History of Native Title in Australia
Discuss About The Controversial Issues Aboriginals Australia?
In Australia, after the European invasion, the aboriginals had lost their rights on their property and the government had made certain attempts to grab the properties of aboriginals by way of terra nullius. The doctrine of terra nullius treats the properties as nobody’s land and therefore, hurts the traditional cultures of the aboriginals. The Mabo case has, for the first time established the rights of the aboriginals and introduced the concept of native land title and therefore, become a remarkable in the Australian history.
Mabo v Queensland No. 2 (1992) HCA 23 is one of the remarkable cases in the history of Australia. The term native land title was first time established through this case. The High Court of Australia has observed that the validity of the maxim terra nullius should be limited in certain circumstances. Terra nullius is a Latin term that denotes the land of nobody. It is a principle of international law that identifies certain lands as state territory. In the Gove Land Rights case, it was held that before European invasion, management was deserted land and therefore, the concept of native title does not exist. This decision was quashed in Mabo case where the High Court of Australia was pleased to decide that that land will not be come under the parlance of terra nullius where the inhabitants are resided. The inhabitants can be uncivilised in nature. In 1982, Eddie Mabo and two others had rejected the proposal of land grants for aboriginals made by the Queensland government. The land title of the aboriginals was established by the Mabo case (Rossiter and Wood 2016). The main objective lay before the High Court was to decide whether the indigenous people had a right to claim title over the land or not. While deciding the fate of the case, the High Court of Australia found that the principle of terra nullius has, in certain circumstances, violated the provinces of Racial Discrimination Act 1975. The main prayer of Mabo case was to consider the rights of the Meriam people over their lands as occupier and possessor. The Judges of Queensland Supreme Court were of the view that the concept of Native Tile is existed in the common law and the parameter of the title is to be determined on the basis of nature and connection of the occupier to the land. The most important part of this case is that the court was pleased to decide that aboriginals are the ancient inhabitants of Australia and their rights over the land should be existed at all circumstances under the new sovereign legal system (Drake and Gaudry 2016). Therefore, the doctrine of terra nullius was overturned by the Mabo decision.
The Mabo Case: Establishing the Rights of Aboriginals
The case has certain impacts on the Australian legal system. The most significant part of the case is that the doctrine of terra nullius has been overturned by this case. The doctrine of terra nullius was applied to recognise the land of the aboriginals as nobody’s land and the government was denied to accept the title of the aboriginals over the land (Yiftachel 2017). It has been observed that the government of Australia had acquired all the lands of the aboriginals without any agreement and this tendency had hurt the existence and rights of the aboriginals over their property. Mabo case was succeed to establish the legal right of the indigenous people over the land and according to the High Court of Australia, the inappropriate application of terra nullius has infringed the provisions of Racial Discrimination Act 1975. The then legal system of Australia was being challenged by the Mabo case on the basis of two aspects such as the aboriginals had no idea of land ownership and all the previous legal provisions of Australia should be abolished (Boer and Gruber 2017). The main aim of this case is to consider the native title of the aboriginals and establish the fact that aboriginals have rights and title over the properties over the land through their ancient customs. This case has helped to enact Native Title Act 1993 and clarify the legal stands of the aboriginals to make a claim under native title. The Mabo case has helped to strengthen the base of custom law of the aboriginals. The court has decided that the aboriginals have rights over the property according to the legal provision of the native land and terra nullius will not be applied on the land where there are inhabitants existed. The judgment of the case had inserted the doctrine of native title and the rights of the aboriginals were established for the overall development of Australia. Therefore, the settled status of Australia was reviewed by this case. Further, all the discriminatory provisions under the Australian legal system for the aboriginal rights had been abolished and the State’s power to snuff out native title rights had been asserted (Short 2016).
There are certain shortfalls observed regarding the current legal system to native title. The Native Title Act was enacted in 1993 to establish the legal position of the aboriginals over their property. The Act was based on the case of Mabo and plays an important role regarding the rights of the aboriginals (Mannan 2015). Certain strategies were implemented in this Act to recognise the title of the aboriginals. According to Tom Calma, former social justice commissioner, the concept of native title is at the foundation label of the ladder of Australian Property Rights. The Native Title Act has recognised the rights of the aboriginals (Gruber 2017). Before the enactment of Native Title Act, the aboriginals could not marketing any claim over their properties and the government of Australia had taken most of their lands without any notice in the form of terra nullius. However, the doctrine of terra nullius has been abolished after the enactment of Native Title Act 1993, though there are certain loopholes present under the Act. This Act facilitates the process of negotiation to resolve the land dispute of the aboriginals. However, the real situation has revealed that most of the disputes are resolved through court cases and therefore a need to amend the provisions of the Act has been cropped up. The main problem is that under the Native Title Act, the applicant must prove the ongoing title over that proposed land. This is quite tough to prove the ongoing title due to urbanisation. Therefore, a good evidentiary level is required. The current legal system of Australia is not provided any effective rules so that the aboriginals can claim their title over the properties easily. The present legislations of Australia are quite biased regarding the rights of the indigenous (Kramer 2016). Further, the legal process is bit lengthy and therefore, the aboriginals have to face lots of problems due to this. After the enactment of the Native Title Act 1993, more than 1250 cases were lodged before the court up to 2011, but only 121 cases were resolved. Therefore, laxity within the legal system has been observed.
Impacts of the Mabo Case on the Australian Legal System
The Native Title Act has enabled the aboriginals to make a claim over the property. It is significant in nature as it plays an exceptional rule to the doctrine of terra nullius. The Act attempts to reform the then Australian legal system regarding the rights of the aboriginals over the properties. However, there are certain uncertainties cropped up regarding the future of the Act. According to Glen Kelly, the provision of Native Title Act is implemented for the purpose of controlling the traditional rules of the aboriginals and he had regarded the Act as white fellow legal construct. On the other hand, this Act enables the aboriginals to make claim for certain vacant parts of the Australia only and the applicant must have to prove the continuity over the land. This provision has made the opportunity to get back the rights over the property more rigid. Therefore, many criticisms have been made regarding the future of the Act. The contents of the Native Title Act are quite uncertain and therefore, the future of the land right movement of the indigenous has become uncertain. The Australian government has failed to ensure fair native title system and provide social justice to aboriginals. There is a condition imposed on the future acts of the Native Title Act and it has been stated that the acts should affect the freehold land only. On the other hand, the mentality of the government to the aboriginals is not at all trustworthy (Rembar 2015). The Native Title Act has generated certain negotiation process to resolve the land dispute but in reality, government has changed the criteria of the suit as per their own interest. Therefore the aboriginals have to wait for long to get their right on property. The people of Miriuwung had to wait for ten years to get their title over the lands. However, there are certain positive impacts created by the Act on the aboriginal. It has been observed in Griffiths v Northern Territory of Australia  that the aboriginals of Nungali, whose lands were taken from them, being compensated by the government. Therefore, it can state that the future of the Native Title Act 1993 is uncertain in nature.
To sum up, it can be stated that the Mabo case has deeply rooted in the Australian Justice system due to its remarkable nature and the aftermath effect of the case is the introduction of the Native Title Act. Main objective of this Act is to secure the interest of the aboriginals on their property. However, there are certain loopholes present under this Act and make the process of getting property slower. It has been observed that the government is also incorporated with the aboriginals and therefore, the Act has failed to achieve its main objective and the character of the Act has become uncertain.
Boer, B. and Gruber, S., 2017. Legal Frameworks for World Heritage and Human Rights in Australia.
Cleary, P., 2014. Native title contestation in Western Australia's Pilbara region. International Journal for Crime, Justice and Social Democracy, 3(3), pp.132-148.
Drake, K. and Gaudry, A.J.P., 2016. 'The Lands… Belonged to Them, Once by Indian Title, Twice for Having Defended Them…, and Thrice for Having Built and Lived on Them': The Law and Politics of Métis Title.
Flynn, L., 2017. Native title: Full court upholds most findings in timber creek native title compensation case. LSJ: business-law Society of NSW Journal, (37), p.71.
Gruber, B.B.S., 2017. LEGAL FRAMEWORKS FOR WORLD HERITAGE AND HUMAN RIGHTS IN AUSTRALIA. World Heritage and Human Rights: Lessons from the Asia-Pacific and global arena.
Kramer, J., 2016. (Re) mapping Terra Nullius: Hindmarsh, Wik and Native Title Legislation in Australia. International Journal for the Semiotics of Law-Revue internationale de Sémiotique juridique, 29(1), pp.191-212.
Mannan, K.A., 2015. Controversial issues of Aboriginals in Australia: An Analysis of Regulatory Perspectives.
Rembar, C., 2015. The law of the land: The evolution of our legal system. Project-management.
Rossiter, D.A. and Wood, P.B., 2016. Neoliberalism as Shape-Shifter: The Case of Aboriginal Title and the Northern Gateway Pipeline. Society & Natural Resources, 29(8), pp.900-915.
Short, D., 2016. Reconciliation and colonial power: Indigenous rights in Australia. Routledge.
Yiftachel, O., 2017. ‘Terra nullius’ and planning. The Routledge Companion to Planning in the Global South, p.243.
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