The Recognition of the Right of Property - Case Study Example

Locke would have said, rightly, that the forms of indigenous land use that were in issue in Mabo v Queensland (1992) did not constitute ownership’. Discuss. The recognition of rights over land has been an issue that caused severe conflicts in the literature as of the reasons and the events that could be used in order to support the development of a specific decision. The case of Mabo v Queensland (1992) should be considered as significant regarding the acceptance of the right of property by indigenous population. On the other hand, in common law there is the doctrine of terra nullius (referring to land that belongs to no-one). Under these terms the land of ‘Murray Island’ in Australia could be regarded as belonged to the Crown (in case that no property right is recognized on this land in favour of a specific person or persons). In the case under examination, the particular piece of land “Murray Island” was set under examination as of its owners. Primarily, no right was recognized to the local population (due to the existence of relevant principles of common law); however after the examination of the case by the Court (High Court of Australia) it was decided that the specific piece of land belongs to the indigenous people that can base their property rights on their presence in the specific piece of land for hundreds of years. The decision mentioned above could be possibly regarded as contradictory with the views of John Locke regarding the right of property (Constitution, Ch. 5, on property). The interaction of the above two views will be examined in the paragraphs that follow. The most important development introduced in the property law (referring to the common law) by the specific case is the recognition of the right of property to indigenous people that can prove their residency in a specific region for a specific period of time. In accordance with a report published by the Australian government solicitor (2008) in the case Mabo v Queensland (1992) the Court ‘rejected the traditional doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement, with the implication that absolute ownership of land vested at that time in the Crown, but rather accepted that native title rights survived settlement, though subject to the sovereignty of the Crown’. On the other hand, Malbon (1992) supported that ‘the doctrine of terra nullius was a particularly offensive device for depriving Aboriginal and Torres Strait Islander people of their title to land; this device applied even where a traditional attachment was maintained to the land; the doctrine was discriminatory as it deprived Aboriginal and Torres Strait Islander people of a possessory right to land’. In other words, the doctrine of terra nullius could not be applied on the particular case because the rights of the people that live in the region for hundreds of years are found to be in risk in case that no title of property was recognized to them (referring to the Murray Island). Indeed, in the relevant case, the Court accepted that ‘123. Section 9 – of the Racial Discrimination Act 1975 - relevantly provides:" (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’ (Mabo v Queensland, 1992, section 123). In other words, the potential denial by the Court to recognize the property rights of people of Murray Island on the specific piece of land could lead to the assumption that the Court can accept potential discrimination regarding specific part of the population. In this case, the property rights of the local population was related with racial discrimination because there was no reason for the specific piece of land to be considered as property of the Crown; such a decision would be opposite with fundamental principles of common law especially of the right to the property and the right of equal treatment by the law. Because of the above, the Court ordered that ‘In lieu of answering the questions reserved for the consideration of the Full Court, (1) declare that the land in the Murray Islands is not Crown land within the meaning of that term in s. 5 of the Land Act 1962 (Q.) (Mabo v Queensland, 1992). It should be noticed that the above decision of the Court was rather difficult to be achieved mostly because of the complexity of the conditions related with the specific case. Regarding the specific issue, it is noticed by Malbon (1992) that ‘in affirming native title based on traditional Aboriginal possession of land, the Court was faced with two lines of conflicting authority: one line maintained that when Britain claimed territory, the Crown acquired both the radical title (i.e. ultimate or final title) and possessory title to the territory; the other line of authority maintained that the acquisition of territory conferred the radical title to the Crown, but not possessory title; the majority favoured the second line of authority’ (Malbon, 1992). In other words, the Court did not doubt the power of the Crown over the specific region. However, the Island was considered as belonging to the local population (in terms of the property rights related with the specific piece of land). The absence of official title of property was regarded as having no importance in the specific case because the presence of the local population in the region has been found to be quite long and therefore the right of property should be accepted as existed to the indigenous people. As of the principles of Common law that regulate the recognition and the protection of property rights, they continue to be valid and binding regarding the specific piece of land. But the right of property of the particular piece of land was given to indigenous people that are closely related with the region for a long time. The Court justified its view using a series of provisions of the Common law. Apart from the provisions included in the Racial Discrimination Act of 1975 (mentioned above) other provisions were also accepted as being valid in the particular case. More specifically, the Court held that ‘In so far as the Commonwealth is concerned, there is the requirement of s.51(xxxi) of the Constitution that a law with respect to the acquisition of property provide "just terms"; an even more important restriction upon legislative powers to extinguish or diminish common law native title flows from the paramountcy of valid legislation of the Commonwealth Parliament over what would otherwise be valid State or Territory legislation’ (section 62, Mabo v Queensland, 1992). In other words, when having to decide on specific property right the Court should take into consideration all the conditions related with the specific case applying the provisions of law that are considered to be most appropriate. The specific assumption is also supported by the view that ‘ordinarily, land is only acquired for a public purpose on payment of just terms, whatever may be the precise statutory language employed; See for instance Lands Acquisition Act 1989 (Cth), Pt VII Land Acquisition (Just Terms Compensation) Act 1991 (N.S.W.), Pt 3; Land Acquisition and Compensation Act 1986 (Vict), Pt 3; Acquisition of Land Act 1967 (Q.), Pt IV; Land Acquisition Act 1969 (S.A.), Pt IV; Public Works Act 1902 (W.A.), Pt III; Lands Resumption Act 1957 (Tas.), Pt IV; Lands Acquisition Act 1978 (N.T.), Pt VII.’ (section 62, Mabo v Queensland, 1992). All the above provisions are mentioned by the Court in order to make clear that the denial of the right of property to a person or persons can be based only to the relevant (strict) provisions of law; there is no chance for expanding the application of the legal provisions in cases that they are not included in the legal provisions mentioned above (always referring to the ways of acquisition of property). The above views of the Court in Mabo v Queensland could be regarded as contradicted with the view of John Lock in Constitution. In the specific collection of legal orders which was written in 1690 it is clearly stated that at a first level people around the world have equal rights on the land following the orders and the rights given by God. More specifically, in Constitution is mentioned that ‘God, who has given the world to men in common, has also given them reason to make use of it to the best advantage of life, and convenience; the earth, and all that is therein, is given to men for the support and comfort of their being; yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man’ (section 26, Locke). However, it is accepted in another point of Constitution that labour can create rights of property in favour of people through the labour: ‘labour, in the beginning, gave a right of property, wherever any one was pleased to employ it upon what was common, which remained a long while the far greater part, and is yet more than mankind makes use of’ (sec. 45, Locke). In accordance with the above views, the Court of Australia should not recognize property rights to local population; however the latter managed to prove that they use the specific land for hundreds of years and they live from its products. In this sense, the Court of Australia ruled in accordance with the written and the moral law. References Australian government solicitor http://www.ags.gov.au/publications/agspubs/legalpubs/legalbriefings/br05.htm Malbon, J. (1992) Mabo Perspectives: The Implications of Mabo v Queensland (No.2). Aboriginal Law Bulletin [36], available at http://www.austlii.edu.au/au/journals/AboriginalLB/1992/36.html Mabo v Queensland [High Court of Australia, [1992] HCA 23] http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html John Locke (1690) The Second Treatise of Civil Government, available at http://www.constitution.org/jl/2ndtreat.htm Read More