Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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abolition of, 4: 11–26
possible future directions, 4: 15–16, 26–28
proposals for workable policies, 4: 22–23
proposed national Indigenous representative body (‘NIRB’), 4: 13, 14–15, 16
reasons for abolition, 4: 17–18
elected arm and administrative arm, relationship between, 3: 111
elections
Patmore v Independent Indigenous Advisory Committee, 1: 53–57
Minister for Immigration and Multicultural and Indigenous Affairs v Chulung, 3: 29–30
history of national Indigenous representation, 4: 13–14
Indigenous problems and issues 4: 20–23
rise and fall, 4: 17–19
participation in democratic process, 2: 67, 76–77, 3: 75
Regional Councils, 1: 7
abolition by 30 June 2005, 4: 11–23
election rules, 1: 53–57, 3: 29–30
relationship with Australian Government, 3: 110, 4: 11, 13, 16, 20–22
low points, 4: 18, 20
relationship with Indigenous Australians, 3: 108–110
report 2003, 3: 105–112
executive summary, 3: 106–108
recommendations, 4: 11
representation, need for, 4: 20–23
review powers
Tucker for Narnoobinya Family Group v Aboriginal and Torres Strait Islander Commission, 4: 29–31
roles, 2: 76–77, 3: 110–111
intended role, 4: 17
Aboriginal and Torres Strait Islander Commission Amendment Bill 2004 (Cth)
effect of, 4: 16, 18–19
overview, 4: 18–19
proposals in, 4: 13
Senate review of, 4: 11, 13
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
archaeological relics on proposed mining area
Williams v Minister for the Environment and Heritage, 2: 29–34, 35
repatriation of Indigenous remains, 1: 40
Aboriginal Cultural Heritage Act 2003 (Qld),
Aboriginal cultural heritage database, 4: 67–68
Aboriginal cultural heritage register, 4: 68–69
Aboriginal cultural heritage management plans, 4: 69–72
collection and management of Aboriginal cultural heritage information, 4: 67–69
cultural heritage management plans, 4: 69–72
interpretation of terms, 4: 62–63
ownership, custodianship and possession of Aboriginal cultural heritage, 4: 63–64
preliminary, 4: 61–63
protection of Aboriginal cultural heritage, 4: 64–67
action of Minister, 4: 67
duty of care guidelines, 4: 66
information about cultural heritage, 4: 66–67
key provisions, 4: 64–66
purpose, 4: 61
achievement of, 4: 61–62
Canada
R v Morris, 4: 54–58
Consultative Committee, recommendation for, 3: 95
cross-cultural training, 3: 91, 93
equality before the law, 3: 93–95
general approach, 3: 92–93
Northern Territory, unique position, 3: 92
payback (spearing), 3: 95
promised marriages, 3: 94–95
report, 3: 91–96
source of law, as, 3: 91, 96
Sydney, case in western 4: 45–51
Aboriginal offenders see Sentencing of Aboriginal offenders
proposed mining area, 2: 29–23
interim protection order, appeal against refusal, 2: 29–23
protection of in national parks
Williams v Barrick Australia Ltd, 3: 35
Aboriginal remains see also Burial
repatriation of see Repatriation of Indigenous remains
right to dispose of, 4: 5–8
Abstudy see Social security
appeal against denial of procedural fairness
Clements v Independent Indigenous Advisory Committee, 2: 41–42
Zen Pearls Pty Ltd v Great Barrier Reef Marine Park Authority, 4: 32–40
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), 1: 2, 3
Alice Springs to Darwin Railway Project, 1: 15
Canada, 1: 4, 23
consent determinations, 1: 11–13, 75
constitutional aspects, 1: 4–5, 24, 25
history in Australia, 1: 2–3
Indigenous governance and, 1: 6–8
Indigenous Land Use Agreements, 1: 2–3, 13–15
Larrakia people, 1: 15–16
local government, 1: 21–22
Native Title Act 1993 (Cth), 1: 2–3, 5, 13–15
right to negotiate under, 1: 8–11
resources sector policy, 1: 16–19
sea/marine resource rights, 1: 16
tourism joint ventures, 1: 20
Cancun Declaration, 3:118
Inari Declaration, 2: 97
National Strategy, 1: 19–20
human rights violations, 2: 85, 87–88
sentencing principles, Court of Appeal
R v Morris, 4: 54–58
Tsawwassen First Nation Agreement in Principle, 4: 115–119
intestate deceased, right to conduct, 2: 37–39
ownership of Aboriginal Human remains, under Aboriginal Cultural Heritage Act 2003 (Qld), 4: 63
places, preservation of, 4: 36
right to dispose of remains, 4: 5–8
agreement making, 1: 4, 23
Anishinabek education system, 3: 124–125
circle sentencing in, 4: 74
constitution of, 4: 116, 118–119
education, jurisdiction over, 3: 123–125
human rights violations, 2: 85, 88–89
Indigenous governance, 1: 23
Lubicon Cree, 2: 88
Redefining Relationships Conference, 3: 115
Royal Commission on Aboriginal Peoples, 2: 88, 89
safe water on reserves, 2: 59–63
sentencing principles, British Columbia Court of Appeal 4: 54–58
Tsawwassen First Nation Agreement in Principle, 4: 115–119
Aboriginal child placed with non-Aboriginal carer, 1: 45–46
abuse of, 3: 100, 102, 4: 81–92
abuse in foster care, inquiry into, 4: 81–93
case-management plans, 4: 92–93
examination of issues affecting Indigenous children, 4: 81
figures and data, 4: 82–83
key concerns raised, 4: 84–85
placement decisions, 4: 91–92
placement options, 4: 88–89
placement principles, 4: 86–87
placements with non-Indigenous carers, 4: 87
recommendations, 4: 86–93
role of Aboriginal and Islander Child Care Agencies (‘AICCAs’), 4: 81, 85–86
specific issues affecting Cape York, the Gulf and Torres Strait regions, 4: 90–91
website for full report, 4: 93
biological parents and parental rights, 4: 89–90
Child Protection Act 1999 (Qld), 4: 83–84, 86–87
exceptions to confidentiality and penalties provisions, 4: 91
child protection notifications, 3: 100, 102, 4: 82–83
Minister, Community Services v Mrs A (CSD), 1: 45–46
removal of Indigenous children from families, 4: 81–82
United Nations' Committee on Rights of Child, 4: 87
Circle sentencing see Sentencing of Aboriginal offenders
Inari Declaration, 2: 97–98
Milan Declaration, 3: 121–122
background to current Indigenous rights in, 4: 94–95
Commonwealth Expert Group on Development and Democracy, 4: 97
land rights and resource management, 4: 96–101
case law as landmarks, 4: 99–100
constitutional provisions/protection, 4: 98
land policy and legislation, 4: 98–99
commitment to rights of Indigenous people, 4: 94
Indigenous rights in Commonwealth Project, report of, 4: 94–95
proposed project on Indigenous land rights, 4: 96–101
website, 4: 95
ATSIC and, 3: 110
proposed Labor changes to seats on, 4: 26
reconciliation framework, 1: 22–23
bail, habitual offender
R v Scobie, 2: 16–17
Canada
R v Morris, 4: 54–58
overcoming Indigenous disadvantage, 3: 101–102
preventative detention, application for, 2: 15–23
R v Morgan, 3: 31–33
R v Scobie, 2: 15–23
sentencing see Sentencing of Aboriginal offenders
Aboriginal child placed with non-Aboriginal carer, 1: 45–46
Aboriginal women in, 2: 81–84
sentencing see Sentencing of Aboriginal offenders
Indigenous peoples, participation in, 2: 66–68, 4: 17
barriers to, 2: 68
direct input into Parliament, 2: 70–72
existing bodies, 2: 67, 76–77
Queensland report, 2: 65–79, 3: 71–77
self-determination and, 2: 66–67
strategies to enhance, 2: 68–76
Desert Knowledge Australia Act 2003 (NT), 3: 65–67
overcoming Indigenous disadvantage, 3: 98
Maori, 1: 95–111
adult protected persons, programs for, 1: 95–111
definition, 1: 100
Anishinabek education system, 3: 124–125
First Nations jurisdiction (Canada), 3: 123–125
overcoming Indigenous disadvantage, 3: 98, 102
participation in democratic process, 3: 73–75
reconciliation, part of, 3: 83
overcoming Indigenous disadvantage, 3: 99
stolen wages, 3: 1–9
unfair dismissal (New Zealand)
Burberry v Good Health Wanganui, 1: 77–78
underpayment of Indigenous workers, 3: 1–9
Western Cape Communities Co-Existence Agreement, 3: 37
agreements, 1: 19–20
Cancun Declaration, 3: 117–120
Desert Knowledge Australia Act 2003 (NT), 3: 65–67
Inari Declaration, 2: 95–99
Milan Declaration, 3: 121–122
guidelines for implementing principles, 1: 87–92
Indigenous studies, in, 1: 85–93
principles of, 1: 85–87
Aboriginal claimants, 1: 6
affidavit sworn by two people, 1: 47–51
hearsay, admissibility of, 4: 43–44
NNTT arbitrations, 1: 10
Nudding & Strickland on Behalf of the Maduwongga People v Western Australia, 1: 47–51
witnesses giving oral testimony jointly, 1: 47–51
appeal to
denial of procedural fairness by AAT, 2: 41–42
interim protection order, refusal of, 2: 29–23
interlocutory order, power to make, 2: 35
rules
Nudding & Strickland on Behalf of the Maduwongga People v Western Australia, 1: 47–51
wages of Indigenous workers, 3: 3–7
Inari Declaration, 2: 95–99
Finnmarksloven (‘The Finnmark Act’), 3: 69–70
Foster care see Children
Cusco Declaration, 2: 101–103
participation after ATSIC, and, 4: 25–28
human rights violations, 2: 85, 89–92
Indigenous Peoples of the Third Regional Consultation for Latin America and the Caribbean, FAO and NGO/CSO, 4: 102–104
proposals, 4: 103–104
disavowal of doctrine of native title, 2: 1, 7–9
litigated native title determinations, 1: 11–13
misinterpretation of common law rights of traditional owners, 2: 1, 6–7
misinterpretation of native title definition, 2: 1–6
low rate of, 4: 8
overcoming Indigenous disadvantage, 3: 99–100
Bropho v Human Rights & Equal Opportunities Commission, 1: 59–60
development and Indigenous land, 1: 79–84
Inter-American Commission on Human Rights, 2: 93, 4: 102
offensive cartoon, 1: 59–60
reconciliation and, 3: 83–84
violations against Indigenous peoples, 2: 85–94
Brazil, 2: 85, 87–88
Canada, 2: 85, 88–89
Guatemala, 2: 85, 89–92
US, 2: 85–86, 92–94
Aboriginal women, 2: 81–84
overcoming Indigenous disadvantage, 3: 101–102
Royal Commission into Aboriginal Deaths in Custody recommendations, 2: 17–19
sentencing principles, 2: 15–23
child abuse, 3: 100, 102, 4: 81–92
disability, 3: 98
education, 3: 98–99, 102
employment, 3: 99
home ownership, 3: 99–100
homicide and assault, 3: 101
income, 3: 99
life expectancy, 3: 97–98
overcoming, 3: 97–103
substance abuse, 3: 101, 102
suicide and self-harm, 3: 100
ATSIC Regional Council Election Rules, 1: 53–57
agreement making and, 1: 6–8
Canada, 1: 23
community organisations, 1: 6–8
evidence of Aboriginal claimants, 1: 6
forum discussing, 4: 11–28
Indigenous organisations, 1: 7–8
Native Title Act 1993 (Cth) corporations provisions, 1: 6
Prescribed Bodies Corporate (‘PBCs’), 1: 6
problems, 1: 6–7
reconciliation and, 3: 84
US, 1: 7, 23
Indigenous Land Use Agreements, 1: 2–3, 13–15
disadvantage to Indigenous communities
Opinion Re: Comalco Aluminium Ltd, 3: 37–38
enforceability, 1: 14
negotiation, 1: 14
resources sector policy, 1: 16–19
Indigenous Protected Area Program, 1: 19
reports on, 4: 94–95, 96–101
Indigenous remains see also Repatriation of Indigenous remains
right to dispose of, 4: 5–8
Cancun Declaration, 3: 118–119
Cusco Declaration, 2: 101–103
reconciliation, 3: 84
consequences for Indigenous Australians, 4: 1–10
current regimes specifically for aboriginal people, 4: 2–5
failure of intestacy regime, 4: 1–2
right to conduct burial
Dow v Hoskins, 2: 37–39
right to dispose of remains, 4: 5–8
will making, a potential solution, 4: 8–9
Island Co-ordinating Council (‘ICC’), 2: 67, 77
Aboriginal participation in, 3: 95
customary law see Aboriginal customary law
sentencing see Sentencing of Aboriginal offenders
Kakadu National Park Lease Agreement, 1: 2
Sami rights, 3: 69–70
application in Federal Court, 4: 41–42, 50
agreement making, 1: 15–16
Larrakia Nation Aboriginal Corporation, 1: 15
statement of the Indigenous Peoples of the Third Regional Consultation for Latin America and the Caribbean, FAO and NGO/CSO, 4: 102–104
recent Acts and Bills, and related websites
Australian Capital Territory, 4: 59
Commonwealth, 4: 59
Northern Territory, 4: 59
Queensland, 4: 59–60, 60–72
Tasmania, 4: 60
South Australia, 4: 6
Western Australia, 4: 60
overcoming Indigenous disadvantage, 3: 97–98
agreement making, 1: 21–22
Mabo v State of Queensland (No 2) decision, 1: 2, 13, 2: 1–3, 8, 4: 15, 50
Misunderstood, 4: 51
customary land
definition, 2: 48–49
Ngati Apa v Attorney General, 2: 47–55
domestic violence, 1: 95–111
freehold land, change of status to general land
Bruce v Edwards, 2: 43–45
unfair dismissal, 1: 77–78
common law tradition and, 2: 1–9
High Court of Australia judgment, 1: 61–71
referred to
Lardil Peoples v State of Queensland, 4: 41, 45–46, 48–49, 51
Milan Declaration, 3: 121–122
archaeological relics on proposed mining area, 2: 29–23
interim protection order, appeal against refusal, 2: 29–23
extinguishment of native title, 3: 26–27
ILUA provisions, 1: 18
native title and future act determinations, 1: 5
expedited arbitration procedures, 1: 8–11
right to negotiate, 1: 8–11
Natural Resources and Other Legislation Amendment Act 2003 (Qld), 2: 57–58
policy and agreement making, 1: 17–19
Western Cape Communities Co-Existence Agreement, 1: 19, 3: 37
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 8), 4: 43–44
rights under the Native Title Act 1993 (Cth), 1: 8–11
mediation of applications
Frazer v State of Western Australia, 2: 25–27
applicant groups
Daniel v State of Western Australia, 3: 25–27
biological descent requirement
De Rose v State of South Australia, 3: 42–43
cohesive local community
De Rose v State of South Australia, 3: 46–47
connection with claim area
Daniel v State of Western Australia, 3: 25
De Rose v State of South Australia, 3: 39–53
consent determinations
Application by Duke Eastern Gas Pipeline Pty Ltd and Anor, 1: 11–13, 75
continuity with original inhabitants,
De Rose v State of South Australia, 3: 43–44
Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia and Conservation Land Corporation, 4: 52–53
Gale v Minister for Land & Water Conservation for the State of New South Wales, 4: 45–51
costs
Ngalakan People v Northern Territory of Australia, 1: 73
definition, 2: 4
misinterpretation by High Court, 2: 1–6
evidence
Harrington-Smith on Behalf of the Wongotha People v State of Western Australia (No 8), 4: 43–44
extinguishment
in Ngati Apa v Attorney General, 2: 53–55
Daniel v State of Western Australia, 3: 25–27
inextricable link between society and its laws and customs
Members of the Yorta Yorta Aboriginal Community v Victoria, 1: 63–65
Lardil Peoples v State of Queensland, 4: 41–42
Mabo v State of Queensland (No 2), 1: 2, 13, 2: 1–3, 8, 4: 15, 50, 51
Maori customary land
Ngati Apa v Attorney General, 2: 47–55
Members of the Yorta Yorta Aboriginal Community v State of Victoria, 1: 61–71, 2: 1–9, 4: 41, 45–46, 48–49, 51
Mirriuwung Gajerrong decision, 2: 1–9
National Native Title Tribunal see National Native Title Tribunal (‘NNTT’)
Native Title Act 1993 (Cth) see Native Title Act 1993 (Cth)
New Zealand
extinguishment 2: 53–55
Maori customary land, status orders, 2: 47–55
recognition in, 2: 53
population shifts, 3: 44–45
replacement of applicants, 2: 13–14
right to negotiate, 1: 8–11
rights under, 3: 26
South Africa, 3: 13–21
foundations of Aboriginal title, 3: 20–21
Alexkor Ltd v The Richtersveld Community, 3: 15–20, 55–64
spiritual connection with land, 3: 40
Sydney claim
Gale v Minister for Land & Water Conservation for the State of New South Wales, 4: 45–51 traditional laws and customs, 1: 61–71, 3: 25, 51–53
Ward v Northern Territory of Australia, 2: 13–14
Western Australia v Ward, 1: 12
Wik v State of Queensland, 1: 12, 18
Native Title Act 1993 (Cth)
agreement making under, 1: 2–3, 5
arbitration procedures, 1: 8–11
definition of native title, 2: 4
definition of review functions of
Tucker for Narnoobinya Family Group v Aboriginal and Torres Strait Islander Commission, 4: 29–31
Indigenous remains, status of, 1: 40
Nudding & Strickland on Behalf of the Maduwongga People v Western Australia, 1: 47–51
right to negotiate under, 1: 8–11
Native Title Representative Bodies, 1: 11
internal review functions of, 4: 29–31
Natural Resources and Other Legislation Amendment Act 2003 (Qld), 2: 57–58
Negotiation see also Agreement making
ethical research principles, 1: 85–92
funding by developers, 1: 83
right to, 1: 8–11
establishment of, 4: 74–75
success of, 4: 78–80
Aboriginal and Torres Strait Islander Assembly, recommendation for, 2: 72–73, 3: 76
Indigenous peoples, participation, 2: 65–79, 3: 71–77
dedicated seats, 2: 73–75, 3: 76
issues paper 2002, 2: 65–79
report 2003, 3: 71–77
strategies to enhance, 2: 68–70, 3: 71–77
recent legislative developments, 4: 59–60
Aboriginal Cultural Heritage Act 2003 (Qld), 4: 61–72
website, 4: 60
COAG framework, 1: 22–23
education, need for, 3: 81
evaluation, 3: 81
legal regime, 3: 81–84
meaning of, 3: 79–80
monitoring progress, 3: 81
Senate Legal and Constitutional References Committee report, 3: 79–90
dissenting report by Senators, 3: 87–89
recommendations, 3: 85–87
Australian Aboriginal remains
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), 1: 40
Aboriginal Cultural Heritage Act 2003 (Qld), 4: 63
common law, 1: 40
Commonwealth legislation, 1: 40
Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld), 1: 39–40
historical background, 1: 38–39
legal status of, 1: 39–40
museum policies, 1: 40–41
Previous Possessions, New Obligations policy, 1: 40–41
Return of Indigenous Cultural Property Program, 1: 41
State legislation, 1: 39–40, 4: 63
Native American remains
Antiquities Preservation Act, 1: 35
Archaeological Resource Protection Act, 1: 35
disinterment and study of, 1: 34
legal status of, 1: 34–35
Native American Grave Protection and Repatriation Act, 1: 33, 35–38, 41
US legislative framework, 1: 33
nineteenth century phrenology, 1: 33, 38–39
Resource Development on Aboriginal Land forum, 1: 79–84
principles, 1: 80
relevant human rights principles, 1: 83–84
Resources sector see also Mining
development and Indigenous land, 1: 79–84
ILUA provisions, 1: 18
Natural Resources and Other Legislation Amendment Act 2003 (Qld), 2: 57–58
policy and agreement making, 1: 17–19
tourism joint ventures, 1: 20
Western Cape Communities Co-Existence Agreement, 1: 19, 3: 37
agreement making, 1: 1
Australian government policies, 1: 1
land restitution and native title in South Africa, 3: 13–21
Maori customary land, status orders
Ngati Apa v Attorney-General, 2: 47–55
resource rights agreements, 1: 16
Self-determination see also Indigenous governance
participation in democratic process, 2: 66–67
reconciliation and, 3: 84
appeal against severity of sentence, 3: 31–33
bail, 2: 16–17
Canada
R v Morris, 4: 54–58
circle sentencing in New South Wales, 4: 73–80
aims, 4: 73–75, 78
introduction on trial basis in Nowra, 4: 73–78
overview, 4: 74–78
success of, 4: 78–80
website for full report, 4: 80
community service, 2: 20
guilty plea, discount for, 3: 31–33
interpreters, 2: 21–22
non-custodial options, 2: 20
preventative detention, application for, 2: 15–23
principles, 2: 15–23
restorative sentencing, in British Columbia Court of Appeal, 4: 54–58
Royal Commission into Aboriginal Deaths in Custody recommendations, 2: 17–19
substance abuse, 2: 21
Abstudy overpayments
Eatock v Secretary, Department of Family and Community Services, 2: 11
appropriation of pensions, 3: 1–9
misuse by government, 3: 3
African National Congress, 3: 14
foundations of Aboriginal title, 3: 20–21
land restitution and native title, 3: 13–21
Richtersveld claim, 3: 15–20, 55–64
Stolen wages see Wages of Indigenous workers
overcoming Indigenous disadvantage, 3: 101, 102
factor in sentencing, 2: 21
overcoming Indigenous disadvantage, 3: 100
Torres Strait Community Councils, 2: 67, 77
Torres Strait Regional Authority (‘TSRA’), 2: 67, 77
Indigenous tourism strategies, 1: 20
joint ventures, 1: 20
small-scale land use agreements, 1: 21
definition, 4: 36
Cusco Declaration, 2: 101–103
Traditional law see Aboriginal customary law
Treaty making see Agreement making
agreement, nature of, 4: 115–116
application and relationship of laws, 4: 116–117
constitution of Canada, 4: 116, 118–119
Indian Act, application of, 4: 117
relationship of final agreement and laws, 4: 117
interpretation, 4: 119
judicial determinations in respect of validity, 4: 117–118
New Zealand, 1: 77–78
United Nations International Decade on the World's Indigenous People, 4: 94–95, 96, 103
Dann sisters case, 2: 85, 92–93
human rights violations, 2: 85–86, 92–94
Indigenous governance, 1: 7, 23
Inter-American Commission on Human Rights, 2: 93, 4: 102
repatriation of Indigenous remains, 1: 33–38
Yorta Yorta nation general area agreement with, 4: 105–114
abuse by protectors, 3: 2–3
fiduciary duties, 3: 3–7
inadequate documentation, 3: 8
international case law, 3: 7–8
overcoming Indigenous disadvantage, 3: 99
payment into ‘trust’ accounts, 3: 1–9
‘pocket money’, 3: 2–3
underpayment of Indigenous workers, 3: 1–9
safe water on reserves (Canada), 2: 59–63
Western Cape Communities Co-Existence Agreement, 1: 19, 3: 37
encouraging Aboriginal persons to draw up, 4: 8–9
low rate of will-making, 4: 1, 8
intestacy see Intestacy
independent review, 1: 113–134
review findings and recommendations, 1: 125–131
Wuggubun Statement, 3: 113–114
Yorta Yorta nation see also Members of the Yorta Yorta Aboriginal Community v Victoria
general area agreement with VicRoads, 4: 105–114
commitments of parties, 4: 108–113
description of agreement area, 4: 113–114
Yorta Yorta cultural heritage protection, 4: 109–112
protection of environment, 4: 112–113
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