Native Title And Indigenous People And The Law

Question 1

List Laws The Influence ATSI People

Answer 1

• Some laws that influence ATSI:
  o Australian Constitution, section 51 – right of IA affairs is given to states (repealed)
  o Australian Constitution, section 127 - excluded IA from the Census (repealed)
  o National Parks and Wildlife Act 1974 (NSW)
  o Racial Discrimination Act 1975 (Cth)
  o Racial Hatred Act 1995 (Cth)
  o Anti-Discrimination Act 1977 (NSW)
  o Aboriginal Land Rights Act 1983 (NSW)
  o Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
  o Native Title Act 1993 (Cth)
  o Native Title Act Amendment Act 2007 (Cth)
  o Native Title Act Amendment Act (Technical Amendments) 2007 (Cth)
  o Northern Territory National Emergency Response Act 2007 (Cth)

Question 2

List Major ATSI Cases

Answer 2

Major Cases to refer to:
o R v Williams (1976)
o Mabo v Queensland (1992)
o Walker v NSW (1994)
o Wik Peoples and Others v The State of Queensland and Others [1996]

Question 3

Outline ATSI Treatment (both land and human right) Before 1967 Referendum

Answer 3

o Terra nullius meant in the eyes of the law IAs weren’t treated well
o No criminal laws against European settlers against harming IAs

Question 4

Outline ATSI Treatment (human rights) After 1967 Referendum

Answer 4

o 90% of citizens voted yes against removing s51 & s127
o Aboriginal affairs became a federal issue from this point on

Question 5

List Area Areas of Disadvantage For Indigenous Australians

Answer 5

o Education
o Housing
o Employment
o Health
o Crime Rates

Question 6

List Disadvantages In Health In ATSI People

Answer 6

o IA male life expectancy – 71.6yrs
o Other Australian males – 80.2
o IA female life expectancy – 75.6yrs
o Other Australian females – 83.4yrs

Question 7

Define Racial Vilification

Answer 7

Public act based on race, colour, ethnic origin, insult, humiliate, intimidate

Question 8

Outline McMahon v Bowman (2000)

Answer 8

McMahon v Bowman (2000) – Bowman shouted insults to his IA neighbour and because public could have heard was ordered to pay $1500 + McMahon’s legal costs

Question 9

OutlineThe Racial Discrimination Act 1975 (Cth)

Answer 9

Racial Discrimination Act 1975 (Cth) allows all ppl to complain about offensive, abusive or racially motivated behaviour -> tries to balance rights between free communication & freedom from racial vilification

Question 10

List Exceptions To The Racial Discrimination Act

Answer 10

o Artistic works e.g. books, film
o Publications, discussions, debates for academic, scientific or artistic purposes e.g. publication on multiculturalism policies
o Fair and accurate report on matter of public interest e.g. news story, report of facts
o Fair comment on matters of public interest if it expresses person’s genuine belief

Question 11

Define Dispossession

Answer 11

The removal of people from their traditional lands

Question 12

Define Martial Law

Answer 12

Military enforcement of civilians (overriding civil law)

Question 13

Define Native Title

Answer 13

Common law doctrine recognising Aboriginal and Torres Strait Islander rights to the land

Question 14

Define Nomadic

Answer 14

Travelling societies who settle down in multiple places

Question 15

Define Customary Law

Answer 15

Rules that are followed because of tradition rather than a legally binding law

Question 16

Define Terra Nullius

Answer 16

Land belonging to no one

Question 17

Why Is Indigenous Law More Rules Than Laws

Answer 17

Indigenous law are more rules than laws because it applies to individual tribes or communities not to all IA collectively

Question 18

Between What Years Did Terra Nullius Hold

Answer 18

1788 – 1993

Question 19

What Was The Impact Of Terra Nullius On The Indigenous People?

Answer 19

o Loss of land
o Loss of homes/places of cultural value
o Loss of culture
o Loss of lives
o Forced dispersal of tribes/communities
o Ongoing social problems
o Had to prove they had native title claims to the land but virtually impossible to do if they had been driven off this land 200 years ago – hard to show written/documented proof

Question 20

List THREE Cases That Lead To Native Title Decisions

Answer 20

Major Cases
o Mabo Case (1988-1992) when Terra Nullius was overturned
o Wik Case (1996)
o Yorta Yorta Case (1994 - 2002)

Question 21

Case Study: Milirrpum v Nabalco Pty Ltd (1971)

Answer 21

o The Yoingu people went to the Supreme Court of NT over mining of traditional land
o First case claiming native title in Aust
o But the doctrine of Aboriginal title was rejected as at the time British law allowed colonisation of land that was occupied but had “uncivilized inhabitants”
o The judge ruled that although their society did actually have laws and structure since British law didn’t recognise native title the claim was rejected

Question 22

Outline The Native Title Act (1993)

Answer 22

This Act gives IA the right to reclaim land used by their ancestors

Question 23

For Land To Be Claimed What Must Occur?

Answer 23

o The claim must be based on traditional connection (in law & custom) to the area
o Traditional laws and customs continue to be acknowledged and observed by the IAs seeking Native Title –> virtually impossible as it is nature of culture that it changes over time
o That this connection has been either entirely or partially ‘extinguished’ (lost) by specific government actions
- E.g. selling the land or by dispossession policies – again difficult to prove

Question 24

Define Indigenous Land Use Agreement (ILUA)

Answer 24

Indigenous Land Use Agreement (ILUA) - Is a voluntary agreement between a native title group and other parties on the use and management of land & waters

Question 25

Outline Yarmirr v Northern Territory (2001)

Answer 25

o Yarmirr v Northern Territory (2001) allowed Native Title rights to sea and sea beds to the Croker Island community
- 1st case involving water rights

Question 26

Outline Bennell v Wester Australia (2006)

Answer 26

o Bennell v Wester Australia (2006) part of Perth fell under Native Title to the Noongar people (400 family names)
- 1st time major capital city was recognised to fall under Native Title

Note: Bodney v Bennell case (2008) disputed this claim and although Bodney’s appeal was rejected the court did find lots of discrepancies made by the presiding judge on the continuity aspect of native title law & reduced the native title rights of the Noongar people