Terra Nullius Essay

TERRA NULLIUS OBSTACLE IN ORDER TO ACHIEVE NATIVE TITLE:

Terra Nullius which is referred as “land belonging to no one” was an obstacle in order to achieve Native Title which is the right to land by the original inhabitants, as the Indigenous people had to prove that they were traditional owners of the land with an ongoing connection to it in order to claim native title, which was difficult as they had been forced off their land almost 200 years before. In order to achieve the native title, it had to be claimed by people with the ancestors that inhabited and associated with the land before the European settlement.

ROLE OF THE HIGH COURT TO RECOGNISE THE NATIVE TITLE:

The high court played a significant role in recognising the Native Title

by overturning the doctrine of Terra Nullius. The high court performed as a separate legal entity, excusing all of the external pressure, which allows it to act as an effective mediator solving the disputes which will be shared between aboriginals and the Terra Nullius, empowering the precedent set in the Mabo case establishing the Native Title.

ROLE OF THE FEDERAL PARLIAMENT TO REGOGNISE THE NATIVE TITLE:
The Federal Parliament recognised the Native title by: Forming the reflecting decisions of the high court, imbedding the Native Title within the Australian legal system and by the 1967 referendum in which the aboriginals were considered the members of the Australian society, Empowering them to access the law which allows the aboriginals to seek further law reforms and acquire land rights

MAJOR NATIVE TITLE DECISIONS:
1) 3 June 2002 marks the tenth anniversary of the High Court decision in Mabo v Queensland (No 2).

The decision upheld the claims of five plaintiffs from Murray Island that Australia was occupied by Aboriginal and Torres Strait Islander people who had their own laws and customs, and whose 'native title' to land survived the Crown's invasion. Therefore, the court recognised the presence of native title as part of Australian common law.

2) In The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40 ('Wik'), the High Court held that native title rights could coexist on land held by pastoral leaseholders. The High Court decided that:

• A pastoral lease does not necessarily confer rights of exclusive possession on the

pastoralist
• The rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted
• The mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights
• If there is any inconsistency between the rights of the native title holders and the rights of the pastoralist, the rights of the native title holders must yield.
So if there is a conflict of rights, the native title holders come off second best. If there is no conflict, the rights of each co-exist.

IS THE NATIVE TITLE EFFECTIVE?
In order to achieve a just outcome in regards to the native title the law reform process has been effective as the Native Title has been an issue to be able to determine whether Australia was ‘Terra Nullius’ or not.

The conditions which led to the reform to the ‘Terra Nullius’ claim were by the aboriginal activists challenging the Australian Sovereignty on the grounds that terra Nullius was applied improperly. When undertaking the Inquiry, the Australian Law Reform Commission (ALRC) sought evidence as to whether the current native title system is meeting its objectives, whether specified options for reform would improve the operation of the system, and the alternative reform options should be

implemented
In a recent issue of Talking the Native Title, the President of the National Native Title Tribunal, Graeme Neate, outlined the progress since recognition of native title:
Some of the people, the first decade of the legal recognition of native title in Australia may have passed relatively quickly, But for those who have been involved in a policy or a practical way for part or all of that period will recall the long debates, negotiations and struggles, some of those which might have led to positive outcomes.
Therefore, the law reform processes of the Native Title is an effective in order to achieve a just outcome in regard to the native title as the conditions which brought up to the reform to the ‘Terra Nullius’ privilege by the aboriginal activists challenging the Australian Sovereignty on the grounds where the Terra Nullius was applied.