and Aboriginal Australian Land Rights
By Jack Rosa
That all persons who shall be found in possession of any such Lands as foresaid, without the license or authority of His Majesty’s Government, for such purpose, first had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant Lands of the Crown within the said Colony.[i]
This letter, signed by Richard Burke, is based off the idea of Terra Nullius, which means lands without any title of ownership. This legal term was used by the Crown to take land on which the indigenous people of Australia lived for thousands of years. It was based on the claim that they were nomadic people and therefore had ownership over nothing. This letter sparked a struggle between the oppressed indigenous population and the colonizers that is still very relevant today. Mabo v Queensland No. 1&2, or the Mabo case as these trials became known, was a long-lasting, successful attempt to overthrow the Terra Nullis Doctrine. Although this case was a landmark achievement for Australian land policy today, many issues still exist. The solution to these conflicts in Australia can be found in creating a harmonious and equal relationship between Indigenous Australians and their colonizers, as well as by redefining the colonial systems and laws currently in place, that persecute Indigenous Australians.
To understand the significance of the Mabo case an understanding of land policies before it is needed. In Australia, due to the frequent infringement on the terms of treaties, the different groups of Aboriginal Australians had a sense of distrust towards their colonizers.[ii] Lack of educational services and poverty made the idea of a trial all the more difficult for them. Nevertheless in 1970, the Yolgnu, an indigenous peoples who resided on the Gove Peninsula (upper middle coastline of mainland Australia), brought their land claim to the Federal Court of Australia for the Gove Land Rights Case.[iii] Yolgnu land was taken for mining of bauxite. This seizure was made by exercising radical title, which allows indigenous land titles to be dissolved by the government[iv]. The verdict ended in favor of the government taking the land. This hearing kept in place the policy of Terra Nullius and radical title, allowing the Australian government to claim land they saw fit.
Abuse of the indigenous land rights such as the Gove Land Rights Case helped show native Australians that a change was required. Eddie Mabo was the catalyst for this change. He was an indigenous Torres Strait Islander, a group with a culture unique from that of mainland Australian Aborigines. After being involved in indigenous rights since the 1950’s Mabo became aware that the state of Queensland was the official owner of his lands.[v] This infuriated Mabo.This land “had been Mabo land for many generations and everyone else on Murray and Darnley islands recognized his traditional rights to it”.[vi] Tensions between Aboriginal communities and colonists were at an all-time high as a result of many land claims similar to this. This, combined with Mabo’s recent realization that he did not truly own his own land, motivated him to act.
Indigenous people were not alone in seeing a need for a change to happen in Australia. There had been a push for Indigenous Land Rights since the 1960’s and this earned more favor towards Mabo’s cause with the Australian public[vii]. This national support brought the legal system of the country to a point where they were willing to hear out a land rights case and deliver a less colonialist centered verdict. Justices Deane and Gaudron who were both involved in the case recalled the pre- Mabo case laws as a “legacy of Unutterable shame”[viii]
Another aspect that affected the court’s decision favorably towards Mabo was Australia gaining sovereignty from England. The Policy of the crown was that lands that “any pre-existing title must be held, if it is held at all, under the crown”[ix]. After gaining independence Australia was no longer bound by this policy. They became free to pass laws based on their own policies. This allowed Mabo to be considered for the owner of his land because it was Australian law not the English law.
The passing of the Mabo case brought a new policy for addressing indigenous land sovereignty. First and foremost, this act being put into place overturned the immensely outdated policy of the Terra Nullius Doctrine. Unfortunately, this verdict was reached months after Mabo died at age 55. [x] Mabo was never able to see the results of his case. Because of the Mabo case, Indigenous Australians could provide proof of the claim for their home and could take this to court to use the new rules Mabo’s case put into place. This verdict got rid of the irony of Terra Nullius. If this doctrine were still the policy then, “Aboriginal people would be made ‘intruders in their own home as Brennan J puts it”.[xi] Another major decision that was made when the court, “rejected a widely accepted view of mainland Aborigines as nomadic peoples without proprietary relations to the land on which they lived”.[xii] This decision was as important, if not more important, than overturning Terra Nullius. By making this statement the court agreed that the land that belonged to the Aborigines of Australia was in fact taken unlawfully. This decision puts a great responsibility on Australia to compensate the indigenous people for all of the wrongdoings they have admitted to through this decision.
Although there were benefits that came from the Mabo decision and the laws it overturned, there continued to be problems with the government’s new policy. A majority of this results from a lack of enforcement by the Australian government and its court system.[xiii]Without enforcement the change of policies that resulted from the Mabo case are meaningless. The indigenous people have few options when the government will not uphold its own principles. The UN is trying to get Australia to respect its Indigenous people’s sovereignty, but maintains very little power to do so.[xiv] The attention put on Australia does help pressure Australia to change policies to avoid international outrage.
Mabo taking down Terra Nullius changed Australian land rights permanently. As mentioned previously, this did not rid the country of all indigenous land right problems. ILUA’s are documents used by the government and companies to acquire indigenous australian land post Mabo. They are still used unlawfully to acquire land without natives agreement. This year an ILUA was used to take the Wik Way indigenous people’s land for bauxite mining without their permission.[xv] This land seizure is stunningly similar to the taking of the Yolgnu peoples land that happened before the Mabo Case. The fact that events such as this are still happening shows the further need for change in the Australian land policy. Acts like this will continue to happen until the Australian courts recognizes their indigenous people to have equal land rights to everyday Australians and begin to respect their sovereignty.
[i] Bourke, Richard. Proclamation of Governor Bourke, 10 October 1835. Letter. From Colonial Office of The British Government, National Archives of the United Kingdom. Paper, http://foundingdocs.gov.au/item-did-42.html (accessed November, 13 2014)
[ii] IVISON, DUNCAN. 1997. "Decolonizing the Rule of Law: Mabo's case and Postcolonial Constitutionalism." Oxford Journal Of Legal Studies 17, no. 2: 253-279. Business Source Complete, EBSCOhost (accessed November, 14, 2014). 265 DOUBLE CHECK FORMATTING GUIDELINES IN CHICAGO MANUAL OF STYLE
[iii] Paul, Patton. “Sovereignty, Law, and Difference in Australia: After the Mabo Case” Alternatives: Global, Local, Political, Vol. 21, no. 2 (1996): 149-170 http://www.jstor.org/stable/40644966 (accessed November, 11/9/2014)
[iv] Paul, Australians Sovereignty 156-157
[v] Reynolds, Henry. 1999. "Eddie Mabo. (cover story)." Time International (South Pacific Edition) no. 43: 98. MasterFILE Premier, EBSCOhost (accessed November 112, 2014). 1
[vi] Reynolds, Mabo 1
[vii] Paul, Australians Sovereignty 152
[viii] Ivison, Decolonizing Law 259
[ix] Paul, Australians Sovereignty 162
[x]Reynolds, Mabo 1
[xi] Ivison, Decolonizing Law 257
[xii]Paul, Australians sovereignty 150
[xiii] Paul, Australians Sovereignty150
[xiv] Paul,Australians Sovereignty 164
[xv] JOHN McCARTHY, “Former MIM boss Nick Stump warns that latest Aurukun bauxite deal is a return to the Sir Joh era,” The Courier Mail,September 24, 2014,accessed December 9,2014,http://www.couriermail.com.au/business/former-mim-boss-nick-stump-warns-that-latest-aurukun-bauxite-deal-is-a-return-to-the-sir-joh-era/story-fnihsps3-1227068373445?nk=5e246fc5382d247055eb3509d363d665