Mabo Case and Property Law: Indigenous Rights - LAW10004 Swinburne

This essay examines the Mabo case and its profound impact on Australian property law, particularly concerning Indigenous land rights and native title. It explores Justice Brennan's concerns regarding the preservation of the legal system's skeletal principles while embracing international law influences. The essay discusses the significance of the Mabo decision in overturning the terra nullius doctrine and recognizing the rights of Torres Strait Islanders and Aboriginal people to their land. Furthermore, it delves into the Native Title Act 1993 and its role in defining and protecting native title interests, emphasizing the importance of demonstrating a continuous connection to the land. The analysis highlights the ongoing challenges and complexities in balancing Indigenous sovereignty with the existing legal framework, concluding that relying solely on the Australian legal system for resolving Indigenous sovereignty issues presents inherent flaws.

Property Law

Question
The concern of Justice Brenan with its preservation is a crucial constraint on the embrace of
Mabo of international law. It is not clear entirely what principle forms the skeleton part of the
Australian law.International law is found to be influencing the development of common law.
1995 Teho case sparked alarm due to the relationship account between domestic and
international law. Large number of high court in Mabo held that the non implemented and
ratified treaty can be utilized as the guide for the growth of common law. The decision was
being impacted as improper and radical by different commentators1. Justice Deane and
Justice Mason said that the technique of depending on the unimplemented treaty is for
developing the common law. The court can be more reluctant to depart from its own earlier
decisions. The order and peace of the Australian society are being developed on the legal
system. The things can be modified in order to bring into conformity with the notion of
human rights and justice but cannot be destroyed. Thus, it is not possible for distinguishing
between the cases which show a skeletal principle and the one which does not. However, no
case can be commanded unquestioning if the rule shows serious offends damaging the values
of human rights and justice. If a rule of the common law is depicted in the previous cases
then the question arises that whether the following rule should be applied and maintained.
When such a case arises then it is essential for assessing whether the specific rule is a
necessary doctrine of the legal system and if the rule can be overturned2.
The Indigenous sovereignty assertion had become a threat to the country and its territorial
integrity where languages were being framed to enable indigenous people to appear as a
separatist. The government of Australia had consistently been able to oppose any support for
the Indigenous Sovereignty by showing an argument with less associated with the cultural
1John Robert Allison and Robert A Prentice, Business Law (University Co-Op, 5th ed, 2009).
2Robert W Emerson, Business Law (Barrons Educational Series, 3rd ed, 2016).
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sovereignty notion, dominating the indigenous people and their abilities to collaborate, assert
and organize sovereigntyby damaging the significant cultural elements. If the courts were
being asked to judge the issue in relation to the Indigenous Sovereignty concept which is
defined consistently by the existing structure of power as being the conflicts with the state
sovereignty3. The courts can say that the recognition of Indigenous Sovereignty will fracture
the legal system's skeletal structure. The illegitimate sovereign state imposes laws on all the
subjects and indigenous people attempts to assert sovereignty by managing and controlling
the description of the institutions and sovereignty that will arbitrate the question of
sovereignty. It is being clear that looking contemporaneously and historically it shows that
depending on the Australian Legal system for administrating the decisions shows that
Indigenous Sovereignty and indigenous people is a flawed approach. The following conflict
is considered to be obvious and makes the cases untenable.
The case of the Mabo ran for ten years and on 3rd June of 1992, it was decided by the
Australian High Court that terra nullius must not have applied in Australia. It was identified
from the decision of the court that Torres Strait Islanders and Aboriginal people have the
right to the land4. This right was in existence before the British arrived in Australia and it still
exists today. The decision of Mebo can be considered as the turning point for the recognition
of Torres Strait and Aboriginal Islander people’s right due to their unique connection to the
land has been acknowledged. This also guided to the Australian Parliament allowing the
Native Title Act in 1993. It was very unfortunate that Eddie Mabo never been able to find out
the result of his legal case. When High Court made a decision on the case by then Mabo had
already died, just five months before the decision in January 1992. The native titles mean
3Foundingdocs, "Documenting Democracy", Foundingdocs.Gov.Au (Webpage, 2019)
<https://www.foundingdocs.gov.au/item-did-33.html>.
4Matthew Storey, "The Australian Indigenous Business Exemption As A ‘Special Measure’: Questions
Of Effectiveness" (2018) 21(1) Deakin Law Review.
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legal recognition and there are some Torres and Aboriginal Islanders who have the right to an
interest in certain land according to their custom and traditional laws5.
Native title grated rights to them which is not ultimate. They were dependent on customs and
traditional laws of the people claiming the title. The interest and rights of other people to the
land are also relevant and take more consideration over the title of the native. In order to have
the title of native, an individual must recognize under the native title Act 1993. It is necessary
for Torres and Aboriginal Islanders people to prove their connection to the land which is in
question and nothing has been done by them to break that connection.The title of the native
was so important because Daniel and dispossession land considered being the first act for the
connection between Torres and Aboriginal Islanders people and Europeans. The Native Title
Act 1993 is considered to be an important part as it identifies how the title of native interest is
recognized and recorded. A rule has been set by the Native Title Act that deals the land were
probity of native title exist or native title still exists. Now the title of native is being identified
in more than 2 million square kilometers of the land. Agreements are being used for
indigenous land between the people who hold native title and others for accessing the land
which is in question. These agreements are very much important for Australians as it helps in
making the native title work for all6.
5Ewan MacIntyre, Business Law (Pearson Education Limited, 3rd ed, 2018).
6Fiona Wheeler, "Common Law Native Title In Australia — An Analysis Of Mabo V Queensland [NO
2]" (1993) 21(2) Federal Law Review.
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References
Allison, John Robert and Robert A Prentice, Business Law (University Co-Op, 5th ed, 2009)
Emerson, Robert W, Business Law (Barrons Educational Series, 3rd ed, 2016)
MacIntyre, Ewan, Business Law (Pearson Education Limited, 3rd ed, 2018)
Storey, Matthew, "The Australian Indigenous Business Exemption As A ‘Special Measure’:
Questions Of Effectiveness" (2018) 21(1) Deakin Law Review
Wheeler, Fiona, "Common Law Native Title In Australia — An Analysis Of Mabo V
Queensland [NO 2]" (1993) 21(2) Federal Law Review
Foundingdocs, "Documenting Democracy", Foundingdocs.Gov.Au (Webpage, 2019)
<https://www.foundingdocs.gov.au/item-did-33.html>
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