Mabo Case Essay Topics

Best Answer:  the web link (below) provides: THE MABO CASE AND THE NATIVE TITLE ACT

This article has been contributed by the Native Title Section of the Department of Prime Minister and Cabinet.


RECOGNITION OF NATIVE TITLE

In May 1982, Eddie Mabo and four other Meriam people of the Murray Islands in the Torres Strait began action in the High Court of Australia seeking confirmation of their traditional land rights. They claimed that Murray Island (Mer) and surrounding islands and reefs had been continuously inhabited and exclusively possessed by the Meriam people who lived in permanent communities with their own social and political organisation. They conceded that the British Crown in the form of the colony of Queensland became sovereign of the islands when they were annexed in 1879. Nevertheless they claimed continued enjoyment of their land rights and that these had not been validly extinguished by the sovereign. They sought recognition of these continuing rights from the Australian legal system. The case was heard over ten years through both the High Court and the Queensland Supreme Court. During this time, three of the plaintiffs including Eddie Mabo died.

On 3 June 1992, the High Court by a majority of six to one upheld the claim and ruled that the lands of this continent were not terra nullius or land belonging to no-one when European settlement occurred, and that 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.'

The decision struck down the doctrine that Australia was terra nullius - a land belonging to no-one. The High Court judgment found that native title rights survived settlement, though subject to the sovereignty of the Crown. The judgment contained statements to the effect that it could not perpetuate a view of the common law which is unjust, does not respect all Australians as equal before the law, is out of step with international human rights norms, and is inconsistent with historical reality. The High Court recognised the fact that Aboriginal people had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. They had been dispossessed of their lands piece by piece as the colony grew and that very dispossession underwrote the development of Australia into a nation.

The Native Title Act 1993 is part of the Commonwealth Government's response to that historic High Court decision.

The Native Title Act

The Prime Minister said in December 1993 during the passage of the Native Title Bill through Parliament:

'... as a nation, we take a major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians. We give the indigenous people of Australia, at last, the standing they are owed as the original occupants of this continent, the standing they are owed as seminal contributors to our national life and culture: as workers, soldiers, explorers, artists, sportsmen and women - as a defining element in the character of this nation - and the standing they are owed as victims of grave injustices, as people who have survived the loss of their land and the shattering of their culture.'

The Government was simultaneously presented with an opportunity and a challenge. The opportunity was to improve the relationship between Aboriginal and non-Aboriginal Australians, and recognise their basic property rights. The challenge was how to respond to the land management issues because these property rights were recognised.

The Prime Minister said also during the passage of the legislation through Parliament that the Government made its twin objectives clear in its response to Mabo: to do justice to the High Court decision in protecting native title, and to ensure workable, certain land management.

The Act does five things:
•It recognises and protects native title.
•It provides for the validation of any past grants of land that may otherwise have been invalid because of the existence of native title.
•It provides a regime to enable future dealings in native title lands and imposes conditions on those dealings.
•It establishes a regime to ascertain where native title exists, who holds it and what it is, and to determine compensation for acts affecting it.
•It creates a land acquisition fund to meet the needs of dispossessed Aboriginal and Torres Strait Islander peoples who would not be able to claim native title.

see web page for much more .. too much to copy/paste

Source(s): http://www.abs.gov.au/Ausstats/abs@.nsf/...

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Warning: this story contains references to deceased Aboriginal persons.

AT A TIME WHEN the push to recognise indigenous land rights in Australia was gaining momentum, Eddie Mabo was living in Townsville on Queensland's north coast – a long way from his Murray Island home in the Torres Strait.

He was working as a gardener at James Cook University and it was there that he crossed paths with land-rights advocates and legal minds who would become instrumental in his later bid to have the indigenous right to land recognised in the courts.

Mabo became famous for his role in the 10-year legal battle, known as the 'Mabo' case, which culminated in a landmark decision handed down by the High Court of Australia on 3 June 1992.

The court declared for the first time that indigenous people had ownership of the land long before European settlement, striking down the doctrine of terra nullius ('land belonging to no one').

"Mabo corrected the history of this country and that shouldn't be underestimated," says Brian Wyatt, CEO of the National Native Title Council. "In terms of identity and who peoples of this country believe that they are, there was a significant step in that ownership recognition, that question of identity, and being connected to this country before Captain Cook sailed into Botany Bay."

Sadly, Eddie Mabo didn't live see the conclusion – he died only a few months earlier at the age of 55, but his wife said he was always sure the outcome would be in his people's favour.

Mabo in the High Court

In May 1982, Eddie Mabo and four other Meriam people from Murray Island lodged a native title claim with the High Court.

They were entitled to the land, their main argument went, because the Meriam people had continuously inhabited Murray Island and its surrounding reefs. The group brought forward dozens of witnesses and thousands of pages of documents to persuade the court of their continuous connection to country.

In 1992, the High Court upheld this claim by a majority of six to one, acknowledging the Meriam people were "entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands."

After Mabo: the Native Title Act

After the court's decision, federal parliament passed the Native Title Act 1993 to recognise and protect native title, and to set out rules about future dealings with native title lands.

But Brian says a series of amendments to the legislation since then has watered down the intent of the original Mabo decision. One of the problems, he says, is that it's more difficult, and often takes more than a decade, to achieve a successful outcome.

"Many people have not lived to see the success of their claims. And that's the nature of native title – it takes so long," he says. "Many of our old people have gone now and that's the tragedy of it. And we still must, because of this Native Title Act, sit here and research and prepare claims against, as if nothing had happened in the history of the country."

"I mean it's just diabolical and that's what someone like [Eddie] Koiki Mabo had to contend with – that long period, and ultimately in the end, he died before the decision was handed down."

Concerns with the current native title legislation

Under the Act, the onus of proof rests on the claimant, which means it's up to Aboriginal and Torres Strait Islanders who've lodged claims to prove their continuous connection to land prior to European settlement.

Jacqueline Phillips, National Director of Australians for Native Title and Reconciliation argues this should be reversed to make the system more equitable. She says the presumption should be the reverse: that indigenous people have a claim to the land.

"That would be a really significant change I think, and would mean that native title disputes could be dealt with much more quickly," she says. "Part of the protracted nature of native title litigation processes at the moment is how long it takes in terms of giving evidence around that continuous connection [to land], which is an extremely time consuming and expensive process."

Moving the native title negotiation forward

Under native title, there have been more than 500 land use agreements made across Australia between indigenous communities and other parties, for example in the mining and farming sectors.

The Mabo judgment 20 years ago marked a breakthrough in recognising indigenous native title in Australia. But Jacqueline says its significance extends beyond land rights.

"I think things changed permanently in relationships between Aboriginal and non-Indigenous Australians as a result of Mabo. "Those changes have continued again with the apology being another significant moment in recognising the truth of our history."

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