World Affairs: Importance of Mabo Decision, Law Essay Sample

Mabo decision was a judgment by the Australian High Court that changed the main foundation representing Australian land law by overturning the terra nullius' doctrine on which the British Empire claimed Australian possession was based. The recognition inserted legal principle representing native title into the Australian law. The Judgment made by the High Court concerning Mabo case appreciated traditional rights of people from Meriam that they had to their islands found in eastern part of Torres Strait Island. The High Court also claimed that there existed a native title for indigenous people living in Australia before British colony was established in 1788. This means that native title still exists up to date where there is a portion of the land which has not been legally extinguished. Mabo Court Case presented in Australian High Court in 1992 resulted in a vital landmark decision which would influence all Aboriginal as well as Torres Strait Islanders. The Native Title Act that was as a result of the Mabo decision would further amend all findings of the case and give a vital push for the advancement of the Indigenous Australians as well as acting as a springboard that would contribute to the reconciliation process in Australia. Therefore, Mabo decision served as a turning point that would have recognition of the rights of people residing in Aboriginal and the Torres Strait Island since it acknowledged that they had a special connection with the land in the island. Mabo decision led to having the Australian Parliament establishing Native Title Act during 1993.

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Mabo decision was vital since it led to nullifying of terra nullius. Until 1992, the land regulations were claiming that Australia was a terra nullius country which meant that all of the lands in Australia did not belong to anyone, but it was land for all. According to Dick, (2007), the land regulations used to deny the fact about all indigenous people having prior connection and occupation to the Australian land. Therefore, the nullifying of the terra nullius rule was beneficial to people in Australia as they gained control of their property.

The other way in which Mabo decision made by High Court in Australia benefited people in the Aboriginal and Torres Strait Island is that it resulted in the creation of Native Title Act. Mabo decision made in 1992 led to passing f Native Title Act in 1993 by the Australian parliament. The act was significant since it resulted to the creation of an approach which recognized peoples from Aboriginal and Torres Strait Island that they had rights over inheriting their land according to the traditional customs and laws (McGregor, 2007). Additionally, the act allowed people in Aboriginal and Torres Strait Islands to have access to the Australian land for their living, fishing or hunting, traditional purposes as well as teaching the customs and laws of their property. Before British had settled in Australia in 1788, people in Aboriginal and Torres Strait Island had occupied their land for more than 40,000 years until the time when Philip supported the instructions that were meant to create the first colony of British in Australia. After British arrived and settled in Australia, they decided to have Australia as Terra nullius colony (Chamarette, 2000). This meant that the occupation by people from Aboriginal as well as Torres Strait Island and the personal relationship which they had with their land was never recognized by the British administration. According to Elder, (2017), Mabo decision was a famous case that resulted in having Australia recognizing and acknowledging the legal land rights which Meriam people had.

The act gives limitation of the application of the native title to the only land that is not either leased or owned by someone else. The restriction provided by the act also extends to the land that Indigenous people in Australia have continuously been having a sacred bond. The Native Title Act speculates that all existing leases or ownership overrides native title even if the native title can be provided back to indigenous Australians following the end of mining leases (Brennan, 2003). Furthermore, if people from Aboriginal and Torres Saint Island successfully claim their land through the act, they would have rights over the land to carry out various developments such as mining and farming.

The other importance that Mabo decision had on the people in Torres and Torres Strait Islands is that it has led to the recognition of today's land ownership in Australia. Today in Australia, the native title of the land has got recognized over more than 1million square kilometers of the Australian water and land which is approximately fifteen percent of the territorial waters and land in Australia. Currently, there are about six hundred and twenty-nine registered indigenous agreements about land use which constitute of a voluntary agreement between the native title groups and others concerning the water and land use that are already in place.

Mabo case was essential to people of Aboriginal and Torres Strait Island because it resulted to the application of the principle of non-discrimination while people are enjoying their rights to own land. The case resulting in Mabo decision challenged the legal system that existed in Australia at the time of British colony from two distinct perspectives. In the first perspective, there was a common belief that people from Torres Strait Island and Aboriginal had difficulty in comprehending the idea about land ownership before the British colonizers arrived in 1788 (Strelein, 2009). In the second perspective, there was the belief that sovereignty usually delivered complete ownership of the land in new Colony hence abolishing all the existing rights which could have existed before. Therefore, the British Colony discriminated people during the process of ownership of land.

Mabo Biography

Eddie Koiki Mabo was born in 1936 in Torres Straits Island. Mabo is a popular figure in the history of Australia for the role that he took in conducting campaigns for indigenous rights of land and his duty in contributing to overturning the decision by High Court regarding land and title. As a youth, Mabo received education concerning the land of his family. During that time, life was regulated by Queensland Government via the Island Council. Mabo worked as a spokesperson representing Torres Strait Island dealing with railroads whereby he used to interact with the white officials of a trade union in Australia. He was married in 1959 to Bonita Neehow, and they together raised ten children. During the conference about Land Rights that took place at James Cook University in 1981, Mabo provided a speech in which he explained several concepts regarding land inheritance and land ownership in the Murray Island. One lawyer suggested that there was a need to have test case aimed at claiming land rights via court system (Browne, 2016). Mabo was the one who led Murray Islanders in challenging legal principle used in high court. Mabo died in 1992 after suffering from cancer. Five months after his death, High Court made an announcement which was viewed as a historic decision of overturning the terra nullius' legal fiction that British had declared earlier before they claimed Australia. From that time, the decision by High Court is commonly referred to as Mabo.

Critique of Mabo V Queensland (No.2)

Mabo decision term is used to describe the case; Mabo vs. Queensland (No 2) that took place in 1992. A legal decision was concluded by Australian High Court in 1992. This case was historic since it involved overthrowing of terra nullius rule in Australia. The fact of Mabo vs. Queensland (No 2) was then named after Mabo, a man who mainly contributed in the entire process of challenging legal system in Australia and primarily fought for the recognition of rights of people from Aboriginal and from Torres Strait Island by claiming they were the landowners according to the traditional customs and norms involving inheritance (Awawda, 2014). In Mabo vs. Queensland (No 2), the High Court Judgments inserted a legal doctrine of native title into the legal system of Australia. Australian High Court recognized that because the indigenous people had dwelled in Australia for many years, they had the right to enjoy rights to the land nby their customs and laws.

In conclusion, Mabo case was essential to the people of Aboriginal and Torres Strait Island as it led to the recognition of their rights in Australia. Mabo decision resulted in nullifying of terra nullius law, led to the passing of a native act by the Australian parliament and application of the principle of non-discrimination while people are enjoying their rights to own land.

References

Awawda, O. (2014). Mabo Case in Australia: Conflicting Approaches to Common Law?. SSRN Electronic Journal.

Brennan, S., (2003). Native title in the High Court of Australia a decade after Mabo. Public Law Review, 14(4).

Browne, D., (2016). Tribute: What we can learn from the'Mabo'lawyers. LSJ: Law Society of NSW Journal, (24), p.90.

Chamarette, C., (2000). Terra nullius then and now: Mabo, native title, and reconciliation in 2000. Australian Psychologist, 35(2), pp.167-172.

Dick, C. (2007). Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. Canadian Journal of Political Science/Revue canadienne de science politique, 40(03).

Elder, C., (2017). Unfinished Business in (Post) Reconciliation Australia.

McGregor, R. (2007). Review of Peter H. Russell's Recognising Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. History Australia, 4(2), pp.60.1-60.3.

Strelein, L., (2009). Compromised jurisprudence: Native title cases since Mabo. Aboriginal Studies Press.