Mabo Case [No.2] and its Impact on the Australian Legal System

The Mabo Case [No.2] overturned the terra nullius doctrine and recognized the native title rights of indigenous people in Australia. The decision led to the enactment of the Native Title Act 1993 [Cth]. However, the present legal system has shortfalls with respect to Native Title, including the requirement to establish ongoing connection with the land. The Australian government has declared that it would make reforms to the Native Title Act 1993 (Cth) and develop a native title system that is fair and sustainable.

Running head: AUSTRALIAN LEGAL SYSTEM
Australian Legal System
Mabo Case [No.2]
Name of the Student
Name of the University

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Table of Contents
Discussion........................................................................................................................................2
Impact of Mabo Case on the Australian Legal system....................................................................3
Shortfalls of the present legal system with respect to Native Title.................................................5
Future of Native Title......................................................................................................................6
References........................................................................................................................................8

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Discussion
Mabo v Queensland (No 2) [1992] HCA 23
The decision given in Mabo has modified the foundation of land law in Australia by
capsizing the terra nullius doctrine, which means that the ‘land belonged to no one’. The British
claimed their possession of Australia based on the doctrine of terra nullius. The concept of native
title in the Australian Law emerged from the notion of terra nullius where the Mabo case
recognized of traditional rights of the Merriam people upon their islands that was located in the
Eastern Torres Strait (Libby and McKenna 2017).
In the Mabo case, the Court held that native title of all the indigenous people existed
before the establishment of the British Colony of New South Wales in 1978 (Gilberthorpe and
Hilson 2016). The decision of the court led to the enactment of the Native Title Act 1993 [Cth]
which stipulated the legislative framework enabling the indigenous people of Australia to seek
recognition of their native title rights (Moreton-Robinson 2015). The major five essential issues
associated with the legal precedent in the Mabo decision that recognized the rights of the
indigenous people in Australia includes:
i. application of the non-discrimination principle while enjoying the property rights;
ii. explaining the operation of sovereign title of the Crown;
iii. asserting the state’s power to oppress the native title rights;
iv. recognizing the source of rights in indigenous custom and law along with the native title;
v. reviewing the implications of the settled status of Australia;

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The passing of the Native Title Act 1933 (Cth) purported to achieve the following essential
objectives:
i. to ensure protection and recognition of native title;
ii. to establish various ways to deal with future dealings affecting the native title and to
maintain standards for such dealings;
iii. to permit or provide for the transitional period acts;
iv. to validate former acts which were otherwise rendered invalid because of the existence of
the native Title;
v. to establish a method to assess the claims pertaining to native title;
However, in the year of enactment of the Native title Act, the Western Australian
government attempted to prevent the Commonwealth legislation by enacting their own
legislation which suppressed all the native title within the state and replaced native title with the
‘traditional land use’ statutory access rights (McDonald 2015). Nevertheless, when the
Commonwealth Acts and WA legislation were challenged in the High Court, it was held that
Commonwealth legislation prevails over state legislation if the state legislation is found to be
inconsistent and invalid thus, affirming the enactment of the Native Title Act (Gilberthorpe and
Hilson 2016).
Impact of Mabo Case on the Australian Legal system
The decision in Mabo case has acknowledged the existence of custom and Aboriginal
law before the British colonization and establishment of the nation. In the legal context, the
decision recognized the connection of the Aboriginal people and Torres Strait Islanders with land
and waters, which ultimately led to the enactment of the Native Title Act in 1993. This decision

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signifies the conformity of the Australian law with the modern concept of justice and human
rights (Morton 2017).
Although the decision provided in the Mabo case [No 2] awarded certain land rights to
the indigenous people, which was rejoiced, but the conditions that were cited along with the
decision had an adverse impact on the indigenous people. The evidence threshold along with the
decision of the High court narrowed the potential of the Native Title legislation and Mabo. The
evidence threshold required the claimant to establish that they existed prior to the establishment
of British sovereignty (Short 2016). The claimants of the native land were also required to prove
that they have been practicing law and custom until the present day without being subjected to
any interruptions.
This condition was very difficult for the claimants to establish, as there were possibilities
that such group was forcibly removed from the land where they practiced their laws and customs
without any interruptions and have maintained their spiritual connection with such land. This
claimant test is perceived to be unfair and it narrows down the implementation of the Native
Title legislation (McGrath 2016).
The decision had recognized the presence of Indigenous people within Australia at the
time of British colonization. However, the term ‘recognition’ can be characterized by several
sovereign legal powers. This sovereign power entails the power to suppress the land rights for
the indigenous people. However, the decision given in Wik Peoples v The State of Queensland
[1996] that was brought under the Native Title Act stated that Native Title could co-exist with
pastoral leases (Gilberthorpe and Hilson 2016).

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The Australian government introduced the ‘ten-point plan’ and amended the Native Title
Act in 1998, which included 12 agreements. Presently, there are number of cases relating to
Native Title that are determined all over the country with most of the claims being resolved
mutually between the claimants. The decision of Mabo has resulted in several indigenous land
tenure or statutory land rights amongst which most of the cases involved some form of co-
management or co-existence agreement for land and waters between the non-indigenous groups
and indigenous groups (Powell, McMahon and Jones 2017). Although the advantages resulting
from the decision is uneven across the nation failing to ensure culturally appropriate economic
benefits for the communities, the legacy of Mabo persists to be fundamentally significant.
Shortfalls of the present legal system with respect to Native Title
The Native Title Act was enacted to enable the Aboriginal people mediate and negotiate
while resolving disputes related to their recognition with their native land (Powell, McMahon
and Jones 2017). However, the statute is often subjected to criticisms for failing to include the
perspective of the Aboriginals and denies their indigenous rights.
The statute has been criticized for its requisite to establish that the aboriginals have
prolonged and ongoing relation with the traditional customs and laws of the land since the
European settlement.
This requirement to prove ‘ongoing connection’ with the land is difficult to establish on
the following grounds:
i. the widespread agricultural or urbanization development had oppressed the native title;
ii. the requirement is expensive and limited expense is available to develop these reports in
Australia;

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iii. the requirement to establish traditional connection requires them to go back to the date
when the Crown possessed sovereignty over Australia;
Further, it takes decades for the Aboriginal people to establish their claims on the land but it
takes only few days for the government to acquire such land. Native title groups may include
state, local and Commonwealth governments along with the representatives from pastoral,
pearling, telecommunications and several other industries. McGrath (2016) states that while the
statute was enacted to enable the aboriginals mediate and negotiate to resolve their issues, at the
same time, the numerous and diverse parties forming the native groups finds such mediation
process complicate as they do not interact with each other.
Furthermore, overlapping of claims arises when more than one aboriginal group claims for
the same area or water resources, which may cause delay or even, overturn the original native
title claims (Gilberthorpe and Hilson 2016).
McGrath (2016) asserts that the government is responsible for compensating to the
Aboriginals whenever it acquires their traditional area, however, at times, governments even fail
to perform this obligation, thus, depriving them of basic services like education, housing and
health that the government usually deliver instead of making monetary compensation.
Future of Native Title
The Australian government has declared that it would make reforms to the Native Title
Act 1993 (Cth) and develop a native title system that is not only fair and sustainable but also
provides socio-economic opportunities for the indigenous Australians. After 20 years of the
implementation of the legislation including the decision of the Wik’s case, the Australian Law
Reform Commission shall conduct a review of the statute (McDonald 2015).

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The review of the statute shall be conducted with respect to areas that is related to
‘connection provision’ that is, the legal provisions which identifies the interests and rights
comprising the native title within the Australia legal system. The second review shall be
conducted with respect to areas, which entails the Aboriginal or Torres Strait Islander group that
can bring a native title claim (Powell, McMahon and Jones 2017).
However, even after 20 years of implementation, the inquiry shall assess the evidence
that must be established to validate the claim made under the statute. While assessing the
evidence, it shall also have regards to the evolution of the notion of native title in Australia
(Morton 2017). The government has affirmed that the terms of the statute shall be examined to
ensure that the system is sufficient to meeting the needs of the aboriginals or the indigenous
group effectively. The review shall not only examine the Native Title service providers but shall
also consider role played and the impact of the other service providers on the indigenous groups
belonging to the native title (Powell, McMahon and Jones 2017).

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References
Gilberthorpe, E. and Hilson, G., 2016. Mining in Aboriginal Australia: Economic Impacts,
Sustainable Livelihoods and Cultural Difference at Century Mine, Northwest Queensland.
In Natural Resource Extraction and Indigenous Livelihoods(pp. 53-72). Routledge.
Libby, C. and McKenna, M., 2017. Western Australia: Permits to enter: a requirement for
marking out land the subject of a native title determination. Australian Resources and Energy
Law Journal, 36(2), p.28.
Mabo v Queensland (No 2) [1992] HCA 23
McDonald, J., 2015. Culture Clash: National Heritage Values, Native Title, and the GDP. The
Pilbara Crisis: Resource Frontiers in Western Australia,” edited by Melissa F. Baird and Jane
Lydon, Cultural Anthropology website, December, 16.
McGrath, P.F., 2016. Right to Protect Sites: Indigenous Heritage Management in the Era of
Native Title, The. Right to Protect Sites: Indigenous Heritage Management in the Era of Native
Title, The, p.xxii.
Moreton-Robinson, A., 2015. The white possessive: Property, power, and indigenous
sovereignty. University of Minnesota Press.
Morton, J., 2017. ‘Mother's Blood, Father's Land’: Native Title and Comparative Land Tenure
Modelling for Claims in ‘Settled’Australia. Oceania, 87(1), pp.58-77.
Native Title Act 1993 (Cth)

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Powell, G., McMahon, S. and Jones, D., 2017. Aboriginal Voices and Inclusivity in Australian
Land Use Country Planning. KnE Engineering, 2(2), pp.30-36.
Short, D., 2016. Reconciliation and colonial power: Indigenous rights in Australia. Routledge.
Wik Peoples v The State of Queensland [1996] HCA 40 187 CLR 1