AREA OF STUDY 4 - PowerPoint Presentation

Slide1

AREA OF STUDY 4

A question of rights

PART 8Slide2

In this area of study, you will consider the case of:

Mabo

v Queensland (No 2)

(1992) 175 CLR 1Slide3

8.1 The role of an individual or groupSlide4

A test case

There are many ways that the law can be influenced or changed. One of the ways that the

common law

can change is through a

test case

.

It is mounted to establish a precedent

in an area of

law

in which no current precedents exist

These are cases that may try to correct a problem with the law; seek recognition of a previously

unrecognised

right; test whether a piece of legislation is constitutionally valid, or push the law in a new direction.Slide5

Results of a test case

Test cases can result in a significant change in the law. They are sometimes launched by individuals or interest groups with the intention or effect of:

correcting a

defect

in the law

challenging the

validity

of a law

clarifying a

gap

in the law

bringing greater political, academic and social

awareness

to an issue

gaining

international attention

about an issue.Slide6

8.2

Mabo v

Queensland (No. 2)Slide7

British Settlement

In 1770 Captain

Cook claimed the

land we now call Australia as

British

territory. He was able to do this because under international law at the time Cook could claim land that is

Terra nullius

Terra nullius

is a Latin term meaning land belonging to no one, or uninhabited land.

It was a

doctrine of international law

used by the British to claim ‘uninhabited’ Australia as their own and import British law into Australia.

The impact of British settlement on Australia’s Indigenous population was severe, with many driven off their land, forcibly removed, placed in reserves, or sometimes killed by British settlers.Slide8

Land rights not recognised

Although the land was inhabited, the British did not recognise the Aboriginal people as having any legal title over the land.

There was no written legal titles of land although in fact the Aboriginal groups that lived in different parts of the country had their own system of ownership and usage

The British made no attempt to learn about how this system worked

Aboriginal

use of the land was well established

for

tens of thousands of yearsSlide9

Indigenous relationship to the land

Aboriginal people inhabited the continent of Australia around 40 000 and 60 000 years

Around 250 different indigenous nations existed before British colonisation, each had its own language, culture, traditions

They lived a nomadic hunter-gatherer existence

Each recognised the territory and boundaries of the neighbouring clans

Land was not owned by individuals but shared by members of a clan

There was a strong spiritual connection to the land Slide10

Eddie Mabo

; Background

Eddie

Mabo

was born on the Murray Island in the Torres Strait in 1936

He grew up with the traditions of his people, using the land and sea in family groups to survive

In 1967 he moved to Townsville and worked as a gardener at a University where he met many academics

One of these friends was Henry Reynolds, a historian who researched the relationship between Indigenous people and early years of European settlement Slide11

Launching a test case

During his discussions with Reynolds and others Eddie realised that his people did not legally own their land

He was invited to speak to lawyers and academics at a conference about the traditional land ownership and inheritance system on the Murray Island

The time was right to launch a test case before the High Court to challenge the Queensland Government’s control of the Islands of the Torres Strait. Slide12

Mabo

was a long-running case

launched by the Meriam people of the Murray Islands to challenge the

validity

of

state land laws

and seek recognition of rights to

land for the Aboriginal people

It involved the High Court considering the application of Australian law to the rights of Indigenous Australians, in particular regarding the

legal concepts

of

terra nullius

and native title.Slide13

Native title

is a legal right of Indigenous Australian communities to live on and use traditional land with which they have an ongoing association.

It can belong to a group or community, based on the traditions and customary law of that group.

It is important because it legally recognises that the customs and traditions of Indigenous Australian communities have existed since prior to European settlement and continue today.Slide14

From 1985 and 1992, Eddie Mabo and other residents of the Murray Islands in far north Queensland took action on behalf of the Meriam people against the Queensland Government.

They sought recognition of their rights to the land they inhabited, which Queensland was trying to deny.

The first case questioned the validity of a Queensland state law that tried to limit their rights, while the second case (called

Mabo (No. 2)

) concerned the right to occupy and control the land.Slide15

In May 1992, in a

six to one judgment

, the High Court

overruled

the original application of

terra nullius

in Australian law.

It recognised that Indigenous communities had always had, and continued to have, customary laws and traditions that formed the basis of their rights and interest in the land.

The case

introduced native title

into Australian law and awarded the

Meriam

people native title rights over the Murray Islands against the Queensland Government.Slide16

Following the outcome of the case, the Commonwealth Government introduced the

Native Title Act 1993

(

Cth

), which confirmed the rights set out by the High Court in

Mabo

and clarified the processes for making a claim.

The case had an

enormous impact

on the concept of Australian law for all Australians. It

recognised

that law in some form existing prior to the importation of British law, and that the same particular rights of Indigenous Australians continue to this day.