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  • Write an essay of 1000 words plus or minus 10%. in 1992 in Mabo v Queensland (no.2) the High Court rejected the traditional view of the settlement of Australia..... Meek.M "The Austrakian Legal System", 2nd edition 1994,Law Book Company at page

Write an essay of 1000 words plus or minus 10%. in 1992 in Mabo v Queensland (no.2) the High Court rejected the traditional view of the settlement of Australia….. Meek.M "The Austrakian Legal System", 2nd edition 1994,Law Book Company at page Example

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Overruling of the Terra Nullius Doctrine in Mabo Case 6

How the Mabo Case altered the ‘traditional view’; the Terra Nullius.Running header:

(Cwt 1117)

Overruling of the Terra Nullius Doctrine in Mabo Case

The arrival of the British settlers and explorers in Australia was a setback to the native groups who lived in Australia and its Islands. The British occupied more land during the growth of their colonial territories. This was necessitated by the doctrine of terra nullius which advocated that the land belonged to no one prior their inhibition. This paper discusses the presumed traditional view of the land and how it was altered in the case of Mabo and Others against the state of Queensland.

. (Douglas et al 2004) To that effect, the Crown possessed all the land and could issue it to anybody at their will. In 1827, Governor Bourke come up with a doctrine of Australia being a terra nullius which argued that Australian was their own colonies since they were not occupied or were occupied by primitive people whose social and political systems did not warrant international recognition possess, occupy and use the land. When the British acquired sovereignty over the Australian colonies, they disregarded any preexisting rights of the native people. These rights included the rights to

. However, Reynolds claims that the British government acknowledged native title in Australia prior to Cook’s Instructions and the establishment of British Colony of New Wales in 1788. By 1830, the British government had attempted to let in provisions in pastoral leases to allow Aboriginals to use the land for subsistence reasons (Reynolds, 1992). In spite of the British recognition of Aboriginal land ownership, the colonists in Australia managed to officially disregard such recognition basing their argument on economically accommodating concept of ‘Terra Nullius’. This false basis and injustice accompanying it was met with challenges starting from the days of colonization by Aborigines and their assistances. Terra nullius undermined Meriam people claiming they were primitive and uncivilized, did not have recognizable land laws or social organization and hence lower in the scale of humanity as compared to the immigrants. (Douglas et al 2004)The English law was the ‘traditional view’ which overruled Australia as a land without owners; terra nullius, depriving the indigenous Australians the right to acquire, sell or assign land

The doctrine of terra nullius started its criticism in 1975 when the International Court of Justice challenged its credibility. The United Nations Working Group on Indigenous Populations followed suit when they started investigating the rights of indigenous peoples including land rights. In 1982, Eddie Koiki Mabo, Sam Passi, David Pass, Celuia Mapo Salee and James Rice began their legal claims of ownership of their land in island of Mer in the Torres Strait. The High Court required the Supreme Court of Queensland Court to determine the basis of the claims. In spite of the case being with the Queensland court, the State Parliament passed thetorres Strait Islands Coastal Islands Act that stated ‘Any rights that Torres Strait Island had to Land after the claim of sovereignty in 1879 is hereby extinguished without compensation’.

Although the Aboriginal and Torres Strait Islander peoples knew their land, their effort to reclaim it was not successful since the case was said to be in conflict with the Commonwealth Racial Discrimination Act 1975 and therefore declared invalid. When the proceedings of Mabo No. 1 started, the Queensland government passed the Queensland Coast Islands Declaratory Act in 1985. The Act aimed at extinguishing any interest and rights the Meriam people could have under their traditional law. The native argued the Act denied them equality before the law and the rights to enjoy their properties.

. (Douglas et al 2004)A decade after its first hearing, the fate of Mabo No. 2 took a new direction after a decision by a panel of seven judges. Six of the judges agreed to the idea that the Meriam people did have traditional ownership of their land. Only Justice Dawson disagreed with the majority judgment. The judges were of the opinion that the fact that the British was in possession of the land, it had not eliminated the traditional ownership the Meriam people had to the landa of Murray Island. The ruling in fever of the Meriam people was that they are entitled against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands

.(Douglas et al 2004)The six judges who were in favor of the Mabo No. 2 rejected the traditional doctrine that implied that Australia was terra nullius at the time of European settlement. This judges found out that the common law of Australia indeed recognizes a form of native title to land. Rights and interest over land that existed prior colonization did not change after colonization. This implies that even today, these rights and interest still exist in situation where people have maintained their connection with the land and where their title has not been eliminated by legislation or any other action of the executive arm of the government discrepant with that title

(Reilly, A. (2000).There were several reasons that made the judges to rule in favor of Mabo. In spite of the Meriam people being uncivilized and lacked tangible evidence showing their ownership to the land such as written documents as the British government would claim, they were much aware of their land and how far it spread. The judges ruled out that the people who were in occupation of the Islands prior to invasion by the Europeans were the Meriam people. Few of the outsiders that lived in Murray Islands as missionaries, government officials of fishermen were not permanent immigrant population. Anthropological evidence showed that the present inhabitants of the islands came from the people in occupation at sovereignty. The High Court ruled out that the land in Murray Island is not crown land within the meaning of that term in section five of the land Act 1962-1988

After the High Court ruling in favor of Meriam people; Mabo No. 2, the commonwealth Parliament passed the Native Title Act in 1993 which enable the Indigenous people throughout Australia to claim traditional rights to their native land. However, the overturning of the terra nullius was a big setback to the British colonial government since their major interest in Australia was based on economic gain. The British government could no longer enjoy full immunity while exploring the land for minerals and other precious commodities.

The case of Mabo and Others against the state of Queensland was a victory to the native Aboriginal peoples. After the enactment of the Native Title Act in 1993, the native groups were empowered to reclaim the ownership rights of their land. The Meriam people’s claim on the rights to the Islands had never been extinguished by the arrival of the British settlers and Queensland annexation in 1879.

References

Carven, J (2002) Understanding the Australian Legal System 6th edition Thomson Legal & Regulatory-Asia Pacific Australia

Cook et al (2005) Laying Down the Law 6th edition Chatswood, N.S.W. LexisNexis

Reilly, A. (2000).The Ghost of Truganni: Use of Historical Evidence as Proof of Native Title Federal Law Review 453

Mordoch University Electronic Journal of Law, Vol. 9From a jurisprudence of regret to a regrettable jurisprudence: Shaping native title from Mabo to Ward.Reilly, A. (1999).

Sharp, N (1996) No Ordinary Judgment: Mabo: The Murray Islander’s Land Case, Aboriginal Studies Press. Canberra

Douglas, R., Rice, S. & O’Neill, N (2004) Retreat from Injustice: Human Rights Law in Austraria.