Legal Studies Essay Law Reform Concerning Indigenous Land Rights Legal Studies Essay

1221 words - 5 pages

To a certain extent, progression of land rights for Indigenous peoples has been addressed through law reform. Their concern, according to Ross Watson, a Murri from the Dawson River, is founded in the significance of land as a ‘spiritual and economic base’, and land rights as ‘an opportunity to once again become a self-determining people.’ As such, pursuit of such rights has been an ongoing and crucial process for Indigenous peoples. However, initial advancement, as in the case of Mabo vs Queensland (No. 2) (1992) and the Native title Act, suffered regression in the compromising issues of Wik peoples vs Queensland (1996) case and the Native title Amendment Act. This was due to the ability of the historically privileges citizens to use rights frameworks to counter the equally rights-based claims of the dispossessed and subjugated Indigenous people. Hence, the concerns of the Indigenous peoples’ land rights were at first promoted, and then impeded in this period of change through conflict of rights.
Prior to the Mabo case, law regarding land rights compromised the concerns of Indigenous Australians. Original British colonisation policies and land laws originated from the belief that Australia was an acquired by occupation of a terra nullius. Terra nullius, the common law doctrine of land belonging to no-one, entitled the British occupants to own and develop the land. According to the ‘Central Land Council’ this rendered the previous sovereignty, traditions and ties of the Indigenous people to land legally and practically obsolete. The implications of this are clear in the instance of the Yolgnu people’s protest against the removal of 300 hectares of their land by a bauxite mining company. In the follow up case, Milirrpum v Nabalco Pty Ltd, although the court recognised the “religious relationship with the land” and the presence of “Aboriginal laws” they were not willing to overturn terra nullius on the grounds of these being “extinguished under common law.” Henceforth the people were denied the right to their land, and the preferences of non-Indigenous people continued dominate this legal realm.
However, in the case of Mabo vs Queensland (No. 2) (1992) and the ensuing legislation, such precedent would be overturned and therefore advance the concerns of the Indigenous Australians. The case challenged the sovereignty of the Queensland over the land in the Mer islands through the doctrine of terra nullius. Mabo argued that his people retained ownership over the land due to their presence and continued connection to the land since ‘time immemorial’. The court overruled terra nullius and decided that the “Meriam people were entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands.’ Moreover, the legal doctrine of native title was inserted into Australian law, which entit...





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