Although consent determinations play a key role in native title law, little scholarly attention has been given to their operation. This article synthesises judicial commentary in this area to argue that claimed differences between judges as to the circumstances in which it will be ‘appropriate’ to give effect to a consent determination reached between the parties are more apparent than real. Nevertheless, and for the avoidance of confusion, this article propounds a new model for the ‘appropriateness’ test in sections 87 and 87A of the Native Title Act 1993 (Cth), based upon key values drawn from the Federal Court’s collective jurisprudence. Demonstrating the importance of this model, the article then considers the practical uncertainty arising from the use of ‘generic extinguishment clauses’ in response to the difficulties posed by tenure analysis. Cautioning that the use of such clauses may prove counterproductive, this article encourages negotiating parties to adopt current tenure analysis.
Documents are critical in native title litigation. This article explores the different methods of, and common problems encountered when, accessing such documents. By examining recent decisions dealing with the ‘Hearne v Street obligation’, non-party access requests, and legal professional privilege, this paper explores how the Court has grappled with the translation of general principles of practice to the unique context of native title litigation. It observes the Court has refused to create special native title rules, but rather has pragmatically applied general principles to native title matters on a case-by-case basis. Accordingly, close attention to these judicial developments is necessary, lest the interests of one’s clients, or of First Nations persons, be adversely affected by inappropriate document disclosure.
-A scarcity of organs available for transplantation dictates a need new sources. Two possible solutions to this problem are the use of organs from anencephalic newborns and those from baboons. This is a comparison of the ethics of these two sources, asking whether the sentient primate or the non-sentient human is the more appropriate donor. It is sustained that the definition of personhood requires the upper brain to be capable of functioning, resulting in an ability for selfconsciousness. There is an important difference, it is argued, between the human body and the person within it. As such, the anencephalic infant should not have the same rights as the sentient person. It follows that the life of the baboon, which is capable of feeling pain and has some cognitive ability, is more deserving of protection than that of the anencephalic neonate. In reaching this conclusion, a broad Utilitarian analysis is applied, treating the suffering of an animal of some worth, but the 'suffering' of the anencephalic newborn as irrelevant. It is acknowledged that on a Kantian analysis, the baboon is not a rational creature, but reference is made to Kant's belief that animals should nonetheless be treated with respect. It is found that Kant's theory would not prohibit a well-regulated system of xenotransplantation, but that the weight which Bentham attaches to an animal's suffering does provide insuperable difficulties. This is further explored, with the conclusion that the causing of any suffering makes a xenotransplantation program unjustifiable. A. INTRODUCTIONAnencephaly is a condition which affects approximately one in every thousand births,' resulting in a baby without a developed brain, with no cognitive capacity. It is by no means an unheard-of affliction. Upon finding out that a foetus is anencephalic, doctors consistently recommend a termination of the pregnancy. Of those which are born at term, approximately 28% are not born living. 2 The prognosis for the remaining babies is invariably death, with all but six out of a study of two hundred
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