FEDERALISM Federalism is a form of government which unites separate political entities, within a national system whilst still retaining their independence (AUSTRALIANPOLITICS.COM, 2011). In this essay it will be discussed that the ‘Mabo Decision’ and the implementation of the Native Title Act, 1993, is an example of this and will be analysed whilst unearthing the challenges and benefits which were exhumed within this historical test case, whilst explaining the impact of the High Court Ddecision. The Australian system of government is a federal system incorporating characteristics of both the British system and that of the United States. The Australian Constitution provides for a Westminster type parliament, an upper house (Senate) and …show more content…
The First Australians SBS (1989).’ Malo’s Law is a strict law of a spirit which Murray Islanders had practiced for hundreds of years. The main law below as explained by Father Dave Passi, “Tag Mauki Mauki, Teter Mauki Mauki”, which translates to: “Your hand can’t take something that does not belong to you unless you have permission. Your feet cannot walk in, or through someone else’s land, unless there is permission. Father Dave Passi, First Australians SBS (2008)”. The Queensland Supreme Court Judge, Justice Moynihan, also went for a trek into the Murray Island reserve to see first hand the native border control measures which have been in place for many years by the local people. These included certain landmarks, trees, rock formations etc. These have been recognised locally for generations. It was also pointed out that these land parcels under tribal law were passed on from Father to Son and never could be traded for currency. Edward Koiki Mabo’s mother had passed away weeks after his birth and was the adopted son of his uncle, as was the Meriam nation’s people’s cultural tradition. This was to be a major deciding factor in the decision of Mabo and Others v Queensland (No. 1, 1988), the core argument from Queensland was that Mabo was not the person he said he was. In 1990, Justice Moynihan’s report was presented to the High Court in Canberra. It found in favour of the Murray
The court case consisted of the Queensland government passing an act and trying to pass a law which prevented Aboriginal people, from claiming native title. Native title in Australia being the government recognising the traditional connection that the Indigenous people have with the land and waters. Mabo eventually won this case, the result not being that they could claim native title but that the possibility was
In 1992, the doctrine of terra nullius was overruled by the High Court in the case Mabo v Queensland (No.2) [1992] HCA 23. After recognising that the Meriam people of Murray Island in the Torres Straits were native title landholders of their traditional land, the court also held that native title existed for all
The lengthy period, undertaken by Aboriginal and Torres Strait Islander people, shows the resource inefficiency in relation to the Native title law reform. The Mabo V Queensland began in 1985 and concluded in 1992 where the High Court ruled the Australia was not terra nullius, reinstating the original Indigenous Australians with native title over the land. This case lead to the Mabo V Queensland (no 2) which resulted in the legislation Native Title Act 1993. This case took place in the High court of Australia proving very inefficient in the way of time and money, due to the high costs and long trial period. This legislation met
On August the 16th, 1975, Gough Whitlam, the Prime Minister at the time, organised a ceremony so that he could give the land back to the Gurindji people. At the ceremony, Whitlam grabbed some soil from the ground and said “Vincent Lingiari, I solemnly hand to you these deeds as proof, in Australian law, that these lands belong to the Gurindji people and I put into your hands part of the earth itself as a sign that this land will be the possession of you and your children forever.” And although the land had been given back, the name was not open to change until 1986, 2 years before Lingiari’s death.
The Mabo decision was a significant event for the civil right of Aboriginal and Torres Strait Islander people. Discuss.
The case was started by five Meriam people, Eddie Koiki Mabo, Reverend David Passi, Celuia Mapoo Salee, Sam Passi and James Rice. (Keon & QC, 2011) These men fought against the State of Queensland and the Commonwealth of Australia. In the early years, Mabo expelled from the island by Murray Council because of Mabo’s father, Robert Zezou Sambo was the leader of Murray islanders’ maritime strike at the same year when Mabo was born in 1936. The Mabo case was started in 1982; after ten years working on the litigation, the “Native Title Act” was passed in 1993. It signalled the success of the lawsuit and the rights of Murray people of their traditional lands, as well as Aboriginal people.
The term ‘Native Title’ refers to the right of Indigenous people to their traditional land. In Australia it has a legal significance of the right to an area of land, claimed by people whose ancestors were the original inhabitants of the land before European settlement. Also who can prove that they have had a continuous connection with the land. Native Title is the term given by the High Court to Indigenous land rights by the Court in Mabo and others v State of Queensland (No.2) [1992] HCA 23. The case required
Although many support Mabo in his pursuit of reconciliation, there are still people who have questioned Mabo’s credibility. There have been numerous sources supporting Mabo and casting positive views on his journey to reconciliation, as well as sources contradicting Mabo and questioning his credibility due to his past and other uncertain instances. A number of these uncertain instances include recalling exact conversations shared with his grandfather at the age of six and claiming to own sections of land in a variety of different areas (Australian National University, 2003). While many support Mabo for fighting for Indigenous Rights, others feel more could have been done for Indigenous Rights by the Government. Indigenous activist Noel Pearson states, 'The truth is that the Mabo decision ... was the minimum that could have been given with any decency. Far from giving Aborigines greater rights than other people, it has left them with less.' As well as Hal Wootten who also believes, 'The Mabo decision improved the situation a little. Those few Aborigines who have managed to hold on to their land despite 200 years of expropriation may now have their title protected against anyone except the crown, which can wipe it out with a stroke of the pen, without compensation. The only thing stopping State governments wiping out native title is that it would be racial discrimination which was outlawed by the Commonwealth Parliament in
The individual who had their rights infringed was Eddie Mabo, and the group who had their rights infringed were the native Murray island inhabitants who were the original custodians of the land. Eddie Koiki (his islander name) Mabo was born on Murray island, in the Torres Strait on June 29, 1936. A member of the Meriam people, who know the island as Mer, Mabo was adopted and raised by his uncle, Benny Mabo from whom he took his name after his mother’s death. Mabo was expelled from the island for breaking customary laws when he was 16, he moved around nearby communities and eventually settled down in Townsville where he married Bonita and started his family. Mabo first started questioning rights of land ownership in 1969, and started talking about ‘his’ land. The Murray islander’s ancestors were one of the strongest and largest aboriginal tribes centuries
“[t]he trial judge found that an aboriginal right could not be claimed unless it was supported by a special treaty and that s. 35(1) of the Constitution Act, 1982 accordingly had no
In essence, the Court found that oral history should be examined as a “legitimate form of testimony” given that Aboriginal culture and history is passed down through oral storytelling. Additionally, the Supreme Court reconsidered and outlined the tests that Aboriginal groups had to pass in order to prove that they have an Aboriginal title to the land the occupied. The tests laid out in this case was less severe than the one they previously used. Nevertheless, the burden of proving Aboriginal Title was still on Aboriginal groups. To put it differently, it is the responsibility of Aboriginal groups to demonstrate that they had Aboriginal title and “exclusive use and occupancy and, perhaps, continual use and occupancy.”
Many people across Australia regardless of being indigenous or not, have been asking for recognition for decades now. The formal process examining of how to achieve recognition has been ongoing since 2011. There have been two expert committees that have reported on the next steps working towards a meaningful and successful referendum for constitutional recognition and amendment of sections 26 and 51 for example. There are many ways in which a law or system of laws or values potentially may be ‘recognised’. At a grounded level, to say that Australian law should ‘recognise’ Aboriginal customary laws is to say that it should acknowledge them and their existence. This sense of ‘recognition’, though not a specifically
Before the case of Eddie Mabo, Indigenous Australian’s ancestral lands that they were raised on were claimed for British purposes and benefits. After crossing paths with land-rights advocates and legal minds, Eddie Mabo became of crucial importance to Indigenous Australian land law. Mabo was looking to seek a retreat from injustice concerning Indigenous Australians right to the land. After a ten year legal battle, often referred to as the ‘Mabo’ Case, six out seven High Court Judges ruled that: ‘The Meriam people are entitled as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands’. By showing that the Indigenous owned land as individuals and as families, and had clearly demarcated property boundaries, Mabo’s battle for land rights proved successful. This succession paved the way for fair land rights for Australia’s Indigenous people.
After the partial recognition of indigenous land rights in Mabo, the indigenous people of Australia have attempted to push towards indigenous ‘sovereignty’. These attempts were rebuffed by the courts in two prolific cases such as Coe v Commonwealth and Walker v New South Wales. In the Coe v Commonwealth case, Coe applied for leave to amend their statement of claim to assert that the Aboriginal people were a sovereign nation and his claims were decisively rejected. The Court argued that it cannot be supported that there was an aboriginal nation which has sovereignty over Australia. There was no sovereignty adverse to the Crown, residing in the aboriginal people of Australia, nor was
This speech caught the attention of a lawyer in the audience who advised Mabo to take the case to claim land rights in court.This case was officially taken to the High Court of Australia on the 20th May 1982 and became known as the ‘Mabo Case’. After ten years of hard work and persistence the High Court decided in favour of Mabo and the other plaintiffs. Sadly Eddie passed just before this decision was made but I know to see his hard work pay off would've meant the world to