On the 6th of June 1992 The high court of Australia made the decision to overturn the doctrine of Terra Nullius, Mabo v Queensland (No2) (1992) 175 CRL 1, this decision caused a very significant impact on Australia’s Law and legal History. It was the first time since British settlement in 1770 that native title was recognised in Australia for Indigenous Australians. Native title refers to land title rights indigenous Australians have with land that has cultural significance to them. The decision ruled in favour of the common law doctrine of Aboriginal title.
Captain cook first applied Terra Nullius in Australia in 1770 when he claimed the East Coast of NSW for Britain. Terra Nullius is a Latin term meaning “Land belonging to no one” and was
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an international law in the 18th century meaning that a country could take possession of another country under certain criteria. For Britain to claim ownership of Australia, the land had to be uninhabited. If the land was inhabited Britain had to reach an agreement with the natives and purchase the land or take the land by force but respect the natives and their culture. But when Britain settled in Australia they didn’t follow any of these rules, rather they acted as if the land was uninhabited and invaded Australia (National Film and Sound Archive of Australia (2013). Terra Nullius Defined.) This violation of Human rights over the centuries caused Indigenous Australians to contest their rights which led to the historic events in 1982. In May 1982 Eddie Mabo and four other plaintiffs of the Meriam people from the Murray Islands of the Torres Strait, led action against the Crown to claim native title of Islands Mer, Dauar and Waier.
The Torres Strait Islands were annexed by the crown in 1879. Mabo argued that since the Meriam people had occupied the islands for thousands of years the land should be recognised as theirs and not recognised as Crown land per the Land Act 1962 (Reynolds, Henry: The Law of the Land, Penguin, Melbourne, (2nd ed.), 1992). The case went on for 10 years being heard in the High Court and the Queensland Supreme Court. On the 3rd of June 1992 the high court made its decision with in favour to Mabo and the Meriam people, under the common law of Australia that native title did exist (Pelczynski, Stan (1993). The High Court Recognition of Native Title - The Mabo Judgement and Its …show more content…
Implications.) The decision was significant on Australia’s legal system as it recognised Terra Nullius should not have been applied in Australian law. It also recognised that Indigenous Australians had native title rights of the Land and had already established a system of law long before the British settled in the 18th century. Before the decision the Australian legal systems law’s and legislations tried to dissolve Native Title but now they have since been overturned (Strelein, Lisa (2013). Defining native title: the Mabo decision). For example the decision overturned the case law Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. People from the Yolnga tribe in the Northern Territory claimed sovereign rights over land the government had granted mining company rights to, the judge declared that Native title was in no form in the Australian Law. (Odette Mazel (2006). Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141). Also it over turned the Queensland Coast Islands Declaratory Act (1985) which was a legislation that declared the Queensland government sole owners of the Murray Islands as Native title didn’t exist in Australian law. The Mabo decision was a turning point in Aboriginal land rights because it recognised the significant cultural connection Aboriginals and Torres Strait Islanders have with the land, this led to introducing of the Native Title act in 1993 into Australian law. The Native Title Act was introduced by the federal government in 1993 in the events after the Mabo decision and in the words of the Australian Prime Minster at the time, Paul Keating, in introducing the act said “We give the indigenous people of Australia, at last, the standing they are owed as the original occupants of this continent” (Australian Bureau of Statistics (1995).
Year Book Australia). The Native title Act was significant as it provided a legal doctrine for Indigenous Australians to claim ownership of land that had a significance to their tribe and culture. Currently 15 percent of Australia is under ownership of Indigenous Australians which is Native Title land (Reconciliation Australia (2014). The Mabo Decision). It was a significant impact as now Indigenous Australians had the legal rights for the first time to claim back land by taking issues to court. In 1994 the National Native Title Tribunal was established and it dealt with legal matters concerning native title. The tribunal’s procedures took in account the cultural and customary concerns of Aboriginal and Torres Strait Islanders and had the power to determine uncontested native title and compensation claims which had never been seen in Australia
before. So in conclusion Mabo v Queensland (No. 2) (1992) 175 CLR1 case decision had a significant impact on the Australian law and legal history. The decision overturned the doctrine of Terra Nullius and recognised native title of the land for the first time for all Indigenous Australians. The decision successfully reconnected Indigenous Australians back to their culture as previous government laws and legislations failed to do. It led to the introduction of the Native Title Act in 1993 and the establishment of the National Native Title Tribunal in 1994 which determined native title for Indigenous Australians of land that had significance to their culture and way of life. It was a significant turning point in how the Australian Legal system recognised Indigenous Australians Land rights.
Eddie Mabo was a recognised Indigenous Australian who fought for his land, Murray Island. Mabo spent a decade seeking official recognition of his people’s ownership of Murray Island (Kwirk, 2012). He became more of an activist, he campaigned for better access for indigenous peoples to legal and medical services, to house, to social services and to education. The Mabo case was a milestone court case which paved the way for fair land rights for indigenous people. The Merriam people wanted to ensure its protection. Eddie Mabo significantly contributed to the civil and land rights of Indigenous people in Australia due to his argument to protect his land rights. In a speech in 1976, at a conference on the redrawing of the Torres Strait border, Mabo articulated a vision for islander self-determination and for an independent Torres Strait Island (Stephson, 2009).
in the country can afford the best lawyer and it is true to say that
The journey for the Aboriginals to receive the right to keep and negotiate land claims with the Canadian government was long but prosperous. Before the 1970's the federal government chose not to preform their responsibilities involving Aboriginal issues, this created an extremely inefficient way for the Aboriginals to deal with their land right problems. The land claims created by the Canadian government benefited the aboriginals as shown through the Calder Case, the creation of the Office of Native Claims and the policy of Outstanding Business.
The National Apology of 2008 is the latest addition to the key aspects of Australia’s reconciliation towards the Indigenous owners of our land. A part of this movement towards reconciliation is the recognition of Indigenous Australians and Torres Strait Islanders rights to their land. Upon arrival in Australia, Australia was deemed by the British as terra nullius, land belonging to no one. This subsequently meant that Indigenous Australians and Torres Strait Islanders were never recognised as the traditional owners. Eddie Mabo has made a highly significant contribution to the rights and freedoms of Indigenous Australians as he was the forefather of a long-lasting court case in 1982 fighting for the land rights of the Torres Strait Islanders. Eddie Mabo’s introduction of the Native Title Act has provided Indigenous Australians with the opportunity to state claim to their land, legally recognising the Indigenous and the Torres Strait Islanders as the traditional owners.
This essay is about the land rights of of Australia and how Eddie Marbo was not happy about his land been taken away from him. In May 1982 Eddie Marbo and four other people of the Murray Islands began to take action in the high court of Australia and confirming their land rights. Eddie Marbo was a torres islander who thought that the Australian laws were wrong and who went to fight and try and change them. He was born in 1936 on Mer which is known as Murray Island. The British Crown in the form of the colony of Queensland became of the sovereign of the islands when they were annexed in1978. They claimed continued enjoyment of there land rights and that had not been validly extinguished by the sovereign. (Australian Bureau of Statistics 2012)
The laws regarding native title have continually been questioned about its legitimacy in providing justice to Indigenous Australians and their lost land. The Native Title Act 1993 (Cth) was recently established in response to the Mabo v Queensland case in 1992. Eddie Mabo and four other Torres Strait Islanders went
Of the 8 successful, the 1967 referendum which proposed the removal of the words in section 51 (xxvi) ‘… other than the aboriginal people in any State’ (National Archives of Australia ND), and the deletion of section 127, both, which were discriminative in their nature toward the Aboriginal race, recorded a 90.77% nationwide vote in favour of change (National Archives of Australia, 2014). As a result, the Constitution was altered; highlighting what was believed to be significant positive political change within Indigenous affairs at the time (National Archives of Australia, 2014). Approaching 50 years on, discussion has resurfa...
Struggles by Aboriginal and Torres Strait islander people for recognition of their rights and interests have been long and arduous (Choo & Hollobach: 2003:5). The ‘watershed’ decision made by the High Court of Australia in 1992 (Mabo v Queensland) paved the way for Indigenous Australians to obtain what was ‘stolen’ from them in 1788 when the British ‘invaded’ (ATSIC:1988). The focus o...
Before the Indigenous Australians gained Land Rights in Australia, in 1788 the East Coast of Australia was claimed by the English Monarch and was called Crown Land. The reason behind the English Monarch's claim for Crown Land was that they believed that that land was “terra nullius”, meaning land belonging to no one”. In 1976 the Northern Territory was the first state government to allow Indigenous Australians to claim Crown Land and reserves in the Northern Territory that no one had the use for. Commission and increased funding was also granted to Indigenous Australians through the 1975 Racial Discrimination act made by the Whitlam Government. These acts and decisions were then overruled against in 1985 by the High Court. Article 8 “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution of law” and Article 16 “the family (...) is entitled to protection by society and the State” of the UDHR are evidence of the discrimination Indigenous Australians faced by the government as they were once again stripped away of their human rights and land titles. Indigenous Australians only began to grant land from the English Monarch after the case between Mabo and others versus the State of Queensland took place that decided in favour of
Land rights now referred to the continual legal exertion to reclaim ownership of the land and waters that was called home prior to British colonisation (Creative Spirits, 2011). Australian Museum (2015) and Creative Spirits (2011) acknowledge the struggle to gain legal recognition and ownership of Indigenous land is difficult and expensive. Furthermore, the history behind the struggle in earlier years often resulted in violence as Indigenous Australians were dispossessed of their land (Australian Museum, 2015). Subsequently, the struggle for land rights continued through the legal and political systems; as demonstrated in 1982 when Eddie (Koiki) Mabo and four other Meriam people decided to pursue declaration of their customary land rights in the High Court of Australia (Hill, 1995). Based on the findings of Creative Spirits (2011) Indigenous Australian land rights appeared promising in 1983 when the Hawke Government promised legislation to ensure that Aboriginal and Torres Strait Islander people’s land rights are protected throughout Australia. The legislation was said to permit Indigenous Australians to exercise the right of control over mining on Indigenous Australian land to ensure sacred sites are protected (Creative Spirits, 2011). However, in 1984 the mining companies fought back to repossess control over land. Mining and pastoral industries were considered too powerful and
...d practiced traditional customs of their tribe. However this was hard to prove as their laws were never written down as they expressed their laws orally and had to remember them. This case made the native title claim difficult for the indigenous to get because their link to the land and their tradition had been severed due to the growth of urbanisation in those areas. The native title was seen as an important part of reconciliation between the Aboriginal Australians and the community to enhance the present and future. Many claims by the Yorta Yorta people were dismissed where the Australia in 2001 and the High Court of Australia 2002 which were also dismissed due to the tradition of being viewed as “old Historical ways”
This claim was based on the concept of terra nullius, or land belonging to no one, whereby Britain assumed that Australia was not settled, and Aboriginal people did not have any form of political organisation and therefore had no authority to sign treaties. According to British law, Australia’s Indigenous population had no legitimate claim to the land on which they had lived for thousands of years and this relates to Native Title.
In 1992, terra nullius was abolished in Australia, which can be accredited to the campaign of Eddie ‘Koiki’ Mabo. In the feature film, Mabo, both Koiki’s positive and negative qualities are revealed throughout his emotional and political journey for Indigenous land rights. While not always recognised, Koiki possesses admirable character that is displayed in his family life, pursuit for justice, prior achievements and in court, which is inspired by his heroes.
The Kurnai launched a native title claim in 1997 following on from the successful Mabo native title case of 1992. On 22 October 2010 the case was settled in the Federal Court under the Native Title Act (1993). The Court recognised the Gunaikurnai as traditional owners, and found that they held native title over much of Gippsland. Based on these findings the Victorian Government entered into an agreement with the Gunaikurnai on the same day, the first agreement reached under the Traditional Owner Settlement Act (2010).
Key events in Aboriginal Australian history stem from the time Australia was first discovered in 1788. For instance, when Federation came into existence in 1901, there was a prevailing belief held by non Aboriginal Australians that the Aborigines were a dying race (Nichol, 2005:259) which resulted in the Indigenous people being excluded from the constitution except for two mentions – Section 127 excluded Aborigines from the census and Section 51, part 26, which gave power over Aborigines to the States rather than to the Federal Government. Aboriginal people were officially excluded from the vote, public service, the Armed Forces and pensions. The White Australia mentality/policy Australia as “White” and unfortunately this policy was not abolished until 1972. REFERENCE