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Assess the benefits and shortcomings of the Mabo decision and the Native Title Act 1993 for Aboriginal communities.(essay topic)

Benefits of Mabo Decision and the Native Title Act

The Mabo decision given by the High Court had a profound impact on Australia in which the land rights of Aboriginal and Torres Strait Islander were recognised. On 3rd June 1992, Mabo decision was made by the High Court in which it was decided that terra nullius should not be applied to Australia. Before 1992, the principle of terra nullius provided that Australian lands belong to no one and this law denied the fact that Indigenous people had a connection with these lands. Eddie ‘Koiki’ Mabo was the man behind this landmark judgement who led the fight to eliminate terra nullius and recognise the rights of indigenous people. After this case, the Native Title Act 1993 was enacted by the government in which the procedure was given which can be used by indigenous people to claim their rights on the land (Bark et al., 2012). Two decades have passed since the Mabo decision, and still, people have different opinions regarding whether it was successful in fulfilling its objectives or not. In this essay, benefits and shortcomings of the Mabo decision and the Native Title Act, 1993 will be discussed. This essay will analyse whether this landmark decision had been a success or did it fail in achieving its objectives.

The Mabo decision and the Native Title Act recognised the native title of indigenous people on their land which assisted them in access to land and resources. After the introduction of the Native Title Act, a framework is established and recognised by the government in order to recognise the land rights of indigenous people in Australia. This decision gave recognition to the traditional laws and customs of indigenous people in Australia that were not recognised before (Hayward, 2012). After the introduction of this act, more than one million square kilometres of Australian land and water was recognised as aboriginal land. This contributes to around 15 percent of Australian territorial land and waters. Currently, there are over 629 registered Indigenous Land Use Agreements which are recognised by the law. These are voluntary agreements between a native title group and others regarding the use of the land and water. Before the enactment of the act, there was no procedure available for aboriginal people to establish their rights on their land. However, the benefit of the Native Title Act is that a procedure is established which can be followed by indigenous people to claim their traditional land (O’Faircheallaigh, 2013). Therefore, this decision was a success because indigenous people have a strong connection with their land, and they believe it nurtures them due to which they protect these lands. The main benefit of the Mabo decision and the Native Title Act was that a connection between indigenous people and their traditional lands was established.

Shortcomings of Mabo Decision and the Native Title Act

After this case, the culture and rights of indigenous people spread across the nation and awareness regarding their culture spread between non-indigenous people. Before the Mabo decision, most people were not aware of the rights of aboriginal people on their lands and how this right was breached by the government. Awareness regarding their sufferings and the discrimination which they face also increased in Australia. The positive outcome of the Native Title Act is that it recognised and protected the Australian community as a whole and the Mabo decision recognised the fundamental truth about Australia (Jackson et al., 2012). The government established the social justice reforms for aboriginal people and respect grows regarding their rights and culture which increased the inclusion in Australian society. It also highlighted many concerns relating to health and safety of indigenous people and the discrimination which they faced in the country. For instance, there is an estimated gap of 17 years in the life expectancy between indigenous and non-indigenous people (Human Rights, 2007). They did not receive equal healthcare facilities and their incarceration rate in much higher. To address these issues, the Australian government implemented ‘Closing the Gap’ policy which is focused on creating equality between indigenous and non-indigenous people in terms of education, healthcare, employment, mortality rates and others (Demaio, Drysdale and de Courten, 2012). Therefore, the impact of the Mabo decision and the Native Title Act is still positively influencing the lives of aboriginal people in Australia.

Along with various benefits, there are many shortcomings as well of the Mabo decision and the Native Title Act one of which include the process of proving the on-going connection. As per the Act, aboriginal people have to prove or establish in the court their on-going connection with the land on which they wanted to claim their native title. It is difficult for them to prove this connection due to widespread urbanisation and agricultural development which resulted in extinguishing their native title. Incidents such as ‘stolen generations’ and many massacres of aboriginal people eliminate the evidence of their connection with the land (Philpot et al., 2013). The process of proving the claim is also expensive and time-consuming because connection reports take up to 2 to 3 years for research and up to 3 years to assess the information (Poirier and Schartmueller, 2012). Due to these factors, it has become difficult for indigenous people to prove their claim on the land even after enactment of the Native Title Act. Therefore, the Mabo decision and the Native Title Act are deemed ineffective because they have failed to provide the native title to Aboriginal people.

Limitations of Native Title Act for Aboriginal People

The mining corporations influence Australian government officials due to which the compulsory acquire the native lands and provide biased legislation which makes it difficult for aboriginal people to make claims on their traditional lands. Mining sector in Australia has accounted for 15 percent of the country gross domestic product (GDP) which highlights a significant contribution (Masige, 2017). Since they contribute significantly to the Australian economy, most government agencies and officials implement policies for their benefits. In 2010, the West Australian government gave notice of compulsory acquiring of land to traditional landowners in order to let a commercial mining company establish a processing plant of liquefied natural gas. Another good example is when an Indian mining corporation established a plant in Queensland in which the government helped the company by providing $1 billion loans for funding a rail line, but they also pass legislation in order to bypass a native title dispute in the federal court (Korff, 2018). These examples show that the government prefers to give the land to mining corporations due to their benefits rather than giving them back to their real owners. Hence, the Native Title Act is not effective in ensuring that aboriginal people will receive their ownership on the land.

There are various small issues which make it difficult for indigenous people to claim their land rights under the Native Title Act such as lengthy process, understanding of documents and numerous native title groups. Firstly, it is a challenge for Aboriginal people when they sign native title agreement, especially Indigenous Land Use Agreements (ILUAs) because they agree to those terms and conditions which they did not fully understand (Short, 2016). The legally binding documents of these lands make it difficult for them to understand them since they are in different language than their mother tongue. Most indigenous people are not educated enough to comply with the legal compliances by themselves, and they certainly did not have resources to hire legal assistance as well. It makes it difficult for them to even initiate a claim for established their native title on the land. The process is considerably lengthy as well since both state and federal governments are involved in this process, and they wait for each other to perform their duty and exchange blames (Watson, 2014). It takes an average of 6 years for indigenous people to establish their native title claim. Moreover, parties who claim native title are numerous and diverse, and they are divided into different clans as well. Many times their claims overlap and disagreements arise which make it difficult for Aboriginal people to establish their native claim even after the success of the Mabo decision.

In conclusion, the Mabo case is a landmark judgement which changes the history of Aboriginal people in Australia by recognising their right on traditional lands. After the act, the Native Title Act was enacted which provided the procedure for indigenous people to establish their rights on lands. There are various benefits received by Aboriginal people after this decision because they received the right to get back their traditional lands which were taken from them forcefully. It also gives their culture recognition in Australia after which awareness spread about the disadvantages faced by them in the country and how it has affected them. However, there are various shortcomings as well such as the process of establishing the right is too complicated since indigenous people have to prove their on-going connection with the lands. The process is also lengthy and expensive, and most indigenous people are not able to make their claim on the lands. Mining corporations are also exploiting the claims of Aboriginal people. These shortcomings show that although the Mabo can have a significant impact on the rights of indigenous people, however, it was not enough to give them recognition which they deserve. The Native Title Act is not enough to address the disadvantages and discrimination which aboriginal people face in Australia, and there is a requirement of implementation of strict policies which provide them their rights and addresses these issues.

References

Bark, R.H., Garrick, D.E., Robinson, C.J. and Jackson, S. (2012) Adaptive basin governance and the prospects for meeting Indigenous water claims. Environmental Science & Policy, 19, pp.169-177.

Demaio, A., Drysdale, M. and de Courten, M. (2012) Appropriate health promotion for Australian Aboriginal and Torres Strait Islander communities: crucial for closing the gap. Global Health Promotion, 19(2), pp.58-62.

Hayward, P. (2012) Aquapelagos and aquapelagic assemblages. Shims: The International Journal of Research into Island Cultures, 6(1), p.1.

Human Rights. (2007) Social determinants and the health of Indigenous peoples in Australia – a human rights based approach. [Online] Available at: https://www.humanrights.gov.au/news/speeches/social-determinants-and-health-indigenous-peoples-australia-human-rights-based [Accessed on 13th October 2017].

Jackson, S., Tan, P.L., Mooney, C., Hoverman, S. and White, I. (2012) Principles and guidelines for good practice in Indigenous engagement in water planning. Journal of Hydrology, 474, pp.57-65.

Korff, J. (2018) Native title issues and problems. [Online] Available at: https://www.creativespirits.info/aboriginalculture/land/native-title-issues-problems [Accessed on 13th October 2017].

Masige, S. (2017) Mining sector accounts for 15 per cent of Australia’s economy: Deloitte. [Online] Available at: https://www.australianmining.com.au/news/mining-sector-accounts-15-per-cent-australias-economy-deloitte/ [Accessed on 13th October 2017].

O'Faircheallaigh, C. (2013) Extractive industries and Indigenous peoples: A changing dynamic?. Journal of Rural Studies, 30, pp.20-30.

Philpot, C., Balvin, N., Mellor, D. and Bretherton, D. (2013) Making meaning from collective apologies: Australia's apology to its indigenous peoples. Peace and Conflict: Journal of Peace Psychology, 19(1), p.34.

Poirier, R. and Schartmueller, D. (2012) Indigenous water rights in Australia. The Social Science Journal, 49(3), pp.317-324.

Short, D. (2016) Reconciliation and colonial power: Indigenous rights in Australia. Abingdon: Routledge.

Watson, I. (2014) Aboriginal peoples, colonialism and international law: Raw law. Abingdon: Routledge.

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