On the 6th of June 1992 The high court of Australia made the decision to overturn the doctrine of Terra Nullius, Mabo v Queensland (No2) (1992) 175 CRL 1, this decision caused a very significant impact on Australia’s Law and legal History. It was the first time since British settlement in 1770 that native title was recognised in Australia for Indigenous Australians. Native title refers to land title rights indigenous Australians have with land that has cultural significance to them. The decision ruled in favour of the common law doctrine of Aboriginal title.
Captain cook first applied Terra Nullius in Australia in 1770 when he claimed the East Coast of NSW for Britain. Terra Nullius is a Latin term meaning “Land belonging to no one” and was
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The Torres Strait Islands were annexed by the crown in 1879. Mabo argued that since the Meriam people had occupied the islands for thousands of years the land should be recognised as theirs and not recognised as Crown land per the Land Act 1962 (Reynolds, Henry: The Law of the Land, Penguin, Melbourne, (2nd ed.), 1992). The case went on for 10 years being heard in the High Court and the Queensland Supreme Court. On the 3rd of June 1992 the high court made its decision with in favour to Mabo and the Meriam people, under the common law of Australia that native title did exist (Pelczynski, Stan (1993). The High Court Recognition of Native Title - The Mabo Judgement and Its …show more content…
Year Book Australia). The Native title Act was significant as it provided a legal doctrine for Indigenous Australians to claim ownership of land that had a significance to their tribe and culture. Currently 15 percent of Australia is under ownership of Indigenous Australians which is Native Title land (Reconciliation Australia (2014). The Mabo Decision). It was a significant impact as now Indigenous Australians had the legal rights for the first time to claim back land by taking issues to court. In 1994 the National Native Title Tribunal was established and it dealt with legal matters concerning native title. The tribunal’s procedures took in account the cultural and customary concerns of Aboriginal and Torres Strait Islanders and had the power to determine uncontested native title and compensation claims which had never been seen in Australia
Eddie Mabo was a recognised Indigenous Australian who fought for his land, Murray Island. Mabo spent a decade seeking official recognition of his people’s ownership of Murray Island (Kwirk, 2012). He became more of an activist, he campaigned for better access for indigenous peoples to legal and medical services, to house, to social services and to education. The Mabo case was a milestone court case which paved the way for fair land rights for indigenous people. The Merriam people wanted to ensure its protection. Eddie Mabo significantly contributed to the civil and land rights of Indigenous people in Australia due to his argument to protect his land rights. In a speech in 1976, at a conference on the redrawing of the Torres Strait border, Mabo articulated a vision for islander self-determination and for an independent Torres Strait Island (Stephson, 2009).
in the country can afford the best lawyer and it is true to say that
This essay is about the land rights of of Australia and how Eddie Marbo was not happy about his land been taken away from him. In May 1982 Eddie Marbo and four other people of the Murray Islands began to take action in the high court of Australia and confirming their land rights. Eddie Marbo was a torres islander who thought that the Australian laws were wrong and who went to fight and try and change them. He was born in 1936 on Mer which is known as Murray Island. The British Crown in the form of the colony of Queensland became of the sovereign of the islands when they were annexed in1978. They claimed continued enjoyment of there land rights and that had not been validly extinguished by the sovereign. (Australian Bureau of Statistics 2012)
Key events in Aboriginal Australian history stem from the time Australia was first discovered in 1788. For instance, when Federation came into existence in 1901, there was a prevailing belief held by non Aboriginal Australians that the Aborigines were a dying race (Nichol, 2005:259) which resulted in the Indigenous people being excluded from the constitution except for two mentions – Section 127 excluded Aborigines from the census and Section 51, part 26, which gave power over Aborigines to the States rather than to the Federal Government. Aboriginal people were officially excluded from the vote, public service, the Armed Forces and pensions. The White Australia mentality/policy Australia as “White” and unfortunately this policy was not abolished until 1972. REFERENCE
Indigenous People. In evaluating the Legal System’s response to Indigenous People and it’s achieving of justice, an outline of the history of Indigenous Australians - before and during settlement - as well as their status in Australian society today must be made. The dispossession of their land and culture has deprived Indigenous People of economic revenue that the land would have provided if not colonised, as well as their ... ... middle of paper ... ...
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)
An issue facing society is whether the Native Title Act 1993 (Cth), is sufficient in balancing the rights of Indigenous Australians and the rights of current land owners. To determine whether legislation is sufficient and fair, an investigation into the current societal view points needs to be considered by legislators, with an evaluation into the ways in which other societies cater to the needs of Indigenous land owners should be made. This information then allows recommendations and changes to be debated, to therefore to ensure more equitable legislation on land rights within Australia.
The Effectiveness of Native Title The debate about native title issues has tended to see issues from idealistic perspectives ignoring the practical realities that native title poses to governments, industry and indigenous people. The implementation of the Native Title is an appropriate and significant aspect of Australia’s common and statute law, which effectively strives to develop a fair outcome for all Australian citizens. The Native Title Act 1993, like the court Mabo decision in 1992, transforms the ways in, which indigenous ownership of land may be formally recognised and incorporated within Australian legal and property regimes. The process of implementation, however, raises a number of crucial issues of concern to native title claimants and to other interested parties. These issues will need to be settled in court however, despite the many disputes between opposing stakeholders, the Australian Native Title effectively reaches the best and fairest possible outcomes for all Australian citizens.
In 1788 when the European settlers “colonised” Australia, the Australian land was known as “terra nullius” which means “land belonging to no-one”. This decision set the stage for the problems and disadvantages faced by the Aboriginal and Torres Strait Islander people for 216 years. The protection policy was meant to disperse tribes and force Aboriginal and Torres Strait Islander people off their traditional land so the “white Australian’s” could have more control. The protection policy enforced by the British colonies drove the Aboriginal and Torres Strait Islander onto reserves.
This claim was based on the concept of terra nullius, or land belonging to no one, whereby Britain assumed that Australia was not settled, and Aboriginal people did not have any form of political organisation and therefore had no authority to sign treaties. According to British law, Australia’s Indigenous population had no legitimate claim to the land on which they had lived for thousands of years and this relates to Native Title.
Before the Indigenous Australians gained Land Rights in Australia, in 1788 the East Coast of Australia was claimed by the English Monarch and was called Crown Land. The reason behind the English Monarch's claim for Crown Land was that they believed that that land was “terra nullius”, meaning land belonging to no one”. In 1976 the Northern Territory was the first state government to allow Indigenous Australians to claim Crown Land and reserves in the Northern Territory that no one had the use for. Commission and increased funding was also granted to Indigenous Australians through the 1975 Racial Discrimination act made by the Whitlam Government. These acts and decisions were then overruled against in 1985 by the High Court. Article 8 “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution of law” and Article 16 “the family (...) is entitled to protection by society and the State” of the UDHR are evidence of the discrimination Indigenous Australians faced by the government as they were once again stripped away of their human rights and land titles. Indigenous Australians only began to grant land from the English Monarch after the case between Mabo and others versus the State of Queensland took place that decided in favour of
In 1992, terra nullius was abolished in Australia, which can be accredited to the campaign of Eddie ‘Koiki’ Mabo. In the feature film, Mabo, both Koiki’s positive and negative qualities are revealed throughout his emotional and political journey for Indigenous land rights. While not always recognised, Koiki possesses admirable character that is displayed in his family life, pursuit for justice, prior achievements and in court, which is inspired by his heroes.
The Kurnai launched a native title claim in 1997 following on from the successful Mabo native title case of 1992. On 22 October 2010 the case was settled in the Federal Court under the Native Title Act (1993). The Court recognised the Gunaikurnai as traditional owners, and found that they held native title over much of Gippsland. Based on these findings the Victorian Government entered into an agreement with the Gunaikurnai on the same day, the first agreement reached under the Traditional Owner Settlement Act (2010).
The connection Indigenous Australians have with the land was established, and maintained, by The Dreamings, passed down through generations binding Indigenous Australians to the land (National Film & Sound Archive, 2015). National Film & Sound Archive (2015), highlight that land and being can not be separated for Indigenous Australians as they form part of the land and are accountable for the preservation of the land. Indigenous Australian land rights originated from an intricate social process constructed on traditional core values; where the rights of the land were established on principles of descendants, kinship and marriage (Dodds, 1998). However, despite this, the British colonisation of Australia in 1788 brought about change when the land was declared Terra Nullius (Short, 2007). Short (2007) stated that as a result of Australia being declared Terra Nullius, Indigenous Australians had no legitimate claim to their land. Hence, British colonisers dispossessing Indigenous Australians of their land rights as the customs established by Aboriginal and Torres Strait Islander people were not recognised or taken into consideration by the British Government (Short,
...d practiced traditional customs of their tribe. However this was hard to prove as their laws were never written down as they expressed their laws orally and had to remember them. This case made the native title claim difficult for the indigenous to get because their link to the land and their tradition had been severed due to the growth of urbanisation in those areas. The native title was seen as an important part of reconciliation between the Aboriginal Australians and the community to enhance the present and future. Many claims by the Yorta Yorta people were dismissed where the Australia in 2001 and the High Court of Australia 2002 which were also dismissed due to the tradition of being viewed as “old Historical ways”