Disucss about the Coming to Terms Aboriginal Title in South.
In Australia, the common law doctrine regarding the aboriginal title is known as the native title. Through this doctrine, the recognition under the Australian laws is given to the indigenous individuals, in addition to their rights, which are stemmed from their traditional and customary laws. This doctrine recognizes that in certain circumstances, the beneficial legal interest in land continues to be in the hands of local indigenous Australians, who survived acquisition of land by the Crown at the time of sovereignty in context of the radical title.
In context of the native title rights, Mabo and Others v Queensland[1] is deemed as a landmark decision even after 26 years of this verdict. Whenever a discussion of native title rights is carried on in the nation, this is the case which is most often referred to, due to its roots in the protection and recognition of native title rights in Australia. This discussion highlights the significance of this decision and the native title rights are protected through the Native Title Act, 1993.
In Australia, the aboriginals have been provided some interests and rights in their lands and water through native title. This native title is born from the customs and established laws of aboriginals. This title recognizes that the Australian indigenous have the customary right of speaking for their area. A key point which needs to be noticed in this context is that native title does not provide land ownership to the indigenous individuals; further, it also steers away from giving the indigenous people with the power of stopping development of land rights, as have been presented through Aboriginal Land Rights Act, 1976[3]. Through the native title, rights are given to the indigenous people, which include the one for sharing rights of land with other people, where such other people have vested interest in the same land. With the native title rights being recognized, the right of holding ceremony to indigenous individuals, in addition to collection of bush ticker is provided to them, along with having a say when it comes to the matter revolving the land development[4].
The interest and rights which the native title presents are known as common law indigenous property rights. Through the judgment of the High Court given on 03rd June, 1992 under the case of Mabo and others v Queensland (No2), these rights were initially recognized in the nation[5]. In this case, the rule of reception was seen by the court, which used to be applied at that time, and they stated that this rule could not be applied in such cases where the land had been barren or had been unhabited. They stated that such rules had to apply only when the present individuals settled and lived there. As a result of this, the customary laws which had been present at the settlement time survived the English law reception to such an extent to which these had not been excluded or modified through the acts of sovereign or through the inconsistent laws. This existing law covered the indigenous land title. This judgment resulted in the indigenous land rights in the nation, which had not been doused off by the subsequent grants by Crown, to continue their existence in the nation.
As a result of the decision given under Mabo and others v Queensland (No2), the rights of indigenous people in the nation were recognized on five separate grounds:
The Mabo and others v Queensland (No2) case is the reason for the drafting and implementation of the Native Title Act, 1993[8] owing to the legal uncertainty coupled with this decision. Till such time the judgment of this came, there was a wrong assumption made under the Australian legal system that the Australian land had no ownership and had been terra nullius when the British arrived in 1788. The common law is basically the British system of laws made by judges, originally founded on traditions and customs, and is based on precedents. Native title was an old type of land grant and was a common law right which predated the Australian European settlement. Through the judgment of this case, it was established that the native title to land, which was in existence back in 1788, could continue to be in existence, given that such native title to land had not been extinguished by the government’s subsequent acts and put forth that the indigenous people still continued their observance of the customary laws and traditions[9]. In December 1996, another substantial judgment was given by the High Court in the case of Wik Peoples v Queensland[10], where the judges decided on the issue which had been left unsolved in the earlier judgment of Mabo and others v Queensland (No2). In the later case, it was decided that the native title could be in coexistence with the other land rights held on the pastoral lease[11].
Basically, the decision given in the earlier case set the grounds for this legislation. This opened the door to the claims by the aboriginals and the Torrens Strait Islander individuals regarding their traditional rights to their land and that of compensation. The Parliament of Australia passed the Native Title Act, 1993 with the objective of giving forth a national system which could protect and recognize the native title. Apart from this, the goal there was a need for coexistence with the system of national law management. The quoted legislation aptly summarizes the rights which are assigned to the native title. There are different protections offered on varied grounds. Some of these rights included the right of access or hunting; right to safeguard the sites; holding ceremony; getting a say in the development of land, or in its management; living or camping on land in some cases and share money made through development of land; stopping the development; ownership of land as is recognized by white fellas; and the power of taking the right to land away from other people, e.g. taking the land away from pastoralist or company with mining license[12]. The key objectives of this act have been summarized below:
The significance of this case is also because before the arrival of British people in Australia, the aboriginals had occupied the nation for nearly 40,000-60,000. They had their own set of languages and had their own customs. Most importantly, they had a very strong connection with the Australian land. Merely a declaration by British that the land of Australia was terra nullius did not mean that it was actually empty land belonging to no one. The non-recognition of the unique connection and occupation of the indigenous people with the Australian land was an entirely wrong approach, and taking away of their land by the British without any payment or agreement required rectification. This is the reason that the Mer Islanders decided to challenge in High Court, the legal principle of terra nullius and this led to the case being raised by Eddie Mabo. This is the reason why this case is even famous as the Mabo case. This judgment was necessary to dispose the denial of land which belonged to the indigenous people. In sense of natural justice and protecting the rights of all the people in a similar manner, this decision was very important. With this, the aboriginals could finally enjoy their land again[14].
Conclusion
Thus, from the discussion undertaken in the previous segments, it can be concluded that the case of Mabo and others v Queensland (No2) was a landmark decision. It laid down the groundwork for the native title rights of the aboriginals being protected and also led to the formation of a legislation meant to protect such rights. Had the decision under Mabo and others v Queensland (No2) not been given, the wrong assumptions regarding the terra nullius status would have continued and the rights of the aboriginals would have been unprotected. Thus, it is safe to say that the decision given 26 years back changed the course of native title rights of the aboriginals and its significance is not only present in the history pages, but continues to be present at this day and age. Native title rights are necessary for protecting the indigenous people of Australia and in this context the legislation provides adequate protection measures for them.
Berg S, Coming to Terms: Aboriginal Title in South Australia (Springer, 2016)
Mabo and others v Queensland (No2) (1992) 175 CLR 1
Wik Peoples v Queensland (1996) 187 CLR 1
Aboriginal Land Rights (Northern Territory) Act, 1976
Native Title Act, 1993 (Cth)
Central Land Council, The CLC’s Easy Guide to Native Title (2018) <https://www.clc.org.au/articles/info/what-is-the-native-title/>
AIATSIS, Mabo case (11 September 2015) <https://aiatsis.gov.au/explore/articles/mabo-case>
Reconciliation, 3 June: The Mabo decision (2017) <https://www.reconciliation.org.au/wp-content/uploads/2017/11/mabo-decision_2017.pdf>
[1] (No. 2) (1992) 175 CLR 1
[2] Native Title Act, 1993 (Cth)
[3] Aboriginal Land Rights (Northern Territory) Act, 1976
[4] Central Land Council, The CLC’s Easy Guide to Native Title (2018) <https://www.clc.org.au/articles/info/what-is-the-native-title/>
[5] Ibid
[6] Shaun Berg, Coming to Terms: Aboriginal Title in South Australia (Springer, 2016)
[7] AIATSIS, Mabo case (11 September 2015) <https://aiatsis.gov.au/explore/articles/mabo-case>
[8] Native Title Act, 1993
[9] At 4
[10] (1996) 187 CLR 1
[11] At 4
[12] At 4
[13] At 7
[14] Reconciliation, 3 June: The Mabo decision (2017) <https://www.reconciliation.org.au/wp-content/uploads/2017/11/mabo-decision_2017.pdf>
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