Protecting the Land Rights of Aboriginal Inhabitants

Introduction

The decision made for Mabo (NO. 2) case in 1992 lawfully recognized the legal right of Aboriginal inhabitants, successfully prompting the implement of the Native Title Act in 1993. However, regards to Native Title, there are some deficiency of current legal system. In order to comprehensively protect land rights of Australian people, it is necessary for Australia government to reform the Act in the future.

Discussion of the Mabo (NO.2) Case

In the Colonial period, Australia was recognized as “Terra Nullius” by British royal family, which implied that the territory was settled and uninhabited based on the international law (“Mabo case”,2015). Therefore, England could lawfully claim the sovereignty over that territory and the Crown had the absolute ownership of all land comprised in the territory. Later, through the Queensland Coast Islands Act of 1879, Queensland legally occupied Murray Islands and became the governor of this territory (“Overturning the Doctrine”, 2008).

Since 1982, Eddie Koiki Mabo, along with Sam Passi and James Rice, started to fight for the ownership for the land in Murray Islands, which lie in the Torres Strait (Galloway, 2017). They argued that, although the state has sovereignty of these islands, the Indigenous people stilled retained the ownership over the land (“Overturning the Doctrine”, 2008). This argument is provided based on a well-known reality that Australia was inhabited by original inhabitants before the time of colonization. After 10 years of the case opened, until 3 June 1992, the High court finally made a decision and admitted that the Meriam people have the traditional and legal ownership of their land, saying that “the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands” (“Mabo case”,2015). This decision recognized the land rights of Indigenous people and indicated the state only possess sovereignty but not ownership of the land (Galloway, 2017). This is the first time that Australia law recognize any rights of Indigenous people under previous law and custom.

The Impact of the. Mabo Case on the Australia Legal System

According to the decision made by Australia High Court for Mabo No. 2, the Commonwealth Parliament eventually established the Native Title Act in 1993, providing a system to recognize and protect native title (“Mabo case”,2015). The Act enabled aboriginal people to legally claim their land right and interests based on law of Australia, set up a procedure to distinguish the presence of native title and provided a compensation program for impaired or lost native title (Department of Foreign Affairs and Trade [FA&T], 2008). The Act also allowed aboriginal Australians could lawfully participate in and influence the decision-making process towards any activity about their land and offered legal right for Indigenous Australians to ask employment opportunities and heritage protection from the government (FA&T, 2008). Furthermore, a framework of operating representative bodies is generated to provide legal services for native title claimants and holders Based on these, Australia Government spend a large number of capital to establish several departments, such as native title representative bodies, the Federal Court and the National Native Title Tribunal, for finding a better solution when facing native title issues (FA&T, 2008). Therefore, the Native Title Act laid a foundation for the development and perfection of Australia legal system.

The Deficiencies of the Current Legal System

However, despite different reforms made by Australia government before, the current Native Title legislation is still not perfect. There are some important issues about the legal system regards to native title are ready to be solved. Firstly, it is complex and difficult for native parties to certify an “ongoing connection” with the land which they want to claim native title for, especially for rural and agricultural places (Korff, 2018). This is because searching for high level and detailed evidence required the claimants trace back to colonial periods or even more than hundreds of years back to draw the map of family trees to prove the ownership for the land. But hundreds of years before, the history was not fully recorded, especially in remote and poor areas, and it is difficult for aboriginal people to get the required evidence. Furthermore, it is very expensive to hire an expertise to find the proof because there are few expertise could investigate the whole history and give a good report (Korff, 2018).  Another problem relates to this is that the claimed land usually remote from urban areas and have few commercial value. But it is still cost aboriginal people decades to successfully claim for the land. And once the Indigenous Australians get the ownership of this land, it would be compulsory acquired by big companies or the government only in few months, even in a few days (Korff, 2018). Secondly, the delay and cost of native title claim process is another significant issue for land claimants (Australian Law Reform Commission [ALRC], 2015). As ALRC (2015) explained “the capacity constraints within representative bodies, the collection, assessment and hearing of evidence in relation to connection, overlapping claims, the limited availability of appropriately qualified experts, tenure analysis (in order to identify areas of extinguishment) and the exercise of the right to negotiate” are the main reasons for the huge delay and cost. But if the process of getting sustainable and effective outcomes is unfair, it is hard to admit the outcome of these cases is justice for the party. And this great input of time and capital often stop Aboriginal Australian to legally claim their rights.

The Future of Native Title

As mentioned before, the Native Title Act in current legal system needs reform in the future to reach the ultimate fairness for aboriginal people. Based on the deficiency of the Act, here are the recommendations Australia Government could consider to improve its practicability and adaptability. First of all, the government needs to reduce the level of strong proof for ongoing connection with the land to reasonable evidence. A flexible criteria for evidence is also needed for the state to restrict claimants, which will decrease the difficulty of getting connection information. Furthermore, the government need to establish related legislation to protect the claimed land from compulsory acquisition. This could offer Indigenous people lawful right to manage the land and maintain the real ownership for it. Lastly, necessary capital injection is needed for the government to support land claimants. Although it is understandable of taking a long time for Just, sustainable and effective outcomes, the huge fund is not stainable for Indigenous people. Therefore, the funding support could help them successfully go through the operation of the case.

Conclusion

In conclusion, Mabo (NO.2) case has a great influence on origination and development of Australian legal system, especially for the land law. However, current legal system is not perfect, and still need reform to make it ultimately fair for every citizen in Australia.

References:

• Australian Law Reform Commission. (2015). Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126). Retrieved from https://www.alrc.gov.au/publications/alrc126
• Department of Foreign Affairs and Trade. (2008). Indigenous Land Rights and Native Title. Retrieved from https://web.archive.org/web/20120126061620/http://dfat.gov.au/facts/indigenous_land_rights.html
• Galloway, K. (2017). Australian politics explainer: the Mabo decision and native title. Retrieved from The Conversation website: https://theconversation.com/australian-politics-explainer-the-mabo-decision-and-native-title-74147
• Korff, J. (2018). Native title issues & problems. Retrieved from Creative Spirits website: https://www.creativespirits.info/aboriginalculture/land/native-title-issues-problems
• Mabo case. (2015). Retrieved 6 April, 2018, from https://aiatsis.gov.au/explore/articles/mabo-case
• Overturning the Doctrine of Terra Nullius: The Mabo Case. (2008). Retrieved 6 April, 2018, from https://aiatsis.gov.au/publications/products/case-summary-mabo-v-queensland