Native Title Essay

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The law reform process has been effective to a certain extent in achieving just outcomes in regards to native title. This can be seen through both the Eddie Mabo case [1992] and the Yorta Yorta case [2002] as although the cases had been concluded with final decisions, there were still measures that could have been taken, and areas where it could have been improved to achieve a just outcome.
MABO V QUEENSLAND (NO.2) [1992] HCA 23
In 1992, the doctrine of terra nullius was overruled by the High Court in the case Mabo v Queensland (No.2) [1992] HCA 23. After recognising that the Meriam people of Murray Island in the Torres Straits were native title landholders of their traditional land, the court also held that native title existed for all the Indigenous people in Australia prior to European contact. To make the legal position of landholders and the processes that must be followed in claiming native title clear, the federal government passed the Native Title Act 1993 (Cth). The Native Title, which was drafted in 1993, attempted to provide a fair and just method of dealing with land in the future. However one of the fundamental flaws of the native title system is that the concept of native title was based on the prejudiced principle that the Crown had the power to extinguish traditional indigenous ownership of the land. Although the government could have been able to amend the flaws of the Native Title Act following the High Court’s decision in relation to the Wik Case, which laid the rules for co-existence and reconciliation of shared interests in the land, they failed to do so. Amendments to the Native Title Act in 1998 undermined any benefits the Indigenous people could have received, and provided the already-powerful non-Indige...

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...iminatory, making it increasingly difficult for Indigenous people to prove their Native Title rights. Justice Michael Kirby and Justice Mary Gaudron did find, in favour of the Yorta Yorta argument that the connection to the land does not necessarily have to be continuous to be able to successfully prove a native title claim. However, the High Court still dismissed the Yorta Yorta people’s claim, due to the majority of judges asserting that the land had not been maintained sufficiently to prove native title. This case holds as an example for a decision that wasn’t just; further measures could have been taken to ensure that the outcome was fair.
From the above cases, it is evident that the law reform process is effective to a certain extent in achieving just outcomes in regard to native title, due to our ever-changing society, and the progression of new rules.

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