February 2005 Volume 6, Issue 9
One of the most striking current issues is that of Allan Carriage, an Elder of the Wadi Wadi nation near Wollongong in NSW, fighting to protect his cultural heritage from the apparently disrespectful and destructive force that is some developers. Mr Carriage’s legal team have kindly provided for this edition an account of one Elder’s relentless journey through the courts. Following on from this, Anthony Seiver discusses the criminal nature of the offence of damaging Indigenous cultural heritage in New South Wales and the deterrent effect of this process.
Research by the NSW Bureau of Crime Statistics has shown an increasing trend in the refusal of bail by police and magistrates. Melanie Schwartz argues that the socially-marginalising bail regime currently operating in NSW is more of an attack on disadvantage than on crime itself. Still on the appalling inconsistent application of RCIADIC recommendations, Martin Flynn looks at whether recent cases are showing a tendency of courts to create a distinction not previously articulated in regard to the consideration of Aboriginality when sentencing. While the principle has been founded in the ideal of substantive equality, recent cases have seen superficial distinctions drawn from the defendant’s mode of residence — basically, courts are deciding whether the defendant is ‘Aboriginal enough’.
The NSW Government has responded to the recommendations of the Aboriginal Trust Fund Reparation Scheme Panel with a scheme to operate out of the Premier’s Department which will aim to return all stolen moneys owing to Aboriginal people or their descendants. Law student Aileen Teo provides an update on the situation in NSW and on the National Report being prepared by Dr Ros Kidd.
Jackie Hartley writes a casenote on the recent decision Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 where it was decided that governments do have a duty to consult with Aboriginal peoples even before a determination of Aboriginal rights and title to that land has been made.
General Edition
Protecting Cultural Heritage
Carriage — An Elder’s Journey Through the Courts
by Kathy Ridge and Anthony SeiverDefining the Offence of Unlawfully Destroying Aboriginal Heritage
by Anthony Seiver
Stolen Wages Update
Establishment of the NSW Aboriginal Trust Fund Repayment Scheme
by Aileen Teo
Comment
Not ‘Aboriginal Enough’ for Particular Consideration when Sentencing
by Martin FlynnThe NSW Bail Act and Aboriginal Defendants
by Melanie Schwartz
Case Note
Upholding the Honour of the Crown: Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511
by Jackie Hartley
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