Mabo Flashcards
Name of the case
Mabo v. Queensland (No. 2) (1992)
What right was violated
Article 17:
- Everyone has the right to own property alone as well as in association with others.
- No one shall be arbitrarily deprived of his property
TERRA NULLIUS
Terra Nullius means Nobody’s land. According to the law even though Indigenous Australians had occupied the land for many thousands of years they did not own their land.
Native Title
“The recognition by Australian law that Indigenous people have rights and interests to their land that come from their traditional laws and customs.”
Justice Richard Blackburn clearly rejected the concept of native title in favour of terra nullius.
CUSTOMARY OWNERSHIP
Mabo and other islanders claimed customary ownership of their ancestral lands. Customary land is land which is owned by Indigenous communities and managed in accordance with Indigenous customs.
Principle of Sovereignty
The principle of sovereignty states that the Government has the full right and power to govern itself without any interference from outside sources or bodies such as the Indigenous people even though they were living in Australia long before British colonisation.
The decision
The judgment of the case occurred after 10 long years of fighting, six out of the seven judges agreed with the plaintiffs proposal and thus the High courts of Australia recognised that the native Indigenous people have rights to land, that these rights had existed before colonisation and still exist.
IMPACT PART 1: NATIVE TITLE
The purposes of the Native Title Act are:
Recognition and protection of native title.
Establishment of the method that native title dealings will proceed.
Establishment of a procedure for determining native title claims.
Providing for various other issues relating to native title.
IMPACT PART 2
The Mabo decision had a major effect on all of Australia, which still continues to this day. The rejection of terra nullius and the recognition of native title, has led to legislation being passed to clarify the decision and protect property interests. The case generated intense political debate and media attention was huge at the time and the case still today attracts lots of interest. The decision altered relationships between Indigenous and non-Indigenous people. By not only recognising the rights of Murray Islanders but recognising the rights of all Indigenous people, the decision has changed Australia and the Australian legal system forever
CONFLICTING VIEWS
The case divided the nation and there were many different opinions on the case.
Many disagreed with the case as they believed that this case would prove only beneficial for a very select minority of Indigenous Australians
Many people however saw it as a step towards abolishing discrimination.
Certain groups such as mining, agricultural and pastoral groups were outraged and felt it had a significant negative effect on their organisations.
Difficulties faced by parties in civil disputes
Unaware of their rights Long delays in court procedure High costs of legal representation Stressful adversary system Difficult to enforce court orders
Appeals
An important feature of our legal processes is the ability of individuals to appeal against a decision when mistakes have been made. As it is also important to finalise a matter as quickly as possible, appeals should not be allowed to go on indefinitely, and so our court hierarchy ensures this does not occur.
A person appealing against a decision is called the appellant. The other party is called the respondent. A court is said to be in its appellate jurisdiction when hearing an appeal.
Civil appeals can be made by either the plaintiff or the defendant on the grounds of a point of law. The trial judge may have misdirected the jury on how the law applied to the case, or on the amount of damages – for example, too small (as far as the plaintiff is concerned) or excessive (as far as the defendant is concerned).
