Talk:Native title

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[edit] Expanding Article's Coverage: New Sections??

Myself and friend/s are considering adding new sections which might have headings, something like:

i. "Nature and Content of Native Title"
ii. "Evidence for (Evidencing) Native Title"

The purpose of these new sections would be to enable readers to more fully understand/apprehend what 'native title' actually looks like should someone be walking around somewhere in Australia ..

.. and/or to provide Aboriginal Australian, plus native title researchers with more 'operational'/ concrete understanding of exactly what kinds of Aboriginal activities, beliefs, events etc are evidence of a 'native title' and/or make 'native title rights and interests' most evident to the world.

There is a considerable body of material available in relation to the above produced primarily by native title practioners involved in native title determination cases before the Federal Court of Australia .. and there are a number of useful decisions made by both Courts and the National Native Title Tribunal which could/would be relied upon to prepare and verify anticipated contents of the above proposed new sections.

I/we hope there will be no objection to the above .. and I am open to any comment, suggestions/advice etc before proceeding. Bruceanthro 04:17, 15 October 2007 (UTC)

In the absence of any apparent objection, I thought I might start on proposed new section, to be inserted under 'Clash of Cultures', perhaps entitled 'Evidence for Native Title':

i. first, quoting and describing the 'factual basis' specified and required of any/all native title applicants when filling in a native title determination application form (Form 1)?;

ii. second, immediately following the quote and description proposed in i, I propose to clearly identify the key 'factual' dimensions of 'native title' required to exist and be evident should native title applicants wish to succeed: these dimensions being 'area', 'group', 'law/lore', 'rights', and 'history'??

iii. next I propose to survey (briefly) existing native title determinations .. going backwards from most recent and most authoritative native title determinations (excluding 'consent determinations') to reveal the most favoured conjunction/s of variables (ii. above) resulting in successful native title determinations .. plus conjunctions or 'thresholds' resulting in failed native title determinations???

iv finally, for those most favoured conjunction/s identified above (iii) I propose a very basic (crude?) statistical description of the kinds of native title rights and interests generally obtained .. (perhaps arranged by kind of tenure????)

For those of my collegeaus and friends who will have an interest in this entry, I hope the above proposal meets with your approval and, perhaps, you may be agreeable to assisting me with the above????? Bruceanthro 02:24, 21 October 2007 (UTC)

[edit] Merge Suggestion

I am suggesting that aboriginal title be merged into this article unless there are any objections, by adding a section about international equivelants or something similar. Kevin Smith 04:10, 15 February 2007 (UTC)

Kevin, this proposal sounds rational, but isn't. The difference between aboriginal title and native title is vast- nt is a 'bundle of rights', which can be as basic as just the right to fish on some land, all the way through to full communal ownership that includes controlling who enters it. Aboriginal title in countries such as Canada and NZ is very different, and usually ackowledges the original sovereignty of the indigenosu people, and often is based on a treaty between them and the colonising power. No such treaty existed in Australia. Why don't you leave the two separate and clean up the citations for aboriginal title? Great sthn 19 Feb.

Sounds like a plan. I'm going to remove the merge suggestion. Kevin Smith 02:45, 24 February 2007 (UTC)

[edit] Question.

Is the Native Title Act 1993 de facto granting of sovereign reinstatement of executive for the aboriginal people on the claimed land? Is sovereign status therefore granted because of the Mabo acknowledgement that terra nullius was negated and misproved and thus the former title of ownership is replaced? Jachin 15:28, 8 October 2006 (UTC)

I'm reading your question as "does the Act amount to a reinstatement of sovereignty in Indigenous peoples by the executive?" The answer is no. The High Court in Mabo explicitly said that "municipal courts" (ie. courts only dealing with the law within Australia, ie. all current Australian courts) can't answer the question of sovereignty, it is entirely beyond their jurisdiction. It's a common misconception that the courts rejected terra nullius; they merely said that whether terra nullius applies or not is irrelevant when considering whether the common law recognises native title. I thought I had already changed the bit about terra nullius in this article, but it seems I had not. I've removed it now.

How's that? Dawson J says "The idea that land which is in regular occupation may be terra nullius is unacceptable, in law as well as in fact". It's the applicability of terra nullius to the Meriam islands is erroneous. In fact most of the judgements seem to be saying that regardless of Cooper v Stuart, the introduction of english law through settlement doesn't automatically extinguish native title rights, because terra nullius is wrong in fact. Its only by rejecting the idea that Australia was terra nullius that native title can be asserted. --Cliau 14:00, 5 July 2007 (UTC)

This page, and the ones on most of the native title cases, are in a terrible state and it's really about time that I rewrote them all. --bainer (talk) 01:32, 9 October 2006 (UTC)

This article confuses 'land rights' (usually made by State Govts) and native title (a federal bundle of rights given to people who can prove a connection to country going back to 1788). More work is needed to ensure the great difference between these two types of rights is made (GSthn).