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Key Topics
Mabo has been said to a cornerstone of the Australian legal system response on the same.
Introduction
Every people have the equal right to live freely on the land, irrespective of race, caste, sex. It is seen that previously, the land of Australia was not granted to all the peoples in the country, especially the Aborigines or the Islanders. The entire action was thus brought into the High Court, so as to make the indigenous Australians get the legal and just claim to live on the lands of Australia. In addition to this, no people would snatch their ownership from them and they can live freely on the land with full right. During the rule of British, the Meriam people used to live on islands in the subsistence economy. Fishing and cultivation were their common occupation to survive on the islands.
Issue:
The Mabo case is actually the case between Mabo v Queensland in the year 1992 in Australia's High Court. The decision of Manbo has altered the main foundation of Australia's land law. This is done by overturning the terra nullius, which imply that the land is belonging to nobody or no country. In this situation, British claim that Australia has the right to possess the land (Collins and Thompson, 2018). In the Mabo case, Eddie Mabo along with other plaintiffs has claimed the case, which took months of historical, anthropological and legal research for distilling the legal documents (Abbondanza, 2018). The plaintiffs commenced the proceedings in High Court, in the response to Queensland Amendment Act, 1982, section 1 for establishing a system for granting land to Islanders of Torres Strait and the Aboriginals (Berg and Davidson, 2016). It is noticed that the Islanders of Mer strongly ignored to accept. The main aim of the present case is to determine whether the Aboriginals have the right to pursue the Australian land or not. After the case of Cooper v Stuart, 1889 14 App Cas 286, it was the exact time in Australia to put the common law into action (Cooper v Stuart, 1889 14 App Cas 286).
The lands on the island were considered as the group or individual property. It was mostly of general or public ownership. During the year 1895, it was seen that the Government of Queensland tried to terminate the entire proceedings through the enactment of Queensland Coast Islands Declaratory Act, 1985, No. 27 (Little, 2018). The main intention of the present Act was to abolish the native title that was claimed by the Islanders of the Torres Strait to the islands that is off-coast of the Queensland. The Meriam people were claiming for land by the use of common law within Australia. The Mabo case was overturned due to its inconsistency with another Act known as Act for Racial Discrimination, 1975, section 12 (Wensing and Porter, 2016). Other cases also used the mentioned Act for gaining human right by the Australians. Example of a case in Australia that used the mentioned Act is Bryant v Queensland Newspaper Pty Ltd, 1997 HREOCA 23, in which Pommy and Pom were dismissed from using in the newspaper, which used to discriminate people based on races (Bryant v Queensland Newspaper Pty Ltd, 1997 HREOCA 23). Referring to the case of Rugema v Gadsden Pty & Dierkes, 1997 HREOCA 34, it is seen that by the use of present Act $55,000 was awarded to the African refugee as he faced racial abuse in his workplace (Rugema v Gadsden Pty & Dierkes, 1997 HREOCA 34).
McNeil (2017) noted that the Racial Discrimination Act, 1975 stands against the speech freedom. It is still a topic of debate within the courts of Australia. In the present case of Mabo, it is noticed that plaintiff sought a declaration that inter alia Meriam people have the right to possess Mer Islanders and enjoy freely the entire lands as an occupier. It is found that neither colonies establishment nor the annexation of Queensland 1879 of Murray Islands has extinguished the native title of Meriam peoples. It is extinguished due to government's action which is inconsistent with respect to the native title. Furthermore, prior 1975, there was no right for people to apply for the case in the High Court. The issue mainly lies here that after proceedings by Queensland Coast Islands Declaratory Act, 1985, No. 27, the interests and rights of the Meriam people were extinguished under the traditional law. Moreover, the mentioned Act was found to be invalid later on due to its consistency with RDA. The Act mainly discriminated against Meriam people which purports to extinguish their land rights.
The lands on the island were considered as the group or individual property. It was mostly of general or public ownership. During the year 1895, it was seen that the Government of Queensland tried to terminate the entire proceedings through the enactment of Queensland Coast Islands Declaratory Act, 1985, No. 27 (Little, 2018). The main intention of the present Act was to abolish the native title that was claimed by the Islanders of the Torres Strait to the islands that is off-coast of the Queensland. The Meriam people were claiming for land by the use of common law within Australia. The Mabo case was overturned due to its inconsistency with another Act known as Act for Racial Discrimination, 1975, section 12 (Wensing and Porter, 2016). Other cases also used the mentioned Act for gaining human right by the Australians. Example of a case in Australia that used the mentioned Act is Bryant v Queensland Newspaper Pty Ltd, 1997 HREOCA 23, in which Pommy and Pom were dismissed from using in the newspaper, which used to discriminate people based on races (Bryant v Queensland Newspaper Pty Ltd, 1997 HREOCA 23). Referring to the case of Rugema v Gadsden Pty & Dierkes, 1997 HREOCA 34, it is seen that by the use of present Act $55,000 was awarded to the African refugee as he faced racial abuse in his workplace (Rugema v Gadsden Pty & Dierkes, 1997 HREOCA 34).
McNeil (2017) noted that the Racial Discrimination Act, 1975 stands against the speech freedom. It is still a topic of debate within the courts of Australia. In the present case of Mabo, it is noticed that plaintiff sought a declaration that inter alia Meriam people have the right to possess Mer Islanders and enjoy freely the entire lands as an occupier. It is found that neither colonies establishment nor the annexation of Queensland 1879 of Murray Islands has extinguished the native title of Meriam peoples. It is extinguished due to government's action which is inconsistent with respect to the native title. Furthermore, prior 1975, there was no right for people to apply for the case in the High Court. The issue mainly lies here that after proceedings by Queensland Coast Islands Declaratory Act, 1985, No. 27, the interests and rights of the Meriam people were extinguished under the traditional law. Moreover, the mentioned Act was found to be invalid later on due to its consistency with RDA. The Act mainly discriminated against Meriam people which purports to extinguish their land rights.
Rule:
The Mabo case is considered as the monumental case for the Australian indigenous people. After Australia's colonization by British, the aborigines or native Australians fought to get their land back. The terra nullis stood as the barrier for these people from claiming their rights in the court. Though the case was seen as the victory by many Australians, many view the case in a different way. There evolved a battle between the Commonwealth and indigenous people. Now, focusing on the decision taken by the High court, it is seen that it stands as the controversial decision that is ever seen in the courts of Australia. Though the court has provided the right to the indigenous people to enjoy the land, several terms, as well as the condition, was applied to the decision, which upset ost of the Australians. The terms and condition include gaining lease on the Australian lands or their application can simply be denied. The main consequences of the Mabo decision are seen to be presenting the political and legal questions. It includes the validity of the issued titles after the commencement of Racial Discrimination Act, 1975, section 18 C (Abbondanza, 2018).
As per the case example of Jacobs v Fardig, 1999 HREOCA 9, it is found that the councilor made comments regarding the shootings of Aborigines (Jacobs v Fardig, 1999 HREOCA 9). Therefore, without reason shooting of aboriginal people was stopped in Australia under the Racial Discrimination Act, 1975, section 18 C (Berg and Davidson, 2016). This shows that aborigines have the full right to live safely on the land. Furthermore, the Mabo decision includes the permissibility for the Australian land's future development that is affected by the native title. Procedures for determination of native title issues. In order to respond to these judgments, it is noticed that Australia's Parliament, which is controlled by Labor Party has enacted Native Title Act, 1993, No. 110 (Brigg, 2018). The mentioned Act made the determination of the native title possible. It was applicable to Australia's Federal Court and then the High Court of Australia. It best suits the case example of Wik Peoples v Queensland, 1996, 187 CLR 1 (Wik Peoples v Queensland, 1996, 187 CLR 1). In this case, the parliament has amended the present Act, which is Native Title Act to Native Title Amendment Act, 1998 (Cth) (Burke, 2017).
As per the case example of Jacobs v Fardig, 1999 HREOCA 9, it is found that the councilor made comments regarding the shootings of Aborigines (Jacobs v Fardig, 1999 HREOCA 9). Therefore, without reason shooting of aboriginal people was stopped in Australia under the Racial Discrimination Act, 1975, section 18 C (Berg and Davidson, 2016). This shows that aborigines have the full right to live safely on the land. Furthermore, the Mabo decision includes the permissibility for the Australian land's future development that is affected by the native title. Procedures for determination of native title issues. In order to respond to these judgments, it is noticed that Australia's Parliament, which is controlled by Labor Party has enacted Native Title Act, 1993, No. 110 (Brigg, 2018). The mentioned Act made the determination of the native title possible. It was applicable to Australia's Federal Court and then the High Court of Australia. It best suits the case example of Wik Peoples v Queensland, 1996, 187 CLR 1 (Wik Peoples v Queensland, 1996, 187 CLR 1). In this case, the parliament has amended the present Act, which is Native Title Act to Native Title Amendment Act, 1998 (Cth) (Burke, 2017).
Analysis:
In the Mabo case, the judge made the decision that native title exists in the common law. The main source of the native title focuses on the traditional conception that Aborigins has the right to claim for land in the High court; Australia. Furthermore, it is also seen that the content and nature of the native title are determined by using the type of occupation or connection the people have, under the traditional; customs and laws. The Queensland Act, 1995, No. 37 was found to be discriminatory as it took the rights of the Meriam people to Murray Islands, by leaving intact the Queenslander’s property rights (Collins and Thompson, 2018).
Little (2018) noted that native title can be easily extinguished by a valid or proper exercise of the Governmental powers by providing plain and clear intention. The terra nullius rejection is seen in Mabo case, which gave freedom to the early Australian settlers to fight for their land right. As per the case example of Nabalco Pty Ltd v Milirrpum & others, 1971 17 FLR 141, the Mabo case took the example of the Yolnga people who brought the action in the court against Nabalco Corporation (Nabalco Pty Ltd v Milirrpum & others, 1971 17 FLR 141). It has secured about twelve years of the mining lease from Australia's Federal Government. The main argument in the present case example was that federal government did not have any right to offer land lease Australian aborigines. The decision of High Court reworked the origins story of Australia which acknowledges the Aboriginal law existence and the custom before British colonization. The main focus of Mabo case was to bring Islanders of Torres Straits and the aboriginal people together for using water and land under the Act of Native Title, 1993, No. 110 (McNeil, 2017). The main shortfalls remain in the education, health and even in the incarnation rates of the Torres Islanders and Aborigines. The Mabo case does not cover these areas for improvement for both groups of people.
Little (2018) noted that native title can be easily extinguished by a valid or proper exercise of the Governmental powers by providing plain and clear intention. The terra nullius rejection is seen in Mabo case, which gave freedom to the early Australian settlers to fight for their land right. As per the case example of Nabalco Pty Ltd v Milirrpum & others, 1971 17 FLR 141, the Mabo case took the example of the Yolnga people who brought the action in the court against Nabalco Corporation (Nabalco Pty Ltd v Milirrpum & others, 1971 17 FLR 141). It has secured about twelve years of the mining lease from Australia's Federal Government. The main argument in the present case example was that federal government did not have any right to offer land lease Australian aborigines. The decision of High Court reworked the origins story of Australia which acknowledges the Aboriginal law existence and the custom before British colonization. The main focus of Mabo case was to bring Islanders of Torres Straits and the aboriginal people together for using water and land under the Act of Native Title, 1993, No. 110 (McNeil, 2017). The main shortfalls remain in the education, health and even in the incarnation rates of the Torres Islanders and Aborigines. The Mabo case does not cover these areas for improvement for both groups of people.
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The main aim of the judges of High Court is to ensure equal rights for all the citizens (Williams and Reynolds, 2015). Australia is considered as the developed country as it does not have right’s bill. In the present case, which is Mabo case, it is seen that the case has paved its way towards the native title’s recognition within Australia. The Government of Australia announced that the Native Title Act, 1993 (Cth) will be driven for ensuring the fair and sustainable system of native title. It would create social an economic opportunities for the indigenous people of Australia. Furthermore, the Australian Government announced to fund additional $7.8 million for supporting the group of native titles (Collins and Thompson, 2018). Out of the total funding amount, $5.4 million will be used by the education foundation of Aurora for expanding professional development and current training, besides including scholarship program. Leftover amount will be used for continuing important work for both the group of people, thereby enhancing their current position.
Reference List
Journals
Abbondanza, G., 2018. The Republic of Murrawarri and the Debate on Aboriginal Sovereignty in Australia. Indigenous Policy Journal, 28(3), pp.12-25
Berg, C. and Davidson, S., 2016. Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011–13 Australian Free Speech Debate. Agenda: A Journal of Policy Analysis and Reform, 23(1), pp.5-30.
Brigg, M., 2018. Native Title Colonialism, Racism and Mining For Manufactured Consent. New Matilda, 45(3), pp.1-8.
Burke, P., 2017, April. Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? edited by Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill. In Anthropological Forum Vol. 27(2), pp. 155-157
Collins, J. and Thompson, W.K., 2018. Reconciliation in Australia? Dreaming Beyond the Cult of Forgetfulness. In Reconciliation in Conflict-Affected Communities, 36(5), pp. 185-206 Day, J., 2016. Participatory Democracy in EU and Australian International Investment Law Policy Processes. U. Notre Dame Austl. L. Rev., 18, p.20.
Little, A., 2018. Reconciliation after recognition? Indigenous-settler relations in Australia. Competition and Cooperation in Social and Political Sciences. 45(4), pp. 12-24
Wensing, E. and Porter, L., 2016. Unsettling planning's paradigms: towards a just accommodation of Indigenous rights and interests in Australian urban planning?. Australian Planner, 53(2), pp.91-102.
Online articles
McNeil, K., 2017. 19. Indigenous territorial rights in the common law. Comparative Property Law: Global Perspectives, p.412.[online] (http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1172&context=olsrps)
Williams, G. and Reynolds, D., 2015. The racial discrimination act and inconsistency under the Australian constitution. Adel. L. Rev., 36, p.241.[online] (https://www.adelaide.edu.au/press/journals/law-review/issues/36-1/alr-36-1-ch12-williams-reynolds.pdf)
Berg, C. and Davidson, S., 2016. Section 18C, Human Rights, and Media Reform: An Institutional Analysis of the 2011–13 Australian Free Speech Debate. Agenda: A Journal of Policy Analysis and Reform, 23(1), pp.5-30.
Brigg, M., 2018. Native Title Colonialism, Racism and Mining For Manufactured Consent. New Matilda, 45(3), pp.1-8.
Burke, P., 2017, April. Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? edited by Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill. In Anthropological Forum Vol. 27(2), pp. 155-157
Collins, J. and Thompson, W.K., 2018. Reconciliation in Australia? Dreaming Beyond the Cult of Forgetfulness. In Reconciliation in Conflict-Affected Communities, 36(5), pp. 185-206 Day, J., 2016. Participatory Democracy in EU and Australian International Investment Law Policy Processes. U. Notre Dame Austl. L. Rev., 18, p.20.
Little, A., 2018. Reconciliation after recognition? Indigenous-settler relations in Australia. Competition and Cooperation in Social and Political Sciences. 45(4), pp. 12-24
Wensing, E. and Porter, L., 2016. Unsettling planning's paradigms: towards a just accommodation of Indigenous rights and interests in Australian urban planning?. Australian Planner, 53(2), pp.91-102.
Online articles
McNeil, K., 2017. 19. Indigenous territorial rights in the common law. Comparative Property Law: Global Perspectives, p.412.[online] (http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1172&context=olsrps)
Williams, G. and Reynolds, D., 2015. The racial discrimination act and inconsistency under the Australian constitution. Adel. L. Rev., 36, p.241.[online] (https://www.adelaide.edu.au/press/journals/law-review/issues/36-1/alr-36-1-ch12-williams-reynolds.pdf)
Cases
Bryant v Queensland Newspaper Pty Ltd, 1997 HREOCA 23
Cooper v Stuart, 1889 14 App Cas 286
Jacobs v Fardig, 1999 HREOCA 9
Nabalco Pty Ltd v Milirrpum & others, 1971 17 FLR 141
Rugema v Gadsden Pty & Dierkes, 1997 HREOCA 34 workplace
Wik Peoples v Queensland, 1996, 187 CLR 1
Cooper v Stuart, 1889 14 App Cas 286
Jacobs v Fardig, 1999 HREOCA 9
Nabalco Pty Ltd v Milirrpum & others, 1971 17 FLR 141
Rugema v Gadsden Pty & Dierkes, 1997 HREOCA 34 workplace
Wik Peoples v Queensland, 1996, 187 CLR 1
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