Australian Indigenous Politics - Case Study Example

Australian indigenous politics Name Institution Course Date Introduction The literal meaning of Terre nullius is ‘land belonging to nobody’. This was a principle used by the British to dispossess the Aborigines. This principle came to be as Australia was deemed to be an empty track of land with no inhabitants or any legal frameworks. This was fictitious as the land had inhabitants, the aborigines and legal frameworks. This was an aspect that was entirely ignored by the British government. Attempts by the British government to streamline the Australian colonial practice with that of the international laws took place between the years 1830 and 1840. These attempts failed upon the enactment of policies on native land rights by the Australians an aspect that made Australia different from the rest of its colonials (Bartlett, 1993, p. 240) The doctrine of Terre nullius was acceptable till the 1970’s. The acceptance was grounded on the fact that Australia had had inhabitants who had settled on the land. This form of classification did not give legal thought to the indigenous people. It is during this year that lawyers revisited the country’s colonial history to determine the degree of force iused in dispossessing the natives off their land. Several court cases have been put forward that challenged the sovereignty of the country basing their argument on the principle of Terre nullius. Arguments were such that the principle had been misapplied therefore the sovereignty of the aboriginals ought to have remained intact (Butt, 1995, p. 12). Majority of the cases were rejected although contentions of the classification of the country as settled or conquered were still accepted by the country’s High court.This paper will discuss the effectiveness of the removal of the doctrine of Terre nullius in light of the YortaYorta decision made by Olney. Background of the case In 1982, Mabo Eddie and others commenced a claim for the repossession of their land in Mer, an island in the strait of Torres. The Supreme Court in Queensland was charged with the responsibility of determining the facts of the case. While the case was still in process, parliament passed an Act, Torres Strait island Act, which extinguished rights over the land by any person without compensation (Barnett, 2000, p. 24). The Act was invalidated by the high on grounds that it was in conflict Commonwealth Racial Discrimination Act that had been established in 1975. This ruling that was somewhat in favor of the claimants was referred to as Mabo one. The case that was before the Supreme Court was decided upon in 1992. An overwhelming majority ruled that the Merriam people were entitled to the possession, enjoyment and occupation of Murray islands. The legal question was whether the Merriam’s had rights over Murray islands. It also questioned whether the Australian government had any laws to protect the rights. Another legal question raised was if the natives were entitled to any form of compensation for having their land dispossessed from them. The ruling by the seven bench judge overthrew the Terre nullius doctrine which had given the land for the European settlement. The bench found that common law recognized native title over land (Barnett, 2000.P. 24). The preexisting interests and rights had survived colonization in the following circumstances, where people had maintained the connection with their land and where such a title had not been revoked by legislation. The title to the land by the Merriam’s had not been extinguished even with the annexation of the Murray islands. The native land title was still subject to extinction by any government action. Before 1975, the Merriam's were not entailed to any form of compensation. The racial discrimination Act required the fair compensation for the loss of native title. Failure of which would amount to discriminatory treatment of the natives. The Queensland governments enacted the declaratory Act in 1985 shortly after the proceedings had started. This Act extinguished the right to one’s native land retrospective 1879 without any form of compensation (Hunter, 1994, p. 66). This Act in the argument of the inhabitants of Murray islands denied them ownership and subsequent enjoyment of their heritage land. The claimants purported that this was unequal treatment by the law as it was forcefully taking away their property. Article five of the international convention protected the people against any form of discrimination. This Declaratory Act was invalidated by a majority vote of 4-3 judges of the high court. This was on the basis that the law was in conflict with the racial Discriminatory Act and that the Act encouraged discrimination. Common law is founded on international law but, it does not necessarily mean that it should conform to it. International law however, is legitimate and of significant influence when it comes to the declaration of human rights. Thus for any common law that violates these human rights ought to be invalidated and thus the decision arrived by the high court judges. Judge Michael Mansell in delivering the judgment said that the court should not be seen as overthrowing anything of substance but to have advocated the white domination over the Aborigines (Hunter, 1994, p. 68). The verdict in Mabo Evidence showed that Murray islands covered a total area of nine square kilometers. It also showed that the inhabitants of this land prior to the European invasion had continued to occupy the land and were known as Merriam’s (Ritter, 1996, p. 5).The evidence showed that despite the fact that the land had been visited by outsiders, there had been no permanent occupation of the land by immigrants. There was anthropological evidence showing that the current inhabitants of the land were descendants of the inhabitants who had occupied the land at sovereignty. It was also evident that the occupants of the island had been living in huts as groups. These were being replaced to constructed houses. The land had never been surveyed instead people marked their own boundaries using land marks or trees or Moulds. It was shown that upon annexation, a court council and police force had been placed to the island. The court dealt with land disputes in accordance with the customs of the Merriam’s. This evidence in particular meant that in the absence of law, the Merriam customs would be followed in the ruling. It was held that the crown’s entitlement to Murray Island was subject to the rights of the inhabitants in accordance to the traditional laws held by the inhabitants of the land(Butt, 1995, p. 12). In delivering this rule, the courts did not classify Australian as “conquered” but merely affirmed the sovereignty of Australia. The consequence of which is that the crown had the ability to extinguish some of the native titles. Some of the native title would not be revoked if it was shown that there existed laws among the natives prior to their dispossessions (Ritter, 1996, p. 5). Analysis of the consequences of Mabo’s ruling. Firstly, the Terre nullius doctrine was rejected on the grounds that it denied the inhabitants their original claim over the island. Secondly, it led to the addition of the native entitlements into the Australian common law. The validity of the principle of Terre nullius was quashed but the doctrine of which it was founded was not removed. This was the capitalist’s doctrine which advocated for capitalism at the expense of the rights of the people. The ruling recognized that the Aborigines had rights to their native land. The judges affirmed that the change in sovereignty did not warrant the extinction of the rights of the natives. The result for which was to eliminate the differences between native settlers in a settled colony and of a conquered colony (Ritter, 1996, p. 5). The ruling was regarded as pure judicial activism. However supporters of the ruling suggested that the ruling had merely aligned the local laws with those of common law. The ruling was an expression of a view that had not been entirely accepted in the country. However, it had been acceptable in the greater world jurisdictions of common law and the international courts. The Native Title Native Title is the device that was used to recognize the rights of the indigenous people. The origin of this device is in the traditional laws of the inhabitants of a particular region(Ritter, 1996, p. 5).The native title must have its nature and incidence ascertained using the laws and customs as reference. It is this title that is used to determine, protect and extinguish entitlement of an individual or group of persons to a given territory. For the persons or group to win a case of native title, they must translate their traditional laws into protectable interests and rights. Secondly, evidence provided ought to demonstrate the claimants are still connected to the traditional laws. Mabo’s ruling placed fear in people that the persons claiming to be natives would claim people’s properties(Ritter, 1996, p. 5 and Wooten, 1994, p. 4). In the YortaYorta case of 2002, justice Olney proclaimed that the “tide of history” had quashed the YortaYorta title. Both the Terre nullius and the tide of history are founded on the same doctrine thus call for similar ruling(Young, 2001, p. 50). About the YortaYorta versus the state of Victoria The YortaYorta case questioned the people’s native title in Victoria and the legal process followed in the Mabo case. Justice Olney rejected the case presented before him on the premise that the tide of history had wiped any acknowledgement of the laws that were of any importance to the inhabitants of the supposed settlement (Young, 2001, p.46).The justice appeared biased in delivering the proceedings. The judge focused on the forced stay on missions in the traditional territories of YortaYorta. He also laid emphasis on the suppression of the yorta’s customs and language. He also considered that the people had been taking up formal employment a show of industrialization. He held that the traditions of the people had been lost and as a result their status of “traditional society” was lost (Atkinson, 2001, p. 19). Through this ruling the court affirmed that Native title was recognized by the Australian law. It also stated that the rights and interests to such a native title derive their power from the indigenous society. The courts declared that society in order to have a claim over native title must maintain a normative system. However, the judge was keen not to require the tracing of the Yorta’s activities to pre-contact age but the tracing of their traditional laws. YortaYorta no longer observed a normative system that was similar to that practiced at the time the crown had taken up their land(Artkinson, 2001, p. 19).It is only those societies that still maintained the customs prior to the invasion of Australia by the British. The formulation of the native title to be included in the common laws of Australia was the result of Mabo’s case. This was highly significant in land disputes by the native. The outcomes of the cases were not consistent as the process required the claimants to present legal evidence (Atkinson, 2001, p. 19). This had been made impossible to present due to actions by the Australian government. There also existed biases in the legal system of Australia. As mentioned, the cultural evidence, historical as well as the genealogical evidences which were required by the courts was hard for the indigenous to present to the court (Christopher, 2001, p.35). The rules that defined cultural evidence failed to recognize the influence that colonization had on the culture of the people. This was grounds for native entitlement to be rejected. Even though the doctrine of terra nullius had been invalidated, it did exist but in a manipulated form. The good that would have been achieved by mabo’s ruling has been undermined by unjust sociolegal systems. This is in addition to government proceedings that have done little to protect the indigenous groups. Though the ruling gave hope to the Aborigines for their claim of land. The fact that it did not address issues of sovereignty and its effect on the native title provided a loop hole to the legal system. Thejudges manipulated this loophole to reject subsequent native claims such as that of the YortaYorta (Barnett, 2000, p. 24). Terre nullius may have been overthrown from the legal system but it existed in the mainstreams of the Australian society. The invalidation of the doctrine was a mere gesture of the legal system’s desire to protect the aborigines but had no real effect in subsequent rulings. Whereas New Wales has been confirmed as settled, this had no real implication on the indigenous people’s rights to retain their land. The law does affirm the continuity of traditional laws in relation to land entitlements. The courts have however failed to recognize the indigenous people’s sovereignty (Webber, 1995,p. 65) Conclusion The doctrine of Terre nullius was a colonial concept that was overthrown by Judge Michael Mansell in the Mabo case. The court held that the claimants had rights over Murray Island. The proceedings gave rise to the concept of Native title. This precedent was not followed in the court proceedings of similar circumstances such as the YortaYorta case vs Victoria. Terre nullius may have been overthrown legally; the social and political frameworks have tolerated its existence. Subsequent court proceedings exploited the fact it was difficult for the claimants to show cultural and historical evidence. It was also difficult for subsequent claimants to show that they had not changed their traditions even with colonization. The precedent set by Mabo was crucial but reliance of it needs caution. The courts have refused to honor the precedent in the context of both social and political grounds. As a result the continued sovereignty of the indigenous people has been denied. Bibliography Atkinson, W. 2001.NotOneIota of Land Justice: Reflections on the YortaYorta Native Title Claim 1994-2001' Indigenous Law Bulletin 5(6) Barnett, K. 2000. Case notes : one step forward and two steps back : native title and the bundle ofrightsanalysis" (2000) 24 Melbourne University Law Review 462 Bartlett, R, 1993.The Mabo Decision’, Australian Property Law Journal, Vol, 1 No 3, Dec 1993, Butt, P. 1995.Boge Native title takes off’, Australian Law Journal, Vol 69, No1. Christopher. A.2001. A Fatal Collision at the Intersection? The Australian Common Law and TraditionalAboriginal Land Rights" in Boge (ed) Justice For All? Lawyers Books Publications, Hunter, I. 1994Native Title: Acts of State and the Rule of Law' in Goot and Rowse(eds) Make a Better Offer ;Pluto Press Ritter, D. 1996. The Rejection of Terra Nullius" in Mabo: A Critical Analysis’, Sydney Law Review, Vol 18, No 5, Wooten, H. 1994.Mabo: Issues and Challenges’, Judicial Review, Vol 1, No 4, March Webber, J: 1995The Jurisprudence of Regret: The Search for Standards of Justice in Mabo" 17 Sydney Law Review 5. Young, S: "The trouble with 'tradition': Native Title and the YortaYorta decision"University of Western Australia Law Review 28-50.2001 Read More