Eddie Koikoi Mabo was born as an islander in 1936 on Murray Island in the Australian Torres Strait. Mabo made the decision to work toward changing the laws because he was adamant that they were incorrect regarding Australian property ownership. (La Macchia, 1997). Mabo was raised in the Torres Islands, where, in accordance with Queensland Laws and regulations, the Australian government controlled the property.
Mabo, however, believed that the Torres Islander who had resided on the island for a long time should have been the rightful owner of the land. The beginning of the Mabo case 2 began following Mabo’s speech at the Queensland Cook University as he explained his personal beliefs concerning the land inheritance and ownership on Mer Island (Australian Government Solicitor Legal Practice Briefing No 5, 30 July 1993, Mabo v Queensland., [1993]).
Through his speech, a lawyer developed an interest and advised Mabo to challenge the government of Australia legally in court (Markus, Stephenson and Ratnapala, 1993). The court would, therefore, decide whether Mabo’s people or the Australian government was the actual owner of the Merland.
Mabo case discussion
Through the Queensland Coast Act of 1879, the Queensland annexed the Murray Island. The court needed to determine the effect of the annexation on the rights of the Merian residents’ people on their land. The Australian government through the annexation argued that since it had sovereignty over the Torres Strait island territories, the government had sole ownership of all the island lands and its areas including the Mer Island (Cheater, 2002).
The Mabo court held the legal case 2, the Mabo case in 1992, an acronym for Mabo and others v Queensland (No 2) of 1992. The court made the legal decision on June 3rd, 1992. In Australia, the High Court is the highest court within the judicial system.
In 1982 2nd may, Eddie Koikoi Mabo Led David Passi, James Rice, Mapo Sale and Sam Passi to legally claim their ownership rights of their Mer island land in the Torres Strait between Papua New Guinea and Australia (Cheater, 2002). The Australian Queensland High Court ordered the Supreme Court to determine the evidence that Mabo had on the case.
The determination of Mabo (No 2) depended entirely on some legal issues. Firstly, an essential legitimate concern was to determine whether the Mer islanders had any traditional interests in land rights in the Murray island lands (Cheater, 2002). If that was the case, how would the Queensland law protect their interest and rights? Additionally, when the natives had land titles, were the indigenous people entitled to compensation in cases where the people lost their lands?
Such legal concerns followed the State Parliament’s decision to pass the Torres Strait Islands Coastal Islands Act that stated in part that 'Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879, the Queensland government extinguished without compensation'. The act meant that the Islanders would lose their land without any compensation, practically denying them their rights to land ownership in Australia.
Immediately after the passing of the Act, Mabo took to the court to challenge the legislation. The High Court decided on the challenge (Mabo No. 1), stating that the Act conflicted with the Commonwealth’s Racial Discrimination Act of 1975 hence making the Act invalid.
The Mabo decision refers to Mabo, an individual who challenged the judicial system in Australia as he fought for the government to recognize the Torres and Aboriginal Islanders’ land ownership rights. Mabo (No 2) case was a historic ruling as it enabled the Islanders to have legal rights for land ownership and acknowledged the Islanders’ uniqueness and connection with their coastal land. The Mabo (No 2) case also led to the Australian Parliament to pass the Native Title Act of 1993.
The decision
The Mabo case (NO 20) took ten years for its determination until the 3rd of June in 1992 when a six bench majority judge made a ruling. The Australian High Court ruled that terra nullis is not applicable in Australia. The High Court’s decision recognized that the Torres Strait and Aboriginal islanders as a native people had land ownership rights. The rights were in existence before the arrival of the British, rights which still existed.
Although the decision came five months after Mabo's death and he did not live to witness the outcome of his legal pursuit, Mabo case No 2 allowed the Islanders to have constitutional rights to their lands and would receive compensation in case the government took their property.
Impacts of the High Court’s decision
The High Court’s decision initially received many welcome, actions which faded after it became even more divisive. Many islanders celebrated the Mabo’s victory which meant justice for the indigenous Australian citizens. Some believed it would be a way of reconciliation and maybe people began thinking of having a Republican new constitution.
However, a few months later after the High Court’s decision and the Aboriginal people had land rights; many critiques oppose it on the basis that it supported the guilt of the white people. Mining companies, for instance, argued that increase in land ownership would prevent the mining activities as the company had to get permission from landowners and also compensate them for their lands, affecting the national interest of the Australian government. The Australian Mining Industry Council made a full-page advertisement highlighting the impacts of the court’s decision to mining and the nation’s economy.
Additionally, Jeff Kennett, the Australian Prime Minister opposed the decision arguing that the Aboriginal land claims were a threat to the Australian backyards. However, the Primer later acknowledged his critics was false (Patton, 2001).
The High Court’s decision to allow the Aboriginal people have land rights and theory own titles has remained crucial to the Australia’s indigenous communities since Anglo-Australian law officially acknowledges the prior existence of the indigenous people. Australia is no longer a terra nullius.
However, some indigenous people have also criticized the decision arguing that the people are still working hard to achieve full land rights and self-determination. Irene Watson has commonly asserted that “Post-Mabo most people believe we have gained justice. We are still working for the same goal, land rights and self-determination, but we are also working harder than ever before, for now, we are also working on unmasking the illusion; the illusion that “the blacks have got it all.”
Shortfalls of the Native Title 4
The Native Title 4 refers to a legal system that recognizes the rights of Torres Strait and Aboriginal people having interests to and land rights because of their rational customs and law. Despite the decision allowing the Islanders to have land rights, the native title 4 has its weaknesses.
One of the outstanding shortfalls of Native Title 4 is that the rights that the native title grants are unlimited (Galloway, 2006). Instead, the powers depend on customs and traditional laws of the people claiming such land rights. The interest of others in the same land is also crucial and supersedes the Native Title (Silverstein, 2007).
Moreover, the requirement that an islander ought to have a title that the Native Title Act of 1993 recognizes proved a challenge. The Torres Strait and Aboriginal islanders ought to determine that they have had a continuous connection to the subject land and never have over the years carried any activities such as leasing or selling any portion of the area.
Preferably, the island must have had a connection to the land, an act that limits the people full ownership of the property. The black Australian Aboriginals appeared to have achieved everything and won against their perceived white enemies (Hill, 1995)
Future of the native title
The Native Title is essential especially in future land ownership as it outlines the recording and recognition of the fundamental interests. The title describes guidelines on how to deal with lands having constitutional claims. Presently, the identification of native title has increased to over two million square kilometers of land. The Native Land Title enables the setting out of land use agreements between the native title holders and others who may wish to access or use the property through land use agreements.
In conclusion, the decision on Mabo (No 2) case was vital as it challenged the British’s perception of Australia as a terra nullius (empty land – or land that belongs to nobody) and allowed the Aboriginal and Torres Islanders to have land rights and land titles (Scott, 2008). The decagons impacted both positively and negatively on Australia’s legal system, making the
Australian Parliament passed the Native Title Act of 1993 that gives constitutional land rights to the native Australian islanders (Markus, Stephenson and Ratnapala, 1993). Although the case had had a few challenges such as limiting the rights to depend on customs and traditional laws for full ownership, the Mabo case (No 2) has set clear guidelines for the working of the future of Australia’s land ownership.
References
Australian Government Solicitor Legal Practice Briefing No 5, 30 July 1993, Mabo V Queensland. [1993].
Cheater, A. (2002). Political Theory and the Rights of Indigenous Peoples. Edited By Duncan Ivison, Paul Patton And Will Sanders. Cambridge: Cambridge University Press. 2000. Xi + 323 Pp. Pb.: £15.95. ISBN 0 521 77937 5. Social Anthropology, 10(02).
Galloway, K. (2006). Is Native Title Law Destroying Native Title? SSRN Electronic Journal.
Hill, R. (1995). Blackfellas and Whitefellas: Aboriginal Land Rights, the Mabo Decision, and the Meaning of Land. Human Rights Quarterly, 17(2), Pp.303-322.
La Macchia, G. (1997). Edward Koikoi Mabo: His Life and Struggle for Land Rights, Noel Loos and Koikoi Mabo, University of Queensland Press, 1996, 206pp. Queensland Review, 4(01), Pp.91-92.
Markus, A., Stephenson, M. And Ratnapala, S. (1993). Mabo: A Judicial Revolution. Labour History, (65), P.235.
Patton, P. (2001). Reconciliation, Aboriginal Rights and Constitutional Paradox in Australia. Australian Feminist Law Journal, 15(1), Pp.25-40.
Scott, S. (2008). Terra Nullius And The Mabo Judgment Of The Australian High Court: A Case Study Of The Operation Of Legalist Reasoning As A Mechanism Of Political-Legal Change. Australian Journal of Politics & History, 42(3), Pp.385-401.
Silverstein, B. (2007). The Rule of Native Title. Griffith Law Review, 16(1), Pp.55-82.
