By Lisa Strelein
The results of the evolution of local identify on Australian jurisprudence are conscientiously tested during this up-to-date chronicle that covers every thing from the unique selection Mabo v Queensland [No.2] to the numerous excessive lawsuits in 2002 and the hot Bennell determination in 2008. This remarkably obtainable exploration presents severe research of 10 major circumstances, a time line that maps the trajectory of key doctrines, and id of the underlying subject matters and contradictions within the legislation. Containing an up-to-date, annotated case record and a revised creation and end that touch upon contemporary advancements, this re-creation of a special critique can be infinitely worthy to students, scholars, criminal practitioners, the judiciary, and coverage makers, between others.
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Extra info for Compromised Jurisprudence: Native Title Cases Since Mabo, 2nd Edition
As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee’s rights to possession must yield to those reservations. 70 While Justice Brennan excluded Indigenous people from his inquiry into the construction of the statute, Justice Toohey found a place for native title within this exercise. 71 This interpretation imports the notion of a ‘necessary’ inconsistency and the strong beneficial construction employed by the majority. 74 Perhaps this is where Justice Brennan faltered, because it was not necessary to impute to the legislators some deliberate contemplation of native title but it was necessary to properly treat native title as the interest that arose first in time, an interest that enjoys the recognition and protection of the common law.
The land was later acquired by the Commonwealth in 1927 for public purposes, specifically, as a quarantine station and later a leprosarium. Both public purpose proclamations were revoked in 1980. The land thus became vacant Crown land once again. In the Federal Court, the Larrakia people sought a declaration of native title in relation to the subject lands. They argued that the Northern Territory Government was required by the Native Title Act 1993 (Cth) (NTA) to either negotiate with the Larrakia or to compulsorily acquire their native title.
The first issue was whether a grant of freehold extinguished native title so that no form of native title could coexist with freehold title. The second question was whether extinguishment was permanent and absolute or whether there was potential for native title under the common law to ‘revive’ when the land returned to the Crown. The case also dealt with the issue of injunctive relief available outside the operation of the NTA. These issues were important for Indigenous peoples in all parts of Australia, but particularly for those in more settled regions.