AOS4 – A Question of Rights The Mabo Case ANNEX FREEHOLD LAND TENURE OBITER DICTUM TERRA NULLIUS CONNECTION HIGH COURT LEASEHOLD NATIVE TITLE OCCUPATION TEST CASE EDDIE MABO INDIGENOUS LEGAL TITLE NATIVE TITLE ACT SETTLEMENT Definitions: Define the following words, using your textbook to ensure you have the correct definitions: a. Test case b. Terra nullius c. Indigenous d. Land tenure e. Freehold f. Legal title g. Crown land h. Native title i. Obiter dictum j. Inalienable freehold title k. Lease Summary Notes – Chapter 15 Indigenous peoples have occupied Australia for approximately 60,000 years and have a valid claim to land in many different parts of Australia. At the same time, there is the English-based legal system of land and property ownership, put in place after settlement in 1788. These Australians also believe they have a good legal title to the land they occupy. Finding a balance between these competing claims is difficult and challenging for our legal system. The Mabo Case: In 1982, Eddie Mabo began legal action against the State of Queensland, claiming that he and his people were the legal owners of Murray Island. Mabo was joined in the legal action by other indigenous inhabitants of Murray Island and the case was largely a test case (aimed to establish common law and precedent in this area as no laws existed). The Murray Islanders believed they owned the land as they had occupied it for centuries. However, the Torres Strait Islands were under Queensland Government’s ownership and control. The case took 10 years to decide and Mabo died 5 months before the final decision of the High Court was handed down. The court found that the islanders had legal title, a right to possess, occupy and enjoy the lands of the Murray Island. The role of an individual or group in launching a test case (Eddie Mabo and the Murray Islanders) Eddie Mabo – his background Born Eddie Koiki Sambo on Murray Island in the Torres Strait in 1936. Mabo grew up with a knowledge and understanding of his peoples’ ownership structures, with regard to land and fishing rights for particular areas. At 16, Mabo was accused of being drunk and having a relationship with a woman for which he was exiled by the Island Council for 12 months. During this time he worked on a pearling boat and came to realise the inequality between Indigenous and white Australians. In 1967, Mabo began working at James Cook University in Townsville as a gardener where he came into contact with academics. In 1973 he established the first Black Community School in Australia in Townsville, enabling indigenous children to learn songs and stories from their own culture as well as European academic skills and ideas. Launching a test case Mabo realised during his time at the university that his people did not legally own their land. In August 1981, a conference on indigenous land rights was held at the university. Mabo spoke at the conference, outlining the traditional land ownership and inheritance system that existed on Murray Island. The time was right for a test case before the High Court to challenge the Queensland Government’s control of the Torres Strait Islands. Facts and issues central to the Mabo Case Australia was claimed as British territory under the legal principle of terra nullius because the British did not recognise indigenous land ownership. Indigenous Australians had their own system of land ownership which differed in each indigenous nation (of which there was approximately 250). However, from 1788, British law replaced any traditional system of land ownership, displacing many Indigenous Australians and removing all of their rights to land. Early land rights campaigns The 1950s and 1960s saw a growth in indigenous activism. In 1963, the Yolngu people from Yirrkala in the NT sent a bark petition to parliament contesting the government decision to allow mining on their traditional lands. The case went to the Supreme Court in 1968 where it was ruled that British law had replaced any traditional Indigenous law after settlement in 1788 – this angered Indigenous people. The 1966 Wave Hill walk off led by Vincent Lingiari involved the Gurindji stockmen at Wave Hill walking off the job and moving their families to Daguragu, close to a number of Gurindji sacred sites. This area, however, was leased to the English company who ran the cattle station. After a nine-year campaign, they were granted title to their land by the Whitlam Labor Government in 1975. The laws that applied to the Mabo Case When the British settled Australia in 1788, they brought with them their legal system, which included a system of property law pertaining to ownership and control of land. Whether land was granted to settlers or sold it was considered freehold, meaning the person had legal ownership of the land and could sell or do with the land as they choose (including passing this land on to their heir/s). These owners possessed legal title, meaning they had the legal right to enjoy or use their land because of their freehold ownership. However, not all land was granted to or sold to settlers. Some Crown-land (which is land that is publicly owned and controlled by either the state or Commonwealth government) has been retained by the government and leased, meaning the government retains their ownership while a leaseholder pays to use the land. These leases often take the form of mining leases or pastoral leases (where the land is used to mine for minerals or for farming purposes). Inalienable freehold title is a type of legal title under which land is held communally by a group of indigenous people and under which the land cannot be bought, sold or forfeited to another party. This concept was introduced in 1976 with the Aboriginal Land Rights Act (Northern Territory) 1976 which saw the Aboriginal system of land ownership recognised for the first time. This type of legal title could only be applied to Crown land that no other person or group had a legal interest in, or to land previously set aside as an Aboriginal reserve. Groups of traditional owners could make a claim to land but were required to prove their relationship with the land to a commissioner. This Act, however, only applied in the Northern Territory as land titles in all states were controlled by the government. Native title is the legal recognition of traditional Indigenous land occupation and usage prior to British settlement. It is a principle that has been used in former British colonies such as New Zealand, US and Canada yet had not been used in Australia. This was because native title could not be applied to Australia because of the declaration that Australia was terra nullius. Conflicting attitudes in relation to the issues raised in the Mabo Case The British settlement of Australia resulted in the most basic human rights being stripped from Indigenous people. The treatment they endured was often inhumane and cruel with all aspects of their lives being controlled and regulated. It took decades of campaigns before Indigenous people were granted even the most basic legal rights enjoyed by white Australians. Even the Australian Constitution denied Aboriginal people citizenship by excluding them from being counted in the census (and as such, excluded them from being considered part of Australia’s population). It was not until federal parliament passed the Racial Discrimination Act in 1975 that all legal discrimination against Indigenous peoples was removed. This meant legal equality on paper had been achieved, at least. A main source of conflict in the Mabo Case was the use of land and who should benefit from the land. When deciding this, State governments have tended to favour mining and pastoral businesses over indigenous people and their claims to land. This is because mining and pastoral businesses generate economic growth and a development of resources that exceeds what could be achieved by allowing indigenous peoples to use the land for their own purposes/interests. The Queensland Government has a history of obstructing indigenous land rights and became infamous during the 1970s and 1980s (headed by Joh Bjelke-Petersen) for its opposition to indigenous land rights. In 1985, the Queensland Government passed the Queensland Coast Islands Declaratory Act 1985 after learning of Eddie Mabo’s native title claim. This Act extinguished native title over the Torres Strait Islands and meant that before Mabo could continue with his claim, he would have to challenge the validity of the Act. The outcome of the Mabo Case and its impact on the legal system and the rights of individuals The judgements in the Mabo Case were delivered on June 3 rd, 1992. The Full Bench of the High Court (7 justices) found in favour of the Islander plaintiffs, declaring “The Murray Islanders of the Torres Strait are entitled to… possession, occupation and enjoyment of the lands of the Murray Islands.” The basis for the decision rested on the following: ● The principle of terra nullius had been incorrectly applied as Australia had never been empty. As such, the British were wrong to use it as the legal basis for their occupation of the land. ● In the absence of terra nullius, it was appropriate to apply the principles of native title to land that had been occupied and used by indigenous people prior to settlement. ● Native title can be recognised and included in the Australian system of property and common law because of the assertion that Australia was, in fact, not terra nullius. ● The nature of native title can be determined by the nature of the occupation and use of the land by the group claiming title. ● Native title may be extinguished in a number of ways by legitimate government action or by indigenous people themselves. ● The court expressed the view that freehold title to land has extinguished native title, dependent on individual circumstances. (These statements, however, were obiter dictum and not part of the ruling). Implications of the decision The Meriam people were able to claim native title because there was clear evidence to show that their occupation and usage of Murray island had been continuous since before settlement. Other groups would need to demonstrate a similar connection with their land if they were to claim native title. Native title became a contentious political issue as the Mabo Case inspired others to also claim native title. Legislation needed to be clarified. The Native Title Act 1993 was passed by the Commonwealth Government to protect native title rights and clarify when they could be applied. This was done in response to Western Australia’s passing of the Land (Titles and Traditional Usages) Act 1993 which aimed to weaken indigenous claims to native title in the state and favour mining and pastoral companies. The Commonwealth Native Title Act 1993 ensured the protection of native title rights as any state wishing to introduce its own legislation had to ensure it was consistent with the Commonwealth legislation. Questions 1. Write a brief summary of Eddie Mabo’s life and work as an Indigenous activist. 2. How did Eddie Mabo discover that his people did not, in fact, legally own Murray Island? 3. Why was it possible for colonial governments in Australia to remove Aboriginal people from their land and sell or lease it to white settlers? 4. Why would a case such as the Mabo Case be heard in the High Court rather than one of the Queensland state courts? (Hint: it has to do with challenging the jurisdiction of Queensland Parliament). 5. Even though Eddie Mabo had not lived on Murray Island for 25 years at the time of the case, he was still considered an ideal plaintiff. Explain why he was able to fill this role so effectively. 6. Describe the role of Eddie Mabo in bringing about changes in the law through launching a test case against the Queensland Government. 7. Why had the principle of native title not been applied in Australia before the Mabo Case? 8. Explain the main findings of the High Court in the Mabo Case in relation to terra nullius and native title. 9. Under what circumstances did the High Court believe native title could be extinguished? 10. Explain one land rights legislation passed during the period of 1966 and 1976. (Hint: explain the Aboriginal Land Rights (Northern Territory) Act 1976). 11. Discuss the impact of the Mabo Case on Australia’s legal system and on the rights of particular individuals in Australian society. In your response, you must refer to the following: Mabo decision; implications of the Mabo decision; Native title legislation.
