Mabo Case as a Revolution in Australian Law - Essay Example

The Mabo case was initially seen as a revolution in Australian law, but it's legal effects have turned out to be largely illusory The Mabo case is part of the very long and the very contentitious issue of native title in Australia. In the broad subject area of Australian indigenous law, issues relating to native title have become increasingly prominent. Australia as a nation has attracted a lot more attention where the claims of the indigenous population over the domestic resources (esp. land) are concerned. In general, Australia had a situation quite unlike other nations faced with the problems of an indigenous population. Ziegert and Tai (2004) state that originally, the doctrine of Terra Nullius was in place and this meant in essence that aboriginal people had no claim to land, unlike other indigenous population. While statute and common law have given land rights to the Aboriginal and the Torres Strait Islanders, the efforts have been very few and have taken place only recently. ‘Native Title’ is the term that is used by Australian Law to describe traditional Aboriginal land rights. The term encompasses the very different resource uses of different tribes with differing customs and traditions, occupying a wide variety of geographic environments. Clark and Kohler (2005) define native title has as: “Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs”. Given the nature of land rights for the aboriginal population and the controversial nature of the issue, it would be interesting to figure out the exact effectivity of the landmark decision that was given. The case in question is the Mabo decision in 1993. At the time the case was hailed as being a revolution in the field of land rights for the natives. The following essay will analyse the successes and the failures of the decision in the follow through years and whether or not Mabo was actually a success as it was initially thought to be. The statutory definition given in the Native Title Act closely follows this formulation. On 3 June 1992 the High Court of Australia delivered its judgment in the case of Mabo v the State of Queensland, holding that the common law of Australia recognised native title. Mabo v Queensland, (1993) came up with the term 'native title'. It was used by the High Court to recognise that Aboriginal peoples and Torres Strait Islanders may have existing rights and interests in land and waters according to traditional laws and customs and that these rights are capable of recognition by the common law. Specifically, the Court recognised a claim by Eddie Mabo and others on behalf of the Meriam people of the Island of Mer in the Murray Islands in the Torres Strait, that the Meriam people owned the land at common law because they were the traditional owners of their country under Islander law and custom. The Queensland Government had earlier tried to extinguish the Meriam people's property rights under the Queensland Coast Islands Declaratory Act 1985. However, the High Court ruled in 1988 (Mabo v the State of Queensland (No. 1)), that the Queensland law breached the Commonwealth’s Racial Discrimination Act 1975 (Cth). The Mabo judgment addressed some of the basic premises of the Australian legal system and society. In particular, the decision overturned the concept of terra nullius (a land belonging to no one) on which Australia's whole land tenure system had been based. The High Court recognised that the rights of Aboriginal people and Torres Strait Islanders to native title may survive in certain areas and that their native title must be treated fairly before the law with other titles. In Behrendt (2003) it has been stated that the Mabo case defined native title as a right that exists when an indigenous community can show that there is a continuing association with the land and that no explicit act of the government, federal or state, has extinguished that title. Radical title was vested in the Crown of the ‘discovering’ nation- or the subsequent independent, once colonial government-but the Indigenous people retained the right of occupancy although they could dispose of their land to the Crown. It is important to emphasize that the court recognised rather than created native title. This means in essence that the court acknowledged the existence of rather than created native title and its existence. Aboriginal and Torres strait Islander Social Justice Commission Report (1993) estimated that in the result in the Mabo case would assist only 5 per cent on the Indigenous population1. There are several factors that explain the High Court’s decision to overturn the doctrine terra nullius when it did. 1. there was an evolving political climate in 1992 where there was a better understanding of the experiences of the Indigenous people in Australia and a greater respect for the culture of the Indigenous population by the dominant Australian culture. 2. The Court could frame the finding so that it was in effect, a narrow concession. Given the amount of removal of Indigenous people from traditional land as a government policy since the time of the invasion up until the time of the decisions making process, there are very few Indigenous groups that would fulfill the criteria of native title, especially, the need to demonstrate a continuing attachment to the land as an entity The court ignored meant serious questions that the recognition of the native title raised, leaving those to be decided by future litigation. These included: Whether pastoral leases and mining leases extinguish native title (this was in fact not raised as an issue); and Whether the principles of native title in land extend to fishing rights (this was again contentitious given the fact that fishing had been specifically removed from the question posed to the Court by the applicant). Indigenous people have become better organized and more adept at using the legal system now that most communities have representation through agencies such as the Aboriginal Land Councils and other Community based organizations. The Native Title Act (1993) ultimately gave weightage to Mabo. The Act in principal affected a change in the extent to which acts of sovereign authority extinguish or diminish native title; and lay down a system of compensation for loss of rights by virtue of acts of sovereign authority. . If one was to outline its provisions one would find that the act: 1. recognised and seeked to defend native title; 2. provided that native title could not extinguished contrary to the Act 3. provided for agreement making - Indigenous Land Use Agreements (ILUAs); 4. validated any past grants of freehold or leasehold interests that were thrown into doubt by the Mabo decision; and 5. Created a National Native Title Tribunal to administer claims to land by Aboriginal people. There were certain issues that the Mabo case failed to deal with. These became points of contention later and led to further litigation and judgments. The judgment in the Wik Peoples and Thayorre People v The State of Queensland (1996) 187 CLR 1 clarified the position of the Native Title in relation ti pastoral leases. The judgment stated that 1. pastoral leases do not necessarily extinguish native title; 2. Rights of pastoralists and native title holders can co-exist 3. Where the rights of the title-holders and pastoralists are inconsistent, the rights of the pastoralist would prevail. The Wiki decision like the Mabo case before it caused controversy and resulted in the amendment of the Native Title Act in 1998. since then there have been cases that have dealt with the residual issues related to native title. In Yamirr v Northern Territory [2001] HCA 56, The High Court held that native title can exist to the sea and seabed (for offshore areas such as islands, and in this instance Croker Island). The Court found that indigenous people did not actually have to actually live on, or travel to, their lands in order for native title to exist. In Western Australia v Ward [2002] HCA 28, the Mirriwund Gajerrong made a native title claim on 8000 km of land in the Kimberly Ranges, incorporating mineral deposits, irrigation areas, national parks and pastoral lands. In Yorta Yorta Aboriginal Community v Victoria &o’rs [2002] HCA 58 it was established that the Yorta Yorta people did not have a claim over 200 km stretch of public land in Victoria an NSW. Native title did not exist. Both the above-mentioned cases in fact have been seen as major setbacks to native title claims and related evolution in Australia. There was also the question of whether or not the title is proprietary. In Milirrpum v Nabalco Pty Ltd it was decided that whatever the nature of the aboriginal relationship, with the land that inhabited, the land under contention in native title cases were proprietary if the native title was established. Finally, one more really important case, was the judgment in Anderson v Wilson (2000) 97 FCR 453, 171 ALR 705. In this case it was The Native Title Act contemplates that native title rights may be extinguished prior to its commencement. There were some illusions that the case created. Although it is true that native right has often been thought as being conceptualized and perceived as a property right, with parallels to many other property rights, this in process has been a recent development. Contemporary Australian law in fact recognizes the fact that native title is in no way different to the already recognized and uncontroversial, property rights such as easements. It has a communal nature and this is analogous to other property holdings such as property held by corporations. The importance of the Mabo decision can be understood in terms of the unprecedented politicization of history in Australia. the history war was played out in the public arena, in which competing sides attempted to explain Australia’s past and determine how best to remember it. One of the first major acts of this politicization was the speech by PM, Paul Keating at Redfern park, (1992). His assertion was that “we took traditional lands…we brought diseases…we committed murders” radically altered the terms of the nation’s self understanding. Although it is true that Mabo as a judgment did achieve a whole lot of spotlight on the issue of aboriginal claims on land and land rights and distribution issue, the real purposes achieved by the Mabo decision were in fact minuscule given the number of judgments and complications that the issue has seen in the years since the Mabo decision. Further, one of the major shortfalls of the decision was that there was no clear or defined policy or legislation angle provided by the judgment for future references for policy makers. this therefore left the issue open to politicization and controversy of a kind that it has still not been able to get rid off in a a complete manner. The fact that the native title act still finds itself in the midst of controversy is proof of this issue. Further, the institutionalization of land rights for aborigines in an age where the very culture of aborigines is a dyeing breed and then naming the judgment as a landmark decision is a little bit of an anti climax given the fact that most aborigines now want to be assimilated to the mainstream of life in Australia rather than stick to old and outdated land regimes. In conclusion therefore it could be reiterated that Mabo has its pluses and its negatives, but the fact of the matter remains that standing on its own, the case and the judgment left a lot to be desired on terms of clarifications. There have been further efforts to restore land right but although the judgment fulfilled a certain purpose wherein it gave the issue the notice that it needed the effort could in fact be termed as being a little too less and a little too late. Reference: Tradition Authenticity: The Yorta Yorta Case, accessed September 2, 2009, < http://ntru.aiatsis.gov.au/research/yorta_yorta/yortayorta.pdf> Native Title Act, accessed September 2, 2009, < http://www.ourcivilisation.com/cooray/mabo/chap43.htm> Behrendt L, 2003, Achieving social justice: Indigenous rights and Australia’s Future, pub, The Federatio Press, pp41-48 Aborginal and Torres strait Islander Social Justice Commission, 1993, First Report 1993, Australian Government Publishing Service, p16 Mach G D, Ziegert K A and Tay A E, 2004, Law and Legal Culture in Comparative Perspective, pub, Franz Steiner Verlag Publications, p356 Clarke A and Kohler P, 2005, Property Law: Commentary and Materials, pub Cambridge University Press, pp173-177 Mabo v Queensland, case summary, accessed, September 2, 2009, < http://www.atns.net.au/agreement.asp?EntityID=741> Read More