Native Title And Indigenous People And The Law Flashcards
List Laws The Influence ATSI People
- 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o Australian Constitution, section 51 – right of IA affairs is given to states (repealed)
o Australian Constitution, section 127 - excluded IA from the Census (repealed)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)
List Major ATSI Cases
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]
Outline ATSI Treatment (both land and human right) Before 1967 Referendum
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
Outline ATSI Treatment (human rights) After 1967 Referendum
o 90% of citizens voted yes against removing s51 & s127
o Aboriginal affairs became a federal issue from this point on
List Area Areas of Disadvantage For Indigenous Australians
o Education
o Housing
o Employment
o Health
o Crime Rates
List Disadvantages In Health In ATSI People
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
Define Racial Vilification
Public act based on race, colour, ethnic origin, insult, humiliate, intimidate
Outline McMahon v Bowman (2000)
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
OutlineThe Racial Discrimination Act 1975 (Cth)
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
List Exceptions To The Racial Discrimination Act
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
Define Dispossession
The removal of people from their traditional lands
Define Martial Law
Military enforcement of civilians (overriding civil law)
Define Native Title
Common law doctrine recognising Aboriginal and Torres Strait Islander rights to the land
Define Nomadic
Travelling societies who settle down in multiple places
Define Customary Law
Rules that are followed because of tradition rather than a legally binding law
Define Terra Nullius
Land belonging to no one
Why Is Indigenous Law More Rules Than Laws
Indigenous law are more rules than laws because it applies to individual tribes or communities not to all IA collectively
Between What Years Did Terra Nullius Hold
1788 – 1993
What Was The Impact Of Terra Nullius On The Indigenous People?
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
List THREE Cases That Lead To Native Title Decisions
Major Cases
o Mabo Case (1988-1992) when Terra Nullius was overturned
o Wik Case (1996)
o Yorta Yorta Case (1994 - 2002)
Case Study: Milirrpum v Nabalco Pty Ltd (1971)
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
Outline The Native Title Act (1993)
This Act gives IA the right to reclaim land used by their ancestors
For Land To Be Claimed What Must Occur?
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
Define Indigenous Land Use Agreement (ILUA)
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
Outline Yarmirr v Northern Territory (2001)
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
Outline Bennell v Wester Australia (2006)
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
