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Effects Of The Mabo Decision Essay

1975 words - 8 pages

The Mabo case was initially seen as a revolution in Australian Law, but its legal effects have turned out to be largely illusory. Discuss this statement

The Mabo vs. Queensland case was the first major land title claim made by Indigenous Australians for their traditional lands. When the Mabo case was resolved it was seen as a landmark decision by the High Courts and was an was the start of other of cases native title claims to be made against the States and territories. This was evident with the Wik case that followed in the years after Mabo.

In order to determine the effect that the Mabo case has had on Australian Law and subsequent cases we need to look into the details of the ...view middle of the document...

During the settlement of Australia there were several internationally recognised ways in which a colonial power was able to claim sovereignty over territories. The first was for the local Indigenous populations to cede their lands and sovereignty to the colonisers. The second was via conquest in which the colonists were required to negotiate reparations and compensation for the lands that had been claimed. The final way to declare a land terra nullius or land that belonged to no one or was uninhabited. This was the way in which the British colonised Australia; it also meant that there was no need to compensate the indigenous population.

This method of colonisation by the British is contrary to what has been stated previously:
“Aboriginal peoples of this country had well-developed systems of law long before the arrival of the First Fleet...Underpinning these systems was the relationship of the people to the land”’ (Bourke and Cox 1994). However the British colonisers were not deterred in claiming their sovereignty over Australia and its inhabitants, in which they declared, was terra nullius. By using this method they were able to make no reference to the rights of the original Indigenous inhabitants.

In the Torres and Murray Islands, unlike the rest of Australia, were annexed to Queensland in 1879. Before this time the inhabitants of these islands (the Meriam people) had lives on the islands with their own forms of laws and economy. As part of these local laws the land was regarded as belonging to groups of the community or individual people, and not the property of the community.

The two parties involved in the Mabo case (Mabo and State of Queensland) used these differing scenarios in order to try and put their cases forward to achieve a judgement from the High Court. The State of Queensland was claiming that with the annexing of the islands to Queensland, then the land titles to the islands was also handed over to the State of Queensland.

The High Court of Australia heard the case and judgement was passed relating to the land title of the islands. Part of the decision was made due to the nature of the ownership of the Islands, that is, that as the community did not have rights to own the land, as it was the groups and individuals were the traditional owners, then the sovereignty of the islands owned it could not be given to the State of Queensland. As a result the native title claims by the indigenous inhabitants of the islands was granted. Also during this ruling the High Court of Australia rejected that Australia was terra nullius upon colonisation. However, as this was the case, then the rules in which Australia was colonised were changed from “settled” to “conquered”.

Another factor that was passed during the judgement in the Mabo case was that native title was relating to having a connection to and/or occupation of the land.

With the High Court rejecting that Australia was terra nullius many native title...

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