Oxbridge Notes | Indigenous Peoples And The Question Of Sovereignty |

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:

Prior Proceedings:

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...

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Indigenous Peoples And The Question Of Sovereignty Notes