The Concept of 'Operational Inconsistency' in Australia: Implications for Native Title - the Common Law and Statutory Positions - Part 1

Secher, Ulla (2010) The Concept of 'Operational Inconsistency' in Australia: Implications for Native Title - the Common Law and Statutory Positions - Part 1. Australian Property Law Journal, 18 (2). pp. 150-184.

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Abstract

Although the phrase 'operational inconsistency' first appears in Gummow J’s judgment in Yanner v Eaton and was subsequently adopted by Beaumont and von Doussa JJ as the majority of the Full Federal Court in both Commonwealth v Yarmirr and Western Australia v Ward, the concept behind the phrase has its origins in the judgments of Gaudron and Gummow JJ in Wik. In Wik, Gaudron and Gummow JJ suggested that inconsistency with native title is to be ascertained not only by reference to the terms of the grant of an interest in land, but also by reference to the exercise of certain rights under the grant, such as the construction of improvements pursuant to conditions in a lease. Although the concept was questioned by the High Court in Western Australia v Ward, the High Court nevertheless suggested that, in certain circumstances, the effect of 'operational inconsistency' would result in suspension rather than extinguishment of native title. While this view has been adopted by the Federal Court in Daniel v Western Australia, the trial judge and the Full Federal Court in De Rose v South Australia preferred the view of the Ward Full Court when it articulated the concept: that is, the effect of 'operational inconsistency' results in extinguishment of native title. Since other Federal Court decisions, including the recent decision in Turrbal People v Queensland, have pre-supposed the existence of the concept without specifying its effect on native title, this two-part article considers the potential legal implications, for affected native title, of the different judicial approaches adopted by the courts vis á vis the existence, effect and scope of 'operational inconsistency'.Part I considers the pre-'Ward High Court' position. Part II addresses the ‘Ward High Court’ decision and beyond as well as the interrelationship between the common law and statutory concepts of 'operational inconsistency'.

Item ID: 15746
Item Type: Article (Refereed Research - C1)
Keywords: native title, Mabo, operational inconsistency, radical title
ISSN: 1038-5959
Date Deposited: 11 Apr 2011 00:19
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180124 Property Law (excl Intellectual Property Law) @ 30%
18 LAW AND LEGAL STUDIES > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law @ 70%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9404 Justice and the Law > 940406 Legal Processes @ 40%
94 LAW, POLITICS AND COMMUNITY SERVICES > 9404 Justice and the Law > 940499 Justice and the Law not elsewhere classified @ 50%
95 CULTURAL UNDERSTANDING > 9503 Heritage > 950302 Conserving Aboriginal and Torres Strait Islander Heritage @ 10%
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