The increments of justice: exploring the outer reach of Akiba's edge towards native title 'ownership'

Young, Simon ORCID: (2019) The increments of justice: exploring the outer reach of Akiba's edge towards native title 'ownership'. University of New South Wales Law Journal, 42 (3). pp. 825-868. ISSN 0313-0096

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The Torres Strait regional sea claim, culminating in the High Court decision of Akiba v Commonwealth, signalled a new respect for the holistic relationships and dominion that underlay First Peoples’ custodianship of land and waters. The ‘Akiba correction’ centred upon a distinction between ‘underlying rights’ and specific exercises of them – and produced in that case a surviving right to take resources for any purpose (subject to current regulation). The correction emerged from extinguishment disputes, but the significance of this edge towards ‘ownership’ was soon evident in ‘content’ cases on the mainland. Yet there are new challenges coming in the wake of Akiba. What of the many native title determinations that have been settled or adjudicated on pre-Akiba thinking? And what does this renaissance in native title law offer to the communities that will fail (or have failed) the rigorous threshold tests of continuity – also crafted with the older mindset?

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Accepted version deposited in accordance with the copyright policy of the publisher.
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Institute for Resilient Regions - Centre for Heritage and Culture (1 Aug 2018 -)
Date Deposited: 20 Nov 2019 06:41
Last Modified: 12 Apr 2021 01:30
Uncontrolled Keywords: native title, Torres Strait, Akiba, resources, native title determinations
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180124 Property Law (excl. Intellectual Property Law)
18 Law and Legal Studies > 1801 Law > 180111 Environmental and Natural Resources Law
18 Law and Legal Studies > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law
18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
Socio-Economic Objectives (2008): C Society > 95 Cultural Understanding > 9505 Understanding Past Societies > 950599 Understanding Past Societies not elsewhere classified
B Economic Development > 91 Economic Framework > 9199 Other Economic Framework > 919999 Economic Framework not elsewhere classified
C Society > 95 Cultural Understanding > 9599 Other Cultural Understanding > 959999 Cultural Understanding not elsewhere classified

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