Introduction The case of Application of Higgins [2023] NSWSC 689 was heard before Hallen J in the Supreme Court of NSW. This case is significant in the area of Aboriginal intestacy and the distribution of a deceased Indigenous person’s estate according to customary law. The civil proceedings concerned the administration of the deceased’s (Sheree Jane Higgins’) intestate estate. Material facts The claim was brought by the Plaintiff, the deceased’s mother (Emily Higgins), who sought a ‘distribution order’ under part 4.4 of the Succession Act 2006 (NSW) (‘the Act’). The Plaintiff sought the deceased’s entire estate be distributed alone to her, aligning with s.134(1) of the Act, instead of its equal division between both parents under s.138 of the Act. This was sought under the ‘laws, customs, traditions, and practices’ of the Indigenous group the deceased belonged to, instead of the legislative rules of intestacy. The Plaintiff, a member of the Wiradjuri Yorta community in NSW, was the deceased’s carer. The deceased’s biological father, Stephen Farkas, was not an Indigenous man and lacked any part in the proceedings. …show more content…
Legal issues The legal issues that the Court was required to answer included: Did the Court have the jurisdictional basis for the application of a distribution order, or was the jurisdiction contained to the Supreme Court of Victoria? Was the deceased an ‘Indigenous person’ as determined by s.101 of the Succession Amendment (Intestacy) Act 2009 (NSW)? Was reasonable notice of the proceedings given to all persons reasonably supposed to have interest in their
Case name: Peter K. Dementas v The Estate of Jack Tallas, 764 P.2d 628 (1988)
Their main vision is to empower the idea of a shared country and encourage opportunities for growth. With the perplexed requirements set out by the Native Title Act, this tribunal has helped claimants by providing legal aid to increase the chances of regaining lost land. For example, the Wik Peoples v Queensland (1996) 187 CLR 1 case was successful in recognising the lost land of the Wik people of Cape York. “They claimed native title over land that had previously been leased by the State Government to farmers for pastoral use” (Woodgate, Black, Biggs & Owens, 2011, p.354). The court then decided by a 4:3 majority that pastoral leases did not necessarily extinguish native title. This means that, in some cases, native title rights will co-exist with the rights of the pastoralists. Therefore, through progression and more native title cases heard, the laws surrounding the Native Title Act will adapt to further assist the Indigenous Australians in reclaiming their land. For instance, the processes surrounding Native Title issues are constantly being refined. As more and more people and political parties become aware of this process, the easier court litigation will become (Dow, 2002)
Of the 8 successful, the 1967 referendum which proposed the removal of the words in section 51 (xxvi) ‘… other than the aboriginal people in any State’ (National Archives of Australia ND), and the deletion of section 127, both, which were discriminative in their nature toward the Aboriginal race, recorded a 90.77% nationwide vote in favour of change (National Archives of Australia, 2014). As a result, the Constitution was altered; highlighting what was believed to be significant positive political change within Indigenous affairs at the time (National Archives of Australia, 2014). Approaching 50 years on, discussion has resurfa...
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
The first issues presented in this case study is that of the mountain property that Martin owned with some of his friends as joint tenants with a right of survivorship. A joint tenancy with right of survivorship (JTWROS) can be a common way of owning property between related and unrelated individuals ensuring that upon one’s death, their share of the property is equally divided up among the remaining joint tenants (Segal, 1998). The first conundrum involving this property and the laws pertaining to JTWROS is the issue of Martin’s friend and cotenant Peter, who stated in
State of Queensland v B [2008] QSC 231 was a case heard in the Supreme Court of
The purpose of will and inheritance law is to enable individuals to legally set out how they want their assets to be distributed in the event of their death, will and inheritance law also sets out how the estate of an individual who dies intestate (without a will) will be distributed. All law relating to will and inheritance law are part of either the Wills act 1997 (Vic)[1], which includes the requirements to make a legally recognised will or the Administration and probate act 1958 (Vic)[6], which includes the rules for the distribution of the estate of an individual who dies intestate. Any issues regarding disputing of wills are civil matters and are between private individuals. Case study Williams v. Ryan [2] (Supreme Court of Victoria 4/9/1998) The will of the late EILEEN ELSIE RYAN is being contested.
Relevance found through the explanation of the 1930’s absorption policies, using full detail of what these policies carried out and enforced as well as explaining what power Commissioner Neville had over Aboriginal people’s descent as well as explaining the motives behind such programmes.
The article mentions about the struggle for social justice by the indigenous Australians that have constituted challenges to the Australian state, including its welfare and community development practices. The Mabo judgement and resultant Native Title Act 1993 (Stephenson and Ratnapala, 1993; Goot and Rowse, 1994; Brennan, 1995) can be read as marking the success of indigenous groups in obtaining special status as a people within Australian constitutional and administrative systems. This paper briefly portrays the historical emergence of a prejudiced welfare state in Australia as well as more recent histories of community development within Aboriginal people. The early attempts to “civilise and Christianise” were unsuccessful as the indigenous
In fact, some tenurial incidents are still actively embedded in Australia’s land law. For example, the reversion of land title to the crown when a person dies intestate, also known as escheat, or the land escheats to the Crown when a trustee in bankruptcy or a liquidator of a landowner disclaims the land under statutory powers. Nonetheless, some academic authors demand the discontinuation of the tenure system as it permitted the Crown to take possession of all land, ignoring the interest of previous indigenous occupants. It has also been argued that in Australia the relationship between the Crown and its citizens has always been non-tenurial due to the abolition of most of the tenure system in England by the time of Australia’s colonisation.
In 1984 Edward Koiki Mabo, along with four other members of the Murray Island community, lodged legal proceeding against the Queensland Government. The claim put forth by the men was that the land in 1770 was not ‘no man’s land’ as declared by Cook, and the people of the Murray Islands were the rightful owners. One important claim of the lodgement documents, was that it was for both the land and the waters around the islands that was their cultural home (Perkins et al., 2010, p.
In Australia, customary law is relating to the system and practises that are amidst aboriginal Australians. These laws have been refined over time from acknowledges moral normalities in Aboriginal societies. These set of laws exist to regulate human behaviour, command specific sanctions for dereliction and also to help connect the Aboriginal People with each other and the land. The knowledge of the customary laws is passed on orally from generation to generation and are not classified into a systemic code (could not be done easily if attempted). It is important to note that the Laws are not the same throughout all of Australia as between the different language groups dispersed across the country, they have different notions of customary law,
Legislation and case law has been evolving throughout history surrounding testamentary promises. The attitudes of the courts have ebbed and flowed towards claims testing the validity of a will. New Zealand was the first country in the commonwealth jurisdiction to enact a family protection act, the Testators Family Maintenance Act 1900. Although legislation has changed considerably since the incorporation of the first act, the central concept has remained essentially unchanged. There are three main statutes in New Zealand governing family protection and testamentary promises, Property (relationships) Act 1976, Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955. This essay will explore these statutes and the cases in which reflect the courts attitude towards these. The writer will critically analyse the “attack against testamentary freedom” from all sides.
...002, ‘Preserving Culture in Federal Court Proceedings: Gender Restrictions and Anthropological Experts’ in Land, Rights, Law, Issues of Native Title, Volume 2, Issues Paper No. 15, May 2002. AIATSIS Native Title Research Unit, Canberra.
In recent case law, the judiciary have begun to acknowledge a series of methods of attempting to recognise and enforce indigenous rights within the statutory framework. Some of these ideas could be recognised and channelled into reform.