Mabo and Aboriginal Land Rights Issues in Australia - Essay Example

Land rights have assumed significance, since the 1970’s in national politics. Since then, the governments have accepted some of the claims made by the Aboriginal people, regarding their land rights. However, there was wide spread opposition from the different states, mining companies and the sheep and cattle farmers. The controversy reached a critical stage with the Mabo ruling, in which the High Court had rescinded the application of the doctrine of terra nullius that had provided rights to colonial settlers. The Court had held that native title continued to exist even after the British colonisation of Australia. The Mabo ruling established a new relationship between indigenous people and non – Aboriginal people in Australia (Aboriginal land rights, 2005) The decision in Mabo and others v. Queensland (No.2) transformed Australian land law. It invalidated the doctrine of terra nullius, which states that the land belongs to nobody. This doctrine had been the fundamental justification for the British troops to initially occupy Australia. The Mabo decision had instated the ownership or title of native into the land law and made it a legal principle of Australian law (Mabo and others v. Queensland (No. 2)). The High Court recognised the rights and interests of the Meriam people, which had devolved upon them by tradition, and ruled that they had a right to their islands in the Torres Strait region. More importantly, the High Court in its ruling in Mabo had clearly stated that all Indigenous people in Australia had native title with regard to the land. It also held that this right had been in existence, much earlier to the formation of the British Colony of New South Wales in the year 1788 (OVERTURNING THE DOCTRINE OF TERRA NULLIUS: THE MABO CASE). In 1770, the Crown appropriated the land, by means of the Cook’s declaration of possession. This declaration rescinded all the rights of the Indigenous people in Australia, prior to the invasion by the Crown. Similarly, the native title to land had also been taken away by the British colonial authorities. The High Court accepted this historical fact and held that the native title was still in existence, in places where it had not been declared null and void by the law (OVERTURNING THE DOCTRINE OF TERRA NULLIUS: THE MABO CASE). On the basis of the decision of the High Court in the Mabo case, the government enacted the Native Title Act 1993 (Cth). This legislation codified the consequences and effects of the decision and established legal authority for the government with regard to the rights of Indigenous people and their native title requirements (OVERTURNING THE DOCTRINE OF TERRA NULLIUS: THE MABO CASE). The High Court ruled that the title of the Crown to the Mer Islands was subject to the recognition of the traditional rights of the Mer Islanders, which were to be established in accordance with the provisions of the traditional laws and customs followed by the Indigenous people in those regions. The Court acknowledged that native title enables the natives to enjoy the land within the local native system. Under native title, a person cannot transfer or assign property to someone else. Therefore, native title does confer a legal right or interest in the land (OVERTURNING THE DOCTRINE OF TERRA NULLIUS: THE MABO CASE). The acquisition of new territory by a nation is monitored by the international law. Similarly, the legal system in such newly acquired territories is a matter of the common law, which determines the law to be enforced in those territories. International law considers the concept of terra nullius to be of relevance, in order to determine whether the sovereignty of a nation had occurred, merely by the occupation of its territory. However, the common law does not deem this principle of terra nullius to be relevant in determining the law that is to be established in that territory (SECHER). As such, the doctrine of terra nullius has a number of similarities with the common law concept of colonial settlement by a nation, of a territory that is uncultivated or a desert. In this manner, the common law of England became the law of its colonies, although with slight modifications to adjust to the conditions prevailing in those new colonies. Under international law, it is permissible to acquire land that was terra nullius, for the express purpose of expanding their inhabited land. Under the common law, deserts and uncultivated land were deemed to be inhabited land, in order to render expansions easier (SECHER). As a consequence of this concept, any territory could be acquired under international law, by a colonial power, by employing the broader meaning of terra nullius. The latter concept treated such acquired territory as being uninhabited. However, all this changed in Australia, with the decision in Mabo (Cooper v Stuart). Till the decision in Mabo, any territory to be acquired was deemed to be terra nullius, and it was assumed that there was an absence of a systematic legal authority in such places. Therefore, it was considered to be in the fitness of things to ignore the Indigenous inhabitants and their right to occupy land. This deprived them of their rights and their title to land in the settled colonies. As such, the Crown asserted its ownership in the land through its acquisition of the land. Moreover, no individual objected to such occupation, since there was no proprietor of the land, with the exception of the Crown (A-G v Brown). It is now evident, that classifying territory as desert and uncultivated was a stratagem by the Crown to obtain absolute ownership of land in Australia. To this end the forces of the Crown contended that the occupation and settlement of an inhabited territory was analogous to the settlement of uninhabited territory. In this manner, the Crown legitimized its colonizing activities; and established a legal system that was to its benefit, in the occupied territory (Coe v Commonwealth). This nefarious issue was addressed in the case of Mabo and the High Court considered the argument of all parties that the Crown had captured and obtained the sovereignty of Australia by grabbing land under the aegis of the concept of occupancy in international law. Despite the fact that the political parties and members of society had argued that the British had occupied Australia; the Australian High Court concluded that the Crown had acquired Australia by settlement, subsequent to ignoring the fact that there were Aboriginal inhabitants in the settled territories. Inter alia, the Court examined the position of native title under common law (SECHER). The branding of inhabited territory as uninhabited territory was motivated by a desire to fulfil several legal purposes in international and common law. Australia was not terra nullius in 1788, and it had been occupied by the British, in order to acquire sovereignty. According to the High Court, there was no difference between the occupation of inhabited territory and the occupation of uninhabited territory. The concept of terra nullius had helped the British to acquire sovereignty. The learned judges of the Australian High Court were chary of applying the doctrine of terra nullius to an inhabited territory. They also argued that international law no longer supported such patently unjustifiable classification of inhabited land as uninhabited territory (SECHER). The High Court categorically refused to recognise Australia as a territory that was acquired by occupation. The Crown’s argument of sovereignty was not justiciable and it could not claim sovereignty of the occupied land before the municipal courts (New South Wales v Commonwealth (The Seas and Submerged Lands Case)). Since, the concept of terra nullius was no longer supported by international law, the High Court found the analogous common law of property’s applicability to be questionable. The majority of the High Court judges refused to apply the orthodox approach, wherein the acquisition of inhabited territory was deemed to be the same as the acquisition of uninhabited territory. There were three reasons for their refusal to employ the orthodox perception. First, such a perception lacked universal acceptance. Second, it undermined the colonial reception of the common law of England and lastly it was unjust to use such false common law principles to determine the question of sovereignty (SECHER). At that juncture, six of the judges opined that the Australian common law was to be modified, in such a manner that it would recognise the fact that Australia was not uninhabited, so as to specify the law that would be applicable upon settlement. The common law that existed prior to the Mabo case had two branches, namely, the general common law and the specific common law. The general branch established the legal system in the land newly acquired by the British; whereas, the specific branch specified effect of change in sovereignty, with regard to the rights that existed prior to the acquisition (SECHER). The Australian Indigenous people have to be integrated into Australian society and recognized as its citizens. The earlier attempts at Indigenous separatism were futile and their social and economic position can be improved, only by adopting an integrationist approach. The relations between the Indigenous people and the state are based on a separatist ideology. However, the government refuses to accept that there is separatist agenda and claims that it is striving hard to amalgamate these Indigenous Australians with the mainstream of society. There is no separate political identity for these people in Australia, and to establish its concern for the Indigenous people, the Australian government abolished, in the year 2005, the system of elected Indigenous political representation (Bradfield, 2006). The federal government of Australia enacted the Native Title Act of 1993 to give effect to the judgment in the Mabo case. Under this Act the Native Title Tribunal, deals with claims pertaining to land issues. The tribunal bestows a native title, in respect of land, to an Aboriginal community, provided its claim is genuine. Such bestowal is not in respect of individuals and differs from ownership rights. It is a special kind of right that permits a community to continue traditional activities like hunting, living and performing religious rites and ceremonies on the land for which the native title has been provided (Reynolds, 2008). Unfortunately, non – Aboriginal people can also use the land, in which the Aboriginals have been bestowed with the native title; for pastoral purposes such as farming and ranching. However, there is no clarification in respect of situations where such dual usage by Aboriginals and non – Aboriginals, in the Mabo ruling. In the absence of such specification of circumstances for such dual use by the Court, the Native Title Tribunal finds it very difficult to take decisions in claims relating to native land (Reynolds, 2008). In the Wik Peoples v. Queensland case of 1996, the High Court clarified the situations in which such dual usage of the land could be permitted. The decision in that case had resolved the erstwhile confusion and dilemma in this regard. The Court held that native title and pastoral work could coexist under certain specific circumstances, which it described in its ruling (Reynolds, 2008). Prior to Mabo and Wik cases, the High Court had not acknowledged the land rights of the Aboriginal people. Subsequent to these two cases, the Court clearly accepted the land rights of the Aboriginal people. This sea change in the Court’s approach to Aboriginal land rights, wrought significant and controversial change in Australia; and created considerable tension among many Australian communities. More importantly, there were fears among many Australians that these rulings would hamper mining, farming and ranching activities. The subsequent enactment of the Native Title Act and the establishment of the Native Title Tribunal, only served to intensity these fears and tensions. Many Australians criticised the rulings of the Court and accused it of altering social order and history. As such, mining and agrarian operations promote the Australian economy and generate considerable profits from exports. Proponents of the rights of the Aboriginals acclaimed the Court for having recognized the rights of the Aboriginal people, which had been neglected for centuries. They also contended that his ruling attempted to redress the damage done to the Aboriginals. The majority of Australians believed that the ruling in Mabo was significant in the history of Australia (Reynolds, 2008). The white settlers of Australia had ignored the land rights of the indigenous people of Australia who had lived on that land for hundreds of years. The colonial white rulers intentionally refused to recognize their rights. The two major groups of these indigenous people are the Aboriginal people and Torres Strait Islanders. They were spiritually attached to their land and had traditionally inherited the rights over the land. Since 1788, they were deprived of their traditional rights and dispossessed of their own land. The Aboriginal people fought for their land rights, which indicates their autonomy and self – determination (Aboriginal land rights, 2005). . The Australian Prime Minister, Paul Keating and his Labour Government responded to the landmark ruling in the Mabo case by enacting the Native Title Act 1993 (Cth). This initiative was much acclaimed by many Australians as a responsible, equitable and stabilising move. The Mabo case was considered by the subsequent Coalition Government of John Howard as unduly favouring the Indigenous Australians. Accordingly, this government enacted the Native Title Amendment Bill of 1996 to correct the situation. This bill contained a Ten Point Plan that was aimed at reducing the rights, interests and entitlements of the Aboriginal people. This initiative resulted in a widening of the gap between the Indigenous people and non – Indigenous people in Australia. The reconciliation process was effectively ignored, and this new Bill proposed certain reforms in the native title rights of Aboriginal people (Amankwah, 2002/2003, p4-5). The numerous native title claims succeeded in reducing the substantive interests in land of the Aboriginals to a bundle of rights as per the Court’s interpretation of the definition of native title, as had been set out in section 223 of the Native Title Act. The Australian courts opine that the Native Title Act merely has a codifying importance and that it does not constitute a legal framework that accords recognition to the native title and other relevant claims. Moreover, the government embarked upon a regime of extinction of native title, on the basis of the interpretation of section 24 MD (2) (c) by the courts. In this manner, the successive governments had attempted to avoid bestowal of native title to Aboriginals, in order to fulfil the requirements of mining companies, pastoralists and industrial states (Amankwah, 2002/2003, p4-5). The Mabo ruling had recognised the traditionally inherent rights of land of the Aboriginal people in Australia. These rights were conferred on them by virtue of their occupation of the land and not by any initiative on the part of the government. The High Court had recognized the fact that these rights devolved from 204 years of invisible title. This view of the Court was truly path breaking and represented judicial activism at its best (Corbett, 2006, p37-42). The British declaration of their sovereignty in 1788 had deprived Aboriginals of their inherited rights and rendered them victims of the Crown’s authority. The erosion of Aboriginal rights transpired due to the legal system established by the Crown, and it was done in a gradual and planned manner. The High Court held in Mabo that native title should necessarily be recognized, and that the native title could not be extinguished by legislation. Indigenous people have been continuously connected to their land; and the observance of the laws and customs makes this fact evident. However, the Court accepted the fact that the traditional beliefs, customs and traditions would change over a period of time (Corbett, 2006, p37-42). The ruling in Mabo was a practical compromise between the rights of the settlers and the rights of the Aboriginals. The Court had attempted to maintain a balance between these, while ensuring that native title would always be subordinate to the existing interests of non – indigenous people. The Crown had granted interest in land in a manner that was inconsistent with the right to native title. The grant of freehold and leases served to extinguish the native title of the indigenous people (Corbett, 2006, p37-42). The High Court ruled in the Mabo case that the British acquisition of Australia did not provided an automatic title to the Crown over the land. The Court declared that the Aboriginal people and the Torres Strait Islander people had inherited the traditional right to the land, which had subsequently been usurped by the Crown. This ruling was not welcomed by all the White settlers in Australia. Nevertheless, some politicians, notably the Prime Minister and the Lord Mayor of Brisbane welcomed and acclaimed the Court for its decision. They also stated that this ruling was just restitution for the wrongs done to the Aboriginal people over the centuries. Thereafter, a number of political leaders exhorted the Australians to arrive at reconciliation between the white and black Australians; and thereby resolve the problem posed by racism which had been prominent in Australian society. In this context, the government promised to initiate several anti – racist measures and welfare programmes to curb racism but these initiatives are unequal to the task of effectively addressing the racism problem (Rizvi & Crowley, Apr93, p3-4). The Mabo decision generated considerable opposition amongst the White Australians, who have sought a legal status for a decision that is patently based on common morality. There were nationwide public debates against the Mabo decision, which criticized the role of the High Court. However, these dissenters failed to acknowledge the historical fact that the Aboriginal people had been in possession of the land, prior to the invasion by the British in 1788. The English settlers oppressed and exploited the native Aboriginals. Moreover, the fundamental issue at stake was that these Aboriginal people were justified in seeking to regain their land rights, which had been forcibly arrogated by the Crown. The opposition to the Mabo ruling was spearheaded by the leaders of the National Party and other eminent people like Hugh Morgan. They argued against the rights of Aboriginal people and supported the various industries, which unsurprisingly, were owned by the White Australians (Rizvi & Crowley, Apr93, p3-4). As such, the Mabo ruling has been a landmark judgment in the judicial history of Australia. It represents judicial activism and provides justice to the Aboriginal people. Some Australians had disapproved of this judgment, even though it does not provide any additional rights or privileges to the Aboriginal people, in comparison to the White Australians. The Aborigines are not benefitted by this judgment, and are at a distinct disadvantage in comparison to the other citizens in Australia (Pelczynski, 1996). The Indigenous people in the United States, Canada and New Zealand enjoy more advantages than those in Australia. The judgment in Mabo served as a prelude for initiating reforms and welfare measures that would benefit the Aborigines. In this manner, an attempt was made at rendering justice to the Aborigines, for the wrongs done in the past to them. This judgment ensured that Aborigines were to be assisted and encouraged in developing their self – determination and to protect their cultural heritage. This judgement, also indicated that Aboriginals were entitled to practice their own religion and protect their inherited rights. Hence, it is incumbent upon the government, in the light of the Mabo ruling, to initiate reformatory measures that benefit the Aborigines (Pelczynski, 1996). Prior to Mabo, there was a case that dealt with the title of the Crown in Australian territory. That case was Attorney-General v. Brown, wherein, it was held that the Crown had acquired title to the territory during colonization. However, the decision in Mabo overruled this decision and held that this was not beneficial title to the land. Therefore, under the customary law of the tribe of the ancestors, an Aborigine could claim interest and right in land. However, in such claims, his ancestors should have possessed a right or interest in that land. This ruling supported the colonisation and Crown’s title in the land. Prior to the judgement in Mabo, any claim by an Aborigine for interest in land of their ancestors would be confronted with two problems. First, the claimant would have to furnish proof that he had maintained an unbroken traditional association with the land being claimed. Second, it was quite possible that the government would attempt to establish that the title to the land was bestowed upon the claimant in an inconsistent manner that was not legitimate under the doctrine of native title. This could prove to be sufficient to invalidate the claim of the Aboriginal claimant (Jupp, 2001. Pp. 118 – 119). In addition to this, there was arbitrary and inconsistent dealing by the government, whereby it sought to repeal the native title and to refuse further renewal of such title. Thus, the interests of the Crown were asserted and the Aborigines were not compensated for the land that had been appropriated by the government. However, the High Court ruled that subsequent to the enactment of the Racial Discrimination Act 1975, if the government’s actions extinguished the native title of Aborigines, then such owners of native titles were to be paid adequate compensation. These problems of the Aborigines generated considerable sympathy amongst legal scholars and political leaders. Many Australians had prayed for the success of the Mabo ruling. At the same time, there were fears that the native title rights would not be correctly resolved by the government, and many Australians were not optimistic about the enforcement of the Mabo ruling. However, mounting public pressure compelled the government to resolve the problems of the Aboriginals, in the light of the High Court’s judgment. As a result of this widespread public support, the government enacted the Native Title Act 1993 (Cth). The claimants were bestowed with the right to negotiate settlement of their land claims, and this constituted the greatest achievement of the Tribunal. These negotiation rights bestowed greater bargaining power upon the claimants. However, the Native Title Act 1993 was singularly silent, with regard to the consequences of native title in respect of pastoral leases (Jupp, 2001. Pp. 118 – 119). In Australia, there had existed the practice of separating Aboriginal children from their mothers. These children were raised by white Australians. In 1997, the government of Australia commissioned an inquiry into this pernicious practice. After an exhaustive scrutiny, the inquiry commission made it clear that the government should immediately stop that practice. Aboriginal people in Australia were subjected to several injustices. The Australian parliament apologized to them for the wrongs done to them in the past. However, the erstwhile Prime Minister John Howard refused to do so, stating that the present Australian generation could not be held responsible for the wrongs done in the past. The Aboriginal affairs minister, Jenny Macklin stated that it is the duty of the present generation to strive for the welfare of the Aboriginal people, which would help the nation as a whole and that these measures were to be free of political considerations (Siddique, 2008). Some Aboriginal leaders had been demanding of the government to pay them compensation for the damages done in the past. The government rejected those demands. Prime Minister Kevin Rudd stated that his Labour Party policies would improve the social and economic conditions of the Aboriginal people. He also stated that his government would forge ahead in this direction instead of paying financial reparations as demanded by the leaders of the Aboriginal people. Some legal scholars argued that the apologies made by the government would render it vulnerable to compensation cases in courts. However, many judges and lawyers have disagreed with this argument (Siddique, 2008). The Aboriginal people are around four hundred and fifty thousand in number, out of a total of twenty – one million. They constitute the poorest ethnic group, and several of them are unemployed and uneducated. Moreover, they are vulnerable to being discriminated against by the police and courts, while facing criminal charges (Siddique, 2008). The infant mortality rate among the Aborigines is the highest in Australia. The first white settlers arrived in Australia on the 26th of January 1788, which is celebrated as a national holiday. However, the Aborigines consider this day as the Invasion Day. They mourn on this day for the extinguishment of their rights to land, due to British colonisation (Siddique, 2008). Many Aboriginal community leaders find it difficult to fight for their native title by spending their time and money on the legal processes. This situation had led to the announcement by the government that Aboriginal self-governance had failed. The government is proposing to implement stringent measures to protect Aboriginal women and children. The Aboriginal leaders have claimed that these measures would result in the total extinguishment of the sovereignty of the Aboriginal people (Yunkaporta, 2006). Eventually, the land rights of Aboriginal people have been recognized and this has served to form new relations between the Aborigines, non – Aboriginal land owners and the state. There are pressures from various groups to reduce the land rights provided by the Native Title Act. Most of the non – Aboriginal lobbyists have influenced the subsequent governments to limit the land rights of the Aborigines. This is known as internal colonisation within the nation, which served to further marginalize the benefits of the Aboriginal groups. The successive governments amended the Act to ensure that the Indigenous land owners were dependent on the generosity of the non – indigenous people. The amendments introduced a complicated process of negotiations (Yunkaporta, 2006). List of References Aboriginal land rights. (2005). Retrieved July 31, 2008, from The Crystal Reference Encyclopedia: http://www.credoreference.com/entry/5715182 A-G v Brown, (1847) 1 Legge 312, 319 (Stephen CJ). Amankwah, H. (2002/2003, p4-5). INTRODUCTION: WHITHER, NATIVE TITLE? James Cook University Law Review , Issue 9, 2p; (AN 14539033). Bradfield, S. (2006, February 27). Separatism or Status-Quo?: Indigenous Affairs from the Birth of Land Rights to the Death of ATSIC. Retrieved August 1, 2008, from WileyInterScience: http://www3.interscience.wiley.com/journal/118558772/abstract??CRETRY=1&SRETRY=0 Coe v Commonwealth, (1979) 24 ALR 118, 129 (Gibbs J) . Cooper v Stuart, (1889) 14 App Cas 286, 291 (Lord Watson). Corbett, T. (2006, p37-42). The National Native Title Tribunal's Façade Of Indigenous Advocacy. Social Alternatives , Second Quarter, Vol. 25 Issue 2, 6p; (AN 22055699). Jupp, J. (2001. Pp. 118 – 119). The Australian People. Cambridge University Press. ISBN: 0521807891. Mabo and others v. Queensland (No. 2), (1992) HCA 23; (1992) 175 CLR 1 F.C.. New South Wales v Commonwealth (The Seas and Submerged Lands Case), (1975) 135 CLR 337, 388 . OVERTURNING THE DOCTRINE OF TERRA NULLIUS: THE MABO CASE. (n.d.). Retrieved July 31, 2008, from http://ntru.aiatsis.gov.au/research/mabo/mabo.pdf Pelczynski, S. (1996, May 21). The High Court Recognition of Native Title - The Mabo Judgement and Its Implications. Retrieved August 02, 2008, from http://home.vicnet.net.au/~aar/aarmabo.htm Reynolds, C. (2008). Mabo v. Queensland. Retrieved August 01, 2008, from Microsoft® Encarta® Online Encyclopedia 2008: http://encarta.msn.com/encyclopedia_761588371/Mabo_v_Queensland.html Rizvi, F., & Crowley, V. (Apr93, p3-4). Guest Editor's Introduction. Social Alternatives , Vol. 12 Issue 1, 2p, 1 bw; (AN 4122181) . SECHER, U. (n.d.). The MABO Decision - Preserving the Distincion between 'Settled" and 'Conquered or Ceded' Territories. Retrieved July 31, 2008, from University of Queesland Law Journal: http://www.austlii.edu.au/au/journals/UQLJ/2005/2.html Siddique, H. (2008, January 28). Australia to apologise for past treatment of Aborigines. Retrieved August 02, 2008, from http://www.guardian.co.uk/world/2008/jan/28/australia.haroonsiddique Yunkaporta, T. (2006, June 18). Land Rights After Wik. Retrieved August 02, 2008, from http://aboriginalrights.suite101.com/article.cfm/land_rights_after_wik Read More