Indigenous peoples, access to land and negotiated agreements: Experiences and post-mabo possibilities for environmental management

Environmental and Planning Law Journal

Volumn 14, Issue 2, 1997, Pages 114-134

  Tehan, Maureen ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

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EID: 9444267424     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (268)

1. T Tjamiwa, "Tjunguringkula Waakaripai: Joint Management of Uluru National Park" in J Birckhead, T De Lacy, and L Smith (eds), Aboriginal Involvement in Parks and Protected Areas (Aboriginal Studies Press, Canberra, 1993), PP 7. 9.
2. National Parks and Wildlife Act 1972 (SA), s 4.
3. Conservation and Land Management Act 1984 (WA), s 56(1)(c). '
4. J Crawford, "The Constitution and the Environment" (1991) 11 Sydney Law Review 11; P Toyne, Reluctant Nation (ABC Books, Sydney, 1994), pp 176-177.
5. O'Sullivan v Noarlunga Meals Ltd (1955) 92 CLR 565.
6. Murphyores Incorporated Pty Ltd v Commonwealth (1976) 1 36 CLR 1.
7. Commonwealth v Tasmania (1983) 158 CLR 1. See generally: M Crommelin, "Resources Law and Public Policy" (1983) 15 University of Western Australia Law Review 1; B Davis, "Federal-State Tensions in Australian Environmental Management: The World Heritage Issue" (1989) 6 EPLJ 66; G Bates, Environmental Law in Australia (4th ed, Butterworths, Sydney, 1995), p 76ff.
8. The few exceptions include intervention on the basis of Australia's commitment to the Convention for the Protection of the World Cultural and Natural Heritage implemented domestically in the World Heritage Properties Conservation Act 1983 (Cth).
9. Commonwealth v Tasmania (1983) 158 CLR 1.
10. Richardson v Forestry Commission (1988) 164 CLR 261.
11. Queensland v Commonwealth (1989) 167 CLR 232.
12. M Crommelin, "Commonwealth Involvement in Environment Policy: Past, Present and Future" (1984) 4 EPLJ 101 at 108-110; M Crommelin, "Federal-State Co-operation on Natural Resources: The Australian Experience" in Saunders, J Owen (eds). Managing Natural Resources in a Federal State (Carswell, Toronto, 1986), p 295.
13. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
14. D Mercer, A Question of Balance: Natural Resources Conflict Issues in Australia (2nd ed, The Federation Press, Sydney, 1995), p 49.
15. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
16. P Toyne, "Federal, State and Local Government Relationships on Environmental Regulation, " National Environmental Law Association Conference (Canberra, 1993), p 12.
17. Constitution of Australia, s 51 (XXIX).
18. Richardson v Forestry Commission (1988) 164 CLR 261; B M Tsamenyi, J Bedding and L Wall, "Determining the World Heritage Values of the Lemonthyme and Southern Forests: Lessons from the Helsham Inquiry" (1989) 6 EPLJ 79; M B Tsamenyi, "Implementing International Environmental Law in Australia: Queensland v The Commonwealth" (1990) 2 Journal of Environmental Law 1; J Bedding, "Private Interests in World Heritage Properties" (1989) University of Tasmania Law Review 316; J M Behrens, (1991) PhD Dissertation, University of Tasmania, p 73; J Behrens, "The Implementation of the World Heritage Convention in Australia: Problems and Prospects, " in J M Behrens and B M Tsamenyi (eds), Our Common Future (University of Tasmania, Hobart, 1991), p 103.
19. Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
20. Western Australia v Commonwealth (1995) 69 ALJR 309.
21. Western Australia v Commonwealth (1995) 69 ALJR 309.
22. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
23. Australian Constitution, s 51 and the National Parks and Wildlife Conservation Act 1975 (Cth).
24. These parks were retained under Commonwealth control notwithstanding the grant of self-government to the Northern Territory under the Northern Territory Self-Government Act 1978 (Cth).
25. For example, National Parks and Wildlife Act 1972 (SA), "s 28(1) The Governor may by proclamation: (a) constitute as a national park. Crown land. of national significance by reason of the wildlife or natural features of that land. " and "s 30(1) The Governor may by proclamation: (a) constitute as a conservation park any. Crown land that should be protected or preserved for the purpose of preserving or protecting any wildlife or the natural or historic features of that land. Conservation and Land Management Act 1984 (WA), "s 6(3) National parks. (are). reserved. for the purpose of a national park. " and "(4) Nature reserves. (are) reserved. for the conservation of flora and fauna. "
26. Great Barrier Reef Marine Park Act 1975 (Cth) and Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth).
27. Aboriginal Land Grant (Wreck Bay) Act 1995 (Cth).
28. National Parks Act 1975 (Vic).
29. National Parks and Wildlife Conservation Act 1975 (Cth), s 7.
30. Land (Planning and Environment) Act 1991 (ACT), s 7.
31. National Parks and Wildlife Act 1974 (NSW), ss 33 and 34.
32. Nature Conservation Act 1992 (Qld), s 17.
33. Territory Parks and Wildlife Conservation Act 1976 (NT), s 12.
34. National Parks and Wildlife Act 1972 (SA), s 22.
35. National Parks and Wildlife Act 1970 (Tas), ss 13, Hand 15.
36. Conservation and Land Management Act 1984 (WA), ss 16, 16a and 16b.
37. Conservation and Land Management Act 1984 (WA), s 16.
38. National Parks and Wildlife Conservation Act 1975 (Cth), s 7(1).
39. Aboriginal Land Act 1991 (Qld), s 2.18.
40. National Parks (Aboriginal Ownership) Act 1996 (NSW).
41. National Parks and Wildlife Act 1972 (SA), s 35(3) was used as the basis for a grant of a 99-year lease to the traditional owners of land covered by Witjira National Park.
42. National Parks and Wildlife Act 1972 (SA), s 37.
43. National Parks and Wildlife Conservation Act 1975 (Cth), s 8a.
44. National Parks and Wildlife Act 1972 (SA), s 39.
45. National Parks and Wildlife Act 1972 (SA), s 40(1).
46. National Parks and Wildlife Conservation Act 1975 (Cth), s 14(1).
47. Rv Isaac (1975) 13 NSR (2d) 460.
48. D Sweeney, "Fishing Hunting and Gathering Rights of Aboriginal Peoples in Australia" (1993) 16 University of New South Wales Law Journal 97. The right attaching to native title has also been characterised as a profit a prendre in the context of finding equivalence between native title and common law property rights: G D Meyers, "Aboriginal Rights to the 'Profits of the Land': The Inclusion of Traditional Fishing and Hunting Rights in the content of Native Title, " paper presented to the Native Title Legislation Conference (University of Western Australia, Perth, 1994), p 24.
49. Walden v Hensler (1987) 163 CLR 561.
50. Mason v Tritton (1991) 34 NSWLR 572.
51. If the rights preserved in relation to Aboriginal people are property rights which will be adversely affected then they may be read down by the courts: Protean (Holdings) Ltd v EPA (Vic) [1977] VR 51. This view has yet to be fully explored in relation to native title rights.
52. (1982) 56 FLR 382.
53. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
54. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
55. National Parks and Wildlife Conservation Act 1975 (Cth), s 7(2)(b).
56. National Parks and Wildlife Regulations (Cth), reg 3(1)(c).
57. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
58. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
59. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
60. For example, National Parks and Wildlife Act 1972 (SA), s 68d(3) and (4).
61. Wildlife Conservation Act 1950 (WA), s 23.
62. Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513 at 551.
63. Sikyea v The Queen (1965) 50 DLR (2d) 80.
64. N Tindale, Aboriginal Tribes of Australia (University of California, Berkeley, 1974); N, Sharp, Stars ofTogai: the Torres Strait Islanders (Aboriginal Studies Press, Canberra, 1992); F R Myers, Pintupi Country Pintupi (Smithsonian Institute Press, Washington, 1986).
65. For example, see A P Elkin, The Australian Aborigines (4th ed, Angus and Robertson, Sydney, 1964); W E H Stanner, "Aboriginal Territorial Organization: Estate, Range, Domain And Regime" (1965) 36 Oceania 1; W E H Stanner, White Man Got No Dreaming Essays 1938-1973 (Australian National University Press, Canberra, 1979); K Maddock, Anthropology, Law and the Definition of Australian Aboriginal Rights to Land (Faculty of Law of the Catholic University, Nijmegen, 1980); M J Meggitt, Desert People (Angus and Robertson, Sydney, 1986).
66. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
67. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
68. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
69. N Sharp, No Ordinary Judgment (Aboriginal Studies Press, Canberra, 1996), p 165.
70. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
71. The "western desert cultural bloc" covers those groups occupying a large part of the central and western desert areas of the Australian continent and has been identified in anthropological literature as groups having significant spiritual and land-based relationships in common: R M Bemdt, "The Concept Of'The Tribe' In The Western Desert Of Australia" (1959) XXX Oceania 81.
72. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
73. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
74. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
75. K McNeil, Common Law Aboriginal Title (Clarendon Press, Oxford, 1989), p 291.
76. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
77. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
78. N M Williams, The Yolngu and Their Land (Institute of Aboriginal Studies Press, Canberra, 1986), p 202.
79. (1970) 17FLR 141 (Milirrpum).
80. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
81. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
82. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
83. (1992) 175 CLR 1 (Mabo). The formulation of "native title" by the court requires continued connection to traditional lands since colonisation. Consequently many Indigenous people forceably removed may not gain any advantage from this decision. The discussion in this article is confined to those groups who can establish some continuing connection.
84. Cooper v Stuart (1889) 14 App Cas 286 at 291.
85. See Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 and a range of works that claim this to have been "the law" until Mabo: G Moens, "Mabo and Political Policy-making" in M A Stephenson and S Ratnapla (eds), Mabo: A Judicial Revolution (Queensland University Press, St Lucia, 1993), pp 48,50; J Forbes, "Operation of the Native Title Act" (ed), Australian Mining and Petroleum Law Association Limited Eighteenth Annual Conference (Perth, 1994), p 1; L J M Cooray, "The High Court in Mabo: Legalist or I egotiste", in M Goot and T Rowse (eds), Make a Better Offer: The Politics of Mabo (Federation Press, Sydney, 1994), p 65; P Durack, R Brunton and T Rutherford, Mabo and After (Institute of Public Affairs, Melbourne, 1992), p 1.
86. Coe v Commonwealth (1979) 53 ALJR 403 at 408 per Gibbs CJ.
87. (1970) 17 FLR 141.
88. For example, the Privy Council in Re Southern Rhodesia [1919] AC 211 at 233 said: "[s]ome tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Two High Court Justices, Gibbs CJ and Aicken J, took a similar view in Coe v Commonwealth (1979) 53 ALJR 403.
89. (1970) 17 FLR 141 at 146.
90. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
91. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
92. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
93. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
94. (1970) 17 FLR 141 at 271.
95. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
96. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
97. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
98. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
99. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
100. A J Brown, Keeping the Land Alive: Aboriginal People and Wilderness Protection in Australia (The Wilderness Society, Sydney, 1992), p 36.
101. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
102. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
103. H Ross, E Young and L Liddle, "Mabo: an inspiration for Australian land management" (1994) 1 AJEM 24-41.
104. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
105. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
106. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
107. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
108. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
109. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
110. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
111. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
112. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
113. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
114. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
115. H Verran, "Imagining Ownership" (1995) 3 Republica 100.
116. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
117. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
118. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
119. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
120. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
121. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
122. B DeWait, "Using indigenous knowledge to improve agriculture and natural resource management" (1994) Human Organization 53 at 123.
123. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
124. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
125. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
126. L Sackett, "Promoting Primitivism: Conservationist Depictions of Aboriginal Australians" (1991) 2 Australian Journal of Anthropology 233.
127. H Ketley, "Cultural Diversity Versus Biodiversity" (1994) 16 Adelaide Law Review 99.
128. N Thomas, Colonialism s Culture. Anthropology, Travel and Government (Melbourne University Press, Melbourne, 1994).
129. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
130. K Price, "The Construction of Wilderness and the Rights of Indigenous Australians, " paper presented at the Defending the Environment Conference, Adelaide, 1996, p 6.
131. This has implications for the particular regimes through which Indigenous people intervene in environmental management discussed below.
132. Cooper v Stuart (1889) 14 AC 286 at 291.
133. Coe v Commonwealth (1979) 53 ALJR 403 at 408.
134. For example, see, N Tindale, "The Pitjandjara" in M Bicchieri (ed), Hunters and Gatherers Today (Holt, Rinehart and Winston, Inc, New York, 1972), pp 217, 227, 237.
135. S Hallam, Fire and Hearth (Australian Institute of Aboriginal Studies, Canberra, 1975), pp 114-126.
136. E Giles, Australia Twice Traversed: The Romance of Exploration (Vol 2, Sampson, Low Marston, Searle and Rivington Ltd, London, 1889) (Facsimile Reprint), p 318.
137. R Gould, "Uses and Effects of Fire among the Western Desert Aborigines of Australia" (1971) 8 Mankind 14; R Kimber, "Black lightning: Aborigines and fire in Central Australia and the Western Desert" (1983) 18 Archaeology in Oceania 18-45.
138. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
139. C Hughes, "One Land: Two Laws-Aboriginal Fire Management" (1995) 12 EPLJ 37.
140. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
141. N Burrows and C Thomson, "Desert Dreaming: The Reintroduction of Rare and Endangered Animals to the Gibson Desert" (1990) 5 Landscape 11; N Burrows and C Thomson, "Reintroduction of Rare and Endangered Animals to the Gibson Desert" (1990) 6 Australian Ranger Bulletin 21.
142. M Bomford and J Caughley, Sustainable Use of Wildlife by Aboriginal and Torres Strait Islanders (Bureau of Resource Sciences, Canberra, 1996).
143. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
144. See generally B Richardson, D Craig and B Boer, "Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and Their Potential Application to Australia-Part 2" (1994) 11 EPU 357 at 370-372.
145. Article 7.1.
146. Article 7.4.
147. Principle 22.
148. Article 8(j).
149. United Nations Agenda 21 Programme of Action for Sustainable Development, Ch 26.
150. S Woenne-Green, R Johnston, R Sultan and A Wallis, Competing Interests (Australian Conservation Foundation, Melbourne, 1994) reviews arrangements in each Australian jurisdiction.
151. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
152. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
153. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
154. This is the term used in the legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and National Parks and Wildlife Conservation Act 1975 (Cth). In this section it is used to describe Indigenous people involved in both Kakadu and Uluru national parks.
155. T Press, D Lea, A Webb and A Graham, Kakadu: Natural and Cultural Heritage and Management (Australian Nature Conservation Agency and North Australia Research Unit, Darwin, 1995), pp 7-9.
156. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
157. Then known as Australian National Parks and Wildlife Service, now part of Environment Australia, as the Australian Nature Conservation Authority (ANCA).
158. Clauses 2 and 7.
159. The first review has already occurred. The quantum and arrangements for payment of rental have been altered and increased. Some effort to ensure continued Commonwealth involvement in the park has been made.
160. The National Parks and Wildlife Conservation Act 1975 (Cth), s 14c(5).
161. National Parks and Wildlife Conservation Act 1975 (Cth), s 14a.
162. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
163. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
164. The National Parks and Wildlife Conservation Act 1975 (Cth), s 11(2).
165. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
166. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
167. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
168. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
169. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
170. Section 5.20(4).
171. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
172. Sections 39-41.
173. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
174. B Miller, "Green Fingers Across Black Land" (1992) 2 Aboriginal Law Bulletin 3.
175. Witjira National Park Plan of Management (Department of Environment and Natural Resources, Adelaide, 1995), p 12.
176. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
177. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
178. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
179. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
180. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
181. As a result of the Native Title Act 1993 (Cth), this arrangement could be renegotiated in the future under the regional agreements provisions. Such a renegotiation could provide a more enduring and enforceable framework for management.
182. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
183. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
184. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
185. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
186. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
187. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
188. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
189. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
190. G Simpson, "Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence" (1993) 19 MULR 195 and D Ritter, "The 'Rejection OfTerra Nullius' In Mabo" (1996) 18 Sydney Law Review 5 both discuss the ambiguous way in which the court dealt with the settlement/sovereignty issue. Simpson argues that in rejecting terra nullius, the court created a new and previously unknown category of colony for acquisition of sovereignty, namely, an occupied settled colony. On the other hand Ritter argues that it was not necessary for the court to reject the notion in order for it to reach its decision and in fact it did not. See also R Bartlett, "Mabo: Another Triumph for the Common Law" (1991) 15 Sydney Law Review 178 at 184.
191. Mabo (1992) 175 CLR 1 at 40 per Brennan J.
192. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
193. N Rogers, "The Emerging Concept of 'Radical Title' in Australia: Implications for Environmental Management" (1992) 12 EPLJ 183 at 184. Rogers characterises radical title as akin to res communes and argues that this has implications for public involvement in environmental management. As the argument relates to land in which there is no native title it is not considered further here.
194. Mabo (1992) 175 CLR 1 at 48-49 per Brennan J; at 86-87 per Deane and Gaudron JJ; and at 180 per Toohey J.
195. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
196. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
197. The Federal Court has made some decisions that clarify some issues. The High Court has handed down its decision in Wik v Queensland (1996) 141 ALR 129 in which the issue of pastoral leases and extinguishment are canvassed but issues relating to the content and parameters of native title are not advanced.
198. Mabo (1992) 175 CLR 1 at 89 per Deane and Gaudron JJ.
199. Mabo (1992) 175 CLR 1 at 58 per Brennan J; at 110 per Deane and Gaudron JJ; at 192 per Toohey J.
200. Mabo (1992) 175 CLR 1 at 58 per Brennan J; at 110 per Deane and Gaudron JJ; at 192 per Toohey J.
201. Mason v Tritton (1992) 34 NSWLR 572.
202. R v Sparrow (1990) 70 DLR (4th) 385.
203. Mabo (1992) 175 CLR 1 at 58 per Brennan J; at 110 per Deane and Gaudron JJ; at 192 per Toohey J. Whether this means continuing physical presence is unclear. This is a central issue in the Yorta Yorta case.
204. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
205. Western Australia v Commonwealth (1995) 69 ALJR 309. K McNeil, "Racial Discrimination and the Unilateral Extinguishment of Native Title" (1996) 1 Australian Indigenous Law Reporter 181 argues that such a view is contrary to common law principles and is wrong or at least such extinguishment should be either with consent or attract compensation at common law.
206. Mabo (1992) 175 CLR 1 at 63 per Brennan J; at 110 per Deane and Gaudron JJ; at 196 per Toohey J. In Wik Peoples v Queensland (1996) 141 ALR 129, a majority of the High Court found that pastoral leases did not grant exclusive possession and therefore did not extinguish native title'. The parameters of the extinguishment doctrine have been blurred by the decision because of the generally expressed view of the majority, in a postscript to Toohey J's judgment, that where there is any inconsistency between rights under a pastoral lease and native title, the pastoral rights will prevail. However such inconsistency will not necessarily result in extinguishment.
207. M Mansell, "The Court gives an inch but takes another mile" (1989) 2 Aboriginal Law Bulletin 4.
208. Mabo (1992) 175 CLR 1 at 70 per Brennan J; M Tehan, Has Native Title Survived in Nature Conservation Reserves in Australia? (LLM Thesis, University of Melbourne, 1995), p 105. The first judicial consideration of the issue may come in the Miriuwunş Gajerrong case in which there is a native title claim over the Keep River National Park. Hearings in the Federal Court commenced on 17 February 1997.
209. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
210. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
211. Mabo (1992) 175 CLR 1 at 217.
212. R v Sparrow (1990) 70 DLR (4th) 385.
213. Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680.
214. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
215. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
216. R v Isaac (1975) 13 NSR (2d) 460. The right attaching to native title has also been characterised as a profit a prendre in the context of finding equivalence between native title and common law property rights: G D Meyers, "Aboriginal Rights to the 'Profits of the Land': The Inclusion of Traditional Fishing and Hunting Rights in the content of Native Title, " paper presented to the Native Title Legislation Conference (University of Western Australia, Perth, 1994), p 24.
217. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
218. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
219. Walden v Hensler (1987) 163 CLR 561.
220. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
221. (1987) 163 CLR 561 at 565.
222. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
223. Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513.
224. R v Sparrow (1990) 70 DLR (4th) 385.
225. Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680.
226. Rv Sparrow (1990) 70 DLR (4th) 385 at 401.
227. (1994) 34 NSWLR 572.
228. R v Sparrow (1990) 70 DLR(4th)385.
229. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
230. Mason v Tritton (1994) 34 NSWLR 572 at 593.
231. This is the result of both the validation of past acts and the code for extinguishment of native title post 1 January 1994: Native Title Act 1993 (Cth), ss 14 and 15 and ss 10 and 11.
232. Native Title Act 1993 (Cth), ss 21-25.
233. Native Title Act 1993 (Cth), s 14 validates Commonwealth Acts. The States and Territories have passed conforming legislation that validates State and Territory Acts.
234. Native Title Act 1993 (Cth), s 15.
235. Native Title Act 1993 (Cth), s 15(l)(d) and s 238.
236. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
237. Regional Agreements in A ustralia: Proceedings from Cairns Workshop July 1994 (Cape York Land Council, Cairns, 1994); M Sibasado, "Native title and Regional Agreements: Kimberley Region" in R Bartlett and G Meyers (eds), Native title legislation in Australia (University of Western Australia, Perth, 1994), p 279.
238. P Toyne and D Vachon, Growing Up The Country (Penguin, Melbourne, 1984).
239. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
240. T Rowse, "How We Got A Native Title Act" (1993) 65 Australian Quarterly 111; M Dodson, Address to the Public Interest Law Clearing House, Melbourne, 21 November 1996.
241. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
242. Mabo v Queensland (1992) 175 CLR 1.
243. G Ewing, "Terra Australis Post Mabo" (1993) 65 Australian Quarterly 157.
244. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
245. National Parks and Wildlife Act 1972 (SA), s 35.
246. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
247. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
248. Justice R French, "Pathways to Agreement, " paper presented to Indigenous Land Use Agreements Conference, Darwin, 1995.
249. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
250. For example the Mount Todd agreement between the Jawoyn Association, the Northern Territory government and Zapopan NL in relation to a mining project; the Broome Tropical Aquaculture Park Management Agreement between the Western Australian Minister for Fisheries and the Rubibi Aboriginal Land, Heritage and Development Company Pty Ltd in relation to an aquaculture area near Broome; the Anaconda agreement between Anaconda Nickel and the Waljen in relation to the development of a nickel project in the goldfields region of Western Australia; the Hopevale agreement between a number of Indigenous groups in the Hopevale area setting out the basis upon which they will jointly advance their native title interests.
251. (1996) 1 Indigenous Law Reporter 446 and 464 respectively.
252. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
253. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
254. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
255. Rick Farley, who is now a member of the tribunal was involved in facilitating the negotiations.
256. Wik Peoples v Queensland (1996) 141 ALR 129.
257. (1996) 1 Indigenous Law Reporter 464 at 465.
258. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
259. S Jackson, When History Meets the New Native Title Era at the Negotiating Table (North Australia Research Unit, Darwin, 1996), pp 36-44; P Sullivan, "Problems of mediation in the Native Title Tribunal" in J Fingleton and J Finlayson (eds). Anthropology in the Native Title Era (Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1995), p 97.
260. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
261. "WA on verge of land deal with Aborigines" Sunday Age, Melbourne, 17 November 1996, p 2.
262. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
263. The Court government's initial response to the decision was to attempt to extinguish all native title: Land (Titles and Traditional Usage) Act 1993 (WA). This attempt was struck down by the High Court in Western Australia v Gommonwealth (1995) 69 ALJR 309.
264. The Yorta Yorta claim is being opposed by both the New South Wales and Victorian governments as well as over 400 other parties: Members of the Yorta Yorta Aboriginal Community v Victoria, No VG 6001, 1995. Similarly the Western Australian government has been found not to have negotiated in good faith in relation to future act proceedings under s 31 (1)(b) of the Native Title Act 1993 (Cth): Walley v Western Australia (1996) 137 ALR 561.
265. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
266. (1995) 69 ALJR 309.
267. Sections 21(4) and 72.
268. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.