LAW REFORM AND NATIVE TITLE

Law Reform in Action - Section 5 The Legal System

MAIN SYLLABUS POINTS

Native Title is a compulsory topic in Year 11Legal Studies

HISTORY OF GOVERNMENT POLICY

• Land inhabited by Indigenous people for 50000 years

• 1788, British government declared the land ‘terra nullius’

• 1788-1800s Dispossession policy

• 1869-1909 Protection Policy

• 1900-1967 Assimilation and Integration Policy

END OF TERRA NULLIUS

• ‘Native Title’ refers to the right to land by the original inhabitants

• Recognised by the Court in Mabo and Others v State of Queensland. The first legal recognition that land was owned before European settlement

• Overthrew the idea of ‘terra nullius’

THE LEGAL SYSTEM AND NATIVE TITLE

• The perception that the country had very few inhabitants, and that they had no political or legal organisation, led to the legal fiction of British possession

• The concept of terra nullius has also had an enormous impact on native title claims. Very difficult to prove traditional land ownership when many Indigenous people had been forced off certain land claims

The Doctrine of Terra Nullius

• Native Title claim in NT

• In 1963, Yolngu people protested the removal of some 300 hectares of land for bauxite mining without their permission

• ‘Gove land rights case’ commenced in 1971 where the Doctrine of terra nullius prevailed

• A royal commission into Aboriginal land rights was established in 1972 by the new Whitlam government

• In 1974, members of the Gurindji people walked off cattle stations protesting against the dispossession of land by pastoralists

• 1975, Government negotiates with pastoralists to give partial land back to the Gurindji people

• Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) developed.

VINCENT LINGIARI

PAUL KELLY‘from little things, big things grow’

• The Mabo Cases

• Between 1985 and 1992, Eddie Mabo and other men challenged the QLD government in two cases in the High Court Australia: Mabo v Queensland 1988 & 1992

• The First case questioned the validity of state law abolishing native title (the island known as Mer). The high courts decided where federal and state laws conflict, federal law prevails.

• The second case (known as the Mabo case) - the High Court ruled (by six judges to one) that Australia was not terra nullius and that the Meriam people clearly held native title to their land.

• Eddie Mabo unfortunately died before the High Court ruling

• Native Title Act 1993 (Cth)was passed by the federal government

MAP OF TORRES STRAIT ISLANDS

• The Wik and the Thayorre people launched a case against the Queensland government in 1996

• The Federal Court ruled that the existence of pastoral leases extinguished the right to native title.

• The court found that pastoral leases and native title could coexist, but that when conflict arose the pastoral leases would prevail.

The Wik Case

MAIN LEGISLATION OF NATIVE TITLE

• Native Title Act 1993 (Cth) - Where proof of traditional links to land has been maintained

• The Native Title Amendment Act 1998 (Cth) - ‘ten point plan” to minimise native title claims, giving certain rights back to miners/farmers

• Native Title Amendment Act 2007 (Cth) - make case claims more efficient and accessible to groups

Hint: It is important to remember the influence of case law and the government in power of legislation change

EFFECTIVENESS OF LAW REFORM ON NATIVE TITLE

• Both the judiciary and the legislature have played crucial roles in law reform and native title

• The biggest legal step forward was the overturning of the concept of ‘terra nullius’ and recognition of continuing native title rights

• Difficulty in reconciling the rights of landowners whose interests conflict with native title claims

Don’t forget your effectiveness criteria

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Resource Efficiency Protection/

Recognition of Rights

EnforceabilityEquality

Justice

International Law

Application of the Rule

of LawAccessibility

Meeting Society’s NeedsEffectiveness CriteriaResponsiveness

of the Law