Mabo Essay

INTRODUCTION

The case of Mabo and Others v Queensland (No.2) sparked an outcome on the people of Australia that presented many legal and political issues regarding land rights in Australia. The ruling of the Mabo case, known as the Mabo decision impacted many different Indigenous and non-Indigenous Australian through their individual lawful rights, industry work and personal emotions. However, its sole significance sheds light on the extent of recognition and protection of Aboriginal people rights and interest in land through the Mabo decision and Native Title Act 1993.

MABO

It all began in 1974 when Torres Strait Islander Eddie Koiki Mabo discovered that Murry Island, a land he previously grew up on, was not under his ownership. Seven

years later, Mr. Mabo held a land rights conference at James Cook University where he conducted a speech outlining Murry Island’s ownership and inheritance system. A lawyer at the conference suggested a test case to go through the court system. It was at this stage where the first thought of ‘terra nullis’ was brought into question. ‘Terra nullis’ is the definition of nobody’s land, meaning that if no ownership of land has been claimed, anyone is able to take up ownership. In 1982, Mr. Mabo is joined by Sam Passi, David Pass, Celuia Mapo Salee and James Rice. Together the five-people made legal claim for ownership over Murry Island. Mr. Mabo and others came to their first bump in their legal fight to claim land ownership when the Queensland Government passed the Queensland Coast Islands Declaratory Act 1985. The act intends to repudiate any claims to land off the coast of Queensland by Torres Strait Islanders. The act also declares that when the Queensland government seized the Torres Strait Islands under the Queensland Coast Island Act 1879, ownership of the islands was transferred to the state of Queensland. Therefore, other claims regarding ownership of land were rejected. In 1988, it was found by the High Court that the Queensland Coast Islands Declaratory Act 1985 contradicts the federal Racial Discrimination Act 1975. Due to this, the Queensland Coast Islands Declaratory Act 1985 was considered invalid and the High Court could officially begin its hearing of the legal issues in the case. In 1992, ‘terra nullis’ was rejected by the High Court as it should not have been an applied concept to Australia. This is because Aboriginals and Torres Strait Islanders had their own rights to land that existed before the British arrived. The outcome of the Mabo decision resulted in many people claiming land, some in areas such as capital cities. This outbreak began to raise an issue and the states of Australia turned to the federal government to request for the Mabo decision be overturned.

The Mabo decision was quite problematic for the Australian society.

Numerous legislators and reporters declared that non-Indigenous Australians would be subject to relinquishing their legal ownership of land. However, the ruling states that claims by Torres Strait Islanders or Aboriginals can only be towards land that is vacant, national parks and certain leased lands. Many industry groups, such as mining, were unsatisfied with the Mabo decision as it forced them to expend more time and money to obtain leases on land they intend to commence work on. Possibility of their application being rejected was also a factor in

this.

The result of the case sparked great victory for most of the people in Australia. The Prime Minister of Australia at the time, Paul Keating, also expressed his joy with a speech he spoke in Redfern. The speech addressed the victory of the case and provided an opportunity to apologise to the Torres Strait Islanders and Aboriginals for the way they had been previously treated over their land rights. However, some indigenous people were not as thrilled about the decision. Although the Mabo decision awarded certain land rights to Indigenous people, the terms and condition that the High Court ruled with did not positively benefit all Torres Strait Islanders and Aboriginals. Many Indigenous viewed the Mabo decision to have negative impacts on them as many requirements had to be met for them to claim land rights in Australia. Mabo and Others v Queensland (No.2) was just one of many attempts by Aboriginals and Torres Strait Islanders to take ownership back of their land. One case was the Milirrpum and Others v Nabalco Pty Ltd (1971) where the Yolnga people took legal action against the Nabalco Corporation. The company had secured a 12-year mining lease through the federal government. The Yolgna people believed that the federal government had no right to offer Nabalco a lease to the land as it belonged to them. Justice Blackburn found that the mining could not be prevented by the Yolgna people claims as native title was not part of the law of Australia. It was only nearly twenty years later when Indigenous rights were listened to when Justice Blackburn’s ruling had been overturned in the Mabo and Others v Queensland (No.2) case. However, as mentioned above, the overturning of Justice Blackburn’s ruling came with further terms and conditions. For example, under the act, land wished to be claimed by Indigenous people in Northern Territory must be in isolated areas (outside town borders) of the state. This is basically land that is no-one owns or leases and is practically semi-desert or desert. Another factor is that these claims may take lengthy amounts of time to be decided and even so, may be rejected by the government. Indigenous people must also provide sufficient evidence that they have lawful right to claim the land as their own. Additionally, Indigenous people must either attend court or a tribunal with their evidence of land ownership and provide means that they have longingly maintained their traditional connection with the land and have not done anything to break that connection.

NATIVE TITLE
The Native Title Act 1993 is essential since it decides how native title interests are recorded and perceived. It sets the standards for managing land where native title exists or may exist. Parliament passed the Native Title Act 1993, in spite of the mining trades outrage. The act expresses that current possession or leases supersedes the native title. However, native title may be offered back to Indigenous Australians subsequent to the end of the mining companies lease. In the event that land is effectively declared by Torres Strait Islanders or Aboriginals under the act, they will have no right over the improvements of the land that they are claiming, including mining sovereignties.
The Mabo and Others v Queensland (No.2) also had an overall impact on the native title. Native title is the lawful acknowledgement that some Aboriginal and Torres Strait Islander people have rights to, and interest in, certain land because of their customary laws and traditions. Native title can be perceived in various ways. Indigenous people might be conceded the legal right to live on the land, access the area for conventional purposes, hunt, fish or accumulate customary nourishment or supplies on the land and demonstrate Indigenous laws and traditions on the land. In some cases of native title, Indigenous people can incorporate the right to claim and possess a territory of land or water to the prohibition of others. The rights conceded by native title have their limits and reply upon the customary laws and traditions of the people claiming ownership.

Nowadays, more than two million square kilometers of land has been recognised through native title. Indigenous people utilise settlements between native title holders and others with respect to who can access and utilise the land being referred to. These understandings assume an essential part in influencing that native title works for all Australians. There are currently 967 recorded Indigenous land use settlements set up.

In 1996, Wik Peoples v the State of Queensland fought over whether statutory leases extinguish native title rights.

The court found that the statutory pastoral leases under thought by the court did not concede rights of select ownership on the leaseholder. Therefore, native title rights could coincide contingent upon the terms and nature of the particular pastoral lease. The pastoral lease would extinguish the remaining native title rights if there were to be a conflict of rights. The decision incited a critical verbal confrontation in Australian politics. It prompted extreme discussions on the legitimacy of land property in Australia. Some political leaders condemned the court for being out of touch and for bringing doubt into Australian life. The Howard Government formulated a “10 point plan’ to bring assurance to land ownership in

Australia.

CONCLUSION

The Mabo decision and implementation of the Native Title Act 1993 are vital advances towards the accomplishment of equity in Australia. As opposed to claims by its rivals, it doesn’t give any benefits to Indigenous that no other Australian can appreciate. Factually, Indigenous people are still left at a disadvantage compared to other Australians and other Australians have had their personal and professional lives disrupted. However, the movement of equity proves to be existent by further instances of people and the law recognising Torres Strait Islanders and Aboriginals to have the right to practice their religion, protect their cultural and religious legacy and remunerate for past inequality.