NATIVE TITLE: ITS EFFECTS ON PETROLEUM EXPLORATION

1995 ◽  
Vol 35 (1) ◽  
pp. 774
Author(s):  
E. Vickery
Keyword(s):  
Racial Discrimination ◽  
Due Process ◽  
Public Debate ◽  
Court Decision ◽  
Petroleum Exploration ◽  
Court Cases ◽  
International Treaties ◽  
High Court ◽  
Native Title ◽  
General Law

The existence of native title in Australia was recognised by the High Court in its historic Mabo No. 2 judgment on 3 June 1992. Native title is a shorthand expression used to describe those activities pursued by native peoples in connection with their traditional lands, in accordance with traditional law and custom. It could be extinguished in many ways, and once extinguished cannot be revived. Following an intense public debate, the Commonwealth enacted the Native Title Act (NTA) which, for most purposes, commenced on 1 January 1994. The NTA recognises and protects native title, enabling its future extinguishment in only limited cases, principally by government acquisition for public purposes which are actually fulfilled. The High Court decision and the NTA are both constructed around the Racial Discrimination Act 1975 (RDA) which has a dual limb operation. Where laws omit inclusion of people on racial grounds, the RDA uplifts the rights of those people to equate with all other citizens. Where such laws prohibit people on racial grounds, the prohibition provisions will be ineffective. The former limb extends principles of due process and compensation to persons dispossessed of their native title after commencement of the RDA on 21 October 1975. By so doing, existing petroleum tenements probably avoided invalidity, leaving the question of compensation alive for tenements created after that date. Alternatively, the NTA enables those tenements to be validated by legislation, and provides for compensation in appropriate cases. Since 1 January 1994, the RDA imposes a non-extinguishment principle into the general law, whereby granted tenements will not extinguish native title, only displace it for the life of the grant enabling the native title rights to then be resumed. Further Court cases, legislation and proposed international treaties are all now in the course of development, with the combined capacity of expanding native title concepts. Australia is still at the beginning of the evolution of legal recognition of native title.

scholarly journals The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge towards Native Title ‘Ownership’

2019 ◽  
Author(s):  
Simon Young
Keyword(s):  
Court Decision ◽  
Current Regulation ◽  
High Court ◽  
Native Title ◽  
First Peoples ◽  
New Challenges ◽  
Torres Strait ◽  
The Many

The Torres Strait regional sea claim, culminating in the High Court decision of Akiba v Commonwealth, signalled a new respect for the holistic relationships and dominion that underlay First Peoples’ custodianship of land and waters. The ‘Akiba correction’ centred upon a distinction between ‘underlying rights’ and specific exercises of them – and produced in that case a surviving right to take resources for any purpose (subject to current regulation). The correction emerged from extinguishment disputes, but the significance of this edge towards ‘ownership’ was soon evident in ‘content’ cases on the mainland. Yet there are new challenges coming in the wake of Akiba. What of the many native title determinations that have been settled or adjudicated on pre-Akiba thinking? And what does this renaissance in native title law offer to the communities that will fail (or have failed) the rigorous threshold tests of continuity – also crafted with the older mindset?

Discriminatory Taxation in Light of Fortescue: Its Implications for the Development of Northern Australia

2014 ◽  
Vol 42 (1) ◽  
pp. 1-23
Author(s):  
Anthony Gray
Keyword(s):  
Federal Government ◽  
Court Decision ◽  
Northern Australia ◽  
High Court ◽  
The North ◽  
Northern Regions ◽  
Word Discrimination ◽  
Taxation System

In the recent Fortescue decision, the High Court made some interesting observations regarding interpretation of the word ‘discrimination’ in the context of the Federal Government's power with respect to taxation in s 51(2) of the Australian Constitution. Coincidentally, the Federal Government has commenced consideration of options for the development of northern regions of Australia. Of course, one option would be to introduce a variable taxation system to encourage businesses and individuals to be based, and/or invest, in northern Australia. This article considers possible constitutional issues associated with variable taxation schemes overtly favouring businesses and individuals based in the ‘north’, given the recent High Court decision.

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

Finally, Our Own Brown! (?)

2012 ◽  
Vol 45 (2) ◽  
pp. 267-289 ◽  
Author(s):  
Yifat Bitton
Keyword(s):  
African American ◽  
Theoretical Analysis ◽  
Supreme Court Decision ◽  
The Other ◽  
Court Decision ◽  
High Court ◽  
Court Of Justice ◽  
Us Supreme Court ◽  
Distinctive Group ◽  
Contextual Reality

The decision in Noar Kahalacha, an anti-segregation in education case that was recently delivered by the Israeli High Court of Justice, has been ‘naturally’ celebrated as the ‘Israeli Brown’. But is it? This article points to the differences between the monumental US Supreme Court decision of Brown and the Israeli Brown-equivalent – Noar Kahalacha. It contends that the two cases bear differences that stem from the divergent patterns of discrimination they represent, and that they reflect these differences squarely. The discrimination patterns reflected by the cases differ by virtue of traits that are traditionally overlooked in antidiscrimination theoretical analysis. Comparing the two cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination. Drawing on the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination, the article shows how these dual theoretical notions are determinative in shaping the distinctiveness of each of these cases. While the African American victims in Brown were easily recognised as a distinctive group suffering from de jure discrimination, the Mizrahi victims in Noar Kahalacha – who suffer from de facto discrimination within a Jewish hegemonic society – lacked such clear recognition. Accordingly, the discrimination narrative that Noar Kahalacha provides is very incomplete and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Brown, on the other hand, carries a converse trait. Though criticised, Brown, nevertheless, strongly signifies the recognition by White America of its overarching discriminatory practices, and implies a genuine dedication to break from it. This understanding further illuminates the limitations embedded in the possibility of ‘importing’ highly contextual antidiscrimination jurisprudence from abroad into our system's highly contextual reality of discrimination.

Reconsidering Independent Advice: A Framework for Analysing Two-Party and Three-Party Cases

2020 ◽  
Vol 43 (1) ◽  
Author(s):  
Felicity Maher ◽  
Stephen Puttick
Keyword(s):  
Family Law ◽  
Undue Influence ◽  
High Court ◽  
General Law ◽  
The Family ◽  
New Framework ◽  
Key Questions

What is the significance of the receipt of independent advice by the plaintiff in a claim to set aside a transaction on the basis of a vitiating factor – such as duress, undue influence or unconscionable conduct? The generally held view has been that it is highly significant. Indeed, the receipt of advice has been understood as an answer to many such claims. The High Court of Australia’s decision in Thorne v Kennedy apparently changes this. Although that case concerned advice in relation to binding financial agreements under the Family Law Act 1975 (Cth), the decision has important implications across banking, commercial and other areas of practice. This article, then, offers a reanalysis of this question in light of this decision and other developments. The authors propose a new framework – based around two key questions – for conceptualising the function and significance of independent advice in a particular case. The article considers and develops this framework with regard to the main general law vitiating factors in both two-party and three-party cases.

Gender, Internal Armed Conflict, and High Court Decision-Making in Transitioning Societies

2021 ◽  
Author(s):  
Lee Demetrius Walker ◽  
Melissa Martinez ◽  
Christopher Pace
Keyword(s):  
Decision Making ◽  
Court Decision ◽  
Internal Conflict ◽  
Political Rights ◽  
Habeas Corpus ◽  
High Court ◽  
Men 2 ◽  
Civil And Political Rights ◽  
And Gender ◽  
Conflict Intensity

Abstract Building on research that applies the policy deference model to high court decision-making during external war, we propose that conflict intensity, political government's preference on liberalization, and the gender of appellant impact the manner in which courts follow policy deference during internal war in transitioning countries. Contextually, we argue that shifts in women's roles and gender relations during internal conflict in transitioning societies condition the manner in which civilian courts make decisions on civil and political rights cases. During external war in advanced democracies, policy deference infers that courts will rule more conservatively on civil and political rights cases. Using habeas corpus cases as a representation of civil and political rights’ protection from El Salvador's civil war period (1980–1992) and two measures of conflict intensity, our findings indicate that the court's decision-making process deviates from conventional expectations derived from the policy deference model in three ways: (1) conflict intensity solely affects the court's decision-making on habeas corpus cases involving men; (2) the political government's choice for political liberalization affects the court's decision-making on both women and men cases; and (3) gender conditions the manner in which policy deference applies in a society that is experiencing societal change.

The External Affairs Power: Another Province for Law and Order?

1993 ◽  
Vol 35 (3) ◽  
pp. 453-467 ◽  
Author(s):  
J.T. Ludeke
Keyword(s):  
Racial Discrimination ◽  
Prime Minister ◽  
Cumulative Effect ◽  
State Responsibility ◽  
Law And Order ◽  
International Labour Organisation ◽  
High Court ◽  
International Commitments ◽  
Domestic Legislation ◽  
The Government

Although there was some surprise when the prime minister announced that the government would legislate to give effect to certain conventions of the International Labour Organisation, the way has been open to take this initiative for many years. The possibility of relying on the external affairs power in the Constitution to invoke the conventions, and thereby regulate labour conditions, was first canvassed in the High Court in 1936. Since 1982, there has been a series of cases involving Common wealth legislation founded on conventions to which Australia is party and it is now well established that the external affairs power will support domestic legislation giving effect to Australia's international commitments. To date, Commonwealth legislative initiatives have been in such areas as prohibiting racial discrimination and the protection of world heritage properties, but the reasoning which has been applied by the High Court is equally relevant to legislation providing for regulation of labour conditions. Commonwealth legislation in this field has meant an erosion of state responsibility and the cumulative effect of such legislation raises questions about the disturbance of the federal balance established by the Constitution.

The Ebb and Flow of the Liberalization of the Jordanian Press: 1985–1997

1998 ◽  
Vol 75 (1) ◽  
pp. 127-142 ◽  
Author(s):  
Orayb Aref Najjar
Keyword(s):  
Court Decision ◽  
Press Freedom ◽  
Peace Agreement ◽  
High Court ◽  
The Past ◽  
The Press ◽  
The Government ◽  
Media Globalization ◽  
Ebb And Flow

This study examines press liberalization in Jordan. It argues that Jordan's evolving relations with Palestinians, its peace agreement with Israel, and media globalization have changed the context within which the Jordanian media operate and have given the government some flexibility to liberalize the press starting in 1989. However, some of the same issues that have led to press restrictions in the past have precipitated the introduction of “The Temporary Law for the Year 1997” while the parliament was not in session. The study concludes that the presence of a a loose coalition of forces working for press freedom coupled with the January 1998 High Court decision declaring the temporary law unconstitutional suggest it is premature to read a eulogy for Jordanian press freedom.

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