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Lexis Nexis Native Title in Australia, 3rd edition
This authoritative text provides a clear and comprehensive treatment of native title in Australia, covering its current operation, application to resource development and traditional pursuits and historical, political and legal background.
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A clear and comprehensive treatment of native title law and its operation in Australia today
This comprehensive and authoritative work provides the reader with an understanding of both the current operation of native title in Australia and its historical and political background and development. It covers the nature of the concept, its proof, content and extinguishment, explains its limited degree of protection in the context of future acts, and discusses the application of native title principles to resource development and traditional pursuits. It necessarily considers both the common law and the Native Title Act.
In the third edition of this highly regarded work, the author provides insightful discussion and analysis of many developments, including:
- the more moderate approach to extinguishment underlying recent High Court decisions such as Akiba v Commonwealth (2013), Karpany v Dietman (2013) and Western Australia v Brown (2014);
- confirmation of the native title right to engage in commercial exploitation of a resource, grounded in traditional laws and customs;
- observations on the increased usage of indigenous land use agreements and consent determinations;
- the inclusion of more substantial native title content in consent determinations;
- the legislative trend for amendments to the Native Title Act to be directed to efficiency and efficacy, rather than equality, to deliver an effective and timely process
A reflection on the 20 years since the decision in Mabo is also included.
Native Title in Australia provides an ideal basis for both undergraduate and postgraduate study of native title and related indigenous issues, and is a reliable and informative source for practitioners, researchers and government bodies requiring current information in this area.
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Edgeworth, Rossiter, Stone & O’Connor, Sackville & Neave Australian Property Law, 9th ed, 2012
Hepburn, Australian Property Law, 3rd ed, 2014
Webb & Stephenson, Focus: Land Law, 3rd ed, 2009
This review was first published in the Law Institute Journal Vol 89.08 August 2015
Table of contents
Part 1 – The Background
Ch 1 A Legal History
Ch 2 Protection and Recognition of Native Title: Mabo
Ch 3 Political and Legislative Responses to Mabo Ch 4 Pastoral Leases and Equality: Wik
Ch 5 The Ten Point Plan: Workability and the Denial of Equality
Ch 6 Retreating from Mabo and Wik: Frozen Rights and Judicial Denial of Equality: Ward
Ch 7 An Onerous Burden of Proof: Yorta Yorta
Ch 8 Nigh Impossible to Prove Native Title in Urban Areas: Bennell
Ch 9 Returning to the first principles of Mabo and Wik in Akiba and Brown
Ch 10 Efficiency Not Equality the Focus of Legislative Change
Ch 11 Constitutional Framework of Native Title
Part 2 – The Nature of Native Title
Ch 12 The Concept of Native Title
Ch 13 Proof
Ch 14 Making a Claim Under the Native Title Act 1993
Ch 15 Content of Native Title
Ch 16 Transferability and Alienability
Ch 17 The Proprietary Nature of Native Title
Part 3 – Extinguishment and Validation
Ch 18 Jurisdiction to Extinguish and Constitutional Protection
Ch 19 Extinguishment and Impairment at Common Law: 1788–1975
Ch 20 Confirming or Deemed Extinguishment: 1788–1996
Ch 21 Extinguishment and Suspension: 1975–1996 Ch 22 Disregarding Historic Extinguishment
Part 4 – Future Dealings
Ch 23 The Future Act Process
Part 5 – Agreements and Agreement Making
Ch 24 The Right to Negotiate, Agreements and Settlements
Ch 25 The Right to Negotiate
Ch 26 Indigenous Land Use Agreements
Ch 27 Consent Determinations
Ch 28 Compensation
Part 6 – Fiduciary Obligations
Ch 29 Fiduciary Obligation as to Native Title
Part 7 – Resource Developments and Traditional Pursuits
Ch 30 Minerals and Petroleum
Ch 31 Water
Ch 32 Hunting, Fishing and Gathering Rights
Part 8 – Institutions and Jurisdiction
Ch 33 The National Native Title Tribunal and the Federal Court
Ch 34 Representative Bodies
Ch 35 State and Territory Jurisdiction
Part 9 - Reflections on Mabo
Ch 36 Twenty Years After Mabo
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