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Significant change of Australian land ownership. The Mabo (No.2) case In 1770, British Captain James Cook arrived and imported all laws from England in Australia. He then had justified the denial of the native’s connection to the land. The land was taken and occupied as the king of Great Britain. It was no longer the indigenous people’s rights to use the land as their place under the international law and the land belonged to British. For many years after that, there was remained a debate on the land. The ownership of the land sparked many protests and fights for land rights between indigenous and non-indigenous across the country. The critical change in the fight for land right came with the case of Eddie Mabo. Eddie Mabo, who was an Indigenous Australian on the Island of Mer in the Torres Strait Islands, realized the lack of rights that he as a native of the Australia had his own land on Murray Island and started fighting for Indigenous land rights. Murray Island was considered as part of the state of Queensland’s Crown lands.
Mabo and the major of people who had a connection to the land for thousands of years before and they actually had no rights to build on farm or use the land freely. He argued that indigenous people had a true connection to this land and that ‘terra nullius’ denied them all these. Terra nullius, which is a Latin term, means that land is belonging to no one used and was used to justified to possess land in the European Age of imperialism before. The High court of Australia first decided Mabo’s advocate in 1988, which was one of the well-known case called Mabo v. Queensland (No. 1). Mabo had struggled to gain the right to his land for ten years; however, it found that the Queensland Coast Islands Declaratory Act 1985, which attempted to revoke native title right, was not valid according to the Racial Discriminations Act 1975. After he lost the case against the state of Queensland, he kept fighting for their land right, sought the help of lawyers and others who believed that he had a good case went to the high Court of Australia and also fought to nullify the principle of ‘terra nullius’ all together arguing the Aboriginal people had a native title to their land. the high Court of judges upheld the claim and rule that this continent was indeed not terra nullius in 1992 after Mabo death. Mabo v. Queensland (No 2) was one of the remarkable case from High court of Australia decision in 1992. The High court held that the doctrine of “Terra nullius”, which did not apply in circumstances where there were already inhabitants present. The decision acknowledged that Australia had not been terra nullius. That common law recognizes a form of native title to land.
The Mabo Case decision related specifically to Aboriginals land right. For the judge’s decision, most of them agreed that there was a concept of native title at common law, the source of native title was the traditional connection to or occupation of the land, the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customer and rejection of terra nullius etc. The impacts of the case on the Australian legal system The high decision in the Mabo v. Queensland (No.2) altered the foundation of land law in Australia and following year after the recognition of the legal concept of native title in Mabo, the recognition was formalized by legislation with the enactment by the Australian Parliament Government of the Native Title Act 1993. In order to provide a national system for the recognition and protect native title with national land management system. The rights will depend on the native title holders’ traditional laws and customs and Australian law’s capacity to recognize the rights and interests they hold. This opened the way for claims by Aboriginal and Torres Strait Islanded peoples to their traditional rights to land and compensation.
By the end of 1993 the Native Title Act 1993 (Cth) was passes. The NTA sought to achieve four main objectives: 1. To provide for the recognition and protection of native title. 2. 2. To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings 3. To establish a mechanism for determining claims to native title 4. To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title. After the Mabo case, the high court repudiated the case of Milirrpum v. Nabalco Pty Ltd (1971), which is a country decision of the Supreme Court of the Northern Territory and the legal doctrine of terra nullius.
Moreover, Mabo case has implications other than for native title, where Walker v. New South Wales (1994), the High Court discussed the validity of Aboriginal customary law relating to criminal cases and decided that customary law had been canceled by the criminal legislation which was passed by the states and territories. The shortfalls of the current legal system with regards to Native Title However, Native title legislation still involve different kinds of issues. There are several problems which challenge native title parties. The Native Title Act was originally handed down so that Aboriginal people could negotiate and mediate to resolve recognition of Aboriginal people’s ongoing connection with their land. But as a growing number of native title cases take a relatively long period, sometimes decades, to solve the case in courts rather than by negotiation. It is hard for Native title groups to prove an ongoing connection because often numerous parties are involved. Critics of the Act ask the Australian government to review and amend it. One of the toughest requirements of the Acts is that claimants have to be able to prove a continuity of traditional law and customs on the land being claimed since European settlement. Since the processing applications would be taken many years, these would lead some politicians find strange “solution”. The Native title is sometimes difficult to proof under the current Australian legal system, because it involves the recognition that Aboriginal and Torres Strait Islanders had rights and interests on using the land and waters, possessed under Aboriginal and Torres Strait Islander laws and customs, which pre-existed and survived annexation.
The time elapsed between the assertion of sovereignty, and the Australian legal system’s recognition, in 1992, of the existence of native title means that great challenges to show the survival of those right in 200 years. The future of Native Title The Australian Government has promised to reforms to the Native Title Act 1993 (Cth), which is a critical part of legislation that recognizes Aboriginal and Torres Strait Islander people’s rights and interests to their land that come from traditional laws and customs, to guarantee that a better economic and social environment for Indigenous Australians would be created under a sustainable and fair native title system. In 2012, after 20 years of operation of the legislation, the Australian Law Reform Commission conducted a new review.
The review examined not only Native Title Representative Bodies and Native Title Service Providers, but also consider the impact and role of other service providers to native title groups to make sure the system is delivering for Indigenous people and communities, where would suggest the law reform after a period of extensive consultations within the Australian community. Meanwhile, the Australian Government spent $7.8 million extra funding to support native title groups, where $5.4 million for The Aurora Education Foundation and $2.4 million for Australian Institute of Aboriginal and Torres Strait Islander Studies. In order to enhance their training area, professional development and scholarship program for native title organisations and carry on the important work of the native title research unit. “It is necessary to re-examine 20 years after the original adoption of the Native Title Act.
Keeping a positive interest in native title law dates back to the cornerstone Mabo case, such as examine the intersection of property, native title and environmental law. Also, going through the difference of legal frameworks could violate on an area such as a national park with result of social and cultural effects,” says Lee Godden, Professor at the University of Melbourne.
The Commonwealth Attorney-General has appointed Professor Godden work on two specific areas of the Act. The first area relate to the ‘connection provisions’ which is the statutory provisions that recognize the rights and interests that comprise native title in the Australian legal system. Another area relates to which Aboriginal or Torres Strait Islander groups can use the native title claim or participate in agreement-making, and the people involved the action.
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