Analysis of Mabo vs Queensland Case - Essay Example

MABO V QUEENSLAND of the of the Mabo v Queensland The case of Mabo v Queensland (No 2) is a landmark Australian case, which dealt with the issue of land ownership, in the context of native title. In its ruling, the High Court of Australia nullified the declaration terra nullis or that land belonging to no-one. This declaration was developed during the British colonisation of Australia (Keon-Cohen, 2000: 893). In the year 1992, the Australian High Court recognised the native title of indigenous peoples. Prior to this judicial intervention, native title had been adroitly circumvented by the political parties in power. As such, the successive governments had made no endeavour to establish a system of national land rights. This undesirable situation was rectified by the Australian High Court, which relied upon its constitutional authority to declare land rights (Keon-Cohen, 2000: 893). The decision in Mabo (No 1) in conjunction with international commitments to racial equality and the just terms protection under the Australian Constitution, and the national bill for compulsory acquisition of native title, engendered new property rights. The Mabo (No 2) decision provided various opportunities to the government to ensure land justice (Keon-Cohen, 2000: 893). However, these opportunities were squandered by the government. A political solution to this issue was made available in the federal, State, and Territory statutory schemes relating to land rights (Keon-Cohen, 2000: 893). However, these schemes have effectively distorted the judgement in Mabo (No 2); and served to distance it from the common law. The extant political solutions for this long standing national issue are irrational, and it is in this depressing environment that the High Court’s judgement proves to be welcome. Moreover, the legislative solutions, in respect of this predicament have proved to be defective; and there are serious administrative lapses in the implementation of the legislative solution (Keon-Cohen, 2000: 893). The scheme provides more opportunities to Crown grantees rather than the indigenous people; and makes no attempt to reconcile the differences between the affected parties. The Mabo decision served to rescind the principle of terra nullius. This doctrine enabled the Crown to appropriate property that was uninhabited. However, this principle was extended by the common law to apply to the lands of the indigenous peoples. This unjust act was sought to be justified by the falsely claiming that the Aboriginals were uncivilised barbarians, and that there was nothing amoral in exploiting them (Butt, 1995:35). Consequently, it had been the practice to apply the laws of England to lands under native title, as if they were uninhabited. This had been the point of view adopted by the Privy Council, and the Australian judiciary had considered the Aboriginals to be lawless barbarians. Of late eminent Australian jurists have attempted to discount this deliberate slur on Aboriginal culture, and have expressed the view that the latter existed in a society that was well ordered, law abiding and based on laws rather than on the whims and fancies of the influential (Butt, 1995:36). The comments made by Brennan CJ, in the decision in Wik Peoples v Queensland, have been interpreted by some scholars as indicating a fiduciary obligation on part of the government. It was stated by this learned judge that the state owed a fiduciary duty to the indigenous inhabitants of the land (Gray, 2008: 131). Brennan also opined that the statutory power, which brought about the alienation of the land and thereby caused the extinguishing of native title did not constitute a fiduciary duty. Prior to the Mabo case, the courts had established that native land title was extinguished, as soon as the land was appropriated by the Crown of a colony. However, in Mabo, the Australian High Court made a dramatic departure from this position and ruled that acquisition of native land by the Crown did not extinguish the native land title of the Aboriginal people. The court went on to clarify that the Crown’s radical title empowered it to acquire native land (Cooray, 1995). However, until the Crown exercises this right, the customary native interests continue to remain in existence. As such prior to the decision in Mabo, the Australian judicial authority had contended that the Australian common law had no room for the land rights of the indigenous peoples of Australia. All this changed with the decision in Mabo. The basis for this unjust assumption was that at the time of the annexation of Australia by the British sovereignty, the indigenous peoples were a barbarous lot. It was also believed that such peoples had no laws, especially in the context of the ownership of land. Such assumptions favoured the white conquerors of Australia, and permitted them to misappropriate vast tracts of land that was rightfully owned by the indigenous peoples. This inequitable situation was challenged, on account of the decision in Mabo. Furthermore, the truth finally came to light that the Aboriginals, had a distinct civilization and that they had customary laws that were highly developed (Kirby, 2010: 438). Moreover, these laws accorded a prominent place to the ownership of land and its place in the communal life of the Aboriginals. Although, native title was classified as a property interest, in Australia, there was no clear declaration regarding the equality of property rights of the Aboriginal and non – Aboriginal peoples. From the perspective of justice, such equality is not only desirable, but also essential; and the rights derived from such equality, under the common law, should ensure it (Howe, 1995). Furthermore, the same recognition is to be accorded to native title, as the rights granted to the whites by the Crown. However, the court failed to ensure this equality in its decision in the Mabo (No2) case. In fact, the court merely stated that it was necessary to recognise the rights of Aboriginal people, in the context of land; and it did not establish the equality of their rights with those of the Europeans (Howe, 1995). The reason put forward for this inequitable decision was that Aboriginal rights, at the time of the colonisation of Australia, were inferior to that of the European conquerors. The court held that the interest in land of the Aboriginals was restricted to that of merely a right to occupy the land. The Australian High Court in this case, opined that the acquisition of land by the Crown, did not extinguish native title automatically. Moreover, beneficial ownership was held to be applicable, only to regions that were not under native title. The Aboriginals residing on the mainland were nomads, unlike the plaintiffs in the Mabo (No. 2) case, who were an agricultural community (Cooray, 1995). The majority of the judges in this case, held that these principles were to be extended to all the Aboriginals. In their judgement, in this case, the learned judges were at pains to emphasise that it was inequitable to insist upon the continuance of a common law doctrine that promoted discrimination. It was their considered opinion that it was unjust and in violation of international norms to promote a civil system that deprived the indigenous peoples of their right to occupy their traditional lands (Akhtar, 2009: 180). Specifically, it was stated that the rights of occupation, as provided under native title, constituted valuable property. Moreover, this could in no manner be compromised by the wrongful extinguishment of these rights by the Crown. Furthermore, any such attempt to deprive the indigenous peoples of their native title in land could be redressed by resorting to equitable remedies. With the decision in Mabo, a serious attempt was initiated, in order to prevent the deliberate denigration of Aboriginal culture and the outright exploitation of their land rights. In fact, Brennan J was categorical in stating that the Australian law should annul the doctrine of terra nullius, which was a blatant and overbearing system of exploiting the indigenous peoples of Australia. Moreover, the claimants in this case were members of the Merriam people, an agrarian community. Hence, these people were able to establish their long standing occupancy of the land. However, this could prove very difficult for a nomadic group, and such people would be unable to successfully prove a claim on native title. (Lumb, 1993: 100). Therefore, it has been suggested that land tribunals dealing with such difficult disputes should be established. The subsequent cases have attempted to promote this line of thought, in their decisions. For instance in Pareroultja v Tickner, it was held by the Full Federal Court that native title over land remained in force, even when a freehold land grant was made to an Aboriginal Land Trust under the Aboriginal Land Rights Act 1976. (Butt, 1995:45). The legal position, according to the decision in Mabo is that a freehold grant extinguishes native title. However, in Coe v Commonwealth, a claim in respect of 80, 000 hectares of land by the Wiradjuri tribe was rejected by the court. The presiding judge opined that the claim was motivated by political considerations, in as much as that it was an attempt to coerce farmers to negotiate with the Wiradjuri, in the context of royalties to be paid to the latter for occupying their traditional lands(Butt, 1995:45). In addition, the court held that the onus of proving native title rested with the claimant. Inter alia, it has to be established by the claimant that the title had not been extinguished by Crown grant or the absence of the necessary connexion with the land. Native title admits of considerable intricacy, and this was demonstrated in Mason v Tritton. The appellant Mason had been convicted of fishing without a licence, by the lower court. In his appeal, he stated in his defence that as an Aboriginal he had been exercising his rights under native title (Butt, 1995:45). In addition, he contended that the regulation, which he was accused of having infringed, could not extinguish that right. The Court of Appeal conceded that Mason was correct in his contention, and that the right to fish could be deemed to be a right under native title. Nevertheless, the court imposed a rider, by stating that it was the duty of Mason to establish that the fishing right could be derived from native title (Butt, 1995:45). Since, Mason was unable to establish this right; his appeal was set aside. In Mabo (No. 2) the majority ruling was that on the Crown achieving sovereignty, a qualified title was obtained over the land. Such title, unless extinguished in a valid manner, would fall under the purview of native title rights (Akhtar, 2009: 180). In other words, no absolute right would be obtained, merely on the obtention of sovereignty. Furthermore, the court opined that the law relating to native title could prevail, along with the land rights derived from the common law. This decision was influenced by considerations related to the international rights regarding land rights. This decision was a marked departure from the legal situation that had been obtaining in Australia. The objective of this decision was to promote non – discrimination against the Aboriginals, in the context of native land rights. However, the indigenous peoples failed to derive significant practical benefit; due to the doctrine of extinguishment that nullified native title in situations where freehold or leasehold had been granted. Another reason was the appropriation of native land for public use (Lumb, 1993: 98). In addition, the majority were against recognising claims, in respect of compensation to be paid to native land owners, who were deprived of their land. Any non – discriminatory legislative initiative by the government that serves to extinguish native title over land will be upheld by the judiciary. This is definitely detrimental to the indigenous peoples. In addition, any aboriginal claim has to be established on the basis of specific terms relating to exclusive occupancy, length of occupancy and other pertinent criteria. These conditions have rendered aboriginal claims futile, on many an occasion. The Mabo decision cannot be deemed to be the protector of aboriginal rights. It merely acknowledged the native land rights of aboriginals. References Aboriginal Land Rights (Northern Territory) Act 1976 . (n.d.). Akhtar, Z. (2009). Land for trust: US obligations and Indian tribes. Trust Law International , 23(4), 169. Butt, P. (1995). Native land rights in Australia: the Mabo case. Conveyancer and Property Lawyer , Jan/Feb, 33. Coe v The Commonwealth, HCA 42 (1993). Cooray, M. (1995). A Brief Analysis Of The Mabo Edict . Retrieved July 15, 2010, from http://www.ourcivilisation.com/cooray/mabo/chap3.htm Gray, S. (2008). Holding the Government to Account: The Stolen Wages Issue, Fiduciary Duty and Trust Law. Melbourne University Law Review , 32, 115. Gray, S. (2008, P 131). Holding the Government to Account: The Stolen Wages Issue, Fiduciary Duty and Trust Law. Melbourne University Law Review , 32 Melbourne U. L.R. 115 . Howe, A. (1995, April). A poststructuralist consideration of property as thin air - Mabo, A case study. Retrieved July 15, 2010, from http://www.murdoch.edu.au/elaw/issues/v2n1/howe21.html Keon-Cohen, B. A. ( 2000). The Mabo Litigation: A Personal and Procedural Account. Melbourne University Law Review , 24, 893. Kirby, M. (2010). Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit? Georgetown Law Journal , 98, 433. Lumb, R. D. (1993). Native title to land in Australia: recent High Court decisions. International & Comparative Law Quarterly , 42(1), 84. Mabo v Queensland (No 1), 166 CLR 186 (High Court of Australia December 8, 1988). Mabo v Queensland (No 2), 175 CLR 1 (High Court of Australia June 3, 1992). Mason v. Tritton And Another, 34 NSWLR 572 (1994). Pareroultja and Others v Tickner and Others, 117 ALR 206 (September 20, 1993). Wik Peoples v The State of Queensland, 134 ALR 637 (Federal Court of Australia December 23, 1996). Read More