First Nations Cultural Loss

Whiteness and the Timber Creek Judgment

Dados Bibliográficos

ID22223016
AutoresGreta Bird, Jo Bird (0000-0002-3345-1815)
Ano2021
Volume1
Fascículo1
Páginas68-90
Data de publicação2021-03-01
Open AccessSim
TipoARTICLE
PeriódicoLegalities (JOURNAL)
Identificadores do periódicoISSN: 2634-3770 • E-ISSN: 2634-3789
EditoraEdinburgh University Press (PUBLISHER • GB)
DOI10.3366/legal.2021.0007
OpenAlexW3168699468
IdiomaEN
Citações recebidas1
Referências citadas12

The Ngaliwurru and Nungali Peoples of the Country known in white law as Timber Creek commenced three proceedings under the Native Title Act 1993 (Cth) (NTA) in 1999 and 2000. The final judgment in the High Court was hailed as progressive. It was the first time that the Court had awarded damages inter alia for cultural loss under the NTA. The article contends that the compensation awarded was inadequate, being based on white, neo-liberal notions of property that do not acknowledge Aboriginal sovereignty, the depth of connection to country and loss suffered. The case also denied that a fiduciary obligation existed on behalf of the Crown, a possibility that was raised in Mabo and other cases but allowed to atrophy. Given this, it is argued that the judgment is a continuation of the colonial project based on the ‘ terra nullius’ doctrine and can be critiqued from the perspective of the white cultural privilege embedded throughout. The judgment does not disturb the skeleton of white Australia's claims to sovereignty: the taking of the land without consent, the failure to recognise First Nations sovereignty, the neglect to enter into treaties or to provide compensation in any meaningful sense

Damages · Doctrine · High Court · Obligation · Political science · Politics · Sociology · Sovereignty · Law · Law in Society and Culture · Legal Issues in South Africa · Legal principles and applications

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