LAW 2572 - Native Title Law

North Terrace Campus - Trimester 3 - 2018

Native title has been described by Justice Kirby as an 'impenetrable jungle'. This course seeks to guide students in navigating and breaking down this complex and controversial area of law and policy by isolating the main elements of this 'jungle'. To do this, students will examine the range of techniques available in Australia, Canada, and other settler states for the recognition and protection of native title. These techniques include judicial and legislative responses, quasi-constitutional documents such as treaties, constitutional provisions that guarantee rights, and the establishment of semi-autonomous institutions for indigenous self-government. In the second part of the course, students will identify and consider the ways in which the recognition of native title requires a reassessment of the foundations of real property law in Australia and other settler states such as New Zealand and Canada.

  • General Course Information
    Course Details
    Course Code LAW 2572
    Course Native Title Law
    Coordinating Unit Adelaide Law School
    Term Trimester 3
    Level Undergraduate Law (LLB)
    Location/s North Terrace Campus
    Units 3
    Contact Intensive
    Available for Study Abroad and Exchange
    Prerequisites LAW 1506 or LAW 1511
    Course Description Native title has been described by Justice Kirby as an 'impenetrable jungle'. This course seeks to guide students in navigating and breaking down this complex and controversial area of law and policy by isolating the main elements of this 'jungle'. To do this, students will examine the range of techniques available in Australia, Canada, and other settler states for the recognition and protection of native title. These techniques include judicial and legislative responses, quasi-constitutional documents such as treaties, constitutional provisions that guarantee rights, and the
    establishment of semi-autonomous institutions for indigenous self-government. In the second part of the course, students will identify and consider the ways in which the recognition of native title requires a reassessment of the foundations of real property law in Australia and other settler states such as New Zealand and Canada.
    Course Staff

    Course Coordinator: Associate Professor Laura Grenfell

    Course staff:

    Associate Professor Laura Grenfell (co-coordinator)

    Professor Paul Babie

    Associate Professor Peter Burdon

    Professor Alex Reilly

    Mr Christopher Davis

    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

  • Learning Outcomes
    Course Learning Outcomes


    1. Explain the development of native title law and policy in the Australian
    context.

    2.Compare the Australian legal landscape in which native title exists with that
    of other settler states such as Canada and New Zealand.

    3. Articulate Indigenous conceptions of law and land and how these conceptions
    mesh with non-Indigenous law and policy.

    4. Conduct legal research and writing for a medium length research essay.

    5.Communicate effectively orally by discussing and debating theoretical
    propositions, methodologies and legal problems.

    6. Critically analyse principles of law and their application.

    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Deep discipline knowledge
    • informed and infused by cutting edge research, scaffolded throughout their program of studies
    • acquired from personal interaction with research active educators, from year 1
    • accredited or validated against national or international standards (for relevant programs)
    1, 2, 3, 4, 6
    Critical thinking and problem solving
    • steeped in research methods and rigor
    • based on empirical evidence and the scientific approach to knowledge development
    • demonstrated through appropriate and relevant assessment
    1, 2, 3, 4, 5, 6
    Teamwork and communication skills
    • developed from, with, and via the SGDE
    • honed through assessment and practice throughout the program of studies
    • encouraged and valued in all aspects of learning
    4, 5
    Career and leadership readiness
    • technology savvy
    • professional and, where relevant, fully accredited
    • forward thinking and well informed
    • tested and validated by work based experiences
    4,, 5, 6
    Intercultural and ethical competency
    • adept at operating in other cultures
    • comfortable with different nationalities and social contexts
    • Able to determine and contribute to desirable social outcomes
    • demonstrated by study abroad or with an understanding of indigenous knowledges
    1, 2, 3,
    Self-awareness and emotional intelligence
    • a capacity for self-reflection and a willingness to engage in self-appraisal
    • open to objective and constructive feedback from supervisors and peers
    • able to negotiate difficult social situations, defuse conflict and engage positively in purposeful debate
    1, 2, 3, 4, 5, 6
  • Learning Resources
    Required Resources
    Students will be required to read cases, legislation, journal articles, reports and book
    chapters and in addition, they will be required to read materials from foreign
    jurisdictions. Some of the required reading material will offer Indigenous
    perspectives and be authored by Indigenous scholars/commentators. There is no
    one text book but the following are leading texts:

    Richard Bartlett, Native Title in Australia (3rd
    ed 2014)

    John Borrows and Leonard Rotman, Aboriginal
    Legal Issues: Cases, Materials and Commentary (2012)

    PG McHugh, Aboriginal Title: the Modern
    Jurisprudence of Tribal Land Rights (2011)

    Larissa Behrendt, Achieving Social Justice: Indigenous Rights
    and Australia’s Future


    Duncan Ivison, Paul Patton
    and Will Sanders, Political Theory and
    the Rights of Indigenous Peoples (2000, CUP)

    Heather McCrae, Garth
    Nettheim, Laura Beacroft and Luke McNamara, Indigenous
    Legal Issues: commentary and Materials (4th ed, 2009, Thomson Lawbook Co)

    Melissa Perry and Stephen
    Lloyd, Australian Native Title Law
    (2003, Lawbook Co)

    Peter Sutton, Native Title in Australia: an Ethnographic
    Perspective (2003, CUP)

  • Learning & Teaching Activities
    Learning & Teaching Modes
    The course involves a mandatory 2-3 day field trip in the week of 17-21 September 2018 (Dates to be confirmed). The field trip will cost each student approximately $260-$280 to cover transport, accommodation, the guide and some meals.

    Please contact the course coordinator if this cost is likely to pose a barrier to your enrolment - we will seek out funding to assist those students who can show financial stress.

    Before the field trip we will meet to discuss the logistics of the field trip and to reflect on Indigenous methodologies/epistemologies.

    Following the field trip we will have 4 intensive days in the class room (six hours each). It is expected that students will attend at least three out of four intensive days.

    Enrolments in this course are capped because due to limited accommodation available for the field trip.
    Workload

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    This course involves 36 hours of teaching time. 26 hours will be in the classroom while
    10 hours will be on-country. Students will be required to spend about 72 hour
    preparing for class, 5 hours on the reflection, 5 hours preparing for the
    presentation and 30-50 hours on the research essay.

    Learning Activities Summary

    The Learning Activities will include a mandatory field trip involving on-country engagement with Aboriginal native title claimants, a workshop on competing epistemologies (2 hours) and four intensive days (6 hours each) in the classroom looking at topical native title issues in Australia and other settler states.

    Class 1 and 2 Study trip to meet claimants; workshop on competing epistemologies

    Class 3 –Real Property Law and Native Title Law

    Class 4 – Proof of Native Title

    Class 5 –Land Rights and the Politics of Native Title

    Class 6 – Comparative Native Title Law

  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary

    Assessment Task

    Task Type

    Weighting

    Word Count / Time

    Due

    Learning Outcome

    Participation

    Individual (non-redeemable) Summative

    10%

    Throughout the course

    Throughout the course

    1, 2, 3, 5, 6

    Reflection

    Individual (non-redeemable) Summative

    10%

    750 words

    Monday 24th September 2018 at 9am

    1, 2, 3, 4, 6

    Presentation

    Individual (non-redeemable) Summative

    10%

    3-5 minutes

    On various dates of intensive teaching

    1, 2, 3, 5, 6

    Research Essay

    Individual (non-redeemable) Summative

    70%

    5,000 words

    Friday 2nd November at 2pm

    1, 2, 3, 4, 6

    Assessment Detail
    Students must attend the 2-3 day field trip in order to complete the course. This is a hurdle requirement.
    The field trip is designed to give students a tangible understanding of the land which is the subject of a native title claim and also an understanding of Aboriginal connections with land.

    The field trip will cost approximately $260 (TBC) which will cover the cost of transport, some meals, accommodation and the guide. Please contact the course coordinator if the cost of the field trip is likely to pose a barrier in your enrolment in the course.


    Class Participation (10%)

    The class participation mark is comprised of attendance, level of preparation and
    contribution to small and large group discussions. Students must attend at
    least 2 out of 4 intensive days in the classroom in order to receive a pass for
    this item of assessment.

    Reflection (10%, 750 words)

    For the Reflection mark students will write a reflection on the study trip of no
    more than 750 words. Students will receive some questions to guide their
    reflections.

    Presentation (10%, 3-5 minutes)

    Students will be required to give a 3-5 minute presentation in the class during the 4
    intensive days in the classroom. Students will be given materials to assist
    them prepare the presentation which will involve a role play. The presentation
    should be interactive where possible and classmates will have the opportunity
    to ask questions.

    Research Paper (70%, 5,000 words)

    For this research essay, students will undertake a substantial amount of
    independent research on a topic of their choice from a list of topics provided.
    Students will be given scope to include a comparative aspect to their research.
    Students will be evaluated on their ability to provide balanced and well-
    reasoned argument, their ability to demonstrate critical thinking skills, their
    ability to use materials that are relevant, credible and up to date.


    Submission

    Students must retain a copy of all assignments submitted.

    All assignments in this course are to be submitted in hard copy and electronically through Turnitin. All hardcopy submissions must be accompanied by the Assignment Cover Sheet that sets out the word length, and contains a signed declaration that the assignment consists of the student’s own work. A student’s results will be withheld until such time as the student has signed the Assignment Cover Sheet. Markers can refuse to accept assignments which do not have a signed acknowledgement of the University’s policy on plagiarism.

    Details for electronic submission through Turnitin will be provided with the assignment instructions.

    All written work in the Law school is required to comply with the approved Law School style guide, The Australian Guide to Legal Citation.

    Extensions: Requests for extensions must be made electronically according to law school policy. Extensions will be granted only for unexpected illness, hardship or on compassionate grounds in accordance with University Policy. Work commitments, travel, holidays or sporting engagements are not unexpected circumstances.

    Penalties:

    1. Late Submission: Submission penalties of 5% (of the total mark of the assignment) each day (or part thereof) will be deducted for late submission (including weekends and public holidays), (ie an essay graded 63% will have 5 % deducted if it is one day late, for a final mark of 58%, 10% if it is two days, etc).
    2. Word Length: Assignments which exceed the allocated length (word length or page limit) will be subject to a penalty of 5% of total marks available per 100 words or part thereof (ie with a word limit of 3,000, an essay graded 63% will have 5% deducted if it is 3001 words long, for a final grade of 58%, 10% if it is 3101 words long, etc).  Words are calculated including all footnotes and headings within the text but excluding cover page information.  Quotations and all referencing information are included in the word count.

    Turnaround time: The interim assignment for this course will be returned to students within 2 weeks of the submission date. Group feedback, together with written, individual feedback will be provided, from which students can learn from in the final assignment. The final assignment will be returned to students within 4 weeks of the submission date with written individual feedback. Students will be notified by email when assignments are ready for collection from the Law School Front Office.

    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Courses for which a result of conceded pass has been obtained may not be presented towards the degree requirements for the Bachelor of Laws or the Honours Degree of Bachelor of Laws programs, or any postgraduate law program, nor to satisfy prerequisite requirements within any law course.

    Final results for this course will be made available through Access Adelaide.

    Finality of Assessment Grades

    Students are advised that Course Coordinators will not enter into negotiations of any kind with any student regarding changes to their grades. It is irrelevant, in any given circumstance, that only a minimal number of additional marks are required to inflate a student’s grade for any individual assessment item or course as a whole. Pursuant to the University’s Assessment for Coursework Programs Policyand the Adelaide Law School Assessment Policies and Procedures, grades may only be varied through the appropriate channels for academic review (such as an official re-mark).

    Moderation
    In accordance with the University’s Assessment for Coursework Programs Policy, course coordinators ‘ensure that appropriate marking guidelines and cross-marking moderation processes across markers are in place’ in each course. Procedures adopted by Adelaide Law School to ensure consistency of marking in courses with multiple markers include:
    • assurance of the qualifications of markers, and their knowledge of the content covered in each course;
    • detailed marking guidelines and assessment rubrics to assist in the marking of items of assessment;
    • sharing of example marked assessments at various grade bands across markers;
    • reviewing of selected marked assessments from each marker by the course coordinator;
    • comparison of the marks and their distribution across markers;
    • automatic double-marking of all interim assessment receiving a fail grade, and of final assessments where a student’s overall result is a fail grade;
    • the availability of re-marking of assessments in accordance with Adelaide Law School’s Assessment Policies and Procedures.

    Approval of Results by Board of Examiners
    Students are reminded that all assessment results are subject to approval (and possible moderation/change) by the Law School’s Board of Examiners. Assessment results at the University are not scaled. Under the Assessment for Coursework Programs Policy, students are assessed ‘by reference to their performance against pre-determined criteria and standards … and not by ranking against the performance of the student cohort in the course’. However, under that same policy, the Board of Examiners (as the relevant Assessment Review Committee for courses at Adelaide Law School) is required to ‘ensure comparability of standards and consistency’ in assessment. On occasions, the Board of Examiners will form the view that some moderation is required to ensure the comparability of standards and consistency across courses and years, and accordingly provide fairness to all law students. All assessment results are therefore subject to approval (and possible change) until confirmed by the Board of Examiners and posted on Access Adelaide at the end of each semester.
  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

  • Student Support
    The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the University of Adelaide.

    The centre offers practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

    Lex Salus Program
    Lex Salus (law and wellbeing) is an initiative of the Adelaide Law School aimed at destigmatising mental health issues; promoting physical, mental and emotional wellness; building a strong community of staff and students; and celebrating diversity within the school. It also seeks to promote wellness within the legal profession, through the involvement of the Chief Justice of the Supreme Court of South Australia, the Honourable Chris Kourakis, as the official Patron of the program.

    Students can participate in the Lex Salus program by attending barbecue lunches, pancake breakfasts, knitting and crochet circles, seminars, guest speakers, conferences and other activities. Our Facebook page, website and regular all-student emails promote upcoming events, and have tips and information on wellness.

    Our Lex Salus YouTube channel also includes videos on topics like managing stress, and interviews with LGBTQ lawyers and their supporters which celebrate diversity and individuality. Students who commit to 10 hours of volunteering with Lex Salus in one year can have their service recognised on their academic transcript and through a thank you morning tea with the Chief Justice and law school staff.

    Student Life Counselling Support
    The University’s Student Life Counselling Support service provides free and confidential service to all enrolled students. We encourage you to contact the Student Life Counselling Support service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life.
  • Policies & Guidelines

    This section contains links to relevant assessment-related policies and guidelines - all university policies.

    Academic Honesty
    Academic dishonesty is a serious act of academic misconduct. All students must be familiar with the University’s Academic Honesty Policy.

    Academic dishonesty is a serious matter and is treated as such by the Law School and the University. Academic dishonesty (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to admit a person to practice as a legal practitioner in South Australia.

    Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.
  • Fraud Awareness

    Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student’s disciplinary procedures.

The University of Adelaide is committed to regular reviews of the courses and programs it offers to students. The University of Adelaide therefore reserves the right to discontinue or vary programs and courses without notice. Please read the important information contained in the disclaimer.