Indigenous Australians and the System of Law and Justice Flashcards
Descrie how Australia’s common law system of law and justice has treated indigenous Australians
Customary laws that Indigenous Australians followed were overlooked.
Indigenous Australians mistreatment included discrimination, dispossession and were segregation rom society
How did lack of reconigition of legal and human rights of Indigenous Australians influence their actions?
Crime rates increased among Indigenous Australians who not only had a negative social stigma attatched to them but were segregated from society causing psychological and financial problems
Why were Indigenous Australians land ownership overlooked by new settlers?
Indigenous Australians had a nomadic way off living hence land ownership was not legally recognised according to common law.
What was a milestone in recognising Indigenous Australian’s land rights in common law?
The Mabo litigation Eddie Mabo and other Islander groups made for recognition of their land ownership rights
High Court of Australia established *Mabo v Queensland 1992. *
This recognised Australia was not terra nullius, with land being occupied. However, the law would only take effect and recognise their land rights if a group of Aborigines or Torres Strait Islanders were able to demonstrate their traditional land rights prior British settlement.
What Act did the Parliament pass after the Mabo v Queensland 1992?
The amended Act, Native Title Act 1993 (Cth) was passed by Commonwealth Parliament due to uncertainties whether the native title was applicable if claimants did not maintain their connection with land and land tenure by public if the land were possessed by Indigenous Australians
What did the Federal Court set up along with the Native Title Act 1993 (Cth)
The federal Court established the **National Native Title Trimunal **
who was responsbile for overlooking and abjudicating native title claims and disputes.
What did the Native Title Act 1993 highlight in terms of the state government or other parties use of land protected by native title?
State government and other parties must negotiate with good faith with native title holders
This is based upon ‘future acts’ for parties who wish to use land protected by Native Title for commercial or agricultural purposes.
What decision ensued the Native Title Act 1993
What were the provisions?
*Wik Peoples v The State of Queensland (1996) (Wik Decision) *
is a decision of the High Court of Australia in December 1996, regarding the right of access by the Wik peoples of Cape York Peninsula in North Queensland to Crown land held under pastoral leases for cattle grazing. Majority in HCA decided (4 judges to 3) that the rights of indigenous people who can prove a connection to the land can coexist with the rights of the leaseholders (or pastoralists), but where there is any inconsistency between the two, **the rights of the pastoralist will prevail. **
In other words, pastoral leases do not automatically give exclusive possession to the pastoralist, and therefore do not necessarily extinguish native title. This had been a major assumption upon which the Native Title Act 1994 (Cth) had first been drafted.
The Howard government passed the Native Title Amendment Act 1998 (also known as the “10 point plan”) in response to the Wik Decision.
Why did the high court judges make amendment to Native Title Act 1993?
Uncertainties regarding whether Native Title Act should apply pastoral and mining leases
Was the Wik Decision popular ?
The Wik decision led to expansion of Native Title claims
What did some states do under the Wik Peopls vs Queensland (1996)?
They conferred mining leases for land that was entitled to Native Title Act without negotiating with Native Title Act claimants.
What did Wik decision do to mining and pastoral companies?
How did Federal Parliament respond?
Reduced ability to conduct mining and pastoral activities on land that held native title
The federal parliament made amendment and passed Native Title Act 1998 which leaned in favour to mining and pastoral companies
What were the amendments made to the Native Title Act consist of?
In the Native Title Act 1998, it leaned interests of patoral and mining companies by abolishing the need to negotiate for mining grants
States were permitted to confer mning leases or grants that would not have been allowed under Wi
What did HC decide in Mabo in relation to the role of the Crown
Crown’s radical title coexists with native title. However, the Crown had power to revoke native title if the crown decided to use the land such as selling it.
What did terms in pastoral leases determine?
it would determine whether native title and pastoral lease could co-exist
