Mabo Case Study Australia
A question often Raised in regards to the Mabo case is whether the legal effects of the ruling have had a positive or negative effect on not only the legal system but also society as a whole.
The term Mabo refers to all issues relating to the Australian High Court judgement in the Mabo v. Queensland case. On the 3rd of June, 1992, after a decade long lawsuit, the High Court ruled that the land title of the Indigenous Aborigines and Torres Strait Islanders is recognised at common law. This Indigenous Peoples land title comes from the continuation within common law of their rights over land which pre dates the European colonisation of Australia. In the absence of an effective extinguishment by the crown, this title presents through heritage the original occupants right to possession of their traditional lands in accordance with their customs. The judgement has, at long last, rejected the "Terra Nullius” bringing Australia in line with remaining common law countries. Eddie Mabo had died of cancer in February 1992 so he was not alive to see the final ruling that would become so historic because it completely overruled the idea of Terra Nullius. Nobody could have predicted the changes it made on Australian land law. …show more content…
The implications of the Mabo case caused contrasting and controversial reactions throughout Australia and its communities.
The prime minister at the Time, Paul Keating, declared that his government would make Mabo a historic turning point. Mr. Keating claimed it would be the basis of a new relationship between indigenous and non-indigenous Australians. Justice Brennan gave controversial statements in court like
“the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.” (Justice Brennan
1992) Justice Deane and Gaudron said,
“spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame. The acts and events ... (of Aboriginal) dispossession ... constitute the darkest aspect of the history of this nation... The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.” (Justice Deane and Gaudron 1992)
It was statements like these that caused mining and industries even politicians, to react angrily against the High courts decision and try to urge the commonwealth Government to overturn the decision by legislation. These groups came together and formed a massive fear campaign to try and revoke the newly established land rights of indigenous Australians.
The Legal arguments presented in the Mabo case were very extensive. The major problem that the High court faced and was being asked to resolve was whether the Meriam people actually had native rights in the Murray Islands, and if they did have these rights and if they did was the government going to protect the rights and interests and provide the Meriam people with legal recognition. With a 6:1 vote High court decided that common law in Australia did actually recognise the imitation of native title through a prior interest in the land, which survived the original colonisation.
The 115-page bill was introduced into the House of Representatives on 16 November 1993 and passed through the court without amendment. The bill was passed onto the senate on the 25 November 1993. The Bill attempted to reconcile the differing interests that had arisen. The bill itself was the subject of a concentrated political struggle and prolonged debate in the senate as the parties represented.
The Mabo judgment in no way challenges the legality of non-Aboriginal land tenure. In fact, the Court went to considerable length to establish that the impact of its judgment will be minimal on non-Aboriginal Australians. (Pelczynski 27th July 1993) The Only land that is subject to Mabo is vacant crown land, national parks and possibly some leased land, where the lease in question is subject to Aboriginal rights of access to the land.
The law automatically recognizes no native title. The Aboriginal claimants have either to go to court to prove their case, and they need to be able to prove that they continually maintained their traditional ties with the land they are claiming. Any one can appeal against the claims and the Mabo judgment this ensures that whenever there is conflict between titles granted by the crown and the native title, the native title loses. It is only in the case of titles newly established since 1975 that Aborigines can even claim compensation for extinguishment of title.
In saying that, no native title is automatically recognized by law. The Aboriginal claimants have to either to go to court, tribunals, and they need to prove that they continually maintained their traditional association with the land they are claiming. Any one can appeal against the claims and the Mabo judgment ensures that whenever there is conflict between titles granted by the crown and the native title, the native title loses. It is only in the case of titles newly established since 1975 that Aborigines can even claim compensation for extinguishment of title. (Pelczynski 1973)
The Mabo v. Queensland case mainly deals with the Meriam People's land tenure, When the Bill was passed it wasn’t clear whether native title gives mineral ownership and the rights to mining on the title holder or not. The only way this can be determined is by government legislation.
Mineral ownership by landowners is not unfamiliar to Australia and the fight to veto mining is not limited to Aboriginal owners of land under Land Rights legislation. There are some private land owners who hold titles to land issued in the 1800's and early 1900's who still own all the minerals in their land, as recently as 1971 in Queensland, the state parliament edited the Mines Act to guarantee that these land holders would be fully compensated for the value of minerals as well as land in the event of land acquisitions by the state. (Frank Brennan Right Reasons for Aboriginal Land Rights in Finding Common Ground by Frank Brennan, John Egan and John Homer) Private mineral ownership does not affect mineral developments. In point of fact, native title should also bestow mineral ownership on the titleholders.
The comparison of mining developments between states and territories with land rights and without land rights also Shows that there is no evidence that the veto rights granted to Aborigines under the Land Rights legislation do in any way affect mining development in Australia (Hon. Gerry Hand: Land Rights A Question of Social Justice 1986.)
The objection towards the Mabo ruling by mining industries is nothing new. It’s a constant repeat of old objections to the Land Rights legislation in 1970's. Majority of the mining companies that are operating in Australia have experience in the U.S.A. or their subsidiaries or parent companies have such experience of dealing with Indigenous People who have much stronger rights over mining than were ever proposed for Aborigines within Australia.
By reading the above you will see it is quite clear that the Mabo ruling will bestow mineral ownership and the right to veto mining onto the native titleholders. Which means that it will not affect mining development in Australia.
Contrary to what most believe. Restoration of land to Aboriginal ownership in most cases will actually boost the economy. Most people would see it as a loss of land and economic resources to Australia. But it’s really just a transfer from one group of Australians to another.
Most of the land that is transferred back to the Aborigines under the existing land rights legislations or which will be open for claims under native title. Is land that the wealthier aborigines did not want in the first place. The land that is restored has no economic value besides mining and tourism. A lot of Aboriginal enterprises like the first Australian emu farm in WA, the Noonkanbah pastoral enterprise and the management of Uluru have left the indigenous owners with cultural security and in many cases it gives them a feeling of independence and economic security. This clearly is beneficial to everyone within Australia.
It is only fair that the indigenous Australians are entitled to some form of compensation for the acquisition of there land by the crown. Any form of compensation had been denied until Mabo V. Queensland. The court took great steps to ensure that the indigenous Australians would not be compensated for any land acquisitions before 1975, and very few Aboriginal native titleholders would be entitled to compensation for such acquisitions of some of their land since 1975. This was the year the Racial Discrimination Act was passed through the Commonwealth Government.
Reading through the information above you will see that the Mabo judgment was a very important step towards the reaching justice in Australia. Despite all claims by its opponents. In no way at all does the ruling of the Mabo case give any special privileges to Indigenous Australians. They were really only granted the privileges that every other ordinary Australian should be entitled too and enjoys. In reality it still greatly leaves Aborigines at a great disadvantage in comparison to every other Australian. Indigenous races in the U.S.A, Canada and New Zealand have been granted far more privileges and rights in comparison to indigenous Australians. When broken down its really just a matter that justice of the judgment is strengthened by further reforms recognizing the rights of Indigenous Australians and their right to compensation for past discrimination. To self purpose, to practice of their religion and to the protection of their cultural and religious heritage.
The term Mabo refers to all issues relating to the Australian High Court judgement in the Mabo v. Queensland case. On the 3rd of June, 1992, after a decade long lawsuit, the High Court ruled that the land title of the Indigenous Aborigines and Torres Strait Islanders is recognised at common law. This Indigenous Peoples land title comes from the continuation within common law of their rights over land which pre dates the European colonisation of Australia. In the absence of an effective extinguishment by the crown, this title presents through heritage the original occupants right to possession of their traditional lands in accordance with their customs. The judgement has, at long last, rejected the "Terra Nullius” bringing Australia in line with remaining common law countries. Eddie Mabo had died of cancer in February 1992 so he was not alive to see the final ruling that would become so historic because it completely overruled the idea of Terra Nullius. Nobody could have predicted the changes it made on Australian land law. …show more content…
The implications of the Mabo case caused contrasting and controversial reactions throughout Australia and its communities.
The prime minister at the Time, Paul Keating, declared that his government would make Mabo a historic turning point. Mr. Keating claimed it would be the basis of a new relationship between indigenous and non-indigenous Australians. Justice Brennan gave controversial statements in court like
“the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.” (Justice Brennan
1992) Justice Deane and Gaudron said,
“spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame. The acts and events ... (of Aboriginal) dispossession ... constitute the darkest aspect of the history of this nation... The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.” (Justice Deane and Gaudron 1992)
It was statements like these that caused mining and industries even politicians, to react angrily against the High courts decision and try to urge the commonwealth Government to overturn the decision by legislation. These groups came together and formed a massive fear campaign to try and revoke the newly established land rights of indigenous Australians.
The Legal arguments presented in the Mabo case were very extensive. The major problem that the High court faced and was being asked to resolve was whether the Meriam people actually had native rights in the Murray Islands, and if they did have these rights and if they did was the government going to protect the rights and interests and provide the Meriam people with legal recognition. With a 6:1 vote High court decided that common law in Australia did actually recognise the imitation of native title through a prior interest in the land, which survived the original colonisation.
The 115-page bill was introduced into the House of Representatives on 16 November 1993 and passed through the court without amendment. The bill was passed onto the senate on the 25 November 1993. The Bill attempted to reconcile the differing interests that had arisen. The bill itself was the subject of a concentrated political struggle and prolonged debate in the senate as the parties represented.
The Mabo judgment in no way challenges the legality of non-Aboriginal land tenure. In fact, the Court went to considerable length to establish that the impact of its judgment will be minimal on non-Aboriginal Australians. (Pelczynski 27th July 1993) The Only land that is subject to Mabo is vacant crown land, national parks and possibly some leased land, where the lease in question is subject to Aboriginal rights of access to the land.
The law automatically recognizes no native title. The Aboriginal claimants have either to go to court to prove their case, and they need to be able to prove that they continually maintained their traditional ties with the land they are claiming. Any one can appeal against the claims and the Mabo judgment this ensures that whenever there is conflict between titles granted by the crown and the native title, the native title loses. It is only in the case of titles newly established since 1975 that Aborigines can even claim compensation for extinguishment of title.
In saying that, no native title is automatically recognized by law. The Aboriginal claimants have to either to go to court, tribunals, and they need to prove that they continually maintained their traditional association with the land they are claiming. Any one can appeal against the claims and the Mabo judgment ensures that whenever there is conflict between titles granted by the crown and the native title, the native title loses. It is only in the case of titles newly established since 1975 that Aborigines can even claim compensation for extinguishment of title. (Pelczynski 1973)
The Mabo v. Queensland case mainly deals with the Meriam People's land tenure, When the Bill was passed it wasn’t clear whether native title gives mineral ownership and the rights to mining on the title holder or not. The only way this can be determined is by government legislation.
Mineral ownership by landowners is not unfamiliar to Australia and the fight to veto mining is not limited to Aboriginal owners of land under Land Rights legislation. There are some private land owners who hold titles to land issued in the 1800's and early 1900's who still own all the minerals in their land, as recently as 1971 in Queensland, the state parliament edited the Mines Act to guarantee that these land holders would be fully compensated for the value of minerals as well as land in the event of land acquisitions by the state. (Frank Brennan Right Reasons for Aboriginal Land Rights in Finding Common Ground by Frank Brennan, John Egan and John Homer) Private mineral ownership does not affect mineral developments. In point of fact, native title should also bestow mineral ownership on the titleholders.
The comparison of mining developments between states and territories with land rights and without land rights also Shows that there is no evidence that the veto rights granted to Aborigines under the Land Rights legislation do in any way affect mining development in Australia (Hon. Gerry Hand: Land Rights A Question of Social Justice 1986.)
The objection towards the Mabo ruling by mining industries is nothing new. It’s a constant repeat of old objections to the Land Rights legislation in 1970's. Majority of the mining companies that are operating in Australia have experience in the U.S.A. or their subsidiaries or parent companies have such experience of dealing with Indigenous People who have much stronger rights over mining than were ever proposed for Aborigines within Australia.
By reading the above you will see it is quite clear that the Mabo ruling will bestow mineral ownership and the right to veto mining onto the native titleholders. Which means that it will not affect mining development in Australia.
Contrary to what most believe. Restoration of land to Aboriginal ownership in most cases will actually boost the economy. Most people would see it as a loss of land and economic resources to Australia. But it’s really just a transfer from one group of Australians to another.
Most of the land that is transferred back to the Aborigines under the existing land rights legislations or which will be open for claims under native title. Is land that the wealthier aborigines did not want in the first place. The land that is restored has no economic value besides mining and tourism. A lot of Aboriginal enterprises like the first Australian emu farm in WA, the Noonkanbah pastoral enterprise and the management of Uluru have left the indigenous owners with cultural security and in many cases it gives them a feeling of independence and economic security. This clearly is beneficial to everyone within Australia.
It is only fair that the indigenous Australians are entitled to some form of compensation for the acquisition of there land by the crown. Any form of compensation had been denied until Mabo V. Queensland. The court took great steps to ensure that the indigenous Australians would not be compensated for any land acquisitions before 1975, and very few Aboriginal native titleholders would be entitled to compensation for such acquisitions of some of their land since 1975. This was the year the Racial Discrimination Act was passed through the Commonwealth Government.
Reading through the information above you will see that the Mabo judgment was a very important step towards the reaching justice in Australia. Despite all claims by its opponents. In no way at all does the ruling of the Mabo case give any special privileges to Indigenous Australians. They were really only granted the privileges that every other ordinary Australian should be entitled too and enjoys. In reality it still greatly leaves Aborigines at a great disadvantage in comparison to every other Australian. Indigenous races in the U.S.A, Canada and New Zealand have been granted far more privileges and rights in comparison to indigenous Australians. When broken down its really just a matter that justice of the judgment is strengthened by further reforms recognizing the rights of Indigenous Australians and their right to compensation for past discrimination. To self purpose, to practice of their religion and to the protection of their cultural and religious heritage.