Changing nature of ratio: Native Title Case Study

Question 1

What happened in 1788 ?

Answer 1

Britain ‘settled’ Australia

Question 2

What were the laws in Australia in 1788?

Answer 2

Based on the perception of indigenous people as ‘uncivilised’ due to their differing culture and legal system the land was considered ‘terra nulius’, land belonging to nobody
The land was considered to be under British law

Question 3

1889 case?

Answer 3

Cooper v Stuart

Question 4

Cooper v Stuart (1889)

Answer 4

Case: disputes Government power to take land
Indigenous Australians ‘physically present but legally irrelevant’
Endorses absence of indigenous laws - classifying Australia as a settlement
Australia is settled, the land belongs to the Government and British law applies

Question 5

1918 case?

Answer 5

Southern Rhodesia (was binding law in Australia because Southern Rhodesia was also a British colony)

Question 6

Southern Rhodesia (1918)

Answer 6

• indigenous people people have some civilisation, but it is too different to bridge the gap
• If customary rights were not in the nature of private rights the law of the Crown applied
• If customary rights were similar to private rights, they were extinguished by conquest by the Crown
• Even if indigenous people are at all civilised their native titled is extinguished by the Crown

Question 7

1971 case?

Answer 7

Milirrpum v Nabalco Pty Ltd (1971) (ruled by a single judge in NT - not high status in hierarchy)

Question 8

Milirrpum v Nabalco Pty Ltd (1971)

Answer 8

• Facts: Aboriginal community sued Nabalco (mining company) for land granted by the Commonwealth for bauxite mining
• Australian common law did not recognise any aboriginal rights to land
• If native title existed, rights were extinguished
• If not extinguished the plaintiffs would not be able to prove elements (did not say what the elements were)
• Acknowledgement of Aboriginals ritual and economic use of the land and that they had an established system of law
• • • Native title doesn’t exist, is extinguished or cannot be proved but does acknowledge system of law and economic use of land (but not property interest/claims)

Question 9

1982

Answer 9

• Eddie Mabo commenced proceedings against the Commonwealth and Queensland seeking a declaration that the land and waters around Murray Island were held by them under native title and were not extinguished

Question 10

1985

Answer 10

• Joh Beijke-Peterson introduced the Queensland Coast Islands Declatory Act 1985 which stated that the Islands off the coast of Queensland belonged to the Crown - aimed to abolish any existence of native title in these island and prevent the pursuance of Mabo’s case.

Question 11

1988

Answer 11

• Mabo sued the Queensland government arguing against their act.
• Preliminary proceeding
• Held: Queensland Coast Islands Declatory Act 1985 breached the Racial Discrimination Act 1975 and was therefore invalid

Question 12

1992

Answer 12

MABO Main case
Australian Common law recognises the pre-existing land laws of Indigenous people: overturned all earlier cases to the contrary

Question 13

Brennan

Answer 13

• Restarting would ‘fracture the skeleton’ of the civilisation so British laws must still be recognised
• The belief that Aboriginals were ‘barbarous or unsettled without a settled law’ is ‘false in fact’ and ‘unacceptable in our society’
• Claimed that international law rejected the terra nulius doctrine

Question 14

Two things required to claim native title?

Answer 14

• Prove native title

- prove native title hasn’t been extinguished

Question 15

Proving native title?

Answer 15

1. Existence of identifiable group
2. Traditional connection with or occupation of land under laws and customs - must be special and exclusive connection
3. Substantial maintenance of connection

Question 16

How can Native title be extinguished?

Answer 16

• Cannot be extinguished by acquisition of Sovereignty
• Can be extinguished by the Crown through grants or allocating land for public purpose. Native title can coexist with allocated land/public land but if there is inconsistency the native title is extinguished.
• Can be extinguished through disconnection - ceasing to acknowledge laws and customs, losing connection with land
• Can be extinguished through surrendering to the Crown

Question 17

1993

Answer 17

Native Title Act (Cwlth)

Question 18

1993 Native Title Act (Cwlth)

Answer 18

• Aims to recognise and protect Native Title (does not create Native Title: created through common law)
• Creates a mechanism for dealing with native title
• Regulate future behaviour over Native Title
• Temporary (later removed) right to Native Title holders to consult and participate in decisions of future actions such as grant of mining leases etc.

Question 19

1996

Answer 19

Wik v Queensland

Question 20

1996 Wik v Queensland

Answer 20

• Slight majority (3-4) ruled that pastoral leases did not necessarily extinguish all incidents of the Wik and Thayorre peoples’ native title
• Both pastoral lease and native title could co-exist
• • • Pastoral leases did not confer exclusive rights of possession - other cases of law needed to be determined on a case-to-case basis

Question 21

Political effects of Wik

Answer 21

• Farmers/miners very concerned over property rights

- Howard/National government promised to find conservative judges to put on the High Court

Question 22

1998

Answer 22

Native Title Ammendment Act

Question 23

1998 Native Title Ammendment Act

Answer 23

• Reduced Native Title holders right re mineral exploration
• Farmers etc. can diversify activities without negotiating with Native Title holders (allows for farmers to work the life to of the land before end of lease)
• Past extinguishment of Native Title can be confirmed
• Excludes Racial Discrimination Act in relation to validation of past acts
• Easier for state governments to extinguish native title
• Any right to compensation for Native Title must be printed before courts (often communities do not have money to go to courts)

Question 24

Yorta Yorta people

Answer 24

Occupied stretch of land in Murray-Goulburn region
European invasion: reduced population by 85%
Were forcibly relocated
Made 17 attempts to reclaim land between 1860 and 1993 with only a very small amount actually returned

Question 25

Yorta Yorta Case in Federal Court

Answer 25

Federal Court claimed the peoples had lost connection with their land because they ceased to occupy them - even though this was because of the forcible relocation

Question 26

Yorta Yorta Case in High Court

Answer 26

Supported Federal Courts decision - lost conneciton with land

Question 27

Yorta Yorta - High Court considered meaning of ‘traditional laws and customs’

Answer 27

• traditional is not just that which is passed through word of mouth
• traditional laws are those used before settlement - the people must live exactly the way they did 200 years ago

Question 28

Noongar people in Western Australia

Answer 28

Live in south-west corner of WA
Lost much culture
Many part of stolen generation
Trying to claim land in/surrounding Perth

Question 29

Federal Court: Bennell v State of WA [2006]

Answer 29

Noongar people granted 200, 000 square ams of Perth

Question 30

Appeal of Bennell v State of WA [2006]

Answer 30

Court found there had been
- No continuous acknowledgement and observance of the traditional laws and customs by the Noongar people.
- No proof of the Noongar’s connections with land or waters
(Precedent from Yorta Yorta)

Question 31

Noongar people now??

Answer 31

• Noongar people could appeal to High Court for Native Title
• WA government propose giving welfare, assistance etc. to Noongar people but they will have to give up the possibility of ever gaining recognition of the land