The case of Mabo - Essay Example

The case of Mabo Introduction The case of Mabo became a landmark in the Australian high court, as they were able to come up with a decision bearing in mind the first time recognition of Australian native title. In this case, the high court of Australia decided to reject the terra nullius doctrine in favor of the common law, aboriginal title doctrine of which was contrary to the supreme court of northern territory. On brief summary of the case, the action was due to the decision held by Eddie Mabo, James Rice, and David Passi. These people were from the Murray Island in Torres Strait. They commenced the proceedings in 1982 in the high court as they were responding to amendment act of the Queensland in 1982. The amendment aimed at establishing a strategy of making land grants based on the trust of Torres Strait islanders and the aboriginals of which the Murray islanders did not agree with it. The plaintiffs had the representation of the Grey Mclntyre, Brian Keon-Cohen, and Ron Castan (Curthoys, Genovese and Reilly, 2008). At first, the case was brought in as a test aimed at determining the legal rights of the people of meriam to land in the murray island and Waier and Dauar in Torres Strait. This was so because; such got heavy stimulation to the Queensland in 1879. Before the British contacted the meriam people, they had lived in the land as subsistence economists who majored in fishing and cultivation. At those times, the land was not for the whole community or public, but rather, was for certain individuals. Discussion At some point in 1985, the government attempted at all means to discontinue the proceedings trough enactment of a declaratory act referred to the Queensland coast island. This declaration stated that on the land annexation in 1879, the island title was vested in the Queensland state, and as a result, free from claims, interests, and rights whatsoever. According to the Mabo versus Queensland number 1 of 1988, the high court stated that this was not in line with the legislations provided by 1975 racial discrimination act. As a result, the plaintiffs decided to come up with inter alia declarations ruling that the Meriam people had a right for the Land of Murray Island. This meant that they were the owners, possessors, occupiers, or people who have a right to enjoy the use of the land. According to the plaintiffs, they argued that they needed a possessory title because of the long period, which they possessed the land. According to the defendant and more so the Queensland government, they argued that in a situation where a settled colony territory contribute to the dominion of the crowns, England law dominates. It is due to this that the crown gets ownership of the land in the territory (Russell, 2005). In law, a plaintiff refers to an individual who commences a lawsuit. Such an individual commences a lawsuit by filling a complaint. The documents meant to commence a lawsuit are called petition rather than complaint, and in this case, the person commencing this is called a petitioner instead of a plaintiff. On the other hand, the defendant refers to an individual accused of a crime in case of criminal case. In case of civil matter, it refers to an organization, or person sued. An individual against which a lawsuit is filled is referred to a defendant. In some events, a defendant can be referred to a respondent because it involves giving responses to an appeal. In the common law, a defendant may not be able to recover money of the plaintiff, however, in some cases; the statute alters the rule. Based on the decisions made, there were five judgments in the high court. This based on the findings of the supreme court of Queensland judge. He stated that the islanders of Murray had a strong relationship sense to the island has was theirs. This was so because, of the existence of the native title concept under the common law. In addition, this title originated from the traditional connection or land occupation, which was determined by the connection character under customs and traditional law. In other words, according to the law, the native title could be subject to extinction by the valid government powers exercised. As the judges went on with their decision making process, they rejected terra nullius. This was necessary because, the law emphasized on the importance of recognizing the pre-existing law system that govern indigenous population. In the process of judgment, there was the idea of repudiation of the real and absolute beneficial titles for the land. This was so because; a majority of mabo rejected the proposal of acquisition of sovereignty. According to most of the viewers, they rejected the development of tenure doctrine according to the requirements of the tradition and as it is appropriate in Australia. They rater viewed that upon acquisition of the sovereignty, the crown were not able to acquire a radical and absolute title subject to native title rights, where such rights had not been accepted. As a result, the court decided to accept the modified doctrine operating in Australia, therefore, the law of tenure could co-exist with the native title law. According to justice Toohey, the interest of property fragmentation is not in line with the requirements of the law, hence not possible to pursue (Clarke and Kohler, 2005). In the process of handling this case, there are effects that might have resulted. This is so because, the decision led to numerous political and legal questions. Such questions included the aspect of titles validity even after 1975 racial discrimination act commencement. In addition, people questioned on on the possibility of developing the land affected by the native title even in the future. Procedures involved in the determination of issues governing large-scale development of the native title. As a result, from this questions then their came up significant effects. This is so because there are significant issues that came up and are worth consideration(Warhurs, 2003). During the judgment of the case, many legal doctrines were inserted that have a native title based on the laws of Australia. In putting into recognition traditional rights belonging to the people of Meriam Island that is in the eastern part of Torres Strait, the court also stacked to the fact that there was a native title belonging to the indigenous people of Australia. This title was made before the establishment of the British colony and cook’s instructions in 1788. As a result of this judgment, there was a huge, hinder in the development of the Australian law. However, the new doctrine that represented the native title acted as a replacement of terra nullius doctrine of the 17th century. According to the doctrine of the 17th century, British claimed to have a possession of Australia. Therefore, Mabo decision gave a solution of the problem that was created by the case of Gove Land rights in 1971. This problem resulted due to holding to terra nullius legal fiction. As a result, the recognition of this right enabled people of Australia to know that they had an earlier title to the land and the crown earlier took the land in 1770. According to the court, they claimed that even to date, such title exists in situations where land is not extinguished legally (Stranieri and Zeleznikow, 2005). It is from the judgment that the effects, which resulted, became an issue. This is so because effects were noted with the non-aboriginal tenure of land, and on mining. According to the Mabo judgment, it did not offer challenges in any way to the legality of land tenure of non-aboriginals. On the contrary, the courts decided determine the possible impacts of the judgment. This was because they aimed at minimizing such impacts on the non-aboriginal Australians. At that time lands such as national parks, land leased by non-aboriginals, and crown land belonged to the non-aboriginals and had right to claim it. In addition, according to law, there is no native language recognized automatically. This implies that, the non-aboriginals should go to court in case they have a claim over land. According to the judgment, it helped ensuring that whenever a conflict came up between native title and crown title the native titles always lost the case. However, for the titles established in 1975 the aboriginals can only claim compensation for title extinguishment (Campbell, 2004). The mining was also subject to effects by the judgment. This is so because; the court did not give a ruling on the person who owned the mines. As a result, failure to come up with a ruling called upon the government legislation to come up with a ruling regarding ownership of the mines. Ownership of the mines by the so-called private owners is not in line with the Australian requirements. Therefore, it is necessary to vote and declare that the land is not restricted to the ownership of aboriginals based on the requirements of legislations of the legal rights. It is from this that it is necessary to note that some of the private landowners in Australia were as a result of the titles issued in 1800s and in early 1900s. As a result, such individuals own the land and the mines to date. It is during the parliamentary sitting that the mines act was subject to amendment, this aimed at ensuring that the landowners got a compensation equivalent to the mineral value. This was a good move as it enabled those who gave out the land to get enough returns. In addition, private mineral owners were made aware that mineral ownership do not have any effect on the development of minerals. This is so because; the state has control over the development of minerals. For the individuals who have native ownership, they should now that this is a guarantee of the mineral ownership. This is based on the requirements of the Australian common law against the demands of Terra Nellius (Millane, 2006). Furthermore, individuals who own land privately have a right of voting mining in their improved land. On defining improved land, it is different from state to state. According to WA, its definition is broad such that it can refer to land that is not cleared and used to stock animals. The various religious denominations have voting lands used for mining that surrounds the churches and other places registered for worship. This veto rights are far much strong compared with those granted by aboriginals. Despite this, there is no clear indication on whether such rights can affect the development of mining. It is just clear that these rights have the powers to force mining companies to come up with a negotiation with the private landowners if they want to mine in privately owned lands. In addition, comparison regarding development of mines between territories and state that have land rights and those without land rights show that there are no rights granted to the aboriginals. This based on the requirements of the legislation of land rights. This is so because; even on analysis of the newspaper reports regarding the effects of these rights on company’s mines performance, there is no place indicated that it can affect. As a result, it is clear that the Mabo ruling regardless of whether it will guarantee ownership of minerals, it will it will not affect the development of minerals as intended in Australia (Collins and Davis, 2004). Despite this ruling, most of the mining industries have a strong opposition or objection of Mabo ruling. This is so because; private mineral owners have a right over it. As a result, they can raise taxes; and they can exploit companies who approach them with an intention of mining. This then suggests that the motive of the mining industry to oppose aboriginals land restoration is ideology and not owners. In addition, they intend to commence mining in the land without the awareness of the aboriginals. On analysis of the impact on Australia’s economy, it is of no drought that restoration of land from aboriginals will have significant impact on Australian economy(Chisholm & Nettheim, 2007). It is clear that most of the lands restored from aborigines under the existing land rights are those open for claims in the native title. This is the land, which the aboriginals in the first place were not interested. This is so because, they are the lands, which belonged to the rich aborigines, and were mainly the lands, which had no economic values apart from tourism and mining. The early successes of enterprises belonging to aboriginals such as emu farms in WA that belonged to the first Australians marked the restoration of land from aboriginal owners. As a result, most of them were guaranteed independence and security that is beneficial to all. Conclusion In the earlier days, the Mabo case ruling was perceived to be unfair judgment. However, after some time most of the individuals saw it as being an avenue that can offer improvement to the Australian economy. In addition, it is seen as a judgment that guarantees security and independence in Australia. This are the key issues needed in every nation that aimed at eradicating poverty end ensuring continued development. Native title can be defined as the recognition or the aboriginals to inherit land that belonged to its family. This is the same right enjoyed by most of the rich Australian aboriginals. References Campbell, T. (2004). Prescriptive legal positivism: law, rights and democracy. New York: Routledge Publishers. Chisholm, R. & Nettheim, G. (2007). Understanding law: an introduction to Australia's legal system. Dayton, Ohio: LexisNexis. Clarke, A. & Kohler, P. (2005). Property law: commentary and materials Law in Context. Cambridge: Cambridge University. Collins, F. & Davis, T. (2004). Australian cinema after Mabo. Cambridge: Cambridge University. Curthoys, A., Genovese, A. & Reilly, A. (2008). Rights and redemption: history, law and indigenous people. Sydney: UNSW . Millane, V. (2006). VCE Legal Studies. New York: Pascal Publishers. Russell, P.H. (2005). Recognizing Aboriginal title: the Mabo case and indigenous resistance to English-settler colonialism. Toronto: University of Toronto. Stranieri, A. & Zeleznikow, J. (2005). Knowledge discovery from legal databases. New York: Springer Publishers. Warhurst, S. A. (2003). Australian Political Institutions. Sydney: Pearson Education. Read More