Land Rights And Native Title example essay topic

Doctrine of terra nullius Terra nullius literally means 'land belonging to no one', and referred not only to territory that was inhabited, but also yo territory inhabited by people who had no system of law or social or political organization that was recognised by the English. Instead of recognising the laws and customs that existed at time of colonisation, the British government declared the land of the colony of New South Wales to be terra nullius. Subsequent legal developments: The federal Parliament, in response to the Mabo case enacted the Native Title Act 1993 (Cth). Section 3 outlines the purposes of this Act: o To provide for the recognition and protection of native title o To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings o To establish a mechanism for determining claims to native title o To provide for, or permit, the validation of past acts invalidated because of the existence of native title. Once native title has been recognised it may only be extinguished with the approval of the holders of the native title, or by compulsory acquisition by the government. The Mabo and the Wik Case: The Mabo case led to the native title legislation but also gave indigenous Australians recognition.

Indigenous Australian traditional land ownership was not recognised under the doctrine or terra nullius. In 1971, Milirrpum vs. Nab alco Pty Ltd (Gove Rights Case) affirmed the applicability of the terra nullius doctrine to Australia. However in 1992, the High Court of Australia overturned the doctrine of terra nullius, in the leading case of Mabo vs. the State of Queensland (No. 2). Following the case the government passed the Native Title Act.

The Act allows indigenous Australians to claim land where they can prove that they have maintained traditional links with it. In 1996, the High Court held in Wik peoples vs. Queensland that pastoral leases did not extinguish native title. Both pastoral leases and native title could co-exist (A pastoral lease is a grant of rights by the government, pursuant to legislation, to the lease holder to use the land for the purpose of raising livestock or related purposes. Pastoral leases cover over 40% of Australia.) From the Wik decision, indigenous Australians may have the right to continue the traditional uses of the land given to them by native title, in spite of pastoral leases, which have been granted over the land.

They would still have to establish that they have title over the land. The decision created much confusion and uncertainty in farming communities. The Commonwealth Government's response was to publish a 'ten point plan'. The plan summarised the government's proposed changes to the Native Title Act 1993. The Senate rejected the first version. In 1998 a revised version of the plan was passed and the Native Title Act was amended to reflect the changes.

Under the amendments indigenous Australians rights to negotiate with the Government was abolished. The right to negotiate has been merely replaced with the right to consult. Land Rights and Native Title: Mabo vs. State of Queensland (No 1) (1988) The case concerned the Murray Islands, in the Torres Strait, with a total land area of 9 square kilometres. The Murray Islands were annexed to Queensland in 1879 (in other words, became part of Queensland. ). The original occupants were known as the Meriam people, who settled several generations before European Contact.

In 1982, three Murray Islanders - Eddie Mabo, David Pass i and James Rice brought an action in the High Court of Australia against the State of Queensland. They claimed that Queensland sovereignty (ownership) over the Murray Islands was subject to the land rights of the islanders based on local custom and traditional title. They attempted to claim that: o That the Meriam people are entitled to the Murray Islands as owners; or as possessors; or as occupiers; or as persons entitled to use and enjoy the islands; and o That the State of Queensland has no power to extinguish the Meriam people's title. Issues: The plaintiffs, Mabo and others, claimed that: o A system of native title existed on the Torres Strait Island of Mer; and o Native titles are recognised under common law The defendant, the State of Queensland argued that: o Native titles were not apart of Australian law; and, in the Alternative, o The 1985 Act retrospectively extinguished any native titles (in other words, applied 'back in time' to override any claims to native titles which might have existed before the Act was passed. ). The Queensland Coast Island Declaratory Act 1985 (QLD): Section three of the above Act provided that the annexation by the crown in 1879, became owned by the Crown, free of all other rights, interests and claims.

By passing the law, the Queensland Government hoped to stop any potential claims for land rights by the Torres Strait Islanders. Decision: The first decision, the High Court Of Australia made did not address whether native title existed in Australia. The High Court found that the Queensland Coast Island Declaratory Act 1985 (QLD) was trying to limit the land rights of Torres Strait Islanders, simply due to their race. The Act would have meant that the land rights of the Torres Strait Islanders would have been different to other groups.

Therefore, the High Court held that the 1985 Act was invalid because of Section 10 of the Racial Discrimination Act 1975 (Cth). Section 10 of the Racial Discrimination Act held that no law could limit the rights of a particular group on the grounds of race. The High Court then referred the matter back to the Queensland Supreme Court for determination of the facts of the case, before going to consider the issue of Native Title in the Mabo case (no 2). Mabo vs. the State of Queensland (No. 2) (1992) Justice Moynihan of the Queensland Supreme Court visited the Murray Islands in order to gather evidence.

Issues: The main issue was whether the annexation of the Murray Islands by Queensland in 1879 had the effect of vesting in the Crown absolute ownership of all land in the Murray Islands, thereby extinguishing native title. Decision: Briefly, the High Court held: o That the Meriam people are entitled to possess, occupy, use and enjoy the Murray islands. o That the State of Queensland has the power to extinguish the Meriam people's title, as long as it exercises that power validly and in a manner consistent with Commonwealth Laws. On the issue of terra nullius, the High Court said: The terra nullius doctrine is not apart of Australian Law. The historical facts do not fit the 'absence of law' or the 'barbarian' theory, which underpinned the reception of English law into Australia.

Thus, the notion that Australia was terra nullius was dismissed by the High Court in Mabo. On the issue of Crown sovereignty, the High Court said: The common law of England, which applied to the colony of New South Wales, included the general system of land law. One of the basic principles of that land law was and still is that the Crown is the ultimate owner of all land. The practical effect was to enable the English system of private land ownership to be observed in the colony. But this did not mean that any traditional native interests in the land existed under native law or custom at the time the colony was established could not be preserved and protected. On the issue of common law recognition of native titles, the High Court stated that: o The recognition and protection of native title interests extended to traditional interests to use or enjoy land; o The interest would normally belong to a community or group, but it could belong to an individual; o The interest could relate to lands that were cultivated, or lands left uncultivated but which, under the law or custom observed in the territory, were traditional homelands or hunting grounds.

What common law required was that the group claiming native title interests: o Must have maintained their traditional identity and system of culture and customs o Must have maintained a substantial connection with the land o Had interests that, under customary law, entitled a group to occupy and use the particular land claimed The High Court also held that indigenous Australians continued to hold native title so long as they have maintained their traditional links with the land or until the government takes lawful action to extinguish their native title. The Court, however, denied that indigenous Australians had the right to claim compensation..