive. In addition to their own research materials, the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') availed itself of the individual case files of the people who died, various exhibits and findings in relation to their deaths, coroners' reports, welfare and social security files, public submissions, and records of assisting counsel. The RCIADIC produced an Interim Report on 21 December 1988 and a National Report three years later, which concluded that an examination of the lives of the 99 people suggested that their 'Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody'. Most significantly, the RCIADIC produced 339 recommendations for the Commonwealth and state governments to address the 'social, cultural and legal factors' bearing on those deaths; 64 of those recommendations were directed at state police operations. This article focuses on one in particular: Recommendation 60, which sought to eliminate the use of racist, offensive, and degrading police behaviour towards Aboriginal people.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - The New South Wales project on the inheritance needs
of aboriginal people: Solving the problems by making culturally
appropriate wills
- Abstract: Vines, Prue
  After a person dies the legal process used depends on whether the deceased person has decided to manage it in advance in some way and whether family or people aware of the death decide to access the common law systems of probate and administration or use traditional or ad hoc informal means of dealing with the issues which arise. The most common response in Aboriginal communities in New South Wales (and elsewhere in Australia) has been to use ad hoc informal means of dealing with the issues arising. This has often led to tension and serious disputes, some of which last for years.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - Ten proposals to reduce indigenous over-representation
in northern territory prisons
- Abstract: Pyne, Anthony
  More than 20 years have passed since the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') report was tabled in Parliament. If Australia were to be graded on how successfully it has implemented the report's 339 recommendations, it is difficult to see how it could be awarded any grade other than 'fail'. There have been some successes. But, overall, the number of Indigenous people still in our prisons reflects that we have not done enough. Nowhere is that failure more apparent than in the Northern Territory.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - Acknowledgments
- PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 2 - Editorial note
- PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 1 - Aboriginal women: The right to self-determination
- Abstract: Davis, Megan
  As a Cobble Cobble Aboriginal woman from southwest Queensland who grew up in southeast Queensland, I acknowledge the traditional owners of this land, the Wurundjeri People of the Kulin Nations. Thank you Aunty Joy for that moving welcome to country and the privilege of wearing the possum skin for the Oration. I would like to thank Professor Ian Anderson for inviting me to deliver the 2012 Naarm Oration, which I consider a great honour and privilege. In addition, special mention and thanks must be made to Ellen Day for organising my time here and the kind and patient manner in which she dealt with my chaotic schedule.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 1 - Favourable awards to trans-boundary indigenous peoples
- Abstract: Weldehaimanot, Simon M; Mekonnen, Daniel R
  Most international boundaries are arbitrarily drawn; they are put where there is no rational discontinuity, such as a change in climate, landscape, livelihood, ethnicity or race. In Africa in particular, international boundaries have divided communities and made them subject to different jurisdictions. This sad story has created more minorities within states than would have resulted through the natural course of state-formation. Despite calls from some quarters for the redrawing of such problematic state boundaries, they have been formally sanctioned, first by the legal framework of the Organisation of African Unity ('OAU'), and later by the African Union ('AU'). To make matters worse, African states have not progressed towards integration; on the contrary, neighbours have been immersed in deadly conflicts, and engaged in destabilising each other. This gloomy situation means that peoples divided by random lines have not been able to mitigate the consequences of their bad fortune by taking advantage of lax mobility policies.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 1 - Setting non-parole periods in the New South Wales
local court: Comparing outcomes for indigenous and non-indigenous
offenders
- Abstract: Jeffries, Samantha; Bond, Christine EW
  The Royal Commission into Aboriginal Deaths in Custody argued that the sentencing process provides opportunities for reducing the numbers of Indigenous people in custody. Despite this, Indigenous sentencing disparities research has only been undertaken recently in Australia, and thus far, has been dominated by higher court studies of imprisonment decisions. To date, there have been only three prior investigations of Indigeneity and lower court sentencing.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 1 - The relevance of aboriginality in sentencing:
'sentencing a person for who they are'
- Abstract: Hopkins, Anthony
  To ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 1 - Sentencing and punishment in the indigenous justices
of the peace courts
- Abstract: Allison, Fiona; Cunneen, Chris; Loban, Heron; Luke, Garth; Munro, Kate
  This article reports on an evaluation of the Remote Justices of the Peace Magistrates Court Program ('JP Magistrates Court Program'), conducted in 2010 by the current authors. The article provides detail in relation to certain aspects of the operation of the JP Magistrates Court Program and of the analysis of program effectiveness undertaken as part of the evaluation.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 16 Issue 1 - Outcomes for all': Overlapping claims and
intra-indigenous conflict under the native title act
- Abstract: Burnside, Sarah
  With the internal disputes within the Yindjibarndi native title claim group in the Pilbara and the Goolarabooloo Jabirr Jabirr in the Kimberley - regarding, respectively, a proposed land access and mining agreement with the Fortescue Metals Group and the construction of an offshore gas processing plant at James Price Point - intra-Indigenous conflict in the native title realm has recently been thrust into the spotlight. Such disagreements are not new to native title, as the system has stimulated heated debates on many different levels from the outset, and by its nature contains the seeds of discord between and within claim groups. Conflict has long been a concern within the native title sphere - there is a wealth of useful material that focuses on ways of managing and minimising disputes between and within claim groups, and participants in the system often emphasise the importance of Indigenous unity. This article, taking a specifically legal perspective, focuses on those conflicts about rights to specific areas of land and waters that are manifested in claims which overlap each other. The article does not dispute that conflict under the Native Title Act 1993 (Cth) ('NTA') may cause profound difficulties to claimants and requires sensitive management. However, it also notes that conflict is unavoidable in any system of property law, as valuable rights capable of legal recognition will always be the subject of competing claims. It is suggested that the inevitability of conflict needs to be more widely acknowledged in a native title context.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Indigenous lands and constitutional reform in
Australia: A Canadian comparison
- Abstract: Stephenson, Margaret
  With a sentiment currently growing in Australia that the Constitution requires updating to echo the actuality of Australia in the 21st century, it is timely to reflect on the constitutional recognition of the rights of the Aboriginal and Torres Strait Islander peoples. Recognition of Aboriginal and Torres Strait Islander peoples in Australia's Constitution will provide the foundation for their future participation in the Australian nation. At present, no constitutional protection is afforded to the rights (including land rights) of the Aboriginal and Torres Strait Islander peoples in the Australian Constitution. The area of recognition and protection upon which I will focus in this paper is that in relation to Indigenous rights and title to land. Various forms of recognition and purported protection for Indigenous rights have been included in various nations' constitutions around the world. One constitutional model that has been judicially interpreted as affording recognition and protection of Aboriginal rights to land is that contained in Part 11 of the Canadian Constitution Act 1982. It is this model that I will examine, so as to determine the appropriateness of adopting a version of it in the Australian context.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Section 51(xxxi) and the acquisition of property under
commonwealth-state arrangements: The relevance to native title
extinguishment on just terms
- Abstract: Brennan, Sean
  In 1988 the Australian people were asked to support the extension of the constitutional requirement of just terms to persons whose property was acquired under the law of a state or territory, and not just a law of the Commonwealth. The amendment was soundly defeated on a day when four separate referendum proposals all failed. The true level of public support for the idea was, however, impossible to gauge due to the way in which the question was presented as part of a larger package.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Equality for indigenous peoples in the Australian
constitution
- Abstract: Charlesworth, Hilary; Durbach, Andrea
  From a human rights perspective, the text of the Australian Constitution is bleak. It contains little protection for individual rights or group rights, focussing instead on the rights of the states and the Commonwealth. The individual rights that are included, such as that to trial by jury, are constricted and technical; they appear incidental to the main game of designing a federal polity. There is in particular little interest in concepts of equality and non-discrimination between people or groups of people, except in the limited context of religious discrimination for public office in the Commonwealth, and discrimination by states against residents of other states. Indeed, the Constitution enshrines race as a legitimate category of distinction between people.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Replacing the race power: A reply to pritchard
- Abstract: Lino, Dylan
  Being in almost total agreement with the views of a distinguished scholar on which one is supposed to be commenting is both a welcome relief and an unfortunate predicament. It is a relief because it means the commentator is not forced into saying anything that is too controversial. It is a predicament because it leaves the commentator wracking their brains for something intelligent to say that hasn't already been said more eloquently. Reading Dr Sarah Pritchard's rich and wide-ranging discussion left me feeling, in equal parts, relieved and predicament-bound.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - The 'race' power in section 51(xxvi) of the
constitution
- Abstract: Pritchard, Sarah
  In this article, I first consider the discriminatory origins of the Australian Constitution generally, and section 51(xxvi) in particular. This is because, in my view, the case for the removal of section 51(xxvi), and its replacement with a particular head of power with respect to Aboriginal and Torres Strait Islander peoples, can best be fully comprehended once it is appreciated that the birth of the nation was attended by racially discriminatory sentiment. A reading of the Constitutional Convention debates of the 1890s makes clear that the framers intended section 51(xxvi) to be a source of power for the enactment by the Commonwealth Parliament of racially discriminatory laws with respect to the people 'of any race ... for whom it is deemed necessary to make special laws'. Those people were those of 'coloured races'. The 'aboriginal natives' were beyond the reach of the discriminatory head of Commonwealth power.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - The constitutional commission and Australia's first
inhabitants: Its views on agreement making and a new power to legislate
revisited
- Abstract: Lindell, Geoffrey
  In its Final Report the Australian Constitutional Commission quoted the following remarks of Sir Robert Menzies, Australia's longest serving Prime Minister, on the nature of a constitution: A written Constitution is an expressed scheme of government designed to give a basic structure in a changing world; not designed to inhibit growth in a growing world, nor to make the contemporary world subject to the political, social, or economic ideas of a bygone age [A] Constitution is not a strait-jacket: it is a frame of government.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Balancing symbolism and function in constitutional
preambles: A reply to Twomey
- Abstract: Kildea, Paul
  The proposal to recognise Aboriginal and Torres Strait Islander peoples in a preamble to the Australian Constitution presents a number of unique challenges. Some, as Anne Twomey notes in this volume in her comprehensive and cogent analysis of the subject, are technical and structural in nature. Others concern the task of dealing with likely disagreement over the preamble's contents. The focus of this short comment, however, is on a third category of challenge that arises from a need to manage the potential tension between the symbolic and functional purposes of a constitutional preamble. After outlining what these purposes are, I argue that the tension between the two will be particularly acute with respect to Indigenous recognition. In line with Twomey, I suggest that, while there are no easy means of reconciling symbolism and function, the best approach may be to ensure that any preambular reform is advanced simultaneously with substantive amendments. I conclude with a brief assessment of the Expert Panel's recommendation to forego a new or amended preamble in favour of inserting a statement of recognition into the body of the Constitution.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - The preamble and indigenous recognition
- Abstract: Twomey, Anne
  The Expert Panel on the Recognition of Indigenous Australians recently considered the many ways in which Aboriginal and Torres Strait Islander peoples could be recognised in the Constitution. The Expert Panel's Discussion Paper1 set out seven ideas, including a statement of recognition in the body of the Constitution, a statement of recognition and values in the body of the Constitution, the amendment or repeal of the race power in section 51(xxvi) of the Constitution, the repeal of section 25 of the Constitution and the insertion of an agreement-making power in the Constitution.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Foreword
- Abstract: Davis, Megan; Lynch, Andrew
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 2 - Acknowledgments
- PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - The royal commission into aboriginal deaths in custody
and the duty of care owed to prisoners in South Australia
- Abstract: Charles, Chris
  Twenty years ago, the National Report of the Royal Commission into Aboriginal Deaths in Custody1 ('RCIADIC') was released. The RCIADIC investigated the excessively high numbers of deaths of Aboriginal people in custody. The conclusion was that, although per capita Aboriginal people in custody were not dying at a significantly higher rate than non-Aboriginal people, the rate of death in custody was excessively high and the incarceration rate of Aboriginal people was much higher than for non-Aboriginal people. The National Report spanned five volumes and included 339 recommendations to state, federal and territory governments. The purpose of the recommendations was to reduce both the rate of incarceration and the number of deaths in custody. This paper examines the duty and standard of care owed to prisoners, an important aspect of the National Report.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Substandard: Cultural awareness training of police in
Victoria
- Abstract: Victorian Aboriginal Legal Service Co-operative Ltd
  The relationship between police and the Aboriginal community has been a tenuous one since first encounters. Since the days of invasion, Aboriginal communities' interactions with police have been largely negative. This problematic relationship was highlighted by the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC'), which noted that the 'circumstances which gave rise to this Commission illustrate starkly the extent to which Aboriginal people regard police as enemies'. To address the need for change in relations between Aboriginal peoples and police, the RCIADIC made a suite of recommendations, revealing just how entrenched the problem was.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - 'Justice must be seen to be done': The investigation
of Mulrunji Doomadgee's death
- Abstract: Campbell, Fiona
  Recommendations from the Royal Commission into Aboriginal Deaths in Custody1 ('RCIADIC') have influenced the structural response to complaints against the Police and investigations into deaths in custody. However the recommendations are not always adhered to by those investigating. Some of the reasons for this are examined in this article.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - The coroner's recommendation: Fulfilling its
- Abstract: Brazil, Raymond
  Coroners Acts in New South Wales ('NSW') and the Australian Capital Territory ('ACT') confer on coroners jurisdiction to conduct inquests into certain kinds of death. As the outcome of a hearing, a coroner is tasked by their legislation to reach and record prescribed findings relating to the deceased, their death, and its manner and cause. These determinations enable that death to be registered under the relevant Birth, Deaths and Marriages legislation. If, though, this information can be established from preliminary investigations, a coroner has the discretion to dispense with an inquest hearing, unless the death investigated is of a category for which the legislation specifically requires one to be held. One such category is the death of a person in custody.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - A contemporary snapshot of two issues upon which the
Rciadic report commented: Youth justice and the over-incarceration of
aboriginal young people, and alcohol-related offences and offending
- Abstract: Satya, Shanna; Barson, Ruth Bella
  In 2001, a Northern Territory ('NT') Magistrates Court sentenced a man to 14 days imprisonment for possessing a five litre cask of moselle in the Aboriginal community of Hermannsburg. The sentencing Magistrate remarked: 'On 18 June, when I was last here at Hermannsburg, I said that anyone who was found to have liquor in their possession in a restricted area of Hermannsburg would be sentenced to a term of imprisonment, and so it will be in this case.'
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Editorial introduction
- PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Twenty years of monitoring since the royal commission
into aboriginal deaths in custody: An overview by the Australian institute
of criminology
- Abstract: Beacroft, Laura; Lyneham, Mathew; Willis, Matthew
  The Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') was established in 1987 by the Australian Parliament in response to concerns over the deaths of Indigenous people in custody. It examined the circumstances surrounding the deaths in prison or police custody of 99 Indigenous people between 1 January 1980 and 31 May 1989. The RCIADIC found the rate of death in custody was not higher among Indigenous people in custody than among non-Indigenous people in custody. Rather, the fundamental issue was the extent to which Indigenous Australians were over-represented in their contact with the criminal justice system, the Royal Commission concluding that '[t]oo many Aboriginal people are in custody too often.'
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Indigenous women in Australian criminal justice:
Over-represented but rarely acknowledged
- Abstract: Stubbs, Julie
  It is now two decades since the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') delivered its final report, which documented the substantial overrepresentation of Indigenous people in prisons and police custody, and provided detailed analysis of the underlying factors that contributed to that over-representation and to deaths in custody. That work was, of course, of enormous significance, and was intended to lay the groundwork for wholesale change, both within the criminal justice system and beyond it, to redress those factors. As we know, those aims have not been met, and in fact, as documented by numerous studies and reports, the situation of Indigenous over-representation in the criminal justice system and especially in prisons has been heightened. For instance, in its Overcoming Indigenous Disadvantage report the Productivity Commission noted that in relation to 'social indicators such as criminal justice, outcomes [for Indigenous people] have actually deteriorated.'
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Police officers' experience of indigenous 'capacity'
- Abstract: Mitchell, Margaret; Rowse, Tim
  What do the police think they are doing with or to Indigenous Australians' We decided to ask them. The paper examines police officers' beliefs and perceptions about Indigenous 'self-determination' and 'capacity' and the implications of these concepts for their work in Indigenous communities. Before describing interviews conducted in the Kimberley region of Western Australia in late 2009, we will provide context for the concepts of 'self determination' and 'capacity' by reviewing relevant parts of two major inquiries influential on the way that Western Australia Police ('WAPol') intends to work with Indigenous communities. The first is the Royal Commission into Aboriginal Deaths in Custody, which issued its National Report in 1991, and the second the July 2002 report by the Gordon Inquiry. Using our interview material, we are able to present, from the practitioners' points of view, the implications for police work of some of the concepts issuing from these inquiries.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - A reflection on the royal commission into aboriginal
deaths in custody and its consideration of aboriginal women's issues
- Abstract: Davis, Megan
  Following the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') criticism emerged that it failed to adequately consider Aboriginal women in its inquiry into Aboriginal deaths in custody. On the anniversary of the RCIADIC, this article reflects on that criticism. First, this article will provide a brief overview of the RCIADIC and the feminist critique of its failure to adequately incorporate Aboriginal women's issues in its work. Then, this article will describe in more detail the research of Marchetti into the RCIADIC and gender. Next, this article will analyse the RCIADIC'S reliance on the right to self-determination as a guiding principle through a gender lens. Finally, this article will problematise a stock standard narrative reflected in the RCIADIC report that, women fared better during colonisation. The valid critique made about RCIADIC and its failure to adopt an intersectional approach is a challenge shared today by the state and the Aboriginal and Torres Strait Islander political community: the tendency to essentialise the 'Aboriginal person' skews if not hampers responses to the serious challenges facing the Aboriginal and Torres Strait Islander community. If it is true that RCIADIC failed to adequately incorporate an intersectional approach taking into account the very different experiences of Aboriginal women and Aboriginal men, the question still remains today, how can the state ever adequately gauge what Aboriginal women experience and what Aboriginal women think, when the identity is so politically and legally framed as a collective'
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Aboriginal identity - the legal dimension
- Abstract: French, Robert
  The term 'identity' is used in a variety of discourses about Aboriginal people, their self-perceptions, their cultures, their lands, and their relationships with each other and with non-Indigenous society. Its overbroad deployment risks diffusing its meaning. Nevertheless, it has served, and no doubt continues to serve, a useful purpose as a gateway to reflection upon the complex, multi-dimensional and dynamic character of Australian Aboriginality.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Punishment: Two decades of penal expansionism and its
effects on indigenous imprisonment
- Abstract: Cunneen, Chris
  There was optimism at the time of the Royal Commission into Aboriginal Deaths in Custody ('RCADIC') that Indigenous imprisonment rates would be reduced. Indeed a core finding of the Commission had been the need to reduce Indigenous custody and imprisonment, and the consequent overrepresentation of Indigenous people, as a way of addressing the large number of Indigenous deaths in custody. However, over the last two decades Indigenous imprisonment rates have grown significantly rather than declined.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Foreword
- Abstract: Wootten, Hal
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 15 Issue 1 - Acknowledgments
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Volume 15 Issue 1 - Editorial note
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Volume 14 Issue 2 - Cumulative Index
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Volume 14 Issue 2 - Handolsdalen Sami Village v Sweden
- Abstract:
  This case arose in the context of a dispute over the rights of the Sami, the first nations peoples of northern Scandinavia, to use private land in Sweden for grazing reindeers during winter. In Swedish law reindeer herding rights were regulated by the Reindeer Husbandry Act 1971 (Sweden), which gave the Sami the right to use land and water for their own sustenance and that of their reindeer. Private landowners initiated proceedings against the Sami alleging that the Sami villages had no right to graze on their land without a valid contract.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - The Maya Leaders Alliance and the Toledo Alcaldes
Association v the Attorney General of Belize and the Minister of Natural
Resources and Environment
- Abstract:
  The case follows the judgment of the Supreme Court of Belize delivered on 18 October 2007, in which the customary land rights of the Maya communities in Southern Belize were held to have subsisted in light of the traditional use and occupation thereof (the 'Maya Land Rights Case'). The present claim was essentially predicated on the basis that the respondents had breached the constitutional protections afforded to the customary land rights so recognised via their failure to establish appropriate statutory and administrative mechanisms required to identify and protect these customary rights.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - Tongoane v National Minister for Agriculture and Land
Affairs (South Africa)
- Abstract:
  When the Parliament of South Africa enacted the Communal Land Rights Act 2004 (South Africa) ('CLARA'), its purported intention was to fulfil its restitutionary obligation under s 25(6) of the Constitution, whereby communities or persons denied land rights under the racist policies of apartheid were entitled to secure legal tenure or comparable redress. However, on 30 October 2009 the North Gauteng High Court ('the High Court') declared certain provisions of CLARA constitutionally invalid as they threatened to displace existing Indigenous systems of land administration, thereby undermining rather than enhancing security of tenure.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - Mosetlhanyane v Attorney General of Republic of
Botswana
- Abstract:
  This case is significant for the fact that its outcome affords recognition of the fundamental legal right of Botswana's 'Basarwa' or 'San' people - commonly referred to as 'Bushmen' - to access water on their ancestral lands. The appeal involved a challenge to the decision of the High Court which refused declaratory relief sought by the appellants concerning, inter alia, their rights to re-commission, at their own expense, a borehole at Mothomelo in the Central Kalahari Game Reserve ('CKGR'), and to sink other wells or boreholes in order to access water for domestic purposes, in accordance with s 6 of the Water Act Cap 34:01 ('the Act').
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - Beckman v Little Salmon/Carmacks First Nation
- Abstract:
  After many years of negotiation, in 1997 the Little Salmon/ Carmacks First Nation ('LSCFN') concluded a modern comprehensive land claims treaty with the Yukon and Federal governments of Canada. In 2001 Mr Larry Paulsen made an application for an agricultural land grant over land that formed part of the traditional territory of the LSCFN. The land subject to the application had, under the LSCFN treaty, been surrendered to the Crown by the LSCFN, though LSCFN members retained a treaty right of access to hunt and fish for subsistence purposes.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - Yellowknives Dene First Nation v Canada (Attorney
General)
- Abstract:
  The Mackenzie Valley Land and Water Board ('respondents') issued a mining and exploration permit to North Arrow Minerals on land that was subject to Yellowknives Dene First Nation ('applicants') interests. In so issuing, the respondent relied on the assertions of North Arrow and Indian and Northern Affairs Canada ('INAC') that the Akaitcho Dene First Nations ('ADFN') had been consulted, without verifying with the applicants themselves. Prior to the issuance of the permit, North Arrow were told by the Board that consultation with the applicants was required.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - Rio Tinto Alcan Inc v Carrier Sekani Tribal Council
- Abstract:
  In the 1950s, the government of British Columbia approved the damming of the Nechako River by Alcan (now Rio Tinto Alcan) for the purposes of generating power for aluminium production. The Nechako Valley is subject to a Carrier Sekani Tribal Council ('CSTC') First Nations claim as their ancestral homeland. The claim extends to a right to fish the Nechako River. The CSTC was not consulted at the time of the damming. The damming of the river and reservoir altered the water flows of the Nechako River. The effect is that water is diverted from the Nechako River to the Nechako Reservoir where it passes through the turbines of a powerhouse and flows into the Kemano River and onto the Pacific Ocean.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - R v Woods
- Abstract:
  On 11 June 2010, two Aboriginal residents of Alice Springs, Graham Woods and Julian Williams, pleaded not guilty to the murder of Edward Hargraves, a non-Aboriginal person. The accused were remanded to stand trial on 14 September 2010 at the Supreme Court in Alice Springs. However, the accused applied to change the venue of the trial from Alice Springs to Darwin due to a perceived risk that they would not receive a fair trial. In July 2010, Blokland J rejected this change of venue application and confirmed that the trial would commence as initially planned (see Woods & Williams v The Queen [2010] NTSC 36).
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT
Volume 14 Issue 2 - Kennedy v NSW Minister for Planning
- Abstract:
  The applicant challenged the validity of two consents to modify a major project approval under s 75W of the Environmental Planning and Assessment Act 1979 ('EPA Act'). The project approval was for a 181 lot subdivision at Sandon Point. Sandon Point is a culturally significant area for Aboriginal people. The modifications allegedly took away a number of conditions relating to the protection of Aboriginal cultural heritage.
  
  PubDate: Thu, 2 Nov 2017 11:47:33 GMT