The concept of 'operational inconsistency' in Australia: implications for native title - the common law and statutory positions. Part II - the development of 'operational inconsistency' in Australian jurisprudence: the Ward High Court decision and beyond

Secher, Ulla (2010) The concept of 'operational inconsistency' in Australia: implications for native title - the common law and statutory positions. Part II - the development of 'operational inconsistency' in Australian jurisprudence: the Ward High Court decision and beyond. Australian Property Law Journal, 18 (3). pp. 218-244.

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Abstract

Part 1 considered 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' before the High Court's decision in Ward. It was seen that during the pre-Ward stage of the development of the concept, its existence as part of the common law of Australia appeared certain and its scope was defined by its application to specific fact situations: the concept of 'operational inconsistency' was a qualification on the 'inconsistency of incidents' test. 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'. Although the High Court in Ward questioned the concept of 'operational inconsistency', the court did not reject the theory and suggested that, at least in some circumstances, the effect of 'operational inconsistency' would result in suspension rather than extinguishment of native title. The High Court did not, however, clarify the principles that should guide this area of the law. The High Court's dicta on the effect of 'operational inconsistency' has, therefore, been subject to different interpretations by the Federal Court in Daniel v Western Australia and in De Rose v South Australia. Since the NTA presupposes the existence of the concept of 'operational inconsistency' at common law, the effect of the statutory concept of 'operational inconsistency' on affected native title rights depends upon the effect of its common law counterpart. Although post-Ward judicial consideration of the concept has further delineated its scope, the legal effect of the common law concept of 'operational inconsistency' must be resolved as is evidenced by the procedural issues highlighted in Turrbal People v Queensland.

Item ID: 15747
Item Type: Article (Refereed Research - C1)
Keywords: native Title, Mabo, operational inconsistency, radical title
ISSN: 1038-5959
Date Deposited: 11 Apr 2011 00:28
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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