Future Indigenous Land Under Native Title -Myassignmenthelp.Com

Question: Discuss About The Future Indigenous Land Under Native Title? Answer: Introduction The Mabo v Queensland (No 2) case is considered as one of the most remarkable decision in the history of Australia regarding the native title. Before the Mabo case, the Australian law did not recognise the native title due to the doctrine of terra nullius. The high court demolished the doctrine of terra nullius and identified the native title of Aboriginal and Torres Strait Islander peoples because they were living on Australian lands before the British arrive. This case is significant for the Islander peoples of Australia because it allows them to establish their right over traditional lands. This report will focus on analysing the facts and decision of Mabo v Queensland (No 2) [1992] HCA 23 case, and its influence over the Australian legislative system. Further, the report will include shortfalls of legal policies regarding native title and evaluate the future of the native title. The key issue, in this case, was the application of the doctrine of terra nullius over Australian legal system, which stops Aboriginal and Islander peoples from claiming their traditional lands in Australia and having a native title. Facts The doctrine of terra nullius applies to the Australian legal system which provides that the English law will apply to the uncivilised and barren lands. This principle limits the land rights Aboriginal and islander people over Australia. Eddie Mabo was a Torres Strait Islander, once he was giving as speech explaining the land rights of Aboriginal peoples when a lawyer told him to file a suit regarding such situation in the court. Eddie Mabo, David Passi and James Rice file a lawsuit in 1982 in reaction to the Queensland Amendment Act 1982, which institute a system for giving land grants to Aboriginal peoples. Barbara Hocking was a Melbourne solicitor; she presented a paper stating that a suit should be brought in the court regarding native title right of Indigenous peoples (OkaforIgwe 2009). The action was filed as a test case to recognise the right of native over the island of Mer, Dauar, and Waier. The islander people have an economy based on agriculture and fishing, and the lands were divided according to the ownership of peoples. In Mabo v Queensland (No 1) (1988) case, the high court provided that the laws were conflicting to the Racial Discrimination Act 1975. The plaintiff argued for a possessory title to the land of Aboriginal peoples; the defendant claimed that such territory is a part of the settled colony, as per the law of England (Loos and Mabo 2013). Judgement There were five judgements provided by five judges based upon the finding of Justice Moynihan, which shows the strong relationship between Aboriginal people with their islands. Before the British arrive, native people were living in the lands for more than 40 to 60 thousand years into an advanced economy based on farming and fishing. On 3rd June 1992, the high court decided that principle of terra nullius should not apply to the Australia because it applies to barren or uncivilised lands. The court provided that Aboriginal peoples have land right in the Torre Strait Islands, and there can claim their title over the areas by proving their ownership (Strelein and Tran 2013). Further, the court established the native title of Aboriginal peoples, which acknowledged the land right of Indigenous people through Australian legislative system. The government passes the Native Title Act 1993 for legally establishing the interest of Aboriginal people over Australian lands (Council 2015). Impact of Mabo Decision Following are five crucial problems of significance to legal precedent in the Mabo decision based on the recognition of Aboriginal peoples rights in Australian legislative system (Bauman and Glick 2012): Studying the implications of Australias legislative system. Applying the policies regarding non-discriminating use of land privileges. Clarifying the method of Crowns sovergin radical claim. Recognising native title and providing the right to Aboriginal cutoms. Determining the governments ability to exitingues the privileges of native title. The Native Title Act Due to the Mabo decision, the government passed the Native Title Act 1993 (Cth), which was focused on following four objectives: Recognising the native titles of Aboriginal peoples and protecting them against other policies of Australian legislative policies. Establishing the method for the proceeding of future dealings, which affects the native title of Indigenous peoples and providing pre-determined standards for those transactions. Establishment of a proper mechanism that recognises the land claims of Indigenous peoples. To provide for, or permit, the authentication of previous regulations, and transitional periods laws, annulment because of the establishment of the native title. At the same time, the Western Australian government wanted to obstruct the Commonwealth by establishing their regulations which extinguish any title provided to the Aboriginal peoples in their state. They decided to replace the native title with traditional land use legislative access right which applies to the western Australian lands. Both the regulation of Western Australian government and Commonwealth were challenged in the high court regarding their validity. The high court provided in the 1995 Native Title Act case that the regulations of Commonwealth are valid and the legislation of Western Australian government is inconsistent with them hence invalid (Keenan 2014). Drawback in Current Legislative System Regarding Native Title According to Korff (2017), there are several issues in the Native title legislation which challenges the Aboriginal peoples while claiming their native titles such as financial requirement, bias procedure, long process and much more. Following are few of the primary shortcomings of the legislative system. Proving On-going Connection As per the Native title act, the Aboriginal peoples have to establish their on-going connection to the lands they claim ownership over; many of the communities find it difficult to justify the relationship mainly due to urbanisation or growth because they extinguish native titles. The regulations require a high level of evidence from Indigenous communities which is difficult due to lack of availability of expertise (Storey 2012). Mining Corporations For the development of industrial sector, the government makes rules which are biased towards mining corporations. For example, in 2010 the Western Australian government issued a native regarding the acquisition of land from tradition owner to provide such property for mining purpose. Adani is one of the largest mining organisation from India, and in 2017 they decided to establish the biggest open-cut mine in Queensland. The company sought $1 billion loans from the government to fund a railway line and recruited a regulation for avoiding the adverse native title decision from the federal court (Brigg, Quiggin and Lyons 2017). Overlapping of Native Titles There are hundreds of native parties in Australia which is divided into various separate groups, most of such groups did not interact with each other or remain in dispute with one another. Due to the native title, the conflict between such parties has grown considerably. As per Boyle (2014), in 2008, more than 45 percent to individuals claim were overlapped with other individuals who make the procedure of establishing native title difficult. Lengthy Process Even with the availability of legislative regulations, it is significantly difficult for Aboriginal peoples to claim their native title because the procedure is too long. According to Paroz and Waterfall (2017), on an average, a native title claim takes about six years to finalise, and sometimes it took decades. The prolonged process usually discourages the Indigenous peoples from claiming their native title. Future of Native Title The Mabo case assisted in the establishment of native title rights for Aboriginal peoples, but there is still a requirement for better policies regarding native titles. As per Wetherall (2013), there are several shortcomings in current regulation such as lengthy procedure, bias proceedings, financial condition and overlapping or group titles. The government is required to analyse the situation for the establishment of improved rules for native titles, such as shorter procedure, fewer formalities, unbiased decision and financial assistance to needy communities. For now, the future of native title is uncertain because of lack of better regulations; it is critical to resolve these issues for the protection of Aboriginal peoples rights (Mara 2014). Conclusion In conclusion, the Mabo case has significant influence over the recognition of native title regulations in Australian legislative system. Due to the Mabo decision, the Native Act 1993 was passed which recognise the rights of Indigenous peoples. But, most of the Aboriginal people are not being able to enjoy their rights due to the various shortcoming of the law. The drawbacks of legislation include lengthy processes, the financial condition of communities, biased judgements and a significant number of formalities. For better implementation of native titles, it is necessary that government evaluate the situation and establish improved regulations, until then the future of native title is uncertain. References Bauman, T. and Glick, L. eds., 2012.The limits of change: Mabo and native title 20 years on. AIATSIS Research Publications. Boyle, P., 2014. Aboriginal disadvantage worsens.Green Left Weekly, (1034), p.3. Brigg, M., Quiggin, J. and Lyons, K., 2017. Indigenous people say no to Adani.Green Left Weekly, (1142), p.10. Council, K.L., Council, R.V., Council, G.I.S.S. and Council, T.S., 2015. What is Native Title?. Keenan, S., 2014. Moments of decolonization: Indigenous Australia in the here and now.Canadian Journal of Law Society/La Revue Canadienne Droit et Socit,29(2), pp.163-180. Korff, J., 2017. Native title issues problems. Creative Spirits. Retrieved from https://www.creativespirits.info/aboriginalculture/land/native-title-issues-problems Loos, N. and Mabo, E.K., 2013.Eddie Koiki Mabo: His Life and Struggle for Land Rights. Univ. of Queensland Press. Mara, D., 2014. Future of Indigenous land rights under native title uncertain. SBS. Retrieved from https://www.sbs.com.au/news/article/2014/02/08/future-indigenous-land-rights-under-native-title-uncertain OkaforIgwe, K., 2009. Mabo v Queensland (no 2) Hca 23; (1992) 175 Clr 1 (3 June 1992). MikeAdkins. Retrieved from https://www.mikeadkins.com/article/mabo-v-queensland-no-2-hca-23-1992-175-clr-1-3-june-1992/ Paroz, A. and Waterfall, R.C., 2017. Has change truly come, or is it coming still?.Agora,52(3), p.68. Storey, M., 2012. 20 Years after Mabo v Commonwealth.Alternative LJ,37, p.190. Strelein, L. and Tran, T., 2013. Building Indigenous Governance from Native Title: Moving away from Fitting in to Creating a Decolonized Space.Rev. Const. Stud.,18, p.19. Wetherall, C., 2013. The future of Native Title. The Age. Retrieved from https://www.theage.com.au/national/education/voice/the-future-of-native-title-20130902-2t0ns.html