The Changes That Court Decision Brought to the Australian Land Laws - Case Study Example

Understanding The Legal Implications of the Court’s Decision in the case of Eddie Mabo and Ors v The of Queensland (1992) 66 ALJR 408 (Mabo No.2) I. Introduction The landmark decision of the court in the case of Eddie Mabo and Ors v The State of Queensland1 is one of the most celebrated cases is the history of Australia. Brought to court in 1982 by Eddie Mabo, David Passi and James Rice, this action was meant to be a test case to determine as to whether or not the Meriam people have legal rights to the islands of Mer, Dauar and Waier in the Torres Strait. These islands have been annexed to the state of Queensland in 1879 in the early days of the British occupation. History tells us that before the British came to these islands, the Meriam people have already established a system of their own. In this system, the lands on the island were considered as properties of individuals or groups rather than belonging to the community as a whole. In an attempt to terminate the proceedings of this case, the Queensland government enacted the Queensland Coast Islands Declaratory Act 1985. The act declared that the annexation of the islands in the Torres Strait in 1879 transferred the ownership of the lands therein to the state of Queensland. According to the act, the fact that the title of the island was already vested to the state, the land is now “freed from all other rights, interests and claims whatsoever” (see Queensland Coast Islands Declaratory Act 1985). In deciding this case, the High Court of Australia said that the Meriam people have rights over the lands they occupied. According to the judgement of the court, common law accepts the concept of native title and this native title is traditional connected to the occupation of the land. The court further said that native title may be extinguished through a valid exercise of governmental powers provided that it was clearly and plainly manifested that the government intends to claim title to the land. The decision of the High Court in this case has many legal implications that can change the way Australians deal with land issues. Some of the issues involved in this case are quite complex that it will take time before we can fully appreciate their impact into the legal system. For the purpose of our discussion, let us take the three main issues that may have the greatest impact in the Australian land laws. These three issues are: (a) the overturning of the doctrine of terra nullius (land belonging to no one) in Australian land law, (b) the question as to when native title is deemed extinguish and (c) the effect of this decision on existing as well as future land rights legislation (Wooten, Hal, 1994). To get a clearer picture of these issues, let us discuss them one by one. II. The Overturning of the Doctrine of Terra Nullius Perhaps the biggest and the most controversial contribution of this case to Australian law is the overturning of the doctrine of terra nullius. In overturning the doctrine of terra nullius, the court defined the rights of the Crown when it comes to land acquisition (see Eddie Mabo and Ors v The State of Queensland 2). According to the decision of the court in this case, the British acquisition of Australian land conferred the radical title of the land to the Crown but the acquisition did not grant the Crown automatic possesory title (Ritter, David, 1996). Since the Crown did not acquire possesory title to the land, the inhabitants of the islands in the Torres Strait retain the legal rights to their land by virtue of actual possession. The court further recognized the existence of a system of laws among indigenous people and these laws along with the rights granted therein remain in full force even under the new sovereign provided that the new sovereign did not specifically extinguish the same through an executive action or legislation. This ruling of the court has been met with a lot of resistance from different sectors and laws have been passed to try to circumvent this ruling (Barnett, Katy, 2000). Why? Not only did this case overturn the long standing rule in Australian when it comes to the ownership of land, it also opens the possibility for aboriginals to recover their ancestral lands (Barnett, Katy, 2000). Moreover, it poses a formidable challenge on the part of the government to administer certain types of lands that are still unalienated (Butt, Peter, 1994). However, let us be clear at this point that the decision of the court in the case of Mabo does not affect the rights of non-aboriginal people when it comes to land ownership (Bartlett, Richard, 1993). Note that this case only concerns the rights of the Meriam people and other aboriginals. While the decision of this case effectively set limitations on the ownership of land by the Crown, it also extend considerable amount of protection to the descendants of indigenous people and their traditional lands. Through this case, the aboriginals gained more grounds to claim ownership over the lands they occupied. Indigenous people who have been occupying a certain portion of land for many years and have established a legal system of their own just like the Meriam people may now file claim to the land that they are occupying. The decision of the court in this case has been quite controversial and a lot of aboriginal groups sought to recover their lands based on the rulings of this case. After much debate and public discussions, the Commonwealth Parliament of Australia enacted the Native Title Act in 1993. The Native Title Act adopted the common law definition stated in the decision of Mabo (Hockley, John, 1994). The act also provided criteria to determine the existence of native title of a particular parcel of land. When a parcel of land has been declared as having native title, legal restrictions will apply with regards to its utilization. The use of these lands for mining and other non-aboriginal activities is still permitted but subject to negotiations, arbitration and ministerial intervention (Native Title Act 1993 (Cth). To facilitate mediation and administration of lands with native title, a national Native Title Tribunal was created (Native Title Act 1993 (Cth). The tribunal is presided over by a Judge of the Federal court and jurisdiction of cases filed in relation to the Native Title Act shall be under the jurisdiction of the Federal courts. The passage of the Native Title Act was met with serious objections especially in the State of Western Australia (Barnett, Katy, 2000). Note that a large portion of the land in this part of the country contains significant deposits of minerals and these lands are still not privately titled. To protect its interest, the parliament of the State of Western Australia enacted The Land (Titles and Traditional Usage) Act 1993 (W.A.) and challenged the validity of the Native Title Act3. When the case of Western Australia v The Commonwealth4 challenging the validity of the Native Title Act was brought to court, the court held that the Western Australian law is invalid “as inconsistent with both the Racial Discrimination Act and the Native Title Act”. According to the court in this case “The States retain their power to override the common law by their legislative acts.” As it is, Western Australia has to follow the Native Title Act. Despite the fact that many learned individuals insists that the pronouncements of the court in this case will not have any negative impacts of the mining sector, such statements often land on deaf ears (see Stuart McGill and G. J. Crough, 1986). The law has afforded the indigenous people the right to exact taxes, negotiate with mining companies for the exploration of their lands and if they do not like the results of the negotiations, they have the right to veto the mining operations in their area (Native Title Act 1993 (Cth). Although the rights of the aboriginals may not actually hamper the activities of mining, mining companies do not feel at ease with this situation. We have to understand that mining companies are concerned with profit and when there are a number of impediments to their operations, they may not be able to realize their goals. Moreover, the fact that the aboriginals have the right to veto the operations of the mining company that is operating in their area also put the mining companies in a compromising position. III. When Native Title Is Deemed Extinguish The question as to what constitute a native title and when the native title of the land is deemed extinguish is one of the areas of concern in this case. Although the case of Mabo discussed at length the nature of native title to land, it did not clearly define the scope and limitations of the same. To clarify this matter, Section 223 of the Commonwealth Native Title legislation codified the nature and the rights of aboriginal people to their native land. This section requires that the rights and interests of aboriginals with regards to their land be recognized in all of Australia. With regards to the extinguishment of the rights to the native title of the land, the case of Mabo adopted the stand that where legislation merely regulates the enjoyment of the native title of the land or provide control measures to preserve the land, the rights of the aboriginals to the native title is not extinguished. The decision of the case of Mabo further stated that where legislation or the grant to the rights of the land creates a conflict or inconsistency between the enjoyments of the rights of the aboriginals to the native title, only those conflicting rights may be subject to extinction. Although the intentions of the court in this case are good, there are several sectors that beg to disagree with the court in this aspect Note that there are certain rights that cannot and may not be abrogated even when there is already a transfer of title. Technically, this decision gives rise to the possibility that native title will survive the transfer of title to a non-aboriginal. This situation can lead to potential conflicts and land disputes that may result to lawsuits. IV. Land Rights Legislation The decision of the court in the case of Mabo may have some significant impact on the land rights legislation of Australia. The Mabo case confirmed the statutory right of the occupier of the land (Wooten, Hal, 1994). Note there are a number of legislations in Australia that allows the occupiers to lay claim on the land that they occupy (Wooten, Hal, 1994). The occupiers need not belong to an indigenous group of people be able to lay claim on the land. Technically, Land Rights legislation does not go against the decision of Mabo but rather, it broadens the base of power of the occupiers of the land to file claims. Note that where there when rights conferred through native title cannot be proven, the occupiers can make use of Land Rights legislations. Often times, claims based on statutory provisions are more convenient than claims filed based on common law so land Rights legislations are generally favorable to the claimants. V. Conclusion The impact of the decision of the court in the case of Mabo is far reaching and only time will tell as to how deep and how broad are the consequences of the courts decision to overturn the doctrine of terra nullius. For now, we can see that the changes that this court decision brought to the land laws of Australia are significant. References: 1. Australia Government Solicitor Legal Practice Briefing No 11, 29 April 1994, Native Title Act 1993. 2. Australian Government Solicitor Legal Practice Briefing No 20, 29 August 1995, Western Australia v Commonwealth (The Native Title Act Case) 3. Barnett, Katy: " Case notes : one step forward and two steps back : native title and the bundle of rights analysis" (2000) 24 Melbourne University Law Review 462. 4. Bartlett, Richard, ‘The Mabo Decision’, Australian Property Law Journal, Vol, 1 No 3, Dec 1993, pp236-261. 5. Butt, Peter. ‘Mabo: What did the High Court actually decide?’, Australian Legal Practice, Vol 4, No 1, January 1994.  6. Commonwealth Attorney-General’s Department, Native Title Act 1993 (Cth).  7. Eddie Mabo and Ors v The State of Queensland (1992) 66 ALJR 408 (Mabo No. 2) 8. Gardiner-Garden, John. ‘The Mabo Debate: A Chronology’, Department of the Parliamentary Library, 1993.  9. Hockley, John, ‘Mabo Legislation: The Native Title Act’, Australian Property Law Journal, Vol 2, No 2, July 1994, pp150-169.  10. Pearson, Noel: The Concept of Native Title at Common Law in G Yunupingu (ed), Our Land is Our Life: Land Rights - Past, Present and Future (1997) 11. Queensland Coast Islands Declaratory Act 1985 12. Reynolds, Henry: The Law of the Land, Penguin, Melbourne, (2nd ed.), 1992. 13. Ritter, David.  ‘The Rejection of Terra Nullius" in Mabo: A Critical Analysis’, Sydney Law Review, Vol 18, No 5, 1996. 14. Stuart McGill and G. J. Crough Indigenous Resource Rights and Mining Companies in North America and Australia -.Report prepared for the Department of Aboriginal Affairs Feb.1986 15. Webber, Jeremy: Beyond Regret: Mabos Implications For Australian Constitutionalism in Duncan Ivison, Paul Patton and Will Sanders, Political Theory and the Rights of Indigenous Peoples (Cambridge, 2000) at 60. 16. Webber, Jeremy:  "The Jurisprudence of Regret: The Search for Standards of Justice in Mabo" 17 Sydney Law Review 5 (1995). 17. Wooten, Hal. ‘Mabo: Issues and Challenges’, Judicial Review, Vol 1, No 4, March 1994, pp 303-365. Read More