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?

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.

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.

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.

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 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.

A Reflective Assessment of Selected Problematic Aspects of South Africa’s Appraisal Remedy Regime Against the Backdrop of Cilliers v La Concorde Holdings Ltd

2020 ◽  
Vol 32 (3) ◽  
pp. 389-406
Author(s):  
J Mudzamiri ◽  
PC Osode
Keyword(s):  
Fair Value ◽  
Court Decision ◽  
Practical Application ◽  
Reflective Assessment ◽  
High Court ◽  
Holding Company

Several policy rationales have been offered as justifications for the new appraisal remedy, including its functioning as a credible exit vehicle for disgruntled shareholders upon receipt of payment of a ‘fair value’ for their shares. However, against the backdrop of the High Court decision in Cilliers v LA Concorde Holdings Ltd, this article explores two problematic issues regarding the practical application of the appraisal remedy. The first issue relates to who may access the remedy, while the second relates to the complexity, costs, and rigidity of the procedure that must be followed to access successfully the inherent benefits of the appraisal remedy. The paper argues, in the first instance, that the court’s decision in Cilliers to allow disgruntled shareholders in a holding company to access appraisal rights in relation to a subsidiary is salutary; and, secondly, that the complexity, costs, and rigidity of the appraisal procedure can be alleviated through the revision of some of the underlying statutory provisions.

Akiba on Behalf of the Torres Strait Regional Seas Claim Group v. Commonwealth of Australia and Others

2021 ◽  
Vol 193 ◽  
pp. 389-421
Keyword(s):  
Personal Relationships ◽  
Aquatic Life ◽  
Group V ◽  
Content Type ◽  
Native Title ◽  
Torres Strait ◽  
The Law ◽  
Rights And Interests

389Sea — Native title — Native title rights in relation to waters including accessing and taking resources for any purpose — Native Title Act 1993 (Cth) — Whether successive legislation which prohibited taking fish and other aquatic life for commercial purposes without licence inconsistent with that right — ExtinguishmentSea — Territorial sea — Reciprocal access and use rights recognized in Islander society arising out of personal relationships — Whether reciprocal rights “native title rights and interests” — The law of Australia

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