|
|
|
|
|
Native Title
|
|
|
Native Title Native title decisions regarding Indigenous land claims in Australia have been and still are very contentious issues. Native title is the term used by Australia’s high court to describe the common law interests in land of Indigenous Australian people. It wasn’t until a decision in the high court in 1992 that the longstanding legal fiction that the continent was terra nullius – a land belonging to no one was reversed (Butt, 1996:22). For the first time, the common law rights of Australia’s indigenous people in land were documented. Indigenous Australians who have maintained a continuing connection with their lands or waters in accordance with their traditions hold native title. Native title may be extinguished by valid grants of land or water to people other than Native titleholders. (ATSIC, 1997:15) There is an obligation for the commonwealth or state to provide compensation on “just terms” to such people if Native title rights have been lost or extinguished. This paper will investigate further into what is meant by compensation on “just terms” and also whether monetary compensation, paid to indigenous parties for loss or impairment of native title rights is an appropriate form of compensation. It is a very difficult task to really pinpoint exactly what “just terms” compensation really entails. The idiom “just terms” has been around and used throughout Australian courtrooms since its inclusion in the Australian constitution in 1901. The valuation of native title using “just terms” is not precisely defined or determined under Australian legislation and the fine details have been left up to the court to decide. The condition of “just terms” compensation consciously gives to relevant courts and tribunals, a significant role when assessing compensation. The multi faceted nature of Native title rights and interests has never been encountered before in Anglo-Australian land law. “Just terms” has rarely surfaced in the past mainly because of the simplicity of Australian land tenures before the introduction of native title. (www.faira.org.au, 2003). Aboriginal land tenures and their complexities have shed new light onto why society really has to assess the real meaning of “just terms”. Essentially the courts have the final say. The concept of “just terms” can be related but is not always equivalent to the American constitutional term of “Just compensation”. “Just compensation” generally refers to the full monetary equivalent of the land without any non-monetary consideration. “Just terms” however, focuses not only on the monetary equivalent of the land but also what is fair and reasonable in the particular circumstance. This may not always be the full monetary equivalent. In determining what amounts to just terms compensation, the real issue is what considerations over and above the standard elements or methods of assessing compensation should be taken into consideration.
|
|
|
|
Still Can't Find What Your Looking For? Then Try a Essay Search!
|
