Australian Aboriginal Property Rights as Issues of Indigenous Sovereignty and Citizenship

Aboriginal Australians have traditionally enjoyed little protection from the law. The matter of land has been at the heart of white settler/Aboriginal relations since the nation was first founded. It is only recently that recognition has been given to the land rights of Australian indigenous people. This recognition was finally made at the property law level in 1992 through the High Court decision in Mabo v. Queensland (n. 2) ([1992] 175 CLR 1). The 1993 High Court decision in The Wik Peoples v. Queensland ([1996] 71 ALJR 173) reinforced that recognition. It did so through the principle that pastoral lessees' and native title holders' rights might co-exist except that, in the event of any inconsistency, the pastoralists' rights were to prevail, provided pastoral activity was being pursued. The most recent legal change is the parliamentary revision of the Native Title Act so that the Wik co-existence principle was put to rest, mainly through permitting the State governments to upgrade pastoral holdings to a form of freehold, thus immunising them from native title claims, and minimising the payment of compensation. In this paper we argue that the country must consider what has been lost in this about-turn from the recognition of native title to land in Mabo . We argue that the nation must consider the emphases in the Mabo judgments upon the significance of international law and the need for the common law not to be locked into a racist past. From that point, we contend for the need to recognise not only native title to land but what lies beyond that: indigenous political and human rights.     

“Oral Tradition” as Legal Fiction: The Challenge of Dechen Ts’edilhtan in <Emphasis Type="Italic">Tsilhqot’in Nation v. British Columbia</Emphasis>

Often understood as synonymous with “oral history” in Indigenous title and rights cases in Canada, “oral tradition” as theorized by Jan Vansina is complexly imbricated in the European genealogy of “scientific history” and the archival science of Diplomatics with roots in the development of property law and memory from the time of Justinian. Focusing on Tsilhqot’in Nation v. British Columbia, which resulted in the first declaration of Aboriginal title in Canada, this paper will discuss Tsilhqot’in law (Dechen Ts’edilhtan) in the context of the court’s deployment of Vansina’s theory and its genealogy, and conclude that “oral tradition” functions as a legal fiction enabling the court to remain in the familiar archive of its own historiography while claiming to listen to the Elders.     

The construction of allegedly abused children’s narratives in Scottish criminal courts

This study investigated lawyers’ use of social narratives surrounding child sexual abuse when questioning 66 5- to 17-year-old alleged victims in Scottish criminal courts using a mixed-methods approach. Thematic analysis found that the use of beliefs and stereotypes varied depending upon the lawyers’ role (defense/prosecution), children’s age, and the alleged victim-defendant relationship. These findings were investigated further using narrative analysis, which showed that, with increasing age and decreasing familiarity with defendants, narratives increasingly focused on the characteristics and actions of the victims rather than the defendants. Older children contributed more to narratives than younger children, but their contributions were only incorporated into the prosecutors’ narratives. Defense lawyers adopted more victim-blaming tactics as the narratives developed. Findings suggest that the criminal justice system, practitioners, and researchers must do more to recognize and guard against the reinforcement of stereotypes that may influence public rhetoric and jury decision-making.     

Memory for murder. A psychological perspective on dissociative amnesia in legal contexts

There is currently a complex and inconsistent state in the law relating to dissociation and dissociative amnesia (McSherry, 1998). Although dissociative amnesia in defendants is relevant to both competency to stand trial and criminal responsibility in principle, courts have typically assumed a skeptical stance toward such claims in practice. However, there is considerable evidence from both nonoffender and offender populations to support the validity of dissociative amnesia in defendants. Further, there is information available to aid in the evaluation of amnesia, such as the quality of the report itself and characteristics of the person reporting the amnesia (e.g., psychopathy). When consideration is given to the legal response to reports of dissociative amnesia by complainants, the situation becomes even more complex. While some courts have rejected recovered memory evidence, others have convicted defendants of historical offenses based on such evidence. In some cases, judges have argued that jurors should be left to decide on the validity of recovered memories based on their common sense and experience. The uncritical acceptance of the validity of repressed memories in complainants by many courts stands in stark contrast to the response to claims of amnesia from defendants. It seems apparent that the courts need better guidelines around the issue of dissociative amnesia in both populations. We think that the increasing scientific understanding of memory in the past decade (see Schacter, 1999) can meaningfully contribute to the development of such guidelines. Responsible, nonpartisan expert testimony from mental health professionals would be one step in the direction of rectifying the current state of law in regards to dissociation.     

Smoke,Curtains and Mirrors: The Production of Race Through Time and Title Registration

This article analyses the temporal effects of title registration and their relationship to race. It traces the move away from the retrospection of pre-registry common law conveyancing and toward the dynamic, future-oriented Torrens title registration system. The Torrens system, developed in early colonial Australia, enabled the production of ‘clean’, fresh titles that were independent of their predecessors. Through a process praised by legal commentators for ‘curing’ titles of their pasts, this system produces indefeasible titles behind its distinctive ‘curtain’ and ‘mirror’, which function similarly to magicians’ smoke and mirrors by blocking particular realities from view. In the case of title registries, those realities are particular histories of and relationships with land, which will not be protected by property law and are thus made precarious. Building on interdisciplinary work which theorises time as a social tool, I argue that Torrens title registration produces a temporal order which enables land market coordination by rendering some relationships with land temporary and making others indefeasible. This ordering of relationships with land in turn has consequences for the human subjects who have those relationships, cutting futures short for some and guaranteeing permanence to others. Engaging with Renisa Mawani and other critical race theorists, I argue that the categories produced by Torrens title registration systems materialise as race.     

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.     

组织视角下的民事诉讼发回重审制度

民诉法学界和实务界有关二审程序中的发回重审存在较大争议,该制度成为本次民诉法修改的重要议题之一。为了形成共识,对这一问题从法解释论的角度进行阐释解说尤为必要。为了限制发回重审裁量权的滥用,我国司法实践中采用程序细化与加强对审判的组织管理并行的策略。不过这种"程序"与"组织"的交织并不能真正抑制裁量权滥用,反而因剥夺当事人的程序参与权而损害审判的公信力。为调整二者的相互关系,应在审判管理的组织背景下保障审判程序的自主性,恢复当事人在程序运作中的结构性位置。     

Social and legal alienation: The case of aboriginal peoples in Canada

The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’ arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth. In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies, including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression.     

Employer Liability,Risk Assessment,and Fault Principle

The UK Enterprise and Regulatory Reform Act 2013 (ERRA), section 69 has ensured that claims can only succeed on the civil burden of proof (balance of probabilities) that the employer has been negligent. The act also impacts on environmental liability and its “green purposes” are set out in chapter 24, part 1, which compel the employer to take measures in accordance with the Kyoto Protocol and encourage biodiversity. The broader framework of tort liability in this area of employer/employee relationship needs exploration to determine if such a policy-based approach is likely to make much difference given the tendency of courts to regard a breach of a worker-protective statute as evidence of fault. It is an important question for industry in common law jurisdictions because employers are likely to estimate their liabilities based on cost/benefit ratio in the work-place and invest in a safer premises under a fault-based system.     

Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals

Although credibility determinations rest at the core of refugeeprotection, international refugee law has failed to developa body of evidentiary principles that is tailored to the uniquedimensions of the testimony of those seeking asylum. This articleexamines recent developments in assessing oral testimony ininternational criminal law. International criminal law judges,like national asylum adjudicators, must transcend geographic,linguistic, cultural, educational and psychological barriersin order to assess the credibility of testimony. As a result,these new international courts have developed a body of principlesof international evidence law for assessing the testimony ofalleged victims of, and witnesses to, human rights abuses. Currentsocial science research on the asylum procedures in severaljurisdictions reveals that asylum decision makers often failto adapt the determination process to account for the realitiesof refugees presenting their cases in legal fora, directingproceedings with a ‘presumptive skepticism’ of claims.It is argued that the nuanced and rigourous model for the assessmentof the testimonial evidence of alleged victims and witnessesof human rights abuses in war crimes trials introduces effectiveinternational norms for the assessment of credibility in asylumproceedings.     

Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers' Confidential Sources in Common Law Jurisdictions

In many common law liberal democracies today, news gatherers are resisting efforts to use the powers of the courts to compel them to identify their confidential sources. Often the struggles are epic. Often the public interest in effective news gathering fuelling the vitality of a modern liberal democracy is insufficiently recognised. The article uses recent cases to spotlight the shortfalls in the approach and legacy of the common law in dealing with news gatherer/confidential source relationships. Post Human Rights Act English decisions, especially that of Tugendhat J in Ackroyd , combining European style commitment to the public interest in vigorous newsgathering with common law style analysis of evidence, point the way to a more effective approach. US and Hong Kong cases remind news gatherers of their public interest responsibilities.     

Disability,Rights, and the Construction of Sexuality in Tort Claims

This study empirically investigates how courts define sexuality of disabled persons in the absence of a formal right to sexuality. The focus of the study is tort law, a field ungoverned by direct disability rights legislation, assuming that tort law is the law of disablement as it concerns the transformative process of becoming disabled. The study investigates the types of damages courts have awarded for harm to sexual functioning, inquiring to whom and under what conditions have they been awarded. Additionally, it examines the discourse that characterizes each type of damages, and the legal, social, medical, and healthcare policy developments that have affected courts' rhetoric and reasoning. Our findings reveal shifting trends in scale, content, and inclusiveness of beneficiaries in terms of gender and age. Over time, courts have adopted a more hopeful and dynamic approach to disabled persons' sexuality while remaining within an individual‐medical framework. We suggest that these shifting trends can be linked to the slow diffusion of the social‐affirmative approach to disability, the limits of tort law as a field, and the role of healthcare policy in shaping the landscape of tort claims.     

Searching for direction: Courts,social science,and the adjudication of racial profiling claims

As an issue of contemporary legal and social concern, racial profiling has become part of the national discourse. As claims of racial profiling proliferate, courts are struggling to adjudicate them without sound social science research on law enforcement stop practices. This article reviews the methodological and analytical weaknesses inherent in most of the research on racial profiling and illustrates how these weaknesses have caused problems for courts in deciding racial profiling claims. It also presents a methodological strategy for curing many of the defects in previous racial profiling studies, thereby providing courts with a sound basis for deciding equal protection-based claims that often rely on statistical evidence.     

香港特区法院的违基审查权兼与董立坤、张淑钿二位教授商榷

特区立法机关应根据基本法制定法律,特区法院审查特区立法机关制定的法律是否违反基本法的权力被称为"违基审查权"。香港的普通法传统为特区法院的违基审查权提供了法理依据,特区的新法治秩序激活了普通法中法院的司法审查权,而全国人大常委会审查权的不完整性使特区法院的违基审查成为必要。司法实践表明,特区法院的违基审查权无法挑战全国人大常委会的审查权,对基本法的实施总体上是有利的;损害特区行政主导体制的主要因素并非是法院的违基审查,而是立法会的强势地位。作为植根于普通法传统、已有十多年运行实践的权力,特区法院的违基审查权无须再通过全国人大常委会释法确认。当然,基于其在特区法治秩序中的地位,特区法院违基审查权应受到特区外部与内部两方面的制约。     

Some Cases from the Defamation Jurisdiction of the Archdeaconry of Richmond

Unusually, the archdeaconry of Richmond had two consistory courts, one in Chester and one in Richmond. This may well be the first study to be based upon the Richmond records. The mid-sixteenth century ‘explosion’ in the ecclesiastical defamation workload which other commentators have identified was being felt later, possibly by as much as a century, in Richmond than anywhere else in the country. The Richmond records provide the first firm evidence that the ecclesiastical courts were prepared to countenance defamation actions based upon the wrongful imputation of murder. Allegations of sexual irregularity were by far the most common subject of ecclesiastical defamation actions. Women were most likely to complain about allegations concerning their constancy; men for those touching upon their probity.     

Professional responses to ‘parental alienation’: research-informed practice

ABSTRACT

Parental alienation was historically a term rejected by courts in England and Wales, but lawyers and social workers have noted an increase in the incidence of its use, possibly driven by campaign groups and media narratives. The two statutory services that provide independent social work advice to courts in England and Wales, respectively, on children’s best interests in parenting disputes, have taken different approaches to developing practice guidance in response to concerns about the recent use of alienation terminology. A review of international research and domestic case law was undertaken as part of the development of guidance in Wales. This review revealed a dearth of reliable evidence on the concept of parental alienation, its prevalence, effects and measures for intervention. This article builds on that review and recent developments to discuss the progress being made in practice to counter myths about alienation and considers how best to support practitioners in resisting pressures to conform to these powerful narratives.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues

This article introduces psychologists to aspects of the legal process most pertinent to their role as expert witnesses in civil litigation. It summarizes the role of psychological evidence in the adjudication of common law tort claims, the structure of the court system, and the stages of the litigation process. It also explains the various roles a psychological expert may play during litigation and the implications of those roles for expert confidentiality and disclosure. The article then provides an overview of legal policy governing the admissibility of psychological expertise, especially as admissibility is affected by the “Daubert” standard applied in most North American courts.     

“With all My worldly possessions I thee wed”: Nigerian courts and the exercise of discretionary justice in property ownership disputes in marriage and divorce

The question of title to property between married couples remains intractable in Nigeria’s social context. Ownership is addressed by Nigerian courts in a discretionary framework devoid of a cohesive conceptualization. By reviewing cases in Nigeria and England the paper finds that the exercise of discretionary justice is a ‘cold legal question’ and defective in granting a realistic outcome. A different approach is germane to achieve justice in family law. It concludes that the extant judicial approach is at variance with the marital vow ‘with all my worldly possessions I thee wed’ which imports unity of assets in the social psyche of parties.