04
Sep
07

The Larrakia case

10 years ago I decided to pursue legal studies because I believed that all people are grounded in reason, and that knowledge of the law would enable me to develop coherent, sound and persuasive arguments. 

Recently I was informed that the Larrakia peoples aspirations for leave to the High Court had been denied.

During University I was fortunate to work as a minute-taker for the Larrakia Nation.  Through this work I was able to meet many Larrakia people and their families. 

I met families who had always lived in Darwin, who knew the stories and dreamings as passed by previous generations.  I met Elders who have since passed, who used to gather food around the northern suburbs – Rapid Creek, Mindil, Nightcliff & Millner during the first part of the last century.  Casuarina was a place where families would visit for picnics travelling on dirt roads. 

I met families who were married into Aboriginal families from elsewhere, but retained primary associations with Larrakia identity.  

I met families who were subject to laws of previous generations, where for many decades the State assumed guardianship over children, rather than this assumption resting with the natural parents or parent.  These laws resulted in disruptions to the ability of some Larrakia people to continually observe Laws and customs.

I met families who retained an entitlement to Larrakia identity and Law in a strict traditionalist sense, as confirmed by independent Anthropological analysis.  

Readers may assume a degree of bias, but this decision is an extension of the potent criticisms of the High Court and its refined concept of native title levelled by Noel Pearson, found here, here, and here.  For an opinion by Alex Reilly BA, LLB, LLM (UBC), Senior Lecturer, Macquarie University Division of Law view here.  

My frustrations stem from two primary arguments:

(i) that the Larrakia decision confirms Indigenous rights to land are an exception to the Australian Constitution, and legal knowledge is morally and ethically obliged to project this truth, and;

(ii) the refusal to apply equity further demonstrates Pearson’s charge that the High Court has ‘abondened the time honoured methodology of the common law’.  

For a short introduction to the first argument, Section 51 of the century old Australian Constitution states: 

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

– (xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:

There is abundant evidence demonstrating that the Commonwealth Parliament was aware that the land now forming Darwin and its surrounds were the exclusive possession of Larrakia people.  In property transactions this possession was dismissed without any consequence.  The basic truth is, it is land that was never acquired on ‘just terms’, no matter how many learned opinions are put forward.   

The Larrakia case demonstrates an exception to this part of the Constitution, not just in the implicit sense as it denies the natural rights of Larrakia people to property, but because of the explicit terms stated in section 51 (xxxi).  

A counter argument is that there is an assumption against retrospectivity, and that the Constitution should not be applied in a non-discriminatory way retrospectively because discrimination was entirely justifiable during this period.

The problem with this argument is that the claimant case failed because of a retrospectively applied onus on the part of the claimants to demonstrate continual observance of Laws and customs (a point I want to explore in a later post).  There is an assumption against retrospectivity in the application of fundamental doctrines of property law and, at the same time, an assumption in favour of retrospectivity in the burden of proof on the part of the Larrakia.   

A short summation to my second argument is that this case is a denial of equity, and that the concept of equity is the relevant and applicable legal paradigm.

The concept of equity provides fair relief in situations where the strict and rigour application of law results in impossible and unreasonable outcomes.

The Larrakia native title claim is a claim to co-ownership to lands that are held by the crown.  It is a compromised claim for two reasons (1) an aspiration to co-ownership is substantially less than the natural rights of Larrakia to exclusive possession (2) an aspiration to crown land is substantially less than the natural rights of Larrakia to Larrakia land. 

Legally recognising the full extent of Larrakia rights to land in the absolute sense would produce an outcome that sits within the normative order of equity: insurmountable amounts of compensation and unfair disruption to existing possessory titles. 

The Larrakia native title case at common law was, at its heart, a claim for equitable relief.  Despite this significant compromise the High Court and the common law have simply denied it absolutely.

In the same week that the appeal was denied, Justice John Mansfield stated in relation to a successful Tennant Creek native title claim:

The court has always encouraged parties to settle their cases amicably and by agreement.

This is particularly important in native title proceedings, where trials can be lengthy and costly, and the matters involve issues of great significance and sensitivity to a large number of people both now and into the future.

Having trivialised the fortitude that is expressed in a constitutionally independent judiciary, the common law has abondened its principle-centred approach and replaced it entirely with a political motivation. 

In doing so, the common law has denied its ‘time honoured methodology’ and abondend any hope of forging a new legal paradigm merging the principle of equality with the consistent application of fundamental doctrines of law, namely, property and, more importantly, equity. 

Advertisements

0 Responses to “The Larrakia case”



  1. Leave a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


September 2007
M T W T F S S
« Aug   Oct »
 12
3456789
10111213141516
17181920212223
24252627282930

Twitter Updates

Flickr Photos

Blog Stats

  • 7,968 hits

%d bloggers like this: