Friday, February 8, 2013

Next week in the High Court of Australia

There are three cases listed for hearing in the High Court of Australia next week.
Commencing on Tuesday, 12 February 2013 is an appeal from the Full Court of the Federal Court in Leo Akiba v Commonwealth.  The proceedings arise out of a native title determination application filed on behalf of the Torres Strait Regional Seas Claim Group.  The application was opposed by the Commonwealth, the State of Queensland, a large group of people and companies collectively described as “The Commercial Fishing Parties” and a small number of parties from Papua New Guinea.  The application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait.  The occupation of the region by the Seas Claim Group and their ancestors was of an essentially maritime character.  The sea is an integral presence in the lives and livelihood of the Islander communities that comprise the Seas Claim Group. At issue is whether or not there is a single Torres Strait Island society for the purposes of the Native Title Act 1993, whether rights held under traditional laws and customs on the basis of a ‘reciprocal relationship’ with a holder of ‘occupation based rights’ are native title rights or interests for the purposes of the Act, and whether or not the laws of The Commonwealth and the State of Queensland governing fishing rights had extinguished such native title as the plaintiff’s might otherwise have held.
Also appearing in the High Court’s Business List for next week is another Native Title case, Karpany v Dietman.  This case deals with whether or not the native title rights and interests of the Narrunga People in South Australia to fish for Greenlip Abalone were extinguished by operation of the Fisheries Act 1971 (SA).
The third case listed for hearing next week is Yates v The Queen, an application for special leave to be heard as if on an appeal, in which the appellant challenges the imposition of an indeterminate prison sentence under section 662 of the Western Australia Criminal Code following his conviction in 1987 of deprivation of liberty and aggravated sexual assault on a 13 year old girl when he was aged 25.  This “deviant behaviour” is said to be a result of various factors unlikely ever to change, including including brain damage, effectively rendering his sentence a lifetime of imprisonment.  

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