Indigenous Peoples And The Question Of Sovereignty - Public Law

Indigenous Peoples and the Question of Sovereignty

Page 179-191

Introduction:

• Mabo v Queensland acknowledged an older bond between Aboriginals and the land. Yet native title meant the Aboriginals had to prove an existent and consistent connection with the land. They avoided indigenous sovereignty.

• Wik v Queensland also showed that native title only existed when not extinguished.

Voting rights and the Constitution:

• Aboriginals were not allowed to vote in Queensland and WA.

• Women could only vote in SA and WA.

• At federation section 41 held that no person entitled to vote at state elections could be prevented from voting at federal elections. The Constitution was trying to protect voting rights.

• The Commonwealth Franchise Act 1902 gave women the vote.

• The Commonwealth Electoral Act 1918 was extended in 1962 through a referendum to include Aboriginals. It was again amended in 1983 to make voting compulsory.

• Before these amendments, the Electoral Commission denied Aboriginal enrolment even if they were in a state where they had voting rights. Section 41 did not guarantee enrolment.

• Even in the 1967 referendum, words were deleted from section 51 so Parliament could make laws for Aboriginals and from section 127 so Aboriginals would be counted in the census, did not remove discrimination. Aboriginals were not referred to in the Constitution, making the government able to pass disadvantaging laws.

• The Constitution begins by saying, “the people…have agreed to unite” and does not mention Aboriginals former claim to the land.

Aboriginal Land Rights Commission: Second Report (1974):

• The Whitlam government appointed Woodward J to report on Aboriginal land rights in the Northern Territory. He gives the broad objectives he believes should be followed:

• Aims:

  • Giving justice to people deprived of land.

  • Promoting social harmony in Australia.

  • Preserving Aboriginal spiritual links to the land.

  • Provision of land to economically depressed people.

• Achieving the aims:

  • Giving land rights.

  • Not whittling away any more rights without giving consent.

  • Compensation in the form of land.

  • Provisioning land.

Page 184

Mabo v Queensland (1992)- Established that although Australia was settled, it was not terra nullius.

Facts:

• Eddie Mabo and others brought an action on behalf of the Meriam people.

• They asserted that they had title to the Murray islands in the Torres Strait. This was impaired by Queensland’s 1879 annexation of the islands.

Remedy sought:

• Mabo wants to gain ownership of his people and ancestral land.

• The Queensland government wants to defeat the claim.

Prior Proceedings:

• The case was heard in 1986 in the Queensland Supreme Court. Mabo lost.

• The High Court reviewed the validity of the decision with 7 judges.

Arguments:

• Mabo argued that Aboriginals did have a pre-existing law system. Blackburn J in the Gove Lands right case (1971) reasoned that aboriginals did have an elaborate system adapted to the country and an ordered society with laws.

• Queensland argued that Blackburn J reasoned that Australia was settled by a matter of law and not fact. The British filled the legal vacuum of Australia with British law. Blackstone argued that Australia was desert and uncultivated and Aboriginals had a primitive society. The Privy Council in In Re Southern Rhodesia (1919) said that the Aboriginals were so low in social organisation and conceptions of rights and duties that it could not be bridged.

Legal issue:

• Was Australia terra nullius when the British settled there?

• Can Aboriginals claim land rights or have there rights been extinguished by settlement?

Outcome:

• The Queensland annexation legislation trying to defeat the claim to the land was defeated 4:3.

• It was held 6:1 that native title did exist. Only Dawson J dissented, saying native title was extinguished.

• Two propositions were accepted:

  1. In 1788 Australia was not terra nullius (belonging to no one) even though it was settled (did not challenge English sovereignty to Australia).

  2. In 1788 the crown gained radical title to Australia (they had the power to dispose of the land but did not own the whole country). They did not immediately and automatically assume full ownership of Australia.

Legal Reasoning:

• Brennan J gave the following reasons:

  • The common law of England justified removing Aboriginals from their land with a barbarian argument. They discriminated against them, their social organisation and customs. The common law should not be frozen in an age of racial discrimination. Due to international law, such an unjust doctrine can no longer be accepted.

  • The crown did not gain full and legal beneficial ownership of Australia with settlement. Territory must be literally terra nullius for this to occur. They had radical title and could only achieve beneficial title when they disposed Aboriginals through freeholds and leases.

  • He rejects Blackburn J in the Gove Land Rights Case. Where there is an identifiable community with continual laws and customs, still connected with the land, their native rights and interests should be protected.

• Deane and Gaudron JJ reasoned that native title can be extinguished by clear and unambiguous legislative action. However wrongful extinguishment might incur liability in damages and other limitations.

• Toohey J reasoned that under the Racial Discrimination Act, the crown of Queensland is under a fiduciary duty to recognise and protect the rights of the Meriam people. They must respect native title. If the crown limits native title rights with legislation it is a breach of obligation.

• Mason CJ and Mchugh J and Brennan J and Dawson J reasoned that wrongful extinguishment from land should not lead to compensation. They were the majority.

Ratio decidendi:

• There was no terra nullius when England settled in Australia.

• Aboriginals that have a continued relationship with the land and have kept their customs have native title rights over Crown land not in use.

• Their laws must have existed prior to 1788 or they have no legitimacy. There can however be some development in these laws.

Page 201-202

Native Title Act 1993 (Cth):

• Says that the traditional laws of the Aboriginals are acknowledged. They have a connection with the land and Australia recognises their rights and interests.

Page 202

Members of the Yorta Yorta Aboriginal Community v Victoria (2001)- Can native title rights be achieved when there is a break in the observance of the custom or when it is passed over to the government? It is argued how traditional customs and laws might be acceptably modified over time.

Facts:

• In 1881, 42 Aboriginals had signed away their land in a document to the government.

• Therefore the Yorta Yorta did not possess the land. This was a break in their cultural practices.

Remedy sought:

• The Yorta Yorta want native title rights to their land.

Prior Proceedings:

• In the Federal Court, Olney J found that the Yorta Yorta did not have native title because their customs and traditional laws had not been ongoing.

  • He kept referring to Brennan J in Mabo that the tide of history has washed away any acknowledgment of their customs.

  • An appeal to the Full Court of the Federal Court was dismissed 2:1.

  • Branson and Katz JJ declined to disturb Olney J’s findings of fact. They reasoned that if Aboriginals do not acknowledge and observe traditional laws and customs, then their native title ceases to exist.

  • They reasoned that a law or custom must be passed down from generation to generation. Yet the customs can evolve over time and change without impacting native title rights.

• The Yorta Yorta appealed to the High Court under Gleeson CJ, Gummow and Hayne.

Outcome:

• The Yorta Yorta claim was dismissed 5:2.

Legal reasoning:

• Gleeson CJ, Gummow and Hayne JJ reasoned:

  • Laws and customs of Aboriginals constitute bodies of normative rules which can give rise to rights about land.

  • Sovereignty of Aboriginals must only come from before 1788. Consequences of the crown’s sovereignty will be recognised if there was a continuance of legal order.

  • Aboriginal law can adapt and be altered with development but it must be ongoing. There must be old traditions from before 1788 for the Native Title Act to acknowledge traditional customs. If a society ceases to observe customs, its laws have ceased to exist or be meaningful.

  • Law does not exist in a vacuum. If a society ceases to acknowledge law then the society does not exist. If the former laws are adopted again, these laws are of a later society and cannot be described as the customs of earlier society.

Ratio Decidendi:

• There must not be a break in the laws or customs of Aboriginal communities since before 1788 if they wish to seek native title rights. Their customs however can evolve and change.

Page 214-233:

Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002:

• Whenever present beliefs or practices differ they can be...