International Law(A) Essay, Research Paper
Australia Territory ContinentIntroduction [1.1] Australia has always been regarded as terra nullius under International Law. Terra nullius is a “territory belonging to no state, that is, territory not inhabited by a community with a social and political organisation. In International Law, effective occupation is the traditional mode of extending sovereignty over terra nulliua”1. In 1788, on the advent of discovery, the British became legal occupiers of Australia. Coincidence with the British Crown’s acquisition of Sovereignty was the importation of all British laws into Australia. Although Australia was inhabited by Aborigines before European settlement, their presence was ignored by the British because they were regarded as barbaric, primitive and individuals rather than communities. Therefore, if ever they had any native title to land, this was not recognised by the British. [1.2] The first attempt made by Aborigines seeking legal recognition of native title to land was a failure in the case of Milirrpum v Nabalco Pty Ltd2. However, in the case of Mabo & Others v The State of Queensland (No.2)3 native title was legally recognised and protected under the Australian common law. Part of the Commonwealth Government response to the Mabo decision came in the Native Title Act 1993. In order to understand the effect of these two on Australian land law it is first necessary to grasp an appreciation for their contents. Then an examination of the effects so far and the future upon Australian land law as a result. Background to Mabo Case [2.1] In 1982, Eddie Mabo and four others issued a writ in the Brisbane Supreme Court to counter-act the Queensland Land Act 1962 wherein Bjelke-Petersen’s government created proposals to vest title to reserves in Councils by means of Deeds of Grant in Trust4 . [2.2] The plaintiffs wanted recognition of Murray Island ownership deriving from Meriam law and not Queensland law. Furthermore, they did not approve of having their interest vested in the Council as trustee due to the fact that Meriam law recognises individual and family land title as opposed to communal ownership. With a narrow majority of 4-3 in the Supreme Court of Brisbane, the case was given leave to be heard in the High Court. The judgement was finally to be handed down ten years later in June, 19925 . [2.3] Their first claim was achieved by the High Court wherein a majority of 6-1 recognised native title to land deriving from Meriam laws and customs. So it was decided that the Meriam people as a people owned Murray Island. The decision in Mabo is a legal revolution6. It overturned 200 years of assumptions about the foundation of British law in Australia7. Previous Common Law & Mabo [3.1] It can be seen that the Crown’s acquisition of sovereignty in Australia led to the adoption of terra nullius. This gave the Crown not only power to rule and the radical title as ultimate land owner, but also the beneficial ownership of the whole land in the territory, which it was then free to do whatever it so wished. Terra nullius did not seek to extinguish native title, but rather state that there was no native title on the land to start with8 . [3.2] In the 1847 case of Attorney General v Brown9 a man who found some coal on land felt that it was his. When an action was brought by the Attorney General against him, he pleaded that land in Australia did not apply to land in England, and hence British law should not apply. However the Full Court of the Supreme Court of New South Wales said, “we are of the opinion since the first settlement in 1788 that all land vested in the Crown” the court went on to find there to be no reason why the law of England should not apply to Australia. [3.3] In the case of Coe v Commonwealth10 it was argued that Australia was not settled but rather conquered and hence, a conqueror can only do so much as is compatible with the interests of the country. As such, the constitutions of those conquered shall still exist. However, the High Court found that Australia was not conquered but rather settled. Aboriginals were considered as part of the flora and fauna and had no real laws or sense of organisation. [3.4] In the case of Milirrpum v Nabalco11 the plaintiffs argued that, because their communal native title was violated, the mineral leases in question were invalid. The plaintiffs failed in their action, even though they had been able to prove that their ancestors had a recognisable system of law. The plaintiffs had been unable to demonstrate that they had a correlation with the land which could be precisely called a “proprietary interest” under the white law. Blackburn J held that the doctrine of communal native title did not form and never formed part of the law of Australia. He went on to make a distinction between settled and a conquered or ceded colony in stating: “There is a distinction between settled colonies, where the land, being desert and uncultivated, is claimed by right of occupancy and conquered or ceded colonies. The words desert and uncultivated are Blackstone’s own… it has been taken to included territory in which lived uncivilised inhabitants in a primitive state of society. The difference between the laws of the two kinds of colony are immediately in force there upon its foundation. In those of the latter kind, the colony already having law of its own, that law remains in force until altered.”12 [3.5] However, in Mabo the doctrine of Terra Nullius was rejected. As a result of this rejection, native title in the form of beneficial ownership had survived the Crown’s annexation of sovereignty and radical title13. It is this beneficial ownership that is being claimed today by indigenous people on unalienated Crown Land. Blackburn J. failed to properly examine the existing culture and systems of law developed by indigenous Australians before the British arrived. How then can the Justice properly say that Australia was settled before properly assessing whether such systems of organisation existed? Just because land is left untilled and unmarked does not mean title does not exist. The idea of the Doctrine of Tenure – that is, land shall always belong to someone – if not in the Crown then seems to exist14. [3.6] With the common law recognition of native title in Australia by the highest court in the land has dispelled the poor judgements made in earlier common law cases and initiated a first step towards reconciliation of land to the Aboriginal people, where it was seen fair and equitable. [3.7] The judgement of Brennan J in Mabo noted nine essential points relating to the common law, which laid the ground work as to how native title should exist in Australia. Brennan J felt that the Crown’s acquisition of land was justiciable (it is an act of the state); he felt that upon acquisition of sovereignty, the Crown also received radical title (which means to say that the Crown did not derive its title from a superior title); that native title survived the acquisition of sovereignty; that inspite of the existence of native title, the Crown may extinguish it by making a grant inconsistent with native title, eluding that freehold was not available to indigenous Australians; that in the case of national parks and such, where a freehold interest does not exist, native title can exist side by side; that native title, its incidence and those who are entitled shall be those people only involved and no others; that native title may be surrended to the Crown, but it can not be transferred to other non-indigenous people; that since native title was dependent on customs and traditions, if a group of people disown their customs or lose attachment to the land, that title is extinguished; and finally that wherever native title is extinguished, then that interest reverts to the Crown15. [3.8] These criteria that Brennan J draws on are reflected in the Commonwealth’s later recognition of the Court’s decision in the Native Title Act 1993 (Cth). The criteria for claims by indigenous Australians seem almost impossible at times, but not without just cause. The criteria act as a prevention from false or misleading claims, but it also seems to make it more of a task to those who are legitimate in their claims, but are almost put off by the requirements to achieve a successful claim16. [3.9] Toohey J in his judgement found the existence of an enforceable fiduciary relationship between governments and indigenous communities. The Justice felt, based on the facts, the Queensland Government in selling land off to developers for a tourist complex violated the wishes/interests of the indigenous titleholders were in breach of their fiduciary duty and were liable in damages. This provided for the protection to vulnerable communities against oppressive governments over and above the Racial Discrimination Act 1975 (Cth)17. [3.10] Toohey J felt that a constant occupation of land was not necessary for native title to be granted, a mere visit from time to time may constitute occupation and legal possession. The implications of Toohey’s J judgement to Australian land law opens a new area for non-traditional Aboriginal and Islander communities across Australia who remain on or in close association with their ancient lands, to consider a claim for native title to those lands18. Impact of Mabo [4.1] As a result of the Mabo, the crown acquired sovereignty and radical title, but burdened with pre-existing native title. This title is determined in accordance with traditional law and customs19, where Blackburn J in Milirrpum refused to acknowledge. [4.2] The decision in Mabo made it clear that when the sovereign grants an interest wholly or partly inconsistent with native title, that title would be extinguished to the extent of the inconsistency. The test is based on a clear intention of the sovereign to do so20. [4.3] The decision in Mabo felt that freehold grant would extinguish native title. At present it is felt that leasehold grants extinguish native title due to the fact of exclusive possession, unless the terms express otherwise21. [4.4] One must note the government nor courts have recognised minerals on land as falling within native title, and state that such minerals still belong to the Crown. This still allows mining to continue where mining companies have permission from the native title owners and may pay occupation rent on their properties22. [4.5] Mabo has affected the disposition of land. A crown grant of title may be transferred to another. Therefore, it is a title that is alienable and can be disposed of by will to another individual. On the other hand, a native title: “is a communal title, based on membership of a tribe or other group, with no concept of individual entitlement. But this is not a necessary feature, and the Murray Islanders are no exception. Aspects such as inheritance of rights under native title, or 1 transfers of rights, or the entitlement to hold title, will depend on the laws and customs of the natives (Brennan at 44).”23 Clearly in here, the Latin maxim, nemo dat quod non habet is applicable. [4.6] However, it must be also mentioned that native titles can be alienated by surrendering to the Crown where, for instance, the Crown intends to turn certain native land in national parks (where Aboriginals can enjoy the land side by side). Another situation arises when rights are granted to non-members in the form of licenses and permits. The licensee does not have exclusive possession. His interest in the land is determinable. For example, a man who marries into another community may acquire a right to use a parcel of land for as long as he resides in that area. Such a right is retained when the ‘lease’ expires. Hence, native title may be granted in the form of licenses or permits but it can never be transferred or sold to non-members of the group24. [4.7] One must note that native title and freehold land can be acquired by the Crown as bona vacantia as pursuant to s20(v) of the Property Law Act 1974 (Qld). This is made possible if a group becomes extinct or if the people cease to acknowledge the laws or customs of the group. Furthermore, native titles and Crown grants of title are both legal rights that can be protected, where appropriate by legal action25. [4.8] The effects of Mabo are long and far reaching, not just upon land law, but potentially into other areas of law, such as criminal law. The case of Walker v New South Wales26 highlights this, although such a recognition of separate laws was dispelled, with further recognition of native title to indigenous Australians, one can only question the recognition of their law and whether they should be subject to other laws. Native Title Act 1993 (Cth) [5.1] Following the Mabo decision, the Commonwealth Parliament took heed of the comments expressed by the majority justices and enacted the Native Title Act 1993 (Cth) (NTA). Criticism however has come from the Constitutionalists who believe that the decision by the High Court was more political rather than judicial, and breached the doctrine of the separation of powers. However the acknowledgment of the decision by the Commonwealth government in its legislation has brought justification to the High Courts decision27. [5.2] The preamble of the NTA sets out considerations taken into account by the parliament in enacting this law, summarises the High Court’s stand in Mabo, and how this led to a fundamental change in Australia’s land law. The NTA was only intended to be a starting point and framework for response to the native title issue. Its operation seems to take effect in three main ways: recognition and protection of native title; confirmation of past acts which were invalid under the Racial Discrimination Act 1975 (Cth) due to their effect on native title; and regulation of future acts concerning land subject to native title28. [5.3] The first point involves acknowledging that native title exists under indigenous law, whether recognised or not. However, only title that is recognised by the common law will be protected, and only by the means provided in the other two aspects. [5.4] The second point shows that acts which extinguished native title before October 31st 1975, when the Racial Discrimination Act came into substantive effect, are valid and the extinguishment will not be redressed. (The resulting question is that, if validation of acts that occurred during the last twenty years should give rise to compensation, why should acts before that point not also give rise to compensation? It does seem practical to not look back too far at individual acts, but rather focus on returning land or providing compensation on a regional basis where the past is too complex or buried. However, this date is one of convenience, not a principled attempt at justice.) [5.5] Acts between that date and 1st January 1994, when relevant parts of the NTA came into substantive effect, are invalid to the extent that they are inconsistent with native title and breach the Racial Discrimination Act. These can be validated by legislation consistent with the NTA, but that involves compensating native title holders. Also, it is possible, (but unlikely,) that some past acts may not be validated. [5.6] The third point mainly introduces the idea of negotiation by native title holders where a government is considering affecting native title. It also covers surrender of native title to governments or authorisation of future acts affecting native title; and permissible future acts, which are basically any acts that affect native title in the same way that they would affect ordinary title. [5.7] It should be noted that the NTA provided for the establishment of the National Native Title Tribunal (NNTT) in early 1994. Facts show that maybe the effectiveness of both the NTA and the NNTT created by it should come into question. The NNTT, having received nearly 120 native title applications has still yet to come to a final determination. Even though the NNTT has been given the judicial function of making binding orders as previous to where earlier tribunals could only make persuasive recommendations. Still, the NNTT is reluctant to make any final decision for the fear of favouring unfair interests outside of what the scope of the NTA was made to cover29. [5.8] Further, the establishment of the NTA has come into question by the Western Australian government in the recent case of Western Australia v Commonwealth30. The West Australian government alleged that the Commonwealth, in passing the NTA had no right under the Commonwealth constitution to legislate in the area, nor any s109 right to render state laws invalid in the area. However, this idea was rejected by the High Court of Australia. In passing, the High Court said the NTA did acknowledge that there were indigenous rights (such as fishing and hunting), but in no way did the NTA extend to such matters. [5.9] It should also be noted the NTA also made provision for a range of other matters, including the establishment of a National Aboriginal and Torres Strait Islander Land Fund31. Other Effects [6.1] There is no doubt the decision in Mabo has raised allot of eyebrows amongst many people and organisations in Australia. From Miners to the honest Joe who has his quarter acre in suburbia. Mabo has meant a greater appreciation of Australia’s unique system of land law in Australia by all Australians. Mabo has led the way in a push for a greater emphasis of study in land law at both secondary and tertiary level today. Obviously with this has come more resources and information related to land law today. Both local and international. [6.2] Another effect of the Mabo decision and NTA has been the need for more land lawyers in the area with an appreciation and understanding of the impact of native title in Australia and how to properly claim under the NTA. Mabo has brought a true understanding by all Australians of the plight of indigenous Australians to land rights and the often ludicrous misgivings many Australians once had such as in the almost paradoxical Bi-centennial celebrations in 1988 “of a nation”. Future of Native Title in Australia [7.1] There is no doubt the Mabo decision and the NTA have rewritten Australia’s legal history and helped lay down a new set of principles by which native titles can be claimed. It is hoped that now with a fairer system which follows the common law world, Australia can strive for a fairer more workable system of land law which reflects the true diversity of Australian culture. That is, a system acknowledging the existence of its indigenous people which have developed laws and customs which should be appreciated and understood. Footnotes 1 definition from The CCH Macquarie Concise Dictionary of Modern Law, p129. 2 Milirrpum v Nabalco (1971) 17 FLR 141. 3 Mabo & Others v The State of Queensland (No.2) (1992) 175 CLR 1. 4 Crommelin, M. Law Institute Journal. vol 67, no 9 1993. p809. 5 Keon-Cohen, B. Aboriginal Law Bulletin. vol 2, no 56 1992. p22. 6 Id. 22-23. 7 Gottliebsen, R. Business Review Weekly. vol 15, no 29 1993. p6. 8 Heckenberg, W. The Bulletin. vol 42, no 25 1993. p7. 9 Attorney General v Brown (1847) 2 SCR (NSW) App 30. 10 Coe v Commonwealth (1979) 53 ALJR 403. 11 Milirrpum v Nabalco (1971) 17 FLR 141. 12 Id. 201. 13 Mabo & Others v The State of Queensland (No.2) (1992) 175 CLR 1 at 58. 14 Neave, M. & Rossiter, C. Property Law: Cases and Materials (5th ed., Sydney: Butterworths, 1994) 190-195. 15 Bartlett, R. The Mabo Decision (Sydney: Butterworths, 1993) 8-9. 16 Sykes, T. Australian Business Monthly. vol 13, no 10 1993. p32-37. 17 Keon-Cohen, B. op.cit. 23. 18 Id. 22-23. 19 Sullivan, A. The Bulletin. vol 42, no 25 1993. p22-23. 20 Mabo & Others v The State of Queensland (No.2) (1992) 175 CLR 1 at 69. 21 Id. 44-45. 22 Gottliebsen, R. op.cit. 6,8. 23 Gregory, M. Alternative Law Journal. vol 17, no 4 1992. p160. 24 Bartlett, R. loc.cit. 5-26. 25 Mabo & Others v The State of Queensland (No.2) (1992) 175 CLR 1 at 44-45. 26 Walker v New South Wales Unreported High Court of Australia case, delivered as No. C8 of 1994. 27 Neave, M. & Rossiter, C. loc.cit. 39-40. 28 s.10. Native title is recognised and protected, in accordance with this Act. s.223(1) The expression “native title” or “native title rights and interests” means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: as described in act (a),(b) and (c). 29 Neave, M. & Rossiter, C. loc.cit. 38-40. 30 Commonwealth v Western Australia Unreported High Court decision handed down in 1995, can be found on the Unreported Judgements CD ROM at the James Cook University Library. 31 Neave, M. & Rossiter, C. loc.cit. 39-40. Bibliography Bartlett, R. (ed) The Mabo Decision. (Sydney; Butterworths, 1993). Blainey, G. ‘Mabo in black and white’ (1994) 14 (3) Australian Business Monthly 92-95. Brennan, F. ‘Mabo’s Case’ (1992) 1 (2) Constitutional Centenary 12. Butt, P. Land Law (Sydney, Law Book Co., 1988). Coombs, H. ‘Grasping the Mabo opportunity’ (1993) 13 (10) Australian Business Monthly 38-41. 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