Native Title Law Reform Australia Essay

Mabo and others v State of Queens set cut down (No.2 (1992) HCA 23, is arguably one of the closely famous aboriginal form of address says in Australian history. This case was the start-off in Australian history to successfully overturn Terra Nullius and essenti tout ensembley conduct to the creation of the ingrained Title Act 1993 (Cth) (The Act). Terra nullius means debark be desireing to no one or bestow that has never been effect to sovereignty of some(prenominal) state and is a part of International Law. The court-ordered age of Indigenous pile view terra nullius in a negative way, as this term had been used as a means for justifying invasion or takeovers of traditional push down. The result of terra nullius on ATSI ( original and Torres Straight island-dwellers) meant that they have suffered countless disparage doings and injustice towards them.ATSI were non seen as official Australian citizens fit to the law until 1967. This meant the law offered no protection of basic benevolent rights or land rights resulting in crowing losses of spiritually signifi corporationt land. The branch case to take pegal action over land rights was the 1971 Gove land rights case. The Yolngu citizenry took legal action against Nabalco Mining Company in the Yankee territory Supreme move. The Yolngu peck claimed that Nabalco Mining were illegally mining on their land (the Gove peninsula) without approval. However a number of set backs were encountered such as terra nullius non allowing for native title and the Doctrine of Reception which effectively outline that in one case a pastoral (in this case Britain) has colonized a territory, that countrys law now automatically applies, overruling any previous laws that were once in place. For the Yolngu people this unfortunately meant that their claim was rejected in 1971 (by umpire Blackburn) as the Australian legal system did not have to put up up by Native Yolngu land laws. This caused further cultural di vide amidst the Indigenous customary law and the position legal system.Native title is the right of Indigenous people to their traditional land.(Cambridge Legal Studies, preliminary, pg 98). The English legal system had a very different approach when it came to property rights, Aboriginal Peoples divided land according to the amount of space needed to give up for a large number of people in accordance to how more than food for thought there was available in that atomic number 18a, for example clans living approximately coastal regionsneed far less space to find food than a clan living in the outback as food there is few and far between, this is how land was divided. Were in contrast to the English system we see individual property rightsEddie Mabos lifelong battle for social, human and land rights for the Torres Straight People is an admirable one still remembered directly as the first gear successful claim of Native Title and the first overturning of terra nullius. The Do ctrine of reception made the challenge of proving traditional ownership veritable(a) more difficult unlike past cases such as the 1971 Gove land rights case. Murray Island was different Murray Island had distinct borders it also had a mythical God called Malo (pronounced Mare). Malo is the obtain of Meriam heritage and culture.Malo can be seen as a form of plebeian Native Law. Land ownership, responsibilities religious beliefs and ritual dances were all covered at heart Malo law providing the groundwork of an affective case against the state of Queensland. Malo has existed for as long as the Island and its Native People and was therefore a valid eyepatch of evidence in both Mabo cases. Eddie Mabo was able to prove that land was passed down from father to son, generation to generation thanks to Malos law and tribal dances. Malo, or Bomai, which is his secret and more sacred name, established the laws which decreed that clans must stay fresh to their own paths, swim with their o wn kind, sow their lands and conserve the seas. From Malo Bomai matter in Mabo The Native Title Revolution.The affective criterion for achieving justice involves a number of elements each being interdependent of one another and solely when used as a whole can are they of any good affect. When assessing the effectiveness of Native Title Law Reform fairness, equating, inlet and efficiency need to be considered. As fairness has been a large issues of concern for Aboriginal People in the Past, Civil disputes involving Aboriginal land rights certainly begs the questions of who is at fault? When taking legal action for Native Title claims the plaintiff must prove that they owned the land antecedently and are therefore entitled to claim it. Burden of proof has not been fair in this situation as the traditionalistic Land was not received lawfully but was taken from underneath them without a leg to stand on.Therefore if this system were to be fair than it should be up to the ownersof the land to prove they came by the land in agreement with Traditional Indigenous Owners. The second issue is equality. Equality is difficult to achieve as the law can lead to injustice if everyone is treated the same. Disadvantaged people whitethorn include, Indigenous and Torres Straight Islanders, young, economically disadvantaged and the elderly, the same may be applied to access. And finally efficiency, efficiency means weighing up the cost of achieving a goal for example financial cost, time, and human resources all add up and if the cost outweighs the result than that in some cases can be seen as a negative result.In conclusion stairs to repairing past damage and injustice inflicted upon the Aboriginal And Torres Straight Islander People are progressing yet it is still unbelievably difficult for ATSI people to claim any compensation thanks to large disadvantages in all aspects of the law. Resources are costly and access can be difficult for some people in their situation there fore they are still being put second best in the eyes of the law and Justice has not been achieved for the ATSI people meaning that although Native Title Law Reform is a step in the right direction we still have a very long way to go before true equality is reached.Reference listAUSTRALIAN INSTITUTE OF ABORIGINAL AND TORRES STRAIT ISLANDER, 2008 The native title revolution, Australian Government, Canberra, accessed 11 whitethorn 2014, .Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Reports, 1994-2009 http//www.humanrights.gov.au/social_justice/sj_report/ and Native Title Reports, 1994-2009 elevated Court of Australia The Wik Peoples v The State of Queensland & Ors The Thayorre People v The State of Queensland & Ors 1996 HCA 40 (23 December 1996)Mabo Native Title revolution 2000, Film Australia, Pdf, accessed 11 whitethorn 2014, .Social Justice and Human Rights Issues The Global Perspective, 2010 Charles Sturt University, accessed 11 May 2014, . s ubject Native title Tribunal, 2013 Australian Government, accessed 8 May 2014, .The High Court Recognition of Native Title The Mabo Judgment and Its Implications, 2012 Treaty Republic, accessed 9 May 2014, .