HISTORICAL DEVELOPMENTS FOR

INDIGENOUS AUSTRALIANS

10 Legal Studies

HAVE YOU HEARD OF…

Native Title

Mabo v Queensland (No. 2) (1992)

Pastoral Leases

Wik Peoples v Queensland (1996)

Uluru lease and Kakadu

The Stolen Generations

NATIVE TITLE

Native Title: the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs which are recognised under Australian law

MABO V QUEENSLAND (NO. 2) (1992) 175 CLR 1

In 1981, Eddie Mabo and other Torres Strait Islanders decided to fight for their ancestral right to land on Mer, which the British had renamed Murray Island

They took the Australian government to court

The case became known as the Mabo case

They argued for acknowledgment of ‘native title’ and the complex, customary patterns of land ownership, inheritance and use that predated colonisation

Central to the case was Malo, a Meriam god (represented as an octopus) who gave the Islanders their laws

When the court ruled in favour of the Murray Islanders in 1992, it recognisedtheir equality before the law and the obligation for Australian law to respect Meriam law

In doing so, it marked a new way for Australia to view its history and future

This High Court ruling overturns the legal doctrine of terra nullius and recognises that the community of Murray Island had a valid system of land ownership that predates white settlement

Australia’s Indigenous peoples owned traditional land under native title

native title continues to the present day, unless extinguished by the Crown

native title may be extinguished if the landholders lose all connection to their lands and cease to observe their traditional laws and customs.

QUOTE FROM THE CASE‘The common law of thiscountry would perpetuate aninjustice if we were to continueto embrace the enlarged notionof terra nullius and to persistin characterising theindigenous inhabitants ofAustralian colonies as peoplestoo low in the scale of socialorganisation to beacknowledged as possessingrights and interests in land.’

-Justice Brennan

The link below gives a history of Indigenous rights and conflicts over the time of white colonization until 2006.

http://www.abc.net.au/tv/mabo/timeline/

NATIVE TITLE ACT 1993(CTH)

Since the Mabo case in 1992, legal reform has continued

Sets out the content and nature of the rights of owners of native title

For a native title claim to be recognisable there must be continuous acknowledgement and observance of the Indigenous Australian clan or tribe’s customary law since British sovereignty

You must belong to a clan or tribe that owned the land and the land claim must be of traditional and cultural significance to the tribe

RESEARCH

1. One of the High Court Judges in Mabo No. 2 disagreed with the other judges. Find out which judge it was and the reasons why he disagreed.

2. Where else in the world did a colonial government declare land to be terra nullius?

PASTORAL LEASES

Pastoral lease: Crown land that the government allows to be leased, generally for the purposes of farming. Pastoral leases exist in both Commonwealth and state jurisdictions.

The Law: Native Title Act 1993 (Cth) s248

Many Australian cattle and sheep stations are on Crown land and used under a pastoral lease agreement

The Law: Native Title Act 1993 (Cth) ss248a and 248b

WIK PEOPLES V QUEENSLAND (1996) 187 CLR 1 (Commonly called the Wikdecision)The Wik people of Cape York in northern Qld used MaboNo. 2 as a precedent

They claimed native title over the land that had previously been leased by the Qld Government for pastoral use

The point of law that needed to be considered was whether pastoral leases extinguished a native title claim

Point of law: a question which must be answered by applying the relevant legal principles and by an interpretation of the law

The High Court ruled in favour of the Wik peoples, 4 judges to 3

This meant that native title could exist alongside farmers who had pastoral leases

However, it did not mean that native title overrode pastoral lease agreements

The issue now was deciding how they would coexist and what compensation would apply for the original owners (if any)

Wik tribal area

(in green)

‘HIGH COURT RULES ON PASTORAL LEASES IN WIKDECISION’http://www.abc.net.au/tv/mabo/timeline/

ULURU & KAKADU

Some major tourist sites have been given back to Indigenous Australians under native title

Uluru was handed back to the Anangu people in 1985

The Australian Government said it would return the land to its traditional owners

But, on the condition that it be leased back to the national parks authority for 90 years

Uluru is jointly managed by the Anangu people and the Commonwealth

The traditional owners receive rent from the Australian Government for the tourism business conducted there

Visitors are asked not to climb the rock and certain sections are not meant to be photographed

Kakadu is owned by Aboriginal land trusts

Leased as a national park

There are sacred areas where tourists/visitors are not allowed

Rock art at Ubirr and Nourlangie is thought to be among the most culturally important in the world

HOMEWORK: RESEARCH TASK

Individually, choose one of the following to research: Gurindji Strike (also known as the Wave Hill Walk-Off)

Freedom Ride

1967 Referendum

In your research, find the following: What was the issue being argued?

When did the issue begin and end? (or is it still going?)

Who were the main parties involved?

What was the outcome?

Find at least 3 images to enhance your findings

Upload your findings to Learner.Link (under Week 4).