The Mabo Decision and Sovereignty of The Indigenous People of Australia

Topic three: ‘A suspicious interpretation of Australian government action could argue that the Mabo decision was actually devastating to land rights as the original settlement was in 1788. In this perspective, Mabo failed to give Indigenous peoples sovereignty and reduced real political power. Critically discuss this assessment of native title in light of debates since 1992 of Indigenous land rights and/or Indigenous sovereignty.’

The Mabo decision of 1992 and developments since the Native Title Act could be somewhat likened to the devastating impact of original settlement on land rights in 1788. While Mabo and the Native Title Act seem to provide land rights to Indigenous communities, this has not been the case and many occurrences since 1992 demonstrate how damaging Mabo has been for the Indigenous community. The original intention of the Mabo decision may have been to restore land rights; however events and occurrences since 1992 demonstrate how damaging Mabo has been for the Indigenous community. This essay will argue that despite some arguments suggesting Mabo has greatly helped Indigenous communities for the better, the Mabo decision and impact of the Native Title Act has had a devastating effect upon Indigenous land rights and their sovereignty. Firstly, this essay will demonstrate how Mabo only addressed the issue of land rights, however failed to acknowledge sovereignty, leading to economic and cultural damage in many Indigenous communities. Secondly, this essay will address the impact of the barriers and limitations created by the Native Title Act and Mabo decision upon Aboriginal agency and political power. Lastly, this essay will argue that the Mabo decision failed to provide rights and sovereignty as Native Title is vulnerable being in the hands of the Crown, ultimately demonstrating how Mabo has been used as a tool for the of prevalence white colonial government over Indigenous sovereignty.

Firstly, the Mabo decision only addressed the issue of land rights, however failed to acknowledge Indigenous sovereignty over their land and laws. In 1992, the Australian High Court delivered its decision, stating that the Indigenous Meriam people were the absolute beneficial owners of some parts of the Australian Murray Island; that Indigenous groups could claim title and ownership of certain land, overruling the colonial notion of terra nullius (Manwaring 1993, 177). However, as Manwaring (1993, 177) argues, the Mabo decision contained aspects which limited its practical effect in providing sovereignty to Indigenous people. The overturning of terra nullius was merely limited to recognition of Indigenous ownership of land, excluding their jurisdiction and sovereignty over the land, ultimately reducing Indigenous political agency (Korosy 2008, 83). In contrast, Cullinane (2002, 18) argues that the Mabo decision has brought Indigenous people to the bargaining table as equals with the settler government and commercial companies. However, the lack of recognition of Indigenous sovereignty in the Mabo case has led to economic damage in many Indigenous communities, particularly due to the lack of compensation provided by the government. Watson (1993, 7) argues that the lack of compensation is an issue which demonstrates the lack of sovereignty granted to Indigenous people through the Mabo decision. One example which demonstrates how damaging the Mabo decision and the Native Title Act have been upon Indigenous communities since 1992 is the case of the city and bush divide between the towns Roeburne and Karratha (Langton 2010, 1). Langton (2010) uses the case of Roeburne and Karratha to demonstrate how devastating the Mabo case and lack of sovereignty and compensation granted to Indigenous people has been. The lack of sovereignty has meant that the large Indigenous community in Roeburne, a poor town next door to the booming Karratha, has little to bargain with when dealing with big mining companies using their land (Langton 2010). Furthermore, due to the lack of compensation granted, the Indigenous community in Roeburn have suffered economically, especially as the cost of living is increasing due to the mining company’s presence (Langton 2010). Also, O’Fairchealleigh (2006, 12) argues that while some Aboriginal communities have somewhat benefited from the Mabo decision by having more control over land, the Native Title Act often provides little protection of their rights and other unconventional means are needed to negotiate. Halloran (2007, 2) states that there has been a shift in the level of understanding of Indigenous land rights and the need for reconciliation in Australian society, however this has not manifested nor led to better outcomes for Indigenous communities. The lack of economic growth, largely as a result of the inadequacies of the Mabo decision to provide sovereignty and economic benefits of mining, has led to more poverty and political disempowerment within these communities which can be likened to the devastation of original settlement.

Furthermore, the lack of sovereignty and political power recognised in the Mabo decision has led to much cultural damage. Yunupingu (1998) described the invisibility of their Indigenous law in the eyes of the white law. For example, Yunupingu (1998, 238-239) tells a story which demonstrates the damage that white law and the issue of sovereignty has on their culture; where a mining company in their community was going to destroy a tree on their land, however this tree was the heart of their country and culture and was destroyed as Yunupingu’s community held no agency. The lack of sovereignty and political power held by this Indigenous community demonstrates the lack of agency Native Title provides to Indigenous people.

Secondly, the barriers and limitations created by the Mabo decision have had a negative impact upon other Indigenous claims to land rights, limiting their sovereignty and political power in the process. Manwaring (1993, 188-189) argues that the requirements to claiming Native Title make it very difficult for Indigenous people to achieve making these claims. The requirements, such as having to prove that the traditional connection has been maintained from original settlement to present day, are unrealistic and act as major barriers to claiming Native Title (Manwaring 1993, 189). As a result of these barriers, only a small amount of Indigenous groups and people have been able to provide enough evidence proving they still hold the traditional connection, particularly those Indigenous people who were dispossessed during original settlement or throughout the twentieth century (Watson 1993, 7). The difficulty of being able to cross these barriers and prove that their connection to land is the same as it was two centuries ago demonstrates the lack of political agency the Mabo decision gave to Indigenous people, ultimately undermining their sovereignty and ownership of the land. As argued by Keon-Cohen (2012, 27), land rights are unattainable to many communities as the former settler regime of denial is still in place. In addition, O’Fairchealleigh (2006, 12) argues that the economic cost and cultural differences in attaining land title acts as a major barrier for many Indigenous groups. Many Indigenous communities are living in poverty, and thus are often unable to afford the lengthy process, particularly when many fail to achieve title or sovereignty. The cultural differences in providing evidence also acts as a barrier; white courts and government are generally unaccepting of oral evidence as opposed to written evidence in recording traditional connection to land, thus disempowering Indigenous agency, placing settler culture and norms above Indigenous traditions (Alford 1999).

Furthermore, the Native Title case of the Yorta Yorta tribe can be used to demonstrate the impact and limitations created by the Mabo decision and the Native Title Act upon Indigenous rights and agency. Korosy (2008, 82) argues that the overturning of terra nullius in the Mabo decision was merely limited to the recognition of land rights and excluded the recognition of Indigenous sovereignty over the land. The notion of terra nullius, however, was ultimately replaced by 'the tide of history' in the Yorta Yorta case (Atkinson 2001, 233). In the Yorta Yorta case, the Yorta Yorta tribe of Indigenous people made a claim to land rights and ownership, however their claim was rejected by the courts stating that any traditional connection to the land from the nineteenth century had been washed away by the 'tide of history' (Atkinson 2001, 233). Atkinson (2001, 234-235) ultimately argues that the Yorta Yorta case highlights the betrayal and lack of rights granted by the Mabo decision, where the barriers in place act to secure the interests of the white government and commercial companies. Ultimately, as argued by Strelein (2006, 226), the level of intolerance and unfairness in the court system placed an undue burden upon many Indigenous people to prove their ongoing connection. Also, the lack of access to lands and culture has simply exacerbated the rates of unemployment, alcoholism and dysfunction in Indigenous communities (Hill 1995, 317). Mabo and it's evidence requirements acting as barriers to claiming ownership of land, as demonstrated in cases such as the Yorta Yorta case, ultimately demonstrate the negative impact the Mabo decision has had upon Indigenous agency and political power.

Thirdly, as a result of the Mabo decision, the Native Title Act is vulnerable in the hands of the white government, most often failing to protect the rights of Indigenous people and limits their sovereignty; ultimately demonstrating how the Native Title Act has been used as a tool for white settler control over Indigenous sovereignty. Manwaring (1993, 188) argues that the Mabo case placed the issue of land rights and Indigenous sovereignty in the judicial arena, meaning their rights had been made vulnerable being placed in the hands of the courts and government. For example, while the people of the Meriam tribe as a result of the Mabo decision gained title to their land, their ownership and sovereignty was ultimately subject to the government's decision to extinguish their title by valid exercise of powers (Manwaring 1993, 188). The fact that Native Title is subject to the government extinguishing it based on economic and political interests, ultimately demonstrates how prevalent and overpowering white power is over Indigenous sovereignty (Watson 1993, 7). As a consequence of the Native Title’s vulnerability, Korosy (2008, 84) argues that the government has been able to choose to what extent white law will govern over Indigenous communities and their rights; ultimately, likening white domination over Indigenous people to original settlement. As stated previously, the requirements in attaining Native title bear much undue burden upon Indigenous communities, meaning many people are unable to achieve Native Title over their land. However, the difficult requirements also demonstrate the lack of political power and sovereignty the Mabo decision gave to Indigenous people, as white colonial law still prevails and undermines their agency in deciding who owns the land.

Furthermore, white perception of what it means to be an Indigenous person has dominated and undermined Indigenous sovereignty and rights to Native Title. Korosy (2008, 86) argues that the settler mind-set and the court’s narrow understanding of Indigeneity, often placing the Indigenous person within the barriers of their ‘ideal type’, has negatively impacted upon Indigenous sovereignty. There is a lack of understanding when it comes to Indigenous culture and spiritual beliefs; as argued by Hill (1995, 318), there is a stark difference in the meaning of land ownership and title between white settlers and Indigenous people. Often, white settlers view land ownership within the context of political and economic importance, whereas in Indigenous culture and tradition, native land title is a spiritual issue (Hill 1995, 318); ultimately, demonstrating settler dominance over Indigenous beliefs and agency.

In addition, the changing of the Native Title Act and unreliability of the Mabo decision in providing ongoing Native Title to Indigenous people demonstrates how the issue of land rights has been used a tool to disempower Indigenous sovereignty. Yunupingu (1998, 243) tells of how the Howard government in the late nineteen nineties opened and ‘gutted’ the Native Title Act. Howard’s government amended the Native Title Act to make it appear as though it was upholding the rights of Indigenous people, however Yunupingu (1998, 244) argues that the legislation, in reality, diminishes and denies Native Title rights. The changes made to the Native Title act, altered to state that any current and future commercial interests would override any Native Title, delivering ‘bucket loads of extinguishment’, demonstrates the vulnerability of land rights in the settlers hands (Keon-Cohen 2012, 24). The vulnerability of the title can be demonstrated through the example of the Croker Island People; they were granted Native Title over their land area, however this only lasted two days before the government reversed the decision (Yunupingu 1998, 244). Alford (1999) argues that the Native Title Act has done little for Indigenous people who have been dispossessed, as colonial government hides their whiteness and wrong doings, placing the onus on Indigenous people to prove their ongoing connection and undermining their sovereignty. As white settler law has the power to change the Native Titles given to Indigenous people as recognised by white law, this ultimately demonstrates how vulnerable their rights are in the hands of the colonial government, reducing their political power and taking away their sovereignty over their land.

In conclusion, this essay has demonstrated that the Mabo decision and impact of the Native Title Act has had a devastating effect upon Indigenous land rights and their sovereignty. The Mabo decision only addressed the issue of land rights and ownership, contributing to much economic and cultural damage. In addition, the Mabo decision created many barriers to claiming Native Title, ultimately further limiting Indigenous rights and political power and placing the issue of land rights in the hands of the settler government, ultimately demonstrating how settler domination over Indigenous sovereignty still occurs today. As stated by Atkinson (2001), the Mabo decision has merely hindered Indigenous sovereignty, giving ‘not one iota’ of land justice.