Chapter 12.  

25.03.88 - 24.06.95  

 

 

 

"Mabo overturns Terra Nullius, but Native Title Acts 

 

validate land seizures anyway"

   

 

   

INCOMPLETE

 

Work in progress. Updated 09/03/2006 

Note: This web page is part of a research blog, and will expand..

Nicholas Frank GREINER,                             Premier, 25.03.88 - 24.06.92

 

1989

Hawkesbury Local Environmental Plan 1889 (No. 207 1989)

 

1990

"Social, cultural and legal factors"

"The Commission (Into Aboriginal Deaths In Custody) completed taking evidence in late 1990 by which time its original Terms of Reference had been widened to include consideration of '... social, cultural and legal factors which ... appear to have a bearing on those deaths'" 

[Source: Stafford, Christine, in Legal Pluralism and the Colonial Legacy, indigenous experience of justice in Canada, Australia, and New Zealand (Avebury 1995) page 218]

 

Technical and Further Education Commission Act (No. 118 1990) check xxx

 

Board of Adult and Community Education Act  1990 (No. 19 1990) .

 

1991

The Petroleum (Onshore) Act 1991

This Acts contain some provisions aimed at protecting areas of  Aboriginal significance. Those Acts state: "In deciding whether to grant a mining or petroleum title, the minister is required to take into account the need to conserve and protect  features of Aboriginal, archaeological and historical interest in the land over which the title is sought. Conditions attached to the grant or renewal of a mining or petroleum title must include conditions relating to the conservation and protection of features of Aboriginal, archaeological and historical interest in the land that is subject to the title.

 

"A history of poverty, racial discrimination and excessive levels of State intervention in their lives"

"The RCIADIC investigated one hundred indigenous Australians who died in custody between 1 January 1980 and 31 May 1989 (twelve women and eighty-eight men), and concluded that the majority were detained for minor offences and all of them died prematurely. Further, it was argued that all those who died shared a history of poverty, racial discrimination and excessive levels of State intervention in their lives; and that the circumstances of their deaths mirrored history, involving racist attitudes, stereotypical representations and breach of duty of care on the part of their custodians. ... 'the relations between Aboriginal and non-Aboriginal people were historically influenced by racism, often of the overt outspoken and sanctimonious kind; but more often .. of the quiet assumption that scarcely recognises itself. What Aboriginal people have largely experienced is policies nakedly racially-based and in their everyday lives the constant irritation of racist attitudes. Aboriginal people were never treated as equals and certainly relations ... were conducted on the basis of inequality and control ... As this Report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody and thereby the deaths of some of them." 

[Source: Brooks, Marie: REF (Page 253) Aboriginal deaths in custody xx Note .. previous reference to RCIADIC AGPS, 1991) ]  

 1992

This Act contains some provisions aimed at protecting areas of  Aboriginal significance. Those Acts state: "In deciding whether to grant a mining or petroleum title, the minister is required to take into account the need to conserve and protect  features of Aboriginal, archaeological and historical interest in the land over which the title is sought. Conditions attached to the grant or renewal of a mining or petroleum title must include conditions relating to the conservation and protection of features of Aboriginal, archaeological and historical interest in the land that is subject to the title.

 

Go to:

Keating's Redfern Speech

 

"The Australian tradition of non-recognition"

"The Australian tradition of non-recognition .. Until the 1992 decision of the High Court of Australia in Mabo v Queensland (No 2) Australia accorded no legal representation to the laws of the indigenous peoples – the Aboriginal people and the Torres Strait Islanders. This contrast to the position in other lands settled by the British was particularly marked in relation to the central focus of indigenous peoples' concerns – the relationship to land and territory .... If Australian law could not manage to recognise indigenous land ownership, it could scarcely be expected to recognise other aspects of indigenous laws, or rights under those laws, in such areas as social order/ criminal justice or self-government .."

[Source: Nettheim, Garth, in Legal Pluralism and the Colonial Legacy, indigenous experience of justice in Canada, Australia, and New Zealand (Avebury 1995) page 103]

 

1994

" ... a great unbroken arch of systematic brutality ..."

"Charles Rowley, The Destruction of Aboriginal Society ... before Rowley, historians had confined Aborigines to their first few pages of their general surveys of Australia ..... He showed what most people had assumed to have been small, isolated outbreaks of violence against blacks, coupled with some sporadic, pathetic gestures at welfare, actually formed a great unbroken arch of systematic brutality, dispossession and incarceration stretching from the late eighteenth century to the twentieth. Rowley redefined the great drama of Australian history as the conflict between Europeans and Aborigines ... Rowley had drawn his sources primarily from government records ... It was not until the early 1980's, especially with Henry Reynold's breakthrough in discovering and deploying previously untouched evidence, that historians found it was possible to use Aboriginal voices to tell the story. Nonetheless, since Rowley's book was published, no one has seriously challenged his underlying revelation of an unbroken chain of self- perpetuating attitudes, policies and responses that whites have imposed on blacks. Before Rowley, Aboriginal people themselves knew of their treatment and their condition, including the massacre of many of their forebears ..."[

[Source: Windschuttle, Keith; The Killing of History (McLeay 1994) (Page 117) ]

 

"No jurisdiction"; Denis Walker v. the State of New South Wales

16 August 1944, Sydney, 

JUDGE1. MASON CJ  By that statement of claim, the plaintiff accepts that he has been charged with an offence against the laws of New South Wales which allegedly occurred at Nimbin, a place said to be within the area of the Bandjalung "nation" of Aboriginal people.  The plaintiff himself is said to be a member of the Noonuccal "nation" of Aboriginal people. The statement of claim alleges that the common law is only valid in its application to Aboriginal people to the extent to which it has been accepted by them.  Concerning statute law, the statement of claim then alleges:  "10.  The Parliaments of the Commonwealth of Australia and of the States lack the power to legislate in a manner affecting aboriginal people without the request and consent of the aboriginal people. ... Further and in the alternative, if the Parliament of the Commonwealth or of a State legislates in a manner affecting aboriginal people the law in so far as it relates to aboriginal people is of no effect until it is adopted by the aboriginal people whom, or whose land, it purports to effect (sic)." 2. Couched as they are in terms of the legislative incapacity of the Commonwealth and State Parliaments, those pleadings are untenable. The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever (1  Constitution Act 1902 (N.S.W.) The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected.  As Gibbs J (with whom Aickin J agreed) said in Coe v. The Commonwealth of Australia (1979) 53 ALJR 403 at 408; 24 ALR 118 at 129): "The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside." ... In that case all the justices on appeal upheld the view which I had taken at first instance (1978) 52 ALJR 334; 18 ALR 592)  rejecting the plaintiff's claim that sovereignty resided in the Aboriginal people.  There is nothing in the recent decision in Mabo v. Queensland (No.2)  (1992) 175 CLR 1) to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people.  Indeed, Mabo (No.2) rejected that suggestion.  In Coe v. The Commonwealth, I said that (5  (1993) 68 ALJR 110 at 115; 118 ALR 193 at 200): "Mabo (No.2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a 'domestic dependent nation' entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law." 3.  In so far as it is based on the proposition that the legislatures lacked power to legislate over Aboriginal peoples, the statement of claim discloses no reasonable cause of action. 4. However, counsel for the plaintiff in his oral submissions put the matter somewhat differently.  He submitted that the question which arose was whether customary Aboriginal criminal law is something which has been recognised by the common law and which continues to this day, in the same way that Mabo (No.2) decided that the customary law of the Meriam people relating to land tenure continues to exist.  Counsel relied on a passage in Blackstone's Commentaries on the introduction of English law into a country that had been outside the King's dominions. Commentaries, 5th ed. (1773) Bk I, ch.4 at 107): "Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony" ... That passage was approved by the Privy Council in Cooper v. Stuart (7 (1889) 14 App Cas 286)  and cited by Brennan J in Mabo (No.2) (8 (1992) 175 CLR at 34). It was submitted that statutes must be construed so as to accord with what was said to be the common law principle set out by Blackstone, with the consequence that the criminal statutes of New South Wales did not apply to people of Aboriginal descent. 5. That proposition must be rejected.  It is a basic principle that all people should stand equal before the law.  A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10).  The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters; Bennion, Statutory Interpretation, 2nd ed. (1992) at 255). The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting; Re Sawers; ex parte Blain (1879) 12 Ch D 522 at 526; Gold Star Publications Ltd. v. Director of Public Prosecutions (1981) 1 WLR 732 at 734).   And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose; Bennion, op. cit. at 260).   The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated.  So, in Quan Yick v. Hinds, Griffith CJ when dealing with the more general question whether the entirety of Imperial law was in force in Australia stated (13  (1905) 2 CLR 345 at 359): "It has never been doubted that the general provisions of the criminal law were introduced by the (Australian Courts Act 1828)"; 9 Geo. IV c.83.) 6.  Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application.  In Mabo (No.2), the Court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown.  There is no analogy with the criminal law.  English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.  There is nothing in Mabo (No.2) to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people .7) The summons taken out by the defendant only seeks an order that the action be dismissed or, alternatively, stayed.  However, in proceedings under O. 26 r.18 , it is appropriate for a pleading that does not disclose a reasonable cause of action to be struck out, and counsel for the defendant accepted as much in argument. 8.  Accordingly, the statement of claim must be struck out and the action must be dismissed. [7]

Also see:  R v Bonjon, [1841.]

 

Environmental health and economic status

"This monograph presents a rigorous quantitative assessment, against normative criteria, of the housing requirements of indigenous people, and in doing so makes an important contribution to knowledge about the interrelationship between environmental health and economic status ...a measure of their relative need compared to the non-indigenous population.."

[Source: Jones, Roger; The Housing Need of Indigenous Australians (Centre for Aboriginal Economic Policy Australian National University, Canberra. Research Monograph No. 8, 1994). ]

 

"The protection of Aborigines' interests"

"In addition to the Native Title (NSW) Act 1994 a number of laws provide for the protection of Aborigines interests. Companies need to take all of  these Acts into account when considering mineral or petroleum exploration and development in NSW, writes partner Tony Wassaf. Last updated (October 2000; State native title legislation, Native Title (NSW) Act 1994, Other relevant NSW legislation, Exploration licence conditions: Mining and petroleum legislation (NSW) Mining Act 1992 (xxxxxxxx find copy)Approved low impact exploration regime under Petroleum (Onshore) Act, Aboriginal Land Rights Act 1983, National Parks and Wildlife Act 1974. State native title legislation: Native Title (NSW) Act 1994: This Act: "(a) validates past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the

NTA); (b) confirms the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts, in accordance with the NTA ; and (c) confirms NSW's existing ownership of any natural resources; NSW's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places." (xxxxxxxx check where these rights were attributed via Acts of Parliament); The NSW Government is liable for any compensation payable as a result of validation of past or intermediate period acts, and the past extinguishment of native title. "Certain future acts that are covered by indigenous land use agreements in the manner permitted by the NTA are validated" Other relevant NSW legislation, Exploration licence conditions. The Commonwealth Minister for Aboriginal and Torrens Strait Islander Affairs made a Determination and Approval on 24 September 1996 under the NTA covering exploration licences under the NSW Mining Act and special prospecting authorities under the NSW Petroleum (Onshore) Act. Under the Determination, if such licences and authorities include a condition that the holder "must not prospect on or in any native title land without the NSW Minister for Mineral Resources’ prior written consent, then the right to negotiate procedure will not apply to the grant or renewal of any such licence or authority; but it will apply to the granting of the NSW Minister’s consent. "This allows exploration licences and the special prospecting authority over land (including Crown land)" that is potentially affected by native title to be granted without the need to follow the right to negotiate procedure. But before it is possible for a holder to undertake prospecting on that land, it will be necessary for the right to negotiate procedure to be followed. The onus will therefore be on holders to undertake title searches of  exploration licence areas to determine what areas can or cannot be explored without the Minister’s consent. See below for details of the "approved low impact exploration regimes under the NSW Mining Act 1992 and Petroleum (Onshore) Act 1991.

Mining and petroleum legislation (NSW)

The Mining Act 1992, the Offshore Minerals Act 1999 and the Petroleum (Onshore) Act 1991 contain some provisions aimed at protecting areas of Aboriginal significance. Those Acts state:

In deciding whether to grant a mining or petroleum title, the minister is required to take into account the need to conserve and protect features of Aboriginal, archaeological and historical interest in the land over which the title is sought.

Conditions attached to the grant or renewal of a mining or petroleum

title must include conditions relating to the conservation and protection of features of Aboriginal, archaeological and historical interest in the land that is subject to the title. [9]

 

"Every past act attributable to the State is valid, and is taken always to have been valid" (just the Real Property Act 1900 with a new dress on.)

Native Title (New South Wales) Act 1994 No. 45. An Act about native title in relation to land or waters; and for other purposes. [Assented to 2 June 1994].

Whereas:

(1) the High Court of Australia, in Mabo and ors. v The State of Queensland (No. 2) (1992) 175 CLR  1, rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement and held that the common law of Australia recognises native title rights of the indigenous inhabitants of Australia:

(2) The Commonwealth Government has enacted the Native Title Act 1993 of the Commonwealth which provides a national scheme for the recognition and protection of native title, the regulation and protection of native title, the regulation of future dealings with, and claims to, native title and the validation of past State acts invalidated because of the existence  of native title:

(3) It is the intention of Parliament that New South Wales should participate in the national scheme established by the Commonwealth Government and that the state should validate past State acts invalidated because of the existence of native title.

... Objects of this Act

3.(a) in accordance with the Commonwealth Native Title Act, to validate any past acts invalidated because of the existence of native title and to confirm certain rights; and

(b) to ensure that New South Wales is consistent with standards set by the Commonwealth Native Title Act for future dealings affecting native title; and

(c) to establish State-based mechanisms for deciding claims to native title in accordance with the Commonwealth Native Title Act.

Definitions

4. (1) In this Act: ... 'State Compulsory Acquisition Act' means any of the following laws:

·         Land Acquisition (Just Terms Compensation ) Act 1991 and any enactment that authorises the acquisition of land in accordance with that Act

·         sections 21 and 22A of the Pipelines Act 1967

·         any enactment that effects a compulsory acquisition and provides compensation as if the acquisition had been effected by an acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991

·         Division 2 of Part 12 of the Roads Act 1993

·         An Act prescribed by the regulations made under this Act;

'State Mining Act' means any of the following Acts:

·         Mining Act 1992

·         Petroleum (Onshore) Act 1991

·         an Act prescribed by the regulations made under this Act ...

Part 2-Validation and Its Effects

Objects of this Part.

7. (a) to validate, in accordance with section 19 (State/Territory acts may be validated) of the Commonwealth Native Title Act, past acts attributable to the State ...

Validation of past acts attributable to the State (NTA, s.19)

8. Every past act attributable to the State is valid, and is taken always to have been valid.

Division 2-Effect of validation on native title.

Category A past acts that are not public works (NRA, ss 19 and 15 (1) (a))

10. (1) This section applies if the past act is a category A past act other than a category A past act to which section 229 (4) (which deals with public works) of the Commonwealth Native Title Act applies.

(2) The past act extinguishes native title.

Note: 'Category A past act' is defined in s.229 NTA. This category covers freehold grants, some leasehold grants (commercial, agricultural, pastoral and residential leases and those parts of certain mining leases (such as lands on which there are city, town or private residences) that are taken to be 'dissected' in accordance with s.245 NTA and public works. 'Lease', 'permit' and various types of leases are defined in ss.242 to 249 NTA.

Category A past acts that are public works (NTA, ss.19 and 15 (1) (b))

11. (1) This section applies if the past act is a category A past act to which section 229 (4) of the Commonwealth Native Title Act applies.

(2) The past act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.

(3) If section 229 (4) (a) (which deals with public works completed after 1 January 1994) of the Commonwealth Native Title Act applies to the past act, the extinguishment is taken to have happened on 1 January 1994.

Extinguishment does not confer right to eject or remove Aboriginal peoples (NTA, ss.15(2) and 19)

14. An extinguishment of native title effected by this Part does not by itself confer a right to eject of remove any Aboriginal peoples who reside on or exercise access over land or waters covered by a pastoral lease the grant, re-grant or extension of which is validated by section 8 (Validation of past acts attributable to the State.)

 

 

 

 

 




 

 

Stafford, Christine, in Legal Pluralism and the Colonial Legacy, indigenous experience of justice in Canada, Australia, and New Zealand (Avebury 1995) page 219 

 

 

            

 

AAR: Native title laws –

 

reference: Wassaf xxxxx "Native title: New South Wales

           

xxxxxxx AAR: Native title laws –

"Approved low impact exploration regime under Petroleum (Onshore) Act. A similar Division for low impact exploration to that described in the Mining Act section applies under the Petroleum (Onshore) Act 1991 in respect of petroleum prospecting titles.

Compensation.

If compensation is payable under s24MD of the Commonwealth Native Title Act 1993 (NTA) in respect of the grant, renewal or variation of a title under the Mining Act or Petroleum (Onshore) Act then the holder of that title is liable to pay that compensation.

Approved opal or gem mining area or gem mining area for the purposes of s26C of the NTA. The right to negotiate procedure in the NTA therefore need not be followed for the granting or varying of opal prospecting licences and mining leases opal or gems in that area under the Mining Act.

Other future acts.

Other future acts to be undertaken in NSW are regulated by the procedures set out in the NTA.