The Mabo Case and Native Title in Australia: A Legal Report

Desklib provides past papers and solved assignments for students. This report analyzes the Mabo case and its impact on native title.

Fundamental Law
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Table of Contents
Introduction....................................................................................................................................................3
The Mabo Case..............................................................................................................................................4
Conclusion.....................................................................................................................................................8
References......................................................................................................................................................9
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Introduction
In this assignment, the Mabo case was discussed and it is considered as the important challenge
for the concept of the landownership in Australia. In this context, there is a discussion on the
arguments by considering its importance in r5eagrds to the colonization or settled land in the
Australian and the way it presented in the media.
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The Mabo Case
Background of the Mabo Case
In the year 1788, the ownership of the Australian continent was claimed by the British. As per
the mind of the European, that for the thousands of the years the indigenous people occupied
Australia without property were nomads (Creek, 2018). Due to this, according to the
Britishers,Australia was terra nullius which states that the land belongs to the no one which
includes the island of Torres Strait.
In the year 1981, Eddie Mabo and the other Islanders recognize that to right against the rights of
their ancestors on Mer which is renamed by the British as Murray Island (Miller, 2017). They
bring the government of Australia to the court and the case called the Mabo case.
Foe the acknowledgement of the title of the native they argued and its complex patterns. In this,
the court is in favor of the Murray Islanders by recognizing the equality before the law and the
Australian government have obligation to recognize the Murray Islanders equal before the law
and to give respect to the Meriam law. These provide the way to Australia to view their future
and history.
What is the decision of the Mabo Case?
The decision of the Mabo was a legal case which commences in 1992. This case involves Mabo
and others v Queensland) (No 2) (1992). The decision passed by the High Court in this case on
3rd June 1992. In the Judicial system of Australia, the Highest Court in the Australia is the High
Court.
The decision passed in the Mabo was name after the Eddie Mabo, which is challenge the
Australian legal system and fight for the acknowledgment of the rights of the Aboriginal and the
peoples of the Torres Strait Islander who are the traditional land owners.
Who is Eddie Mabo?
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Eddie ‘Koike’ Mabo was a person Torres Strait Islander who was thought that the laws of
Australia on the ownership of land which is wrong and fought against for change it. When the
Eddie was rising up the being in the Torres Strait Islands are the laws that are regulated by the
Government of the Queensland. In this, Eddie believed that the land on which he lives for
thousands of yearsbelonged to the land of the people of the Torres Strait Islander (Altman,
2018). But the government of Australia believed that the land is owned by them.
At the James Cook University in the Queensland in 1981, the Eddie Mabo explained the life of
the people and their beliefs that the land and inheritance ownership on Mer. The speech heard by
the lawyer and questioned with the Eddie that if the Eddie would like to challenges the
government of Australia in the system of Court for deciding the true and actual owner of the land
and this is the act which is actually done by the Eddie Mabo.
Why the Mabo case is considered important?
The peoples of Aboriginal and Torres Strait Islander occupied the land of Australia for around
40,000 to 60,000 years as before the arrival of Britishers in the year 1788. As the Britishers
spoke their languages and recognize theirs customs and laws (Ayele, 2015).
After the arrival of the Britishers, they declared that Australia was terra nullius which means
that the land is empty which is not belongs to anyone (Altman, et. al., 2018). With this result, the
Aboriginal and Torres Strait Islander citizens occupational land attachment is not recognized and
the land is taken by the British with no payment or agreement.
It was decided by the Mer Islanders that they are the one who challenges the terra nullius legal
principle which is lead by the Eddie Mabo in the High Court.
What was the result of the Mabo case?
The case of Mabo ran for over 10 years. The Australian High Court decided that the terra
nulliusis not applied in Australia. In this decision, it states that the people of Aboriginal and
Torres Strait Islander possess the rights towards their land and the rights are exist before the
arrival of the British government and the rights are still exists.
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The decision of the Mabo taken as the revolving point for the acknowledgment of the Aboriginal
and Torres Strait Islanders and their rights for the reason that it depicts the unique connection of
them with the land. This led the Parliament of Australia for passing the Native Title Act,
1993.But the result in never found out by the Eddie Mabo and he died in January 1992 just
before the five months before the decision passed by the High Court.
What is the meaning of the native title?
This title is the legal acknowledgment that some of the Aboriginal and Torres Strait Islanders
have the rights and the interest in the particular land because of the laws and background of
traditional nature.
The rights that are granted by the native title are not unlimited and are depend upon the
traditional customs and laws for the people who are claiming the land title. The interest and
rights of other people overcome the native title (Durette, 2018). For the recognition of the native
title, it was recognized by the Native Title Act, 1993 which must prove by the peoples of the
Aboriginal and Torres Strait Islander that they have the unique relationship with the land and
them not done anything which is against that connection for example selling or rental of the land.
The title of the local can be recognized in various ways. The peoples of the Aboriginal and
Torres Strait Islander get the right to live on the land and the get area to access for the customary
purposes, protect the places and sites that rate vital, hunt or gather the food and resources and
also the acknowledge the law and customs of the Aboriginal and Torres Strait Islander. In
numerous cases, the resident title includes the occupy own right in relation to the land or water
by the exclusion of all the others people.
What is the importance of the native title?
The title of the native is imperative for the reason that the withdrawal of land is the initial act in
the relationships among the peoples of the Aboriginal and Torres Strait Islander and also the
Europeans. The Native Title Act, 1993 which is essential because it depicts how the interest of
the native title is recognized formally (Finlayson & Smith, 2018). It sets the land rules while
dealing with it where the native title still exists. Now, the native title is recognizing in more than
the land more than the two million square kilometers. The agreements use in the indigenous land
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between the holders of the native title and other who use the land. Currently, there are more than
the 967 registered of the indigenous land that uses agreements in the place.
Running the case
The case of the Mabo legal proceedings began in the year 1982 when the group of Edie Koike
Mabo, James Rice, Meriam Men, Reverend David Passi, Sam Passi and Celuia Mapoo Salee are
those people who take action against the Queensland State and the Australian Common wealth
for claiming the title of the native to the Islands of Murrary.
Sir Harry Gibs who is the Chief Justice of the High Court sent this case to the Queensland
Supreme Court so as to determine the facts of the case on 27 February 1986. This case is hearing
by the judge Justice Moynihanof the Supreme Court. Further, the case hearing is adjourned when
the Eddie Mabo and Mer people introduce the second case to the High Court for demanding the
strength of the constitution of the Queensland Coast Islands Declaratory Act 1985.
The Queensland Parliament conceded the Queensland Coast Islands Declaratory Act 1985so as
to pre-attempt the case of Meriam’s people. This legislation aim was to extinguish the rights that
are claimed by the people of Meriam to the island of the Murray.
With this, the High Court considers the validity of the legislation of Queensland and its
efficiency. It was establish by the High Court that the Queensland Coast Islands Declaratory Act
is not valid as its provisions conflict with the provisions of the Racial Discrimination Act, 1975
which means to continue the original case.
As the judgments passed by the High Court in the case of Mabo v Queensland inserted the
doctrine of native title in the law of Australia (Sanders, 2018). The fact that High Court
recognize is that the people who are indigenous lived for the thousands of years in Australia who
have enjoyed their rights on the land as per their laws and customs of the nation. With increasing
in the colonization the land is dispossessed into pieces and the dispossession strict Australia and
its development.
The doctrine of the title of the native overcome the doctrine of terra nullius of the 17th century
which is claimed by the British for the possession in the Australia which was justified on the
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wrongful presumption that the people who are indigenous had prior rights of the land in
Australia and it is held by the court that these rights still exist and provide protection to the law
of Australia until and unless these rights are extinguished legally.
Case and its effects
There are five important issues that depict the importance of the legal precedent in the decision
of the Mabo so as to give recognition to the rights of the local peoples in Australia. These are:
By applying the non-discrimination principle for the property right and its enjoyment
In the law and custom, it is important to recognize the rights and its source and its native title
For the extinguishment of the native rights asserting the State power
The implication of the Australian settled status are reviewed
Arguments in the Mabo case
In the case of the Native Title Act, the government of Western Australia argued that the Native
Title Act is not excised and is invalid in Western Australia. The government argued that the in
the prior of the enactment of this act this is extinguished and if not by acquiring sovereignty of
the act, then the by the legislation and its operation since then finally the Land (Titles and
Traditional Usages) Act in December. They also said that the Native Title Act discriminate
against Western Australia that this act limits the power of the State and input the burden on
Western Australia (Vincent & Bell, 2018). In this context, they also argued that with the
alleviation of discrimination the laws not consist the special measures as per the convention
includes all forms of the Racial discrimination and it is beyond the power of the constitution and
its Common wealth under Section 51(29).
As the respondent the Common wealth for the challenge of the Western Australia and the
applicants in the Biljabu and Wororra actions challenge the legislation of the State and also
argued that the Land (Titles and Traditional Usages) Act in December treated as invalid because
this is the contrary with the rule of native title which is recognized in the Mabo v Queensland
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(Hunt, 2018). Further, they also state that the State Act provisions are contrary to the Racial
Discrimination Act.
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Conclusion
The abovementioned discussions on the Mabo case provide the importance of these cases which
resultant in developing the future of the nation. The step taken under this case by the Eddie Mabo
is considered as an important step and become the history and set an example for other to take
effective and efficient steps and motivate the others to take the steps for their country.
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References
 Altman, J. (2018). Economic Development and Indigenous Australia: Contestations over
Property, Institutions and Ideology?-Indigenous Economic Development.
 Altman, J., Larsen, L., & Buchanan, G. J. (2018). The environmental significance of the
Indigenous estate: natural resource management as economic development in remote
Australia.
 Ayele, Y. (2015). Policies and practices of consultation with pastoralist communities in
Ethiopia: the case of Omo-Kuraz sugar development project. THE INTRICATE ROAD
TO DEVELOPMENT, 274.
 Creek, C. (2018). Western Australia. system, 7, 1475-4.
 Durette, M. (2018). Indigenous property rights in commercial fisheries: Canada, New
Zealand and Australia compared. Canberra, ACT: Centre for Aboriginal Economic
Policy Research, Research School of Social Sciences, College of Arts & Social Sciences,
The Australian National University.
 Finlayson, J., & Smith, D. E. (2018). The Native Title Era: Emerging Issues for
Research, Policy and Practice. Canberra, ACT: Centre for Aboriginal Economic Policy
Research, Research School of Social Sciences, College of Arts & Social Sciences, The
Australian National University.
 Hunt, J. (2018). Learning from Success: A Response to the Draft Indigenous Economic
Development Strategy.
 Miller, B. (2017). The Dying Days Of Segregation In Australia: Case Study Yarrabah.
Book Venture Publishing LLC.
 Sanders, W. (2018). Mabo and Native Title: Origins and institutional implications.
Canberra, ACT: Centre for Aboriginal Economic Policy Research, Research School of
Social Sciences, College of Arts & Social Sciences, The Australian National University.
 Vincent, E., & Bell, D. (2018). ‘Against Native Title’: Conflict and Creativity in Outback
Australia. ABORIGINAL HISTORY, 42.
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