Native Title Law Reform Essay

the land they claim, it simply gives them the right to a say in the

The law reform process has been effective to a certain extent in achieving just outcomes in regards to native title. This can be seen through both the Eddie Mabo case [1992] and the Yorta Yorta case [2002] as although the cases had been concluded with final decisions, there were still measures that could have been taken, and areas where it could have been improved to achieve a just outcome.

The Mabo decision took place in 1974, it was a significant event for the civil right of Aboriginal and Torres Strait Islander peoples. Before the Mabo case, indigenous people did not receive the basic human right in Australia, they have to fight, in order to vote, paid equally, to be served in shops and go to public places with the white Australian. In 1974, Eddie Mabo discovered that the island they live in does not belongs to the Meriam people, so he decided to claim the land right through the Australia court system. The Mabo case causes lots of changes to the indigenous people, but there are still some challenges remains for them.

On June 3rd 1992 The Mabo decision changed lives of Aboriginals all around Australia. It was the first time that Aboriginals where acknowledged as the traditional owners of the land, and their customs and traditions recognised. It also made improvement between the relationship of Aboriginals and Non-aboriginal people. The Mabo decision also led to the declaration of the Native Title Act in 1993. The Native Title Act is the recognition of Aboriginal’s having rights and interests in certain land because of their tradition laws and customs.

The native title act inspired by the mambo case enabled and encouraged the aboriginal people in the past, present and future to stand up for their culture, community and land. The mambo case allows me to understand the fight the aboriginal people fought for. In recognising that Indigenous peoples in Australia had prior rights to land, the Court held that these rights, where they exist today, will have the protection of the Australian law until those rights are legally extinguished (HUMAN RIGHTS COUNCIL OF AUSTRALIA,2017).

Established under the native title act 1993 there is an independent body known as Native Title Tribunal (6), which was established to hear all claims, rather than only accept the cases that were easier to overcome. The indigenous land cooperation established in 1995 assists in the acquiring and managing of land financially, economically as well as culturally, it was created by the government as a reaction to Mabo. – need to expand on this idea of changing laws any ideas? -

With the change from Keatings progressive labour government to John Howard's’ conservative Coalition government, came resounding regression to the Native Title act, with the 10 point plan, and the coinciding Wik decision nine months after. The Wik VS Queensland case (1996) established that in cases of conflict between pastoral leases and native title, pastoral leases override and can successfully extinguish native title , which was adopted with the change of legislation and introduction of the Native Title amendment Act (1998). If there is no conflict, they can coexist. Many cases of Native Title extinguishment has occurred, and only approximately 600 areas hold Native Title in all of Australia, with less than 1% in NSW. As a procession from the Native Title declaration, this legislature has digressed justice to the ATSI community , and as further iterated by Sydney Morning Herald has “undone the good of the Mabo decision”. ATSI discrimination following the legislation of the Native title Act (1996) significantly rose in the public discourse with renowneded personalities claiming they could “take their backyards”, and an unspoken deeply-rooted fear for many, dating back to Australia’s colonization; that Australia could be declared completely under Native Title, and the sovereignty of the Crown could be questioned . For ATSI peoples’, the introduction of the 10 point plan, and the Native Title Ammendment Act (1998) marks a significant national regression upon achieving justice for their community as they sought to pour “"bucket-loads of extinguishment" on the native title rights of Indigenous Australians. Law reform, in this case has been dominantly ineffective in achieving justice for the ATSI peoples, and rather revoking

However, this did not come without challenge: native title claims could also be contested in the Courts as is the case with Wik Peoples v Queensland. In this ruling, the Wik Peoples controversially prevailed and successfully demonstrated that common law, in this instance, would protect native title claims despite the presence of the State’s existing land ownership. This case implicates the objectives of the Native Title Act 1993 Cth to protect native title, shown in this context through the Courts ruling native title could co-exist with the State’s holding of pastoral land8. A significant decision, which is cited to have “changed the relationship between settler and Indigenous Australians” and make its contributions to the growing reconciliation movement within Australia . However, whilst the case was a substantial indication for which rights common law would protect, it also demonstrated which rights it didn’t protect – namely, it was additionally ruled that when land entitlements are inconsistent between native title and State land holding, native title rights would come secondary8 . Thus, it is demonstrated that while previous legislation seeks to uphold the rights of First Peoples by granting native title rights, this theoretical precedent does not work

For years we have witnessed the Indigenous population’s political struggle for recognition of rights to Australian land. At times the effort appears to be endless and achieving recognition almost seems impossible. Native Title and Land claims have become a step closer in achieving this recognition; however, for land rights to exist in an absolute form, they cannot exist as a mere Act of Parliament but must form a fundamental part of the Australian Constitution. This

It is no secret that many minority groups in America experience challenges that the average American is not subject to, but Native Americans, who live on reservations, experience a unique set of social hardships. Many of these hardships are due to the fact that they live on reservations where resources and esteem are scarce, but in order to preserve cultural identity and sovereignty, many natives believe it is not only their right to live on reservations, but their duty. Likewise, it is a duty of the United States government to provide these people, who have experienced a protracted history of violence and oppression at government’s hands, with the resources they need in order to live fruitful and happy lives. Native Americans are a group of peoples who deserve appreciation and dignity, but also a group who is struggling to survive as a result of the harm our nation has caused them and it is for this reason, we must increase assistance to natives on reservations.

The Native Title Act 1993, which establishes the recognition of the indigenous connections and rights to land and water. Eddie Mabo was the motivator for this legislation in favour towards Aboriginals inextricably linking to the land. Eddie Mabo of the Murray Islands sought confirmation of their traditional land rights, began action in May of 1982. The claim was made by four other Meriam people, who lived in permanent communities with their own social and political organisation. The surrounding reefs and islands had been continuously inhabited and exclusively possess by the Meriam people. The High Court upheld the claim and ruled that the lands of the continent were not terra nullius, my majority of six to one on the 3 of June, 1992. The Meriam people were entitled as against the whole world to possession, occupation, use and enjoyment of most of the lands of the Murray Islands. This concluded the doctrine of terra nullius Australia, land belonging to no one, motivating all European colony’s be investigated proving the terra nullius myth. In summary, the Mabo case was denied endless times although that did not cause Eddie Mabo to give up. His judgement towards the rejection of the courts proceedings surprised and motivated many to continue. Mabo had three options to go after the judge denial and chose the voracious opportunity, the one with most significance. Australia barrister Bryan Keon-Cohen, junior counsel for the plaintiff in Mabo v Queensland quotes “We advised him on a certain course and he took that advice on the chin and proceeded. That is to say "forget these adverse findings of fact in respect of you. There's a bigger and more important issue. We do have findings to go into the High Court. Proceed into the High Court and seek a finding in respect of the other plaintiffs". He did

After the partial recognition of indigenous land rights in Mabo, the indigenous people of Australia have attempted to push towards indigenous ‘sovereignty’. These attempts were rebuffed by the courts in two prolific cases such as Coe v Commonwealth and Walker v New South Wales. In the Coe v Commonwealth case, Coe applied for leave to amend their statement of claim to assert that the Aboriginal people were a sovereign nation and his claims were decisively rejected. The Court argued that it cannot be supported that there was an aboriginal nation which has sovereignty over Australia. There was no sovereignty adverse to the Crown, residing in the aboriginal people of Australia, nor was

Aboriginal laws differ very differently from traditional Australian legal system; the aboriginal laws are not passed through legal systems from documents such as constitutions. Judges and parliament’s decisions make these laws that then allow for laws to be made. However, aboriginal customary laws are made by traditions and are not in writing or des not proceed from past legal decisions and arguments. Their laws are created differently compared and are more difficult to comprehend. Their laws are passed through generation to generation by speaking, and interaction. “Aboriginal law stems from an oral tradition-the substance of which is passed from generation to generation” (Law Reform Commission of Australia, 2005, p.50). This statement helps

The decision saw an exponential increase in cultural and economic resurgence fundamentally oiled by the judgement. This case also established two basic principles for determining the existence of common law native title. Thus the ‘recognition’ of aboriginal people’s law and customs in relation to the determination , and its twin concept of ‘ extinguishment’ of common law native title. In response to the court

This matter appears in other settings where customary, i.e. indigenous law, is considered. Brendan Tobin (2014) discussed a number of Indigenous groups in terms of customary law and human rights in a steady argument as to why ‘living law’ matters. Customary law of the present must definitely be taken into account in proceedings that include Indigenous persons or groups but what is now customary and important is generally more salient, a greater source of conflict or misunderstanding, than what is dredged up as the customary law of