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Yulara and future expert reports in native title cases

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Sansom, B (2007) Yulara and future expert reports in native title cases. Anthropological Forum, 17 (1). pp. 71-92. ISSN 0066-4677

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Abstract

Australia’s Native Title Act 1993 (Cth) allows Indigenous Australians to lay claims to
traditional country located on unalienated Crown land. The Act also admits claims to
compensation for the loss of traditional country that has been appropriated and made
subject to freehold or other forms of tenure. The Yulara case discussed here was
historically important. It was the first case mounted to determine appropriate
compensation for the extinguishment of native title. In a compensation claim, the
Indigenous applicants must first establish that (taken together) they are both (i) the
rightful heirs to ancestral holders of native title and (ii) that they still maintain
the traditions and customs of their forebears (phase 1). Once their holding of native title
has been established at law, the applicants may then enter their claim to monetary
compensation for the ‘extinguishment’ of their native title over designated lands (phase
2). In the Yulara case, it was found that the applicants were not constituted as a group of
recognisable native title holders whose rights to country were rooted in those traditional
laws and customs that obtained when the Yulara lands were officially brought under the
dominion of British authorities ‘at sovereignty’ (1824). The case could not, therefore,
proceed to a hearing of the compensation phase. Eight issues concerning the proper
performance of the anthropologist as expert witness in native title matters were raised by
the trial judge in the Yulara case. This paper deals with the bearing of the judge’s
observations on those anthropological representations that may be made in future native
title cases.

Item Type: Article
Keywords: Native Title; Yulara; Expert Witness; Expert Anthropology Reports; Land Claims Correspondence
Journal or Publication Title: Anthropological Forum
Publisher: Discipline of Anthropology & Sociology, The University of Western Australia
Page Range: pp. 71-92
ISSN: 0066-4677
Identification Number - DOI: 10.1080/00664670601168575
Additional Information:

The definitive version is available online at
http://www.informaworld.com/smpp/content?

Date Deposited: 07 Apr 2008 14:09
Last Modified: 18 Nov 2014 03:33
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