Mabo Case a Lesson in History: The Essay

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Mabo Case

A Lesson in History:

The Mabo Case and Its Legacy

The Mabo Case, or Mabo v. Queensland, as the case is formally known, refers to a judgment given by the High Court on June 3, 1992. This judgment ruled that the land title of Indigenous Peoples (i.e. The Aborigines and Torres Strait Islanders) would be recognized as common law by Australia. This meant that the doctrine of terra nullis, or land belonging to nobody, was annulled and the indigenous people in question could possess and occupy the land as they wished, and according to their own customs.

Despite this favorable and internationally applauded outcome, however, the reality has not been as uncomplicated. The fact of the matter is that though the Mabo case was a revolution in Australian law and brought the country in line with other remaining common law countries, such as he United States, Canada and New Zealand, its legal effects have turned out to be largely illusory. This paper will aim to discuss the previous statement, and will show how the Mabo case has failed to carry out its duties, expressed by the judgment rendered, for the benefit of the indigenous peoples of Australia.

The case presented above was important, not only for its ability to undertake discussion on a very pertinent issue, but also for its ramifications, both in the case of the indigenous people, as well on the side of those non-indigenous to Australia. As presented above, the case was vital to bringing the country in the modern era, especially since aboriginal ownership of land had always been recognized by Great Britain. Furthermore, it was clear, as it had been for ages, that the doctrine of terra nullis was flawed, as Australia had clearly been occupied for centuries when colonized. This is further evident from dispatches between The Crown and the colony in its earliest days. According to one website:

"Aboriginal ownership of land has […] been recognised by International Law, to which Britain is a party from before its colonisation of Australia. In spite of the British recognition of Aboriginal land ownership, the colonists in Australia managed to officially disregard such recognition, founding Australian law on the economically convenient concept of 'Terra Nullius': that is, on the fiction that Australia was 'unoccupied' at the time of colonisation. This obviously false legal basis and the injustice that stemmed from it, has been challenged from the very earliest days of colonisation by Aborigines and their supporters."

Knowing now that those who belonged to the community have always defended aboriginal rights and those who would and could help have aided in whatever way they could, one must also recognize that these rights were also condemned, as expressed above, by non-indigenous peoples who could profit from retaining land, and the minerals therein. In fact, some stated that the Mabo case was a challenge to the legality of non-Aboriginal land tenure.

This was only exacerbated by the belief that the case would have negative ramifications on mining, and more precisely, on the inability of non-indigenous peoples to retain mineral rights to land. Yet this should not have been a worry for two reasons. First, because the court ensured that only public land, such as parks, could go to indigenous peoples and second, because in a battle between non-native and native, the native title always loses. Though this latter claim is said to be biased in favor of natives, it is in no way false, and only since 1975 have native peoples been able to establish some sort of title for land. Thus, much land previously owned remains in the hand of non-Aboriginals.

This is only one reason of many as to why the judgment of this case has failed to be fully carried out, as expressed in the thesis statement above.

Another aspect as to how the judgment rendered has not benefitted the Aboriginal population was in the complexities thereof. Some argue that, for instance, the High Court was dubious and misled people in the definitions and legal significance of terra nullis. Others yet argue that the court created newly racist laws. As one author expresses,

"The High Court said that Aborigines could only claim land if they could prove continuous occupation of the land since 1788. If that occupation had been lost at anytime since 1788, irrespective of the reason, then title could not be revived. As a consequence, no prime city land could be claimed, nor could any land stolen from Aborigines be claimed.

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Because 70% of Aborigines lived in urban areas, 70% of Aborigines were told that their land had been stolen from them but that they could not get it back. This just left the desert where Aborigines had been living continuously since 1788 because no one else had ever wanted the land."

The paragraph above expresses the fact that Aborigines were, in essence, told to simply walk off with that land that either nobody desired, or with the knowledge that they had, at some point, been proprietors of some of the best land in Australia, without hope or promise that they would ever receive this land back. From this quotation, one can clearly see that the judgment was not as beneficial as one was led to believe, at the time. In fact, if anything, the judgment rendered indigenous peoples incapable of selling land or owning it individually, as no such right was recognized. Due to these reasons, some argue still that the court effectively prevented Aborigines to own anything of value and thereby elevate their race.

It is also important to mention here that the Mabo case, though it had ramifications upon all natives in all areas of society, was solely about native title on the Murray Islands. Legal precedent had laid down customary title, but was extinguished by the acquisition of the island by the Crown. Against this precedent, in this case, the High Court found that common law would prevail, i.e. that the Islands had not 'extinguished' native title.

However, after rendering judgment in this case, the Justices stated that the verdict would not apply, to the surprise of many, to those natives living on the mainland, enraging those who had believed in a breakthrough and disappointing hundreds of thousands who had hoped for justice.

Ulls Secher, a professor at Queensland University, also examines the decision in this case and states that there are other illustrious individuals who not only believe that the decision has not benefitted the indigenous community, but there are some who believe that the decision itself was flawed. From the point-of-view of historian Michael Connor, she states:

"[…] Connor's contention is threefold: first, that the doctrine of terra nullius was 'invented' by historian, Henry Reynolds, in his work The Law of the Land, secondly, that the doctrine of terra nullius is, therefore, a modem fiction rather than the legal foundation of Australia's sovereignty; and, thirdly, because the Mabo decision was based upon Reynolds' flawed invention of the doctrine of terra nullius, the Mabo decision was itself flawed. Thus, Connor purports to discredit the doctrine of terra nullius and with it - the decision in Mabo."

In this examination, Secher thus seeks to take the decision in this case further, and to examine it from the point-of-view of Connor, who simply does not believe in the righteousness of the decision described as monumental and history-changing, and neither of these two individuals are alone.

To further add credit to both this paper, and its argument state in the first paragraph, three additional academic paper will be analyzed below. The first paper undertakes the analysis of co-existence between indigenous and non-indigenous peoples. From this perspective the author here aims to understand some of the most difficult interactions between the two populations, namely at mining sites, infrastructure development sites, and at negotiations, especially those involving cross cultural and governmental issues. The article also examines co-occupation of space by the two populations, and relates this to both a growth in understanding but also an increase in friction between the two seemingly disparate societies. Though this paper utilizes no aspects of the Mabo case, it does show how the indigenous community sees itself, and how it can, if allowed, both co-exist with the non-indigenous community, and thereby propel itself forward, through the establishment of clear and fair legal precedents.

In the next examination, the author speaks about the Mabo case directly, and especially its pertinence to international law. In this regard, the paper seeks to examine the most important result of the judgment in this case: racism. In this respect, the paper states,

"The hysteria on the part of the non-indigenous population, on the one hand, and the euphoria on the part of the indigenous people, on the other, which greeted the decision attest eloquently to an act of life which most Australians knew to exist but pretended did not, or were indifferent to: racism."

The author goes on to defend this opinion, and pit it against.....

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