The Mabo Decision and the Native Title Act: Benefits and Shortcomings

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Research Essay

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The Mabo decision given by the High Court had a profound impact on Australia in which the
land rights of Aboriginal and Torres Strait Islander were recognised. On 3rd June 1992, Mabo
decision was made by the High Court in which it was decided that terra nullius should not be
applied to Australia. Before 1992, the principle of terra nullius provided that Australian
lands belong to no one and this law denied the fact that Indigenous people had a
connection with these lands. Eddie ‘Koiki’ Mabo was the man behind this landmark
judgement who led the fight to eliminate terra nullius and recognise the rights of indigenous
people. After this case, the Native Title Act 1993 was enacted by the government in which
the procedure was given which can be used by indigenous people to claim their rights on
the land (Bark et al., 2012). Two decades have passed since the Mabo decision, and still,
people have different opinions regarding whether it was successful in fulfilling its objectives
or not. In this essay, benefits and shortcomings of the Mabo decision and the Native Title
Act, 1993 will be discussed. This essay will analyse whether this landmark decision had been
a success or did it fail in achieving its objectives.
The Mabo decision and the Native Title Act recognised the native title of indigenous people
on their land which assisted them in access to land and resources. After the introduction of
the Native Title Act, a framework is established and recognised by the government in order
to recognise the land rights of indigenous people in Australia. This decision gave recognition
to the traditional laws and customs of indigenous people in Australia that were not
recognised before (Hayward, 2012). After the introduction of this act, more than one million
square kilometres of Australian land and water was recognised as aboriginal land. This
contributes to around 15 percent of Australian territorial land and waters. Currently, there
are over 629 registered Indigenous Land Use Agreements which are recognised by the law.
These are voluntary agreements between a native title group and others regarding the use
of the land and water. Before the enactment of the act, there was no procedure available
for aboriginal people to establish their rights on their land. However, the benefit of the
Native Title Act is that a procedure is established which can be followed by indigenous
people to claim their traditional land (O’Faircheallaigh, 2013). Therefore, this decision was a
success because indigenous people have a strong connection with their land, and they
believe it nurtures them due to which they protect these lands. The main benefit of the

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Mabo decision and the Native Title Act was that a connection between indigenous people
and their traditional lands was established.
After this case, the culture and rights of indigenous people spread across the nation and
awareness regarding their culture spread between non-indigenous people. Before the Mabo
decision, most people were not aware of the rights of aboriginal people on their lands and
how this right was breached by the government. Awareness regarding their sufferings and
the discrimination which they face also increased in Australia. The positive outcome of the
Native Title Act is that it recognised and protected the Australian community as a whole and
the Mabo decision recognised the fundamental truth about Australia (Jackson et al., 2012).
The government established the social justice reforms for aboriginal people and respect
grows regarding their rights and culture which increased the inclusion in Australian society.
It also highlighted many concerns relating to health and safety of indigenous people and the
discrimination which they faced in the country. For instance, there is an estimated gap of 17
years in the life expectancy between indigenous and non-indigenous people (Human Rights,
2007). They did not receive equal healthcare facilities and their incarceration rate in much
higher. To address these issues, the Australian government implemented ‘Closing the Gap’
policy which is focused on creating equality between indigenous and non-indigenous people
in terms of education, healthcare, employment, mortality rates and others (Demaio,
Drysdale and de Courten, 2012). Therefore, the impact of the Mabo decision and the Native
Title Act is still positively influencing the lives of aboriginal people in Australia.
Along with various benefits, there are many shortcomings as well of the Mabo decision and
the Native Title Act one of which include the process of proving the on-going connection. As
per the Act, aboriginal people have to prove or establish in the court their on-going
connection with the land on which they wanted to claim their native title. It is difficult for
them to prove this connection due to widespread urbanisation and agricultural
development which resulted in extinguishing their native title. Incidents such as ‘stolen
generations’ and many massacres of aboriginal people eliminate the evidence of their
connection with the land (Philpot et al., 2013). The process of proving the claim is also
expensive and time-consuming because connection reports take up to 2 to 3 years for
research and up to 3 years to assess the information (Poirier and Schartmueller, 2012). Due
to these factors, it has become difficult for indigenous people to prove their claim on the