Thought people might like a "quick and dirty" analysis of the Miriuwung Gajerrong appeal decision. The media accounts have been somewhat misleading and the comments of Court et al have been designed to simply achieve some political mileage out of it all. The decision is very much a mixed bag, with recognition of some title where the WA and NT governments had argued none existed, but with the loss of some substantial areas from the original claim. There are also important implications for claims in other parts of Australia. The decision can be essentially divided into two elements - discussion of native Title / continuity on the one hand and discussion of extinguishment on the other. All three judges (Beaumont, Von Doussa and North) support Lee's treatment of the requirements for the establishment of Native Title. This has very positive implications for other Native Title applications. Lee had accepted the need to treat requirements for the proof of descent broadly, had recognised the possibility of groups amalgamating in post-occupation times etc. The judges also re-iterated comments concerning the relevance of evidence which dealt with impediments to the maintenance of connection, originally made by Merkell in the Croker decision. Their collective view on each of these matters is very different, for example, to the approach taken by Olney in Yorta Yorta. However the Judges were split on the "extinguishment" issue. Beaumont and Von Doussa accepted a "bundle of rights" model of native title, and argued that "partial extinguishment" was possible. They subsequently found that complete extinguishment had , in fact occurred over very substantial areas in WA, including "enclosed" pastoral leases, Lake Argyle and mining leases. In other leasehold areas (such as NT pastoral leases) they found that partial extinguishment had occurred so that indigenous people no longer had exclusive possession, although they had rights of access, rights to occupy, rights to hunt etc etc. I understand that the result of this in to to is that the claim area in WA has been very substantially reduced and that the relevant indigenous communities already possessed extensive control over the areas which they have "won". North on the other hand argued that the "bundle of rights" model was wrong and that the Miriuwung Gajerrong continued to possess exclusive rights to the areas rejected by the other two judges. Essentially then, we now have two Federal Court judges with one view on extinguishment and two with a contrary view. There seems little doubt that the extinguishment question will ultimately be decided in the High Court. On the Native Title / connection issues however , we now have a unanimous , and favourable, decision from four Federal Court justices. This may not be of much solace to the Miriuwung Gajerrong, but it is of substantial importance to other NT claimants throughout the nation. If you want to read the full decision (it runs to about 300 pages) you can find it at http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/191.html Cheers Rod -- Rod Hagen [EMAIL PROTECTED] Hurstbridge, Victoria, Australia WWW http://www.netspace.net.au/~rodhagen ------------------------------------------------------- RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/ To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body of the message, include the words: unsubscribe announce or click here mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." RecOzNet2 is archived for members @ http://www.mail-archive.com/recoznet2%40paradigm4.com.au/
