Significance of the 1992 High Court Mabo Decision
The high court of Australia made the decision to acknowledge Murray Islands in 1992 3rd of June, as not the property of the Crown but that the people of Meriam. The high court of Australia made the decision to acknowledge Murray Islands in 1992 3rd of June, as not the property of the Crown but that the people of Meriam. The Australian constitution made a law concerning the Native Title Act in 1992. This article seeks to explicate the findings, proceedings and significance of the 1192 high Court Mabo decision.
Eddie Mabo aka Koiki, a Torres Strait Islander, grew up believing that Australian laws on land ownership were wrong and battled to alter them. The Queensland government made the laws that governed his people as he grew up. He strongly believed that the land belonged to his individuals who had been there for thousands of years, but the government of Australia also believed that it owned the land.
In 1982, Mabo made a speech regarding his beliefs about the true ownership and inheritance of the lands of Mer in the University of James Cook in Queensland. A lawyer heard his speech and asked him if he wanted to challenge the Australian government legally regarding the actual ownership of the lands of Mer.
Importance of the Mabo case
Before the arrival of the British in 1788, the Torres Strait Islanders had occupied the Mer for nearly 40,000 to 60,000 years. The people of Torres Strait spoke their languages and had their customs laws that governed them. The Torres Strait Islanders had a strong connection to the Australian land.
The advent of the colonial government, everything changed. The British first arrived and declared the area “terra nullius”, a Latin phrase that means an empty land or a land that belongs to no one. This declaration undermined the ownership of Mer by the Torres Strait people and their connection to the Australian land. The Torres Strait Islanders’ occupation of that area was disregarded, and the British took the land without any form of agreement or pay.
After the inspirational speech by Mabo, in James Cook University in Queensland, the people of Mer decided they would challenge the legal principle of terra nullius and that Mabo would be their leader through that period.
Three Meriam people led the case Eddie Mabo, James Rice, and David Passi. The proceedings started in 1982 in the High Court. It was a response to the Queensland amendment act passed in 1982, which established a system of making land grants ,on trust for Torres Strait Islanders and Aboriginals.The Murray Islanders turned down this offer. Bryan Keon-Cohen, Ron Castan, and Greg McIntyre represented the Plaintiff of the case.
The action was a test case to determine the legal rights of the people of Meriam to the islands of Waier, Dauar, and Mer in the Torres Strait, which were appropriated to the Queensland state in 1879 (Langton, 102).Before the arrival of the British, the Meriam people had livedon the islands for thousands of years in a subsistence economy that depended on fishing and cultivation. The land of the islands was not thesubstance of public or overall community rather it was viewed as belonging to groups or individuals.
The government of the Queensland tried to terminate the proceeding by enacting the Queensland Coast Islands Declaratory Act 1985. The act declared that the takeover of the islands in 1879 had the title vested in thestate of the Queensland-“freed from all other rights, interests and claims whatsoever” (Cerwonka 403). The High Court held that this statute was conflicting to the Racial Discrimination Act 1975 in the case amid Mabo and the Queensland in 1988.
The plaintiffs pursued avowals, inter alia, that the people of Mer were entitled to the Islands of Murray “as owners; as possessors; or as persons entitled to use and enjoy the said islands”. The Plaintiff contended for a possessory label because of extended ownership. The defendants argued that when the region of a settled group became part of the Crown’s territories, the law of England converted the law of the society and, by the law; the Crown assimilated the “absolute beneficial ownership” of all land in the region.
The decision was based on the results of the fact stated by the judge of the Supreme Court of Queensland, Justice Moynihan that the people of the Murray Islands had a strong sense of attachment to the islands and regarded it as their own. All judges accepted apart from Justice Dawson.
The judges agreed that:
- The common law had a notion of native title;
- the foundation of native title was the customarylink to or occupation of the plot;
- the content and nature of native title was resolvedby the appeal of the link or occupation under customary laws; and
- the native title could be quenched by the legalpractice of legislative powers delivered a pure, and plain objective to do so was visible.
- Rejection of terra nullius: The verdictrecognized that the native population had a before-existing system of rule, which, along with all rights existing thereunder, would continue in force under the freshindependentexcluding where explicitlyimproved or doused by legislative or administrativeact. The Court professed to attain all this without changing the traditional supposition that the land mass of Australian was “settled”. Rather, the rules for a “settled” societywere said to be adapted to the laws for a “conquered” group.
The importance of the case
The native title is a legal recognition that some Aboriginal and Torres Strait Islander peoples have rights to, and interests in, given land because of their traditional customs and laws. The Native title is important because gives the Meriam people rights to live on the earth, access the part for traditional resolutions, visit and protect vital areas and sites, fish, hunt or even gather resources and traditional food from the area; or teach Torres Strait Islanders and Aboriginal customs and laws of the land.In some other cases, the native title includes the right to possess and inhabit apart of land or water to the elimination of all others.
The Native title also determines how native title interests are formally recorded and recognized. It sets the rules for dealing with the land where native title still exists of may exist. Today, nearly 15% of Australia has been acknowledged due to the native title (Langton, 203). Native titleholders and other set out agreements on how to use indigenous lands. The Mabo case has put so many Native people in positions of claiming their lands back from the government and forming a coalition with the locals on how to use it. The Natives have benefited together with the government without feeling deprived but rather in legal understanding with the government.
Cerwonka, Allaine. Native to the Nation: Disciplining Landscapes and Bodies in Australia. Minneapolis, Minn: University of Minnesota Press, 2004. Print.
Langton, Marcia. The Mabo Decision of the High Court of Australia, 1992: Subsequent Political and Legislative Developments.Australia: The Author, 1993. Print.
Lindquist, Sven. Terra Nullius: A Journey Through No One’s Land. London: Granta, 2012. Print.