Dissertations / Theses on the topic 'Native title'
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1
Brazenor, Clare. "The spatial dimensions of Native Title." Connect to thesis, 2000. http://eprints.unimelb.edu.au/archive/00001050.
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Dorsett, Shaunnagh Law Faculty of Law UNSW. "Thinking jurisdictionally: a genealogy of native title." Awarded by:University of New South Wales. School of Law, 2005. http://handle.unsw.edu.au/1959.4/23963.
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In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ???native title??? had survived the acquisition of sovereignty over the Australian continent and is ???recognised??? by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ???recognition???. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ???law of the land???. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ???custom???. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.
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Anker, Kirsten. "The unofficial law of native title indigenous rights, state recognition and legal pluralism in Australia /." Connect to full text, 2007. http://hdl.handle.net/2123/2294.
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Thesis (Ph. D.)--University of Sydney, 2007.Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Law, University of Sydney. Degree awarded 2007. Includes bibliographical references. Also available in print form.
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com, stephen robson@bigpond, and Stephen Robson. "Rethinking Mabo as a clash of constitutional languages." Murdoch University, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070207.131859.
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The 1992 decision of the High Court of Australia to uphold the claim of the Meriam people was welcomed as beginning a new era where the unique status of Aboriginal and Torres Strait Islander peoples would gain recognition. Intense debate and activity ensued with federal parliament adopting a legislative framework to recognise native title and the Council for Aboriginal Reconciliation considering its broader constitutional implications. Fourteen years on though much of the promise of Mabo lies unfulfilled.
This thesis draws upon the work of Canadian philosopher James Tully. He writes of contemporary constitutionalism in Western society and its inability to give more than superficial recognition to cultural difference. He locates the problem as lying with the dominant language of modern constitutionalism. This language provides for two main forms of recognition: the equality of self-governing nation states and the equality of individual citizens. Tully locates a way forward through the presence of another constitutional language. Common constitutionalism has enabled an accommodation of cultural differences guided by its three conventions of mutual recognition, continuity, and consent. Moreover, it is beneficial to analysing other studies about the ability of common law to recognise the claims of Indigenous people.
Tullys contribution is applied to an examination of the Mabo events in a way that takes account of Australias constitutional traditions. The aim is to clarify the languages employed by the representatives of Australias institutions of governance and whether this places obstacles in the way of recognising Aboriginal and Torres Strait Islander peoples. The inquiry considers the events prior to the High Courts decision, the Keating governments response, and the Howard Governments native title changes. Other chapters examine the constitutional language used by Aboriginal and Torres Strait Islander peoples and the significance of the Council of Aboriginal Reconciliation.
The central argument of this study is that once it is accepted that the claims of Indigenous people in Australia are constitutional, it becomes possible to appreciate that these were largely voiced through the language of human rights and common constitutionalism. In contrast, when the claims were considered by the High Court and federal parliament significant aspects were articulated through the modern constitutional language. Another thread running through the events was a desire to confront and overcome the influence of the language of White Australia. The thesis concludes by considering the significance of the findings for a settlement between Aboriginal and Torres Strait Islander peoples and other Australians.
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Dominello, Francesca Giorgia Law Faculty of Law UNSW. "Lessons in history in the high court's approach to native title in Australia." Awarded by:University of New South Wales, 2007. http://handle.unsw.edu.au/1959.4/35385.
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The High Court decision in Mabo v Queensland (No 2) was interpreted by some as bringing to an end a history of discrimination and dispossession of indigenous peoples' lands. In this respect it was located within the new history movement in Australia - a movement which has raised awareness of the impact that colonisation has had on indigenous peoples in Australia. ln this thesis the extent to which Mabo was in fact a product of the new history movement in Australia is examined. An analysis of the results in the more recent High Court cases on native title such as Western Australia v Ward and Members of the Members of the Yorta Yorta Aboriginal Community v Victoria reveals that the promises that came with native title recognition in Mabo have not been fulfilled. ln Ward the native title claim was partially accepted; in Yorta Yorta lhe claim was completely rejected. But as the analysis further reveals the shortcomings of the native title regime as demonstrated by these cases can be partly located in the Mabo decision itself. One of the contributions that some new historians have made to the writing of Australian history has been to reveal how the perceived differences between indigenous peoples and the colonists resulted in the perception of indigenous peoples as inferior beings. In turn, such perceptions worked to legitimise their dispossession in the native title context, indigenous peoples are no longer to be perceived as inferior (the rejection of the terra nullius doctrine in Mabo was an acknowledgement that indigenous peoples did have their own laws and social organisation) However the perception that they are different remains in the way that laws for them are constructed: native title may be recognised by the common law, but it is not part of the common law. As it is argued in this thesis the perceived differences in the origins of native title and the Australian common law has resulted in the inferior r treatment of native title. Potential solutions are canvassed in the thesis. Included among them is the need to give recognition to Aboriginal sovereignty However, it is concluded that if any change is to take place it must involve changing perceptions of indigenous peoples so that the protection of their interests may be more broadly construed as being in the interests of Australia.
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Phillips, Jacqueline 1980. "Native title law as 'recognition space'? : an analysis of indigenous claimant engagement with law's demands." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101825.
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This thesis engages in a critique of the concept of Australian native title law as a 'recognition space'. It doing so, it treats native title law as a form of identity politics, the courts a forum in which claims for the recognition of identity are made. An overview of multicultural theories of recognition exposes what is signified by the use of recognition discourse and situates this rhetoric in political and theoretical context. A critique of native title recognition discourse is then developed by reference to the insights of sociolegal scholarship, critical theory, critical anthropology and legal pluralism. These critiques suggest that legal recognition is affective and effective. This thesis highlights native title law's false assumptions as to cultural coherence and subject stasis by exploring law's demands and indigenous claimant engagement with these demands. In this analysis, law's constitutive effect is emphasized. However, a radical constructivist approach is eschewed, subject engagement explored and agency located in the limits of law's constitutive power. The effects of legal recognition discourse, its productive and enabling aspects, are considered best understood by reference to Butler's notion of provisional 'performativity'. Ultimately, claimant 'victories' of resistance and subversion are considered not insignificant, but are defined as temporary and symbolic by virtue of the structural context in which they occur.
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au, j. morrison@murdoch edu, and Judith Ellen Morrison. "Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia." Murdoch University, 2007. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20080904.141252.
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This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
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Morrison, Judith Ellen. "Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia." Thesis, Morrison, Judith Ellen (2007) Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia. PhD thesis, Murdoch University, 2007. https://researchrepository.murdoch.edu.au/id/eprint/210/.
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This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
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Morrison, Judith Ellen. "Independent scholarly reporting about conflict interventions : negotiating Aboriginal Native Title in South Australia /." Morrison, Judith Ellen (2007) Independent scholarly reporting about conflict interventions: negotiating aboriginal native title in south Australia. PhD thesis, Murdoch University, 2007. http://researchrepository.murdoch.edu.au/210/.
Full textAbstract:
This thesis uses an action research methodology to develop a framework for improving independent scholarly reporting about interventions addressing social or environmental conflict. As there are often contradictory interpretations about the causes and strategic responses to conflict, the problem confronting scholar-reporters is how to address perceptions of bias and reflexively specify the purpose of reporting. It is proposed that scholar-reporters require grounding in conventional realist-based social theory but equally ability to incorporate theoretical ideas generated in more idealist-based peace research and applied conflict resolution studies. To do this scholar-reporters can take a comparative approach systematically developed through an integrated framework as described in this thesis.
Conceptual and theoretical considerations that support both conventional and more radical constructions are comparatively analysed and then tested in relation to a case study. In 2000 Aboriginal people throughout South Australia deliberated whether their native title claims could be better accorded recognition through conservative court processes or a negotiation process to allay deep-seated conflict. The author, in a scholar-reporter capacity, formulated a report attributing meaning to this consultative process.
As such a report could have been formulated according to alternative paradigms, methodological approaches and theoretical frameworks, the analysis of the adopted framework highlights how different approaches can bias the interpretation of the process and prospects for change. Realist-based conservative interpretations emphasise 'official' decision-making processes where legitimacy is expressed through political and legal frameworks based on precedent. Idealist-based interpretations emphasise that circumstances entailing significant conflict warrant equal consideration being given to 'non-official' 'resolutionary' problem-solving processes where conflict is treated as a catalyst for learning and outcomes are articulated as understanding generated about conflict and how different strategies can transform it.
The developed integrated framework approach establishes the independence of scholarly reporting. Its purpose goes beyond perpetuating scholarly debate about alternative 'objective' understandings of conflict; it focuses primarily on communicating a more inclusive understanding of the contradictions inherent in a particular conflict. It increases the capacity to understand when, where, why and how conflict precipitates social change, and articulates possibilities for reconceptualising what might be the more sustainable direction of change.
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Lochead, Karen Elizabeth. "Reconciling dispossession?: The legal and political accommodation of Native title in Canada and Australia /." Burnaby B.C. : Simon Fraser University, 2005. http://ir.lib.sfu.ca/handle/1892/2039.
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Cleary, Paul. "Iron ore dreaming : a study of native title negotiations in the Pilbara, Western Australia." Phd thesis, Canberra, ACT : The Australian National University, 2014. http://hdl.handle.net/1885/150452.
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Robson, Stephen William. "Rethinking Mabo as a clash of constitutional languages /." Access via Murdoch University Digital Theses Project, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070207.131859.
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Herne, Stephen Charles. "A jurisprudence of difference : the denial of full respect in the Australian law of native title." University of Western Australia. Law School, 2009. http://theses.library.uwa.edu.au/adt-WU2008.0262.
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Fardin, Giovanni S. "Mining performance bonds : Strengthening enforceability through free, prior and informed consent in Australia's native title system." Thesis, University of Dundee, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.505596.
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Singleton, Scott E. "Drawing inferences in the proof of native title: Historiographic and cultural challenges and recommendations for judicial guidance." Thesis, Queensland University of Technology, 2018. https://eprints.qut.edu.au/119688/1/Scott_Singleton_Thesis.pdf.
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This thesis develops "Inference Guidelines" for the proof of connection requirements in native title determinations, in the form of a "Bench Book." This is in accordance with recommendations in the Australian Law Reform Commission's 30 April 2015 report "Connection to Country: Review of the Native Title Act 1993 (Cth)." This thesis finds that the existing case law provides a strong foundation for clear and consistent principles for inferential reasoning in native title cases, which can be supplemented by considerations drawn from historiographic and epistemological debates, cultural and linguistic challenges, and inferential theory, to form comprehensive, consistent and transparent Inference Guidelines.
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Godden, Lee, and n/a. "Nature as Other: The Legal Ordering of the Natural World: Natural Heritage Law and Its Intersection With Property Law and Native Title." Griffith University. Griffith Law School, 2000. http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20050831.095124.
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This thesis argues that the legal ordering of the natural environment represents a culturally contingent 'order of things'. Within this process of categorisation, Nature is constructed as an 'other' to the human subject. This opposition allows nature to be conceived as either an object of control, as found in property law, or as a wilderness to be preserved apart from human society. This latter view is implicit to the principles informing early environmental laws for the protection of natural heritage in international law and within Australia. More recently, this distinctively western legal ordering has been challenged to be more culturally inclusive and to include concepts that incorporate human interaction with the natural environment. In making this argument, the thesis adopts a theoretical framework derived from Foucault's 'Order of Things'. Modem western understanding of the natural environment is directly informed by western science. Scientific discourses, with origins in the Enlightenment, have been extremely influential in determining the legal ordering of the natural environment. In this context, the thesis provides an overview of the conceptual shift from a pre-scientific, organic conception of the relationship between people and nature to a people/nature dichotomy that persists as the nature/culture meta-narrative in modern society. The rise of a more holistic conception of the natural environment, based in ecological principles, has only partially displaced the latter view. The thesis also examines the manner in which property law constitutes the 'proper' order of the natural world within western culture. The bundle of rights concept, implicit to modern conceptions of property, finds resonances in western scientific understanding of the natural world. In particular, property law replicates the subject /object distinction that is central to modern western thought. The positing of nature as an object of control through the property relationship has been a resilient ordering of the natural environment. It has directly contributed to an instrumental perception of the natural environment. Indeed, the property concept was the central way of 'constructing' the Australian natural environment at law from colonisation to well into the twentieth century. The initial legal designation of Australia as 'terra nullius' allowed received English property law to form the template for ordering the occupation of the Australian natural environment by British civilisation. In the second half of the 20th century the wilderness ideal, in concert with ecological 'balance' concepts, gained currency in international and domestic law as the foundation for the protection of natural heritage. Natural heritage protection was a high profile aspect of early environmental laws in Australia. Thus the World Heritage Convention assumed an importance for natural heritage protection within Australia due to specific historical, political and constitutional factors. The adoption of 'holistic' definitions of environment in many pieces of Australian legislation has served to partially displace the instrumental, proprietary view of nature. However, the legal recognition of natural heritage, when based around wilderness ideals, remains predicated upon the western people/nature dichotomy. More recently, reforms to early environmental laws have been instituted and case law reveals a state of flux in how natural heritage areas are to be identified and valued. The traditional western legal constructions of nature have served to occlude Aboriginal and Tones Strait Islander peoples' relationships with 'country'. Such legal frameworks continue to be problematic if a more culturally inclusive and holistic conception of heritage, such as cultural landscapes, is to be adopted. Further, while the recognition of native title has led to a re-examination of many fundamental legal principles, reexamination of our western legal constructs remains incomplete. One of the crucial areas yet to be fully worked through is how to accommodate western dualistic notions of the relationship between people and the natural environment with the legal requirements to establish native title. The need for accommodation has direct practical ramifications in that many world heritage, national estate and other 'wilderness' areas are, or may be, subject to native title claims. Therefore, the thesis considers the need to re-assess western, scientifically derived conceptions of natural heritage as the prevailing principles for environmental preservation. Finally the thesis discusses the contingency of any legal ordering of the natural world. Western representations of nature have exerted tremendous influence upon the legal regimes that have regulated and ordered nature across the Australian continent. These classifications are embedded within a particular cultural narrative. Parts of the Australian natural environment that are designated as property, as natural heritage, as native title, or as cultural heritage do not achieve this legal characterisation due to any inherent value or features of the natural environment itself. These areas are not necessarily property or heritage or native title until incorporated within, or recognised by, western legal frameworks. As such, any decision to ascribe a given legal status to the natural environment as part of the legal ordering needs to be seen as involving issues of choice that have direct distributive justice implications.
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Godden, Lee. "Nature as Other: The Legal Ordering of the Natural World: Natural Heritage Law and Its Intersection With Property Law and Native Title." Thesis, Griffith University, 2000. http://hdl.handle.net/10072/368114.
Full textAbstract:
This thesis argues that the legal ordering of the natural environment represents a culturally contingent 'order of things'. Within this process of categorisation, Nature is constructed as an 'other' to the human subject. This opposition allows nature to be conceived as either an object of control, as found in property law, or as a wilderness to be preserved apart from human society. This latter view is implicit to the principles informing early environmental laws for the protection of natural heritage in international law and within Australia. More recently, this distinctively western legal ordering has been challenged to be more culturally inclusive and to include concepts that incorporate human interaction with the natural environment. In making this argument, the thesis adopts a theoretical framework derived from Foucault's 'Order of Things'. Modem western understanding of the natural environment is directly informed by western science. Scientific discourses, with origins in the Enlightenment, have been extremely influential in determining the legal ordering of the natural environment. In this context, the thesis provides an overview of the conceptual shift from a pre-scientific, organic conception of the relationship between people and nature to a people/nature dichotomy that persists as the nature/culture meta-narrative in modern society. The rise of a more holistic conception of the natural environment, based in ecological principles, has only partially displaced the latter view. The thesis also examines the manner in which property law constitutes the 'proper' order of the natural world within western culture. The bundle of rights concept, implicit to modern conceptions of property, finds resonances in western scientific understanding of the natural world. In particular, property law replicates the subject /object distinction that is central to modern western thought. The positing of nature as an object of control through the property relationship has been a resilient ordering of the natural environment. It has directly contributed to an instrumental perception of the natural environment. Indeed, the property concept was the central way of 'constructing' the Australian natural environment at law from colonisation to well into the twentieth century. The initial legal designation of Australia as 'terra nullius' allowed received English property law to form the template for ordering the occupation of the Australian natural environment by British civilisation. In the second half of the 20th century the wilderness ideal, in concert with ecological 'balance' concepts, gained currency in international and domestic law as the foundation for the protection of natural heritage. Natural heritage protection was a high profile aspect of early environmental laws in Australia. Thus the World Heritage Convention assumed an importance for natural heritage protection within Australia due to specific historical, political and constitutional factors. The adoption of 'holistic' definitions of environment in many pieces of Australian legislation has served to partially displace the instrumental, proprietary view of nature. However, the legal recognition of natural heritage, when based around wilderness ideals, remains predicated upon the western people/nature dichotomy. More recently, reforms to early environmental laws have been instituted and case law reveals a state of flux in how natural heritage areas are to be identified and valued. The traditional western legal constructions of nature have served to occlude Aboriginal and Tones Strait Islander peoples' relationships with 'country'. Such legal frameworks continue to be problematic if a more culturally inclusive and holistic conception of heritage, such as cultural landscapes, is to be adopted. Further, while the recognition of native title has led to a re-examination of many fundamental legal principles, reexamination of our western legal constructs remains incomplete. One of the crucial areas yet to be fully worked through is how to accommodate western dualistic notions of the relationship between people and the natural environment with the legal requirements to establish native title. The need for accommodation has direct practical ramifications in that many world heritage, national estate and other 'wilderness' areas are, or may be, subject to native title claims. Therefore, the thesis considers the need to re-assess western, scientifically derived conceptions of natural heritage as the prevailing principles for environmental preservation. Finally the thesis discusses the contingency of any legal ordering of the natural world. Western representations of nature have exerted tremendous influence upon the legal regimes that have regulated and ordered nature across the Australian continent. These classifications are embedded within a particular cultural narrative. Parts of the Australian natural environment that are designated as property, as natural heritage, as native title, or as cultural heritage do not achieve this legal characterisation due to any inherent value or features of the natural environment itself. These areas are not necessarily property or heritage or native title until incorporated within, or recognised by, western legal frameworks. As such, any decision to ascribe a given legal status to the natural environment as part of the legal ordering needs to be seen as involving issues of choice that have direct distributive justice implications.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Law
Arts, Education and Law
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HUNTER, Andrew, and a. hunter@ecu edu au. "Philosophical Justification and the Legal Accommodation of Indigenous Ritual Objects; an Australian Study." Edith Cowan University. Community Services, Education And Social Sciences: School Of International, Cultural And Community Studies, 2006. http://adt.ecu.edu.au/adt-public/adt-ECU2006.0029.html.
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Indigenous cultural possessions constitute a diverse global issue. This issue includes some culturally important, intangible tribal objects. This is evident in the Australian copyright cases viewed in this study, which provide examples of disputes over traditional Indigenous visual art. A proposal for the legal recognition of Indigenous cultural possessions in Australia is also reviewed, in terms of a new category of law. When such cultural objects are in an artistic form they constitute the tribe's self-presentation and its mechanism of cultural continuity. Philosophical arguments for the legal recognition of Indigenous intellectual `property' tend to assume that the value of Indigenous intellectual property is determinable on external criteria.
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Aitken, Kristin P., and n/a. "The settlement of indigenous peoples claims to natural resources : the Sealords deal." University of Otago. Department of Geography, 1993. http://adt.otago.ac.nz./public/adt-NZDU20070601.113012.
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The settlement of the claim to fisheries by Maori is a political milestone. The Sealords Deal (the Deal) as it is commonly known, is the first settlement in New Zealand which extinguishes Maori claims to a particular resource. It affects all iwi and proposes the development of a process for the allocation of benefits. As such it needs to be considered in terms of other post-colonial nations� experiences in the resolution of claims to natural resources.
Canada, the United States and Australia provide examples of different attitudes and approaches to the resolution of claims to natural resources by their indigenous populations. A typical history of the resolution of claims to natural resources in post-colonial nations begins with initial European contact, followed by increased numbers of settlers which places pressure on governments and the judiciary to justify the acquisition and exploitation of land and other resources. This leaves the indigenous population landless and welfare dependent.
This pattern is reflected in judicial decision-making. In New Zealand, the courts initially acknowledged that the rights of Maori to their lands and other resources, existed unless specifically taken away. When pressure for acquisition of land occurred the courts responded by holding that Maori rights to resources only existed if specifically granted by a court or the legislature. This reversed the original presumption of existence of a right unless taken away.
It has only been recently that the New Zealand judiciary has reaccepted the common law doctrine of aboriginal title. This brings New Zealand more in line with Canada and the United States, but New Zealand still has some way to go in acknowledging the doctrine of fiduciary obligation of the Crown/government to Maori.
It is also helpful to analyse the changes that have taken place in governments� policies that have enabled the creation of an enviroment in which such a settlement can take place. The Labour governments of 1984 and 1987 began a number of policy initiatives which created a socio-economic climate and responsive enviroment favourable to the settlement of such a claim.
Changes are also occurring internationally. Indigenous people�s rights are coming to the fore with the proposed Universal Declaration on Indigenous Rights nearly in place.
All this change at a national and international level has only been possible by post-colonial nations acknowledging their past in order to move to the future with confidence. The Sealords Deal is an example of an attempt by Maori and the New Zealand government to make this move forward.
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Mahony, Ben David, and University of Lethbridge Faculty of Arts and Science. ""Disinformation and smear" : the use of state propaganda and mulitary force to suppress aboriginal title at the 1995 Gustafsen Lake standoff." Thesis, Lethbridge, Alta. : University of Lethbridge, Faculty of Arts and Science, 2001, 2001. http://hdl.handle.net/10133/189.
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In the summer of 1995, eighteen protesters came into armed conflict with over 400 RCMP officers and soldiers in central British Columbia. The conflict escalated into one of the costliest police operations in Canadian history. Many accounts of Aboriginal aggression provided by the RCMP are not consistent with evidence disclosed at the trial of the protesters. Moreover, the substance of the legal arguments at the heart of the Ts' Peten Defenders' resistance received little attention or serous analysis by state officials, police or the media. The RCMP constructed the Ts' Peten Defenders as terrorists and downplayed the use of state force that included military weaponry, land explosives and police snipers, who received orders to shoot to kill. Serious questions remain about the role of the RCMP, who acted as the enforement arm of state policies designed to constrain the effort to internationalize the Aboriginal title question.iii, 225, [44] leaves : ill. ; 28 cm.
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Moran, Anthony F. "Imagining the Australian nation settler- nationalism and Aboriginality /." Click here for electronic access to document, 1999. http://dtl.unimelb.edu.au/R/U1L2H28HB18MC24L4CL743PII8DUPUQSDYN9NGAGLBXL8YA8BU-00451?func=results-jump-full&set_entry=000013.
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Hunter, Andrew G. "Philosophical justification and the legal accommodation of Indigenous ritual objects; an Australian study." Thesis, Edith Cowan University, Research Online, Perth, Western Australia, 2006. https://ro.ecu.edu.au/theses/71.
Full textAbstract:
Indigenous cultural possessions constitute a diverse global issue. This issue includes some culturally important, intangible tribal objects. This is evident in the Australian copyright cases viewed in this study, which provide examples of disputes over traditional Indigenous visual art. A proposal for the legal recognition of Indigenous cultural possessions in Australia is also reviewed, in terms of a new category of law. When such cultural objects are in an artistic form they constitute the tribe's self-presentation and its mechanism of cultural continuity. Philosophical arguments for the legal recognition of Indigenous intellectual `property' tend to assume that the value of Indigenous intellectual property is determinable on external criteria.
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Samec, Ernest FE. "Compensation for a claim of breach of fiduciary obligation owed by the crown towards indigenous people arising from the mismanagement of native title: A comparative analysis of the law in the United States, Canada and Australia." Thesis, Samec, Ernest FE (1999) Compensation for a claim of breach of fiduciary obligation owed by the crown towards indigenous people arising from the mismanagement of native title: A comparative analysis of the law in the United States, Canada and Australia. Honours thesis, Murdoch University, 1999. https://researchrepository.murdoch.edu.au/id/eprint/48776/.
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The objective of this research paper is to examine the principles governing an award of compensation arising from a claim for a breach of fiduciary duty owed by the Crown towards the indigenous custodians of native title in Australia. If a fiduciary relationship can be established, breach of the duty would make the Crown as fiduciary liable to these indigenous people as beneficiaries for any damage flowing from the breach. The inherent flexibility of the remedies available for a breach of fiduciary duty are potentially significant to provide the necessary compensation1 for injustices suffered by indigenous people2 in relation to land…
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Greene, Jo-Ann E. C. "Wikwemikong First Nation: Unceded Aboriginal title to Manitoulin Island?" Thesis, University of Ottawa (Canada), 2005. http://hdl.handle.net/10393/26916.
Full textAbstract:
The premise of the paper is that Wikwemikong First Nation still retains Aboriginal title to their reserve land and the rest of Manitoulin Island, including the portion of the Island ceded by other First Nations. Two pre-Confederation treaties or agreements---Manitoulin Island Treaties of 1836 and 1862---and surrounding circumstances are analyzed to support the premise.
The Doctrine of Discovery begins the discussion of Aboriginal title followed by an overview of contrasting land ownership concepts. Wiky's historical background and Colonial and Canadian government policies and legislation that affected the community's current unceded state are examined. Aboriginal title, its nature, scope and treatment in the courts, is outlined including the necessary criteria and tests the Canadian courts require to prove Aboriginal title. After analyzing all the findings, the criteria and tests for proving existing Aboriginal title are applied to establish the validity of the paper's premise.
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Burn, Geoffrey Livingston. "Land and reconciliation in Australia : a theological approach." Thesis, University of Exeter, 2010. http://hdl.handle.net/10036/117230.
Full textAbstract:
This thesis is a work of Christian theology. Its purpose is twofold: firstly to develop an adequate understanding of reconciliation at the level of peoples and nations; and secondly to make a practical contribution to resolving the problems in Australia for the welfare of all the peoples, and of the land itself. The history of the relationships between the Indigenous and non-Indigenous peoples in Australia has left many problems, and no matter what the non-Indigenous people try to do, the Indigenous peoples of Australia continue to experience themselves as being in a state of siege. Trying to understand what is happening, and what can be done to resolve the problems for the peoples of Australia and the land, have been the implicit drivers for the theological development in this thesis. This thesis argues that the present generation in any trans-generational dispute is likely to continue to sin in ways that are shaped by the sins of the past, which explains why Indigenous peoples in Australia find themselves in a stage of siege, even when the non-Indigenous peoples are trying to pursue policies which they believe are for the welfare of all. The only way to resolve this is for the peoples of Australia to seek reconciliation. In particular, the non-Indigenous peoples need to repent, both of their own sins, and the sins of their forebears. Reconciliation processes have become part of the international political landscape. However, there are real concerns about the justice of pursuing reconciliation. An important part of the theological development of this thesis is therefore to show that pursuing reconciliation establishes justice. It is shown that the nature of justice, and of repentance, can only be established by pursuing reconciliation. Reconciliation is possible because God has made it possible, and is working in the world to bring reconciliation. Because land is an essential part of Indigenous identity in Australia, the history of land in court cases and legislation in Australia over the past half century forms an important case study in this work. It is shown that, although there was significant repentance within the non-Indigenous legal system in Australia, the degree of repentance available through that legal system is inherently limited, and so a more radical approach is needed in order to seek reconciliation in Australia. A final chapter considers what the non-Indigenous people of Australia need to do in order to repent.
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Bastien, Elizabeth M. "Our home, y(our) title: matrimonial real property on First Nation reserves in Canada /." Burnaby B.C. : Simon Fraser University, 2006. http://ir.lib.sfu.ca/handle/1892/2721.
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Van, Zandvoort Alisha. "The Effect of Control Tile Drainage on Soil Greenhouse Gas Emissions from Agricultural Fields in the South Nation Watershed of Ontario." Thesis, Université d'Ottawa / University of Ottawa, 2016. http://hdl.handle.net/10393/34567.
Full textAbstract:
Controlled tile drainage (CTD) is an agricultural management practice with well-documented water quality and agronomic benefits, however, by virtue of its effect upon soil hydrology, CTD could potentially impact soil greenhouse gas (GHG: CO2, CH4, N2O) emissions. This study aimed to determine whether: (1) CTD affects soil GHG emissions throughout a dry (2012) and a wet (2013) growing season for corn, soybean, and forage fields in eastern Ontario, and (2) the location in a field with respect to a tile drain (over tile (OT) versus between tile (BT)) is important in GHG emissions. Non-steady state chambers were used for sampling soil GHG emissions in order to analyze GHG fluxes, the δ13C of soil-respired CO2 (RT), and for separating total soil respiration into its rhizosphere and soil components. There was no significant difference in average GHG emissions from CTD and UTD fields (except for 1/5 field pairs studied for N2O) and from OT and BT locations. The means of δ13C of RT were not statistically different (p>0.05) between 4/5 CTD and UTD field pairs, and between OT and BT locations in 4/5 CTD fields. The mean contributions from rhizosphere respiration and soil respiration did not differ (p>0.05) in 3/4 CTD and UTD field pairs. This lack of difference in GHG emissions is believed to have resulted from their being no difference in surface soil water contents among CTD and UTD fields and among OT and BT locations. It is believed that surface soil moisture did not vary because: (1) the water table was too low in 2012 for effective water table control, and (2) significant precipitation created equally wet surface soil in 2013. In 2013, the surface soil moisture was approximately 10% greater and this may be why there was an approximate 5 kg C/ha/day greater CO2 flux from soybean fields in 2013 than in 2012. δ13C was useful for distinguishing the source of CO2 emissions (rhizosphere versus soil respiration) in CTD fields when the crop and plant δ13C signatures varied. The results are useful for helping to capture the carbon footprint of tile drainage management practices imposed at field-scale.
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Que, Zhenyang. "Evaluation of the Impact of Controlled Tile Drainage on Surface Water Quality in the South Nation River Watershed." Thesis, Université d'Ottawa / University of Ottawa, 2011. http://hdl.handle.net/10393/19816.
Full textAbstract:
In Ontario, many agriculture-dominated watersheds like The South Nation River watershed are experiencing ecosystem deterioration mainly resulting from agricultural activities. A promising best management practice, controlled tile drainage (CTD), maintains water and nutrients through controllable facilities and releases them in an intermittent manner, when available storage in the drains is exceeded. This thesis is to evaluate how much water quality improvement can be expected if CTD adopted at watershed scale on the basis of experimental data from the WEBs project. A watershed model AnnAGNPS was applied, calibrated and validated on the watershed. Simulation results indicate that CTD can significantly improve surface water quality by reducing nitrogen losses from agricultural areas. This research creatively uses the AnnAGNPS model to simulate CTD, and it also provides a reliable link the model to observations from experimental CTD fields. So far, there is no related research found from the literature.
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Schwarz, Jörg. "Herrscher- und Reichstitel bei Kaisertum und Papsttum im 12. und 13. Jahrhundert /." Köln [u.a.] : Böhlau, 2003. http://www.gbv.de/dms/bs/toc/362903557.pdf.
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Duquet, Pascal. "La controverse historique entourant la survie du titre aborigène sur le territoire compris dans les limites de ce qu'était la province de Québec en 1763." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ38075.pdf.
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Mbodji, Mohamadou Fallou. "La nature juridique des titres miniers dans les états de l’OHADA." Thesis, Aix-Marseille, 2018. http://www.theses.fr/2018AIXM0104.
Full textAbstract:
Dans les législations nationales des états membres de l’OHADA, les ressources minières et pétrolières relèvent de la souveraineté et de la propriété des états. Cette appropriation publique des ressources naturelles a largement influencé la conception des titres miniers qui reposent ainsi sur un encadrement administratif. Leur nature juridique aurait dû alors suivre celle des actes de l’administration et embrasser toutes les dispositions relevant de la catégorie des actes administratifs unilatéraux. Toutefois, si les titres miniers sont intimement liés à l’état d’accueil, leur nature juridique ne saurait être réduite à celle d’actes administratifs, ceux-ci n’étant qu’un instrument de gestion du secteur extractif. L’analyse des législations nationales révèle que les titres miniers sont légalement consacrés comme des biens. Cependant, contrairement à ce qu'affirment les législations nationales, ils ne sont ni des biens meubles, ni des biens immeubles. En effet, les titres miniers constituent des droits d’accès, c'est-à-dire des droits de procéder aux opérations minières et pétrolières, de durée limitée, distincts de la propriété des gisements. De tels droits constituent des biens purement incorporels jouissant d'un régime de protection juridique inhérent à leur qualité de biens. Ces biens incorporels revêtent une valeur économique qui leur permet d'accéder au commerce juridique. Ils peuvent faire l’objet d’un transfert de propriété par cession, amodiation ou transmission. Ils peuvent également servir de financement pour les activités de recherche et d’exploitation en constituant l’assiette de sûretés minières comme l’hypothèque et le nantissementIn the national legislation of member’s states of OHBLA, mining and oil resources are the sovereignty and ownership of the state. This public ownership of naturel resources largely influenced the design of the mining titles which are based on administrative guidance. Their legal nature should have then followed that acts of administration and kiss all the provisions falling under the category of unilateral administrative acts. However, if the claims are closely related to the host states, their legal nature cannot be reduced to that of administrative acts, these being only an instrument of the extractive sector management. Indeed, the claim are access right, i.e. rights to conduct the mining and oil. They are limited in time and distinct form ownership of the deposit. Analysis of national legislation shows that they are legally dedicated as goods. This new category of goods are representative of property titles. Indeed, in the national legislation of the states of OHBLA, the mining titles are apprehended as objects of trade. They offer their holders all the prerogative of ownership. Like other goods of common law, they are asset, which can move from one contractor to another by directly the object of trade like transfer, leasing or transmission. They can also serve as financing for activities of research and exploitation constituting mining securities such as mortgage and pledge. It should be noted, however, that these types of guarantees do not really correspond to the true legal nature of mining titles. For in accordance with the classification established by the uniform act on the law of security interest, mining titles should only be pledged
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Babidge, Sally. "Family affairs an historical anthropology of state practice and Aboriginal agency in a rural town, North Queensland /." Click here for electronic access to document: http://eprints.jcu.edu.au/942, 2004. http://eprints.jcu.edu.au/942.
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Thesis (Ph.D.) - James Cook University, 2004.Thesis submitted by Sally Marie Babidge, BA (Hons) UWA June 2004, for the Degree of Doctor of Philosophy in the School of Anthropology, Archaeology and Sociology, James Cook University. Bibliography: leaves 283-303.
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Hall, Brooke. "Native title and the tide of history : shifting the sands." Thesis, 2002. http://hdl.handle.net/2429/13649.
Full textAbstract:
This thesis is designed to contribute to the discussion of the issues confronting Australian Courts by evaluating the process of recognition and protection of native title and to delineate how it is being shaped. The High Court of Australia's decision in Mabo v. The State of Queensland [No.2] (1992) C.L.R. 1 and the subsequent Native Title Act 1993 (Cth) in Australia have begun the process of recognition and protection of native title. This thesis looks at the scope of the High Court and some Federal Court of Australia decisions since Mabo [No.2], and examines the relationships at law that underlay a theoretical foundation for those decisions. Two relationships underlay the Courts' reasons: relationships to history, and relationships to land. Australian Courts are articulating a particular conception of these relationships, and the foundation of this thesis is to propose a shift in native title discourse to include indigenous perspectives when determining native title claims.
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Bulan, Ramy. "Native title in Sarawak, Malaysia : Kelabit land rights in transition." Phd thesis, 2005. http://hdl.handle.net/1885/150297.
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Delpero, Jackie. "The Tide of History: Australian Native Title Discourse in Global Perspective." Thesis, 2003. https://vuir.vu.edu.au/18157/.
Full textAbstract:
Australian native-title law has many inconsistencies and contradictions. Emanating
from the Mabo decision is the central contradiction that the Crown's acquisition of
sovereignty in Australia was illegitimate but valid. This thesis attempts to identify the
underlying structures beneath this and other contradictions and inconsistencies by
tracing the features of a recent determination of a native title claim back through time.
In 1994, the Yorta Yorta people of south-east Australia made a claim under the Native
Title Act of 1993. The Court framed its determination of the claim within the
metaphor of the 'tide of history'. To make his decision, Justice Olney reconstructed
the Yorta Yorta people's ancestors as native inhabitants from within expansionist
ideology. Within that ideology, the term 'native inhabitant' is synonymous with
inferiority, incompetence and externality. This thesis argues that these representations
justified the processes of cultural modification. Modification is a feature of
colonisation that seeks to make natives resemble Europeans. This thesis argues that
these processes are linked to dispossession and are the essence of the 'tide of history'.
A feature of expansionist ideology is the sovereign imperative to maintain exclusive
power to make, enforce and suspend law. This thesis argues that the sovereign need
for exclusivity in Australia is central to the Native Title Act and the Yorta Yorta
decision. To trace the 'tide of history', this thesis begins with the early Roman
Church and follows its development as it pursued the Petrine mandate. It continues
into the secular era of discovery and considers how the 'tide of history' manifested in
North America and produced the Marshall judgements. It follows the 'tide of history'
into Australia from the Crown's claim to discovery and considers its role in the Mabo
decision and the Native Title Act. It analyses the Yorta Yorta people's claim for
native title through the logic that underpinned the majority judges' reasoning. This
thesis concludes that the 'tide of history' that washed away the Yorta Yorta people's
native title is a product of European expansionist ideology. From within that
ideology, the judiciary and the legislature imposed a two-way loss on the Yorta Yorta
people, which enhanced the Crown's exclusivity, rendering benign the conception of
the Crown's acquisition of sovereignty as illegitimate but valid.
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Corbett, Lee School of Sociology & Anthropology UNSW. "Native title & constitutionalism: constructing the future of indigenous citizenship in Australia." 2007. http://handle.unsw.edu.au/1959.4/40710.
Full textAbstract:
This thesis argues that native title rights are fundamental to Indigenous citizenship in Australia. It does this by developing a normative conception of citizenship in connection with a model of constitutionalism. Here, citizenship is more than a legal status. It refers to the norms of individual rights coupled with democratic responsibility that are attached to the person in a liberal-democracy. Constitutionalism provides the framework for understanding the manner in which Australian society realizes these norms. This thesis focuses on a society attempting to grapple with issues of postcolonialism. A fundamental question faced in these societies is the legitimacy of group rights based in pre-colonization norms. This thesis argues that these rights can be legitimized when constitutionalism is understood as originating in the deliberations connecting civil society with the state; which deliberations reconcile individual rights with group rights in such a way as to resolve the issue of their competing claims to legitimacy. Civil society is the social space in which politico-legal norms collide with action. The argument constructed here is that native title is built on norms that have the potential (it is a counterfactual argument) to contribute to a postcolonial civil society. This is one in which colonizer and colonized coordinate their action in a mutual search for acceptable solutions to the question 'how do we live together?'. The optimistic analysis is tempered by a consideration of the development of native title law. The jurisprudence of the High Court after the Wik's Case has undermined the potential of native title to play a transformative role. It has undermined Indigenous Australians' place in civil society, and their status as equal individuals and responsible citizens. In seeking to explain this, the thesis turns from jurisprudence to political sociology, and argues that an alternative model of constitutionalism and civil society has supplanted the postcolonial; viz., the neoliberal.
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Burke, Paul. "Law's anthropology: from ethnography to expert testimony in three native title claims." Phd thesis, 2005. http://hdl.handle.net/1885/9905.
Full textAbstract:
At an intermediate level, between Aboriginal lifeworlds and the politics of statecraft, native title can be seen as the interaction of the social field of Australianist anthropology and the juridical field through the medium of actors: principally anthropologists,lawyers and judges. Viewing the interaction this way allows a more comprehensive explanation to be given that is not captive to requirements of the different disciplines involved and it can move beyond a simple advocate-independent expert dichotomy of roles. There are various ways of conceptualising the interaction of the two fields, ranging from the predatory swallowing and digestion of anthropology by law to the sharing of responsibility for contentious decisions. From the perspective of individual anthropologists, one way to consider the task is as a projection of expert independence by the skilful triangulation between the anthropological archive, the claimants' evidence and the legal doctrine of native title. The expert's task involves a process of deconstructing the existing anthropological archive and reconstructing it in a way that is relevant to the judge's task. One way to project independence and expertise would be to acknowledge the indeterminacy of the key concepts of native title and simply outline what evidence supports various alternative interpretations (the robust academic model). To explore the issue, a case study method is adopted because of the complexity of the interaction and the pragmatic resolution forced on the judge by the indeterminacy of the key elements of native title. Each case study consists of two chapters, one giving a critical account of the relevant part of the anthropological archive and the other outlining how that archive is used in formulating the expert opinion and its reception by the judge. The first case study is about the fact-finding hearing in the original Mabo decision. It represents an ideal of long-term fieldwork having been completed well before the court case was contemplated and a successful projection of professional independence. The next two case studies, about the Rubibi and De Rose Hill claims, represent the more typical situation of anthropological research for litigation. In Rubibi there were antagonistic interpretations of the anthropological archive taken by the two anthropologists involved in the case. The judge worked hard to resolve the two interpretations. In De Rose Hill the judge took a negative view of the case and aligned himself with the anthropologist who had the superior academic capital and against the
claimants' anthropologist, whom he accused of bias. The testing, via the case studies,
of the initial theorising about interaction law and anthropology suggested various modifications to proposed models. Gaps in the anthropological archive mean that in relation to the historical transformation of traditional land tenure practices,the imagined deconstruction-reconstruction process is more one of improvisation. Anthrologists are not only orientated towards legal doctrine itself,but towards the more amorphous expectations of the juridical field, principally the need for generality and systematicity of traditional land tenure principles and maintaining of the illusion of the scientific fact.
For these reasons, the seemingly logical robust academic model of the expert report was generally avoided. The interaction of the field of Australianist anthropology and the juridical field has very little impact on the basic structures of the juridical field. In the field of Australianist anthropology, however, the encounter with native title has seen an intensification of differences within the field about the nature and the role of theory within anthropology and the relative merits of pure and applied anthropology.
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Mackay, Ross. "The Great re-freezing? Requirements for establishing native title in post-Yorta Yorta jurisprudence." 2008. http://hdl.handle.net/1959.13/35241.
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Masters Research - Master of Philosophy (Law)In Yorta Yorta, it was expressly found that native title law could not support a ‘frozen in time’ approach. It was held that the rights making up native title could not be considered static and archaic instruments, but must be given reign to adapt. However the question must be asked whether, in its examination of the requirements of native title, Yorta Yorta has in the same breath re-introduced the ‘frozen in time’ approach, albeit in a different form. Specifically, it is a question of whether the continuity of connection requirement means that the evolution of rights is frozen and claimants are burdened with the task of proving they relate to land in exactly the same manner as their ancestors did, over 200 years ago. That is the question which this thesis attempts to answer. It will do so by examining in detail not only the requirement of continuity of connection as espoused in Yorta Yorta, but the evidentiary analysis which was performed under that requirement. It is the nature of this analysis in which the effect of continuity of connection on the nature of native title rights is revealed. This thesis will also examine the effect of Yorta Yorta on subsequent cases, particularly how subsequent Courts have interpreted the continuity of connection requirement and how it has affected the questions of proof they felt the claimants were required to answer. Particularly highlighted will be the cases of Larrakia and Single Noongar, two cases which have brought about starkly different outcomes for the claimants. The approach taken will be to discuss whether the requirements of native title in Yorta Yorta have produced a native title system which equitably and in justice recognises traditional owners’ rights to land in modern times, or whether they consign native title to being an historical relic, of little utility in reflecting the modern-day relationships of traditional owners to their land. In other words, was Yorta Yorta ‘the great re-freezing’?
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Mackay, Ross. "The Great re-freezing? Requirements for establishing native title in post-Yorta Yorta jurisprudence." Thesis, 2008. http://hdl.handle.net/1959.13/35241.
Full textAbstract:
Masters Research - Master of Philosophy (Law)In Yorta Yorta, it was expressly found that native title law could not support a ‘frozen in time’ approach. It was held that the rights making up native title could not be considered static and archaic instruments, but must be given reign to adapt. However the question must be asked whether, in its examination of the requirements of native title, Yorta Yorta has in the same breath re-introduced the ‘frozen in time’ approach, albeit in a different form. Specifically, it is a question of whether the continuity of connection requirement means that the evolution of rights is frozen and claimants are burdened with the task of proving they relate to land in exactly the same manner as their ancestors did, over 200 years ago. That is the question which this thesis attempts to answer. It will do so by examining in detail not only the requirement of continuity of connection as espoused in Yorta Yorta, but the evidentiary analysis which was performed under that requirement. It is the nature of this analysis in which the effect of continuity of connection on the nature of native title rights is revealed. This thesis will also examine the effect of Yorta Yorta on subsequent cases, particularly how subsequent Courts have interpreted the continuity of connection requirement and how it has affected the questions of proof they felt the claimants were required to answer. Particularly highlighted will be the cases of Larrakia and Single Noongar, two cases which have brought about starkly different outcomes for the claimants. The approach taken will be to discuss whether the requirements of native title in Yorta Yorta have produced a native title system which equitably and in justice recognises traditional owners’ rights to land in modern times, or whether they consign native title to being an historical relic, of little utility in reflecting the modern-day relationships of traditional owners to their land. In other words, was Yorta Yorta ‘the great re-freezing’?
40
Anker, Kirsten, and kirsten anker@mcgill ca. "The unofficial law of native title: indigenous rights, state recognition and legal pluralism in Australia." 2007. http://hdl.handle.net/2123/2294.
Full textAbstract:
Doctor of Philosophy (PhD)The official version of law in Australia is that the state has a monopoly over sovereignty: there is only one Australian law whose meaning is determined by the courts. However, the courts have implied that there is another law, the law of Indigenous peoples which exists as a social fact. It can be recognised by the state for particular purposes, such as the protection of the ‘native title’ of Aboriginal peoples and Torres Strait Islanders to their traditional countries. Native title is characterised as the translation of a primarily spiritual connection to land into proprietary rights and interests, requiring proof of the connection that a particular Indigenous society has under traditional laws and customs continuously acknowledged since Britain claimed sovereignty. Given the special nature of native title, the preference is to recognise title by negotiated agreement. This thesis undertakes a study of some of the assumptions and inconsistencies on which the recognition of native title – and this ‘not quite’ legal pluralism – rests. It questions law’s relation to fact, time, space, identity, language and practice as these are deployed in calibrating Indigenous peoples’ claims, and so reaches across disciplines to History (questioning the knowable past), Philosophy (the notion of recognition), Legal Theory (the concept of law as rules and the separation between law and fact), Anthropology and Literary Studies (the possibility of translation), Aesthetics (the rationality of proof), and Geography (the alternative space of negotiation). In looking closely at the practical and discursive process of making a claim, an account of native title can be given that refuses the cogency of the monopoly of sovereignty, and envisages instead a multi-faceted phenomenon that is the ‘unofficial’ law of native title. Native title is a set of practices which stimulate new articulations of Indigenous law and settler law and put them in relation with one another: the process of recognition is also a creative process of transformation.
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Glaskin, Katie. "Claiming country : a case study of historical legacy and transition in the native title context." Phd thesis, 2002. http://hdl.handle.net/1885/146023.
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Scambary, Benedict. "My country, mine country : indigenous people, mining and development contestation in remote Australia." Phd thesis, 2007. http://hdl.handle.net/1885/149611.
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Steyn, Elizabeth A. "At the Intersection of Tangible and Intangible : Constructing a Framework for the Protection of Indigenous Sacred Sites in the Pursuit of Natural Resource Development Projects." Thèse, 2017. http://hdl.handle.net/1866/19984.
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(9012401), Anne M. Gray. "Still Underrepresented: Minoritized Students With Gifts And Talents." Thesis, 2020.
Find full textAbstract:
To what extent do Black/African American (Black), Hispanic/Latinx (Latinx), and Native Hawaiian/Other Pacific Islander (NHPI) students have access to being identified with gifts and talents? In places where they have access to identification, how equitably are they identified? And, to what extent are they missing from identification with gifts and talents due to lack of access or underidentification? This study used the Civil Rights Data Collection for the years 2000, 2011–2012, 2013–2014, and 2015–2016 to investigate underrepresentation of Black, Latinx, and NHPI youth with gifts and talents, nationally and by state. The data in these years were census data, meaning data from every child who attends public school is included. Data were also examined by Title I and Non-Title I school status and by locale (i.e., City, Suburb, Town, Rural) to determine how school poverty concentration and/or school locale affect identification of Black, Latinx, and NHPI youth. All states were analyzed for Black and Latinx youth, but due to the small NHPI student populations in some states this analysis was limited to a 20 state sample. Nationally, and in 37, 31, and all 20 states analyzed, respectively, lack of access to identification was not a major contributing factor to underrepresentation. The disparity in identification percentages between schools by Title I status showed 45% fewer Black students, 21% fewer Latinx students, and 15% fewer NHPI students were identified in Title I schools. Additionally, in every state and setting, Black, Latinx, and NHPI youth were underidentified with 92%, 92%, and 67%, respectively, of the equity ratios and 92%, 93%, and 61%, respectively, of the representation indices less than the minimum criterion of 0.80. In 2015-2016, there were 276,840 Black students with gifts and talents identified with an estimated 469,213 (62.89%) to 771,728 (73.60%) missing from identification; 588,891 Latinx students with gifts and talents identified with an estimated 658,544 (52.79%) to 1,164,363 (66.41%) missing from gifted identification; and among the 20 state sample, 6,594 NHPI students with gifts and talents identified with an estimated 7,236 (52.32%) to 9,253 (58.39%) missing from gifted identification.
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Connolly, Anthony J. "Conceptual incommensurability and the judicial understanding of indigenous action." Phd thesis, 2006. http://hdl.handle.net/1885/150950.
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Mitchell, Myles Bevan. "The Esperance Nyungars, at the Frontier: An archaeological investigation of mobility, aggregation and identity in late- Holocene Aboriginal society, Western Australia." Phd thesis, 2016. http://hdl.handle.net/1885/117827.
Full textAbstract:
This thesis documents the results of an Aboriginal
community-based archaeological research project in the Esperance
region, southern Western Australia. It is based on analysis of
rock art, stone arrangements and flaked stone artefacts. The aim
is to understand the role of the study sites – Belinup and
Marbaleerup – within patterns of movement that underpinned
society and economy in this region during the late-Holocene. The
research explores concepts of identity (Jones 1997; Meskell and
Preucel 2004) relating to the local Esperance Nyungar people, and
the broader Noongar and Western Desert cultural blocs. It has
been suggested that negotiations over territory, law and identity
during the recent past were directly related to the expansion of
the Western Desert cultural bloc (Gibbs and Veth 2002), which
situates the study area at a dynamic frontier of cultural change.
Exploration of these questions leads to a discussion about the
historical construction of Esperance Nyungar identity.
The study sites are hypothesised to have functioned in the past
as aggregation locales (Conkey 1980). Investigation of this
hypothesis is illuminative; firstly, for understanding more about
the study sites; and secondly about the application of the
aggregation concept, and its limitations for archaeology. The
results inform a discussion of how mobility (Binford 1980; Kelly
1992) and aggregation can be usefully applied together to
investigate the intersections of social and economic elements in
hunter-gatherer settlement.
As a conceptual tool for archaeology, identity is challenging
because it cannot be directly interpreted from material culture
in a simple way. Despite the challenges, identity is an important
tool for understanding past societies. Identity is investigated
here by mapping the occurrence of symbols across landscapes and
considering how these may, or may not, relate to notions of
identity and connections to place. The approach begins with what
is known (contemporary identity and connection), and works
backwards through time and outwards through space towards the
unknown. Identity is a powerful way to link the archaeological
past with the contemporary descendent community.
The process of undertaking a community-based research partnership
is discussed, with critical reflection on the challenges and
successes. An argument is presented for how and why community
input and ownership is critical to the success of archaeological
research into Aboriginal pasts in Australia and abroad.
The results demonstrate the inherent dynamism in Aboriginal
society in southern Western Australia and highlight a historical
legacy to the processes of cultural change underpinning Esperance
Nyungar identity today. Those processes predate the colonial
interruption, and continue into the post-Native Title era. This
leads to a discussion and critique of the Native Title system,
which often neglects to acknowledge the nuanced realities of
Aboriginal societies and the inherent mutability of identity and
connections across time and space. It is argued that the internal
social dynamics of Aboriginal society are an important part of
identity, as people continually negotiate who they are and how
they relate to people and places. This constant process of
identity-making is a fundamental part of Aboriginal culture and
society now and into the distant past.
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Lyssa, Alison. "Performing Australia's black and white history: acts of danger in four Australian plays of the early 21 century." 2006. http://hdl.handle.net/1959.14/714.
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Submitted in fulfilment of the requirements for the degree of Masters in English in the Division of Humanities, Dept. of English, 2006.Thesis (MA)--Macquarie University (Division of Humanities, Department of English), 2006.
Bibliography: p. 199-210.
Introduction -- Defiance and servility in Andrew Bovell's Holy day -- Writing a reconciled nation: Katherine Thomson's Wonderlands -- Transformation of trauma: Tammy Anderson's I don't wanna play house -- The rage inside the pain: Richard J. Frankland's Conversations with the dead -- Conclusion: towards an understanding of witness to the trauma of invasion.
In an Australia shaped by neo-conservative government and by searing contention, national and global, over what the past is, how it should be allowed to affect the present and who are authentic bearers of witness, this thesis compares testimony to Australia's black/white relations in two plays by white writers, Andrew Bovell's 'Holy day' (2001) and Katherne Thomson's 'Wonderlands' (2003), and two black writers, Tammy Anderson's 'I don't wanna play house' (2001) and Richard J. Frankland's 'Conversations witht the dead' (2002).
Mode of access: World Wide Web.
210 p. ill. 30 cm
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Murphy, Maxime. "Les assortiments éducationnels des unions exogames immigrants-natifs à titre d’indicateur de stratification sociale; une étude exploratoire à partir de données canadiennes." Thèse, 2014. http://hdl.handle.net/1866/12003.
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À l’aide des données du recensement canadien de 2006, ce mémoire examine les assortiments éducationnels des couples exogames immigrants-natifs à titre d’indicateur de stratification sociale. Premièrement, les résultats tirés de régressions logistiques multinomiales confirment la présence d’échange (social status exchange : Merton 1941; Davis 1941) entre les natifs et les immigrants, c’est-à-dire qu’un immigrant est davantage susceptible de s’unir avec un natif s’il est plus scolarisé que ce dernier. Ces résultats supportent l’existence d’une stratification sociale entre les immigrants et les natifs. Deuxièmement, l’analyse révèle que l’échange apparait chez les immigrants des deux sexes ayant au moins un baccalauréat, alors que chez les moins scolarisés l’échange ne ressort que chez les hommes. Troisièmement, chez les immigrants de minorité visible, l’échange perdure de la première à la deuxième génération d’immigrant, alors que parmi ceux n’appartenant pas à une minorité visible, l’échange ne concerne que les immigrants de première génération.Using the 2006 Canadian census data, this thesis examines the educational assortative mating of exogamous couples formed of an immigrant and a native as an indicator of social stratification. First, results from multinomial logistic regression confirm the presence of exchange (status exchange: Merton 1941; Davis 1941) between natives and immigrants, meaning that an immigrant is more susceptible to have native spouse if his education level is higher than the native’s. These results support the existence of a social stratification between natives and immigrants. Second, the analysis reveals that exchange appears for immigrants of both sexes that have at least a bachelor degree, whereas for immigrants that are less educated, exchange is only apparent with men. Third, for immigrants of visible minorities, exchange is present for immigrant of first and second generation, whereas for immigrants who are not of a visible minorities, exchange only appears for first generation immigrants.
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Chen, Yi-An, and 陳奕安. "A study of the title role of Jules Massenet''s opera Werther using O Nature pleine de grace and Pourquoi me reveiller as examples." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/w2s4wx.
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碩士國立臺北藝術大學
音樂學系碩士班聲樂組
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Abstract The French opera Werther by Jules Massenet (1842-1912) was adapted from the work “The Sorrows of Young Werther” (Die Leiden des jungen Werther) by Johann Wolfgang von Goethe (1749-1832), the most distinguished German figure of the time, who was a politician, philosopher, scientist as well as a poet. Goethe’s poems are often favored by musicians, a great amount of work have been set to music, such as “West-Eastern Diwan” (West-ostlicher Divan), the widely-known “Faust” which is considered the greatest literature, later became Charles-Francois Gounod''s (1818-1893) operatic master piece. “The Sorrows of Young Werther”, which raised big issue in the zeuropean society of that time, also inspired J. Massenet to write this beautiful Franch Opera “Werther”. Goethe had relationships with various women throughout his life time, but these fruitless relationships became the sources of many of his works. For example, the poem “Rose on the Heath” (Heidenroslein) was created for the daughter of the priest in Strasburg when he bids farewell to her, and the novel “The Sorrows of Young Werther” was completed when the relationships between Goethe and Charlotte Buff (1753-1828) ended during his law internship in Reichsgericht, which is located in Wetzlar. Massenet’s “Werther” was a creative work of Franch lyric opera (opera lyrique). During the mid 19th century, the prevailing operas in Europe were the Italian opera of Giuseppe Verdi (1813-1901) and the German opera of Wilhelm Richard Wagner (1813-1883). French opera was not very popular at that time, and even in the capital city Paris the predominant opera genre was foreign operas, which had French ballet parts in them. French composers sought to change this situation and to develop true French opera style, Gounod’s “Faust” attempted and succeeded by fusing together comic opera (opera comique), ballet, Italian opera, and Gothic literature. This fusion of multiple genres into an opera was a big success, and the unique genre of French lyric opera came to the scene. “Werther” was a breakthrough in French lyric opera in terms of its orchestration, adding new instruments such as saxophone and English horn; using simple melodic line balanced with dramatic tension; as well as emphosis of female characters. Looking at Massenet’s life, it is not hard to understand why he could depict female characters in such a way. Massenet’s father passed away when he was a child, apart from supporting the family, Massenet’s mother also taught him piano. It was evidently clear that Massenet regarded his mother as a great parent. Under the difficult circumstances of that time, Massenet still was able to become a pupil at Paris Conservatory (Conservatoire de Paris). He worked extremely hard to study composition, then he was awarded the Prix de Rome, which was then a great honor for French composers. After winning the prize, Massenet went to study in Italy. During his study in Italy, he met Franz Liszt (1811-1886), and Liszt introduced him to a clever and brilliant woman who later became his wife. They all inspired the romanticism and feminism in his operas. In writing this paper, I hope to gain deeper understanding of the artistic value of the literrature, so one day I may sing Werther with genuine feelings and great inspiration.
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Brink, Malie Johanna. "Storie en sprokie : 'n ondersoek na die sprokiesmotief in enkele populere Afrikaanse romans." Diss., 1995. http://hdl.handle.net/10500/15991.
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Text in AfrikaansIn die verhandeling word die vergestalting van die sprokiemotief in die tekste, Griet skryf 'n sprokie deur Marita van der Vyver (1992) en Weerkaatsings - 'n sprokie deur Eleanor Baker (1984) nagegaan. Die doel is om vas te stel op watter wyse hierdie "kindgerigte" genre op die literere vlak van die volwasse leser omvorm word. Om hierdie doel te bereik word eerstens 'n begripsverkenning van die sprokie as epiese genre gedoen. In die verkenning van die genre val die soeklig nie net op die Westerse sprokie nie, maar daar word ook gefokus op die inheemse SuidAfrikaanse sprokie. Tweedens word aan die hand van hierdie teoretiese raamwerk 'n noukeurige analise gemaak van die vergestalting van die sprokiemotief binne die twee primere tekste. Die sprokieselemente in Griet skryf 'n sprokie en Weerkaatsings - 'n sprokie word uitgelig en die hantering daarvan vergelykend ondersoek
In the dissertation the manifestation of the fairytale motif in the texts, Griet skryf 'n sprokie by Marita van der Vyver (1992), and Weerkaatsings 'n sprokie by Eleanor Baker (1984) is investigated. The purpose is to ascertain the manner in which this "child-centred" genre is transformed on the literary level of the adult reader. To achieve this goal, a conceptualization of the fairytale as an epic genre is firstly undertaken. In the exploration of the genre, the search light does not only focus on the Western but also on the indigenous South African fairytale. Secondly, by means of this theoretical framework, a detailed analysis is made of the manifestation of the fairytale motif in the two primary texts. The elements of the fairytale in Griet skryf 'n sprokie and Weerkaatsings - 'n sprokie are highlighted and the handling thereof comparatively investigated
Afrikaans & Theory of Literature
M.A. (Afrikaans)