Research Essay – Justice must be seen to be done
“Justice must not only be done, it must also be seen to be done” is an oft-heard legal proverb. But must a witness be seen in order to be heard? Discuss with relevant legal examples
Background to Yorta Yorta
The majority decision in the High Court case of Mabo in 1992 found that indigenous relationships to land could be recognised through common law. This was then codified in the Native Title Act in 1993. The Native Title Act adopted much of the same language used in the High Court decision. For example, it defined native title as “rights and interests possessed under the traditional laws acknowledged and the traditional laws observed by the aboriginal peoples”. The result of Mabo and the
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subsequent Native Title Act was that it left much up for interpretation. Key questions were left to be answered by the act, for example: what determines “tradition”? How did the assertion of sovereignty affect Native title rights?
Should the inquiry into native title rights start from the assertion of sovereignty? As one of the first cases to become before the Native Title Tribunal, the Yorta Yorta Case would attempt to answer these questions. The Yorta Yorta case involved a claim to native title regarding the public land and waters on the Murray river around Shepparton and Echuca. While they admitted that they had lost their traditional languages, religious practices and that British sovereignty had altered their views of their relationship to the land, they maintained that these pre-existing traditions and customers were essential their identity and existence. In the Federal Court, the trial judge, Justice Olney, found that the Yorta Yorta people had not made a sufficient connection to the land through traditional law and customs. In his judgement, he ruled that due to the impact of British settlement, the Yorta Yorta people had been dispossessed of their land and their traditional laws and customs had been “washed away by the tide of history”. Indeed, the judge pinpoints a date by when the Yorta Yorta people had lost their culture. Olney points to 1881 petition submitted by the Yorta Yorta people to the NSW governor for a grant of land and stating that they intended to change their
“old mode of life” in favour of “settling down to more orderly habits of industry”. Justice Olney’s decision was heavily based upon the written evidence of Edward Curr, an English pastoralist, who wrote two books on his experience between 1841-1851 in the area. The claimants argued in their appeal to the Full Federal Court the Olney’s approach to ‘traditional laws and customs’ under 223 of the NTA demanded that Aborigines be “frozen in time”. The appeal was dismissed, however, Chief Justice Black, who was in the minority, drew attention to potential richness and strength of orally-based traditions as well as the inherent difficulties to which the learned judge adverted. In the High Court, the majority judgement affirmed Justice Olney’s decision, finding that the Native Title claims process had to establish a continuous connection to he land at all points in time, from the assertion of British sovereignty to the present. Justices Kirby and Gaudron (the dissenting judges) rejected this notion of continuity: a link to the past is important but tradition “ordinarily signifies that that which it describes has been handed down from generation to generation, often by word of mouth” Privileging of written evidence over oral evidence How history and the law speak together as a result of this treatment of evidence
At the conference he explained the traditional land ownership and inheritance system that his community followed on Mer Island. Afterwards, a lawyer in the audience noted the significance of his speech and suggested there should be a test case to claim land rights through the court system. In 1982, Eddie Koiki Mabo and four Mer islanders took their case of ownership of their lands on Mer Island to the Queensland Supreme Court. With Eddie Mabo as the leader the case became widely known as the ‘Mabo case’. After the court ruled against them, the islanders took the case to the High Court. On 3 June 1992 (ten years later), the court decided in favour of the Islanders and ruled that ‘the Meriam people of the Torres Strait did have native title over their traditional
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).
This statement shows Aboriginals are inferior and have no rights or sovereignty over the land. Therefore the Europeans are superior by law to them. Lambert (2012. pg12) writes that Europeans regarded Torres Islanders and Aboriginals way of life and land use was “not being used in a fashion that European legal and property systems approved”. The information from both sources shows Europeans confirmed that land is not owned by anyone, unless there is a legal document to prove ownership therefore Europeans believed Aboriginals and Torres Islanders did not own the land even though they live there. Lambert (2012) suggests Europeans were “very liberal” compared to the Torres Islander and Aboriginals. The Proclamation 1835 was written after the Batman Deed however shows no evidence there was a treaty previously between John Batman and Dutigalla people. This also demonstrates Torres Islanders sovereignty is not regarded by the Europeans. (WC: 196). Jeff Lambert states the land was perceived as “unoccupied land” as “Aborigines demonstrated their affinity with the land in sustainability, cultural and spiritual terms” (Lambert 2012.pg 13), these actions were not
The two forms of traditional Aboriginal law were ‘sacred’ and ‘secular’ laws. Sacred laws were entrusted to the elders, teaching Aboriginal customs, acceptable behaviour, and adequate use of the land. Secular laws focused on the responsibilities of individuals. There were also ‘secret’ laws and different people...
The Calder Case was the spark that led to the Canadian government recognizing Aboriginals and their rights. Firstly, the aboriginals used the Calder Case to inform the government that they were taking away their rights. The Calder Case was launched after the Attorney General of British Columbia declared “that the Aboriginal Title, other wise known as the Indian Title, of the Plaintiffs to their ancient tribal territory...has never been lawfully extinguished.”1 The statement made by the government claimed that the Aboriginal Title did not exist in the eyes of the law and before the Calder Case, it allowed them to ignore Aboriginal land rights all over the country. In addition, The Calder brought the issues the Aboriginals were facing with land claims to the attention of the Canadian government. “According to Kainai Board of Education The case made it all the way to the Supreme Court of Canada where the court ended up rejecting the native's claims after being split on it's validity. However, the Supreme Court of Canada's recognition required new respect for Aboriginal land claims.”2 The Supreme Court of Canada's recognition of the Calder Case benefited the Aboriginals as the government was...
This paper supports Thomas Flanagan's argument against Native sovereignty in Canada; through an evaluation of the meanings of sovereignty it is clear that Native sovereignty can not coexist with Canadian sovereignty. Flanagan outlines two main interpretations of sovereignty. Through an analysis of these ideas it is clear that Native Sovereignty in Canada can not coexist with Canadian sovereignty.
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.
In summation, is can be identified in this paper that eye witnesses do not play a constructive role within the criminal justice system. This can be seen through a thorough discussion of the many issues portrayed through this paper. To conclude Schmechel et al. (2006) reiterates that statements this paper has presented and discussed;
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...
An issue facing society is whether the Native Title Act 1993 (Cth), is sufficient in balancing the rights of Indigenous Australians and the rights of current land owners. To determine whether legislation is sufficient and fair, an investigation into the current societal view points needs to be considered by legislators, with an evaluation into the ways in which other societies cater to the needs of Indigenous land owners should be made. This information then allows recommendations and changes to be debated, to therefore to ensure more equitable legislation on land rights within Australia.
The Effectiveness of Native Title The debate about native title issues has tended to see issues from idealistic perspectives ignoring the practical realities that native title poses to governments, industry and indigenous people. The implementation of the Native Title is an appropriate and significant aspect of Australia’s common and statute law, which effectively strives to develop a fair outcome for all Australian citizens. The Native Title Act 1993, like the court Mabo decision in 1992, transforms the ways in, which indigenous ownership of land may be formally recognised and incorporated within Australian legal and property regimes. The process of implementation, however, raises a number of crucial issues of concern to native title claimants and to other interested parties. These issues will need to be settled in court however, despite the many disputes between opposing stakeholders, the Australian Native Title effectively reaches the best and fairest possible outcomes for all Australian citizens.
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
The connection Indigenous Australians have with the land was established, and maintained, by The Dreamings, passed down through generations binding Indigenous Australians to the land (National Film & Sound Archive, 2015). National Film & Sound Archive (2015), highlight that land and being can not be separated for Indigenous Australians as they form part of the land and are accountable for the preservation of the land. Indigenous Australian land rights originated from an intricate social process constructed on traditional core values; where the rights of the land were established on principles of descendants, kinship and marriage (Dodds, 1998). However, despite this, the British colonisation of Australia in 1788 brought about change when the land was declared Terra Nullius (Short, 2007). Short (2007) stated that as a result of Australia being declared Terra Nullius, Indigenous Australians had no legitimate claim to their land. Hence, British colonisers dispossessing Indigenous Australians of their land rights as the customs established by Aboriginal and Torres Strait Islander people were not recognised or taken into consideration by the British Government (Short,
For example, the old man that lived beneath the boy and his father testified that he heard a fight between the boy and the father and heard the boy yell, “I’m gonna kill you,” along with a body hitting the ground, and then claims that he saw the boy running down the stairs. With this information, along with other powerful eyewitness testimonies, all but one of the jury members believed this boy was guilty. The power of eyewitness testimony is also shown in Loftus’s (1974) study. In this study, Loftus (1974) found that those who claimed to “see” something were usually believed even when their testimony is pointless. She discovered in her study that only 18 percent of people convicted if there was no eyewitness testimony, 72 percent of people convicted when someone declared, “That’s the one!”, and even when the witness only had 20/400 vision and was not wearing glasses and claimed “That’s the one!”, 68 percent of people still convicted the person. This proves that in 12 Angry Men and Loftus (1974) study, eyewitness testimony is very powerful and influential in one’s decision to convict a