Introduction
Long before British colony established in Australia, that is, before 1788, the Aboriginal people and the Torres Strait Islanders settled in Australia as indigenous people. As usual, the Aboriginal people and Torres Strait Islander had their own customs and laws governing them besides, speaking a unique language.
Interestingly, these laws and customs went in tandem with brawny and firm spiritual connections, with an aim of forming an indigenous country. For example, these traditional customs and laws composed diverse activities like performing ceremonials and rituals, where men could go hunting and fishing and on the other hand, women could gather food. Additionally, the laws and customs mandated provision of education and knowledge to children through storytelling, artwork, songs and dances.
Furthermore, these laws and customs became a platform of environmental conservation for future generations. Therefore, these laws and customs provided equality to all members of the society irrespective of the social class. However, after 1788, the story was never the same as the British colony alleged its own sovereignty in Australia. In essence, the British administration claimed colonial mastery and administration over Australian residents. (National Native Title Tribunal, 2010, Para. 1-7).
Background History: Advent of Inequality
The main cause of Australian law inequality was the British colonisers. These colonisers enacted laws that segregated some communities from the rest. On gaining independence, some leaders continued to impose these laws. To weaken this structure, communities had to contest in a court of law.
By 1788, European powers had spread all over Europe to colonise weak nations- Australia being one of them. Nevertheless, it was not an easy task, as these power blocks in Europe had to deploy some tactics in case; indigenous territories resisted any form of colonialism. The first mode applied by these western powers was to conquer by conquest. At this instant, colonial masters had to seek mandate to colonise a nation by negotiating for certain reparations.
If this system failed, the colonial masters applied another method. This time round, they could apply stringent measures in order to force indigenous population succumb to their demands.
An example of this is what happened in Fiji during the colonial period. Some compensations and reparation could follow. Lastly, the third system involved declaration of land as terra nullius. This means, colonial masters considered land unsafe for human inhabitation hence; no need to negotiate any form of compensations of reparations to indigenous populace (a lie).
Any of the three systems asserted negative consequences to indigenous population. As a result, many people suffered most. Some of them became landless and subjected to hard labour. Inequality dominated the talk of the day even as colonial masters killed stubborn indigenes. (Gary, 1997, Para. 5-6).
The Aboriginal people of Australia had a well-structured system of governance. Their laws provided a platform of equality among all members. The laws and customs soldiered solidarity among Aboriginals before the First Feet of British colonisers arrived.
The laws acted as foundation blocks whose realignment will see the relationship among Aboriginals crumple. Furthermore, the solidarity of Aboriginal population, plus their laws and customs, did not prevent British colonisers from building their own empire over the sovereignty enjoyed in Australian continent.
The British colonisers declared Australian land terra nullius. This is because; the British colonisers did not want to negotiate with indigenous population over the issue of compensation. Instead, they opted to declare land terra nullius so that, they could evade any form of reparation or compensation exclusive of reference to indigenous rights.
Some historians depict that, had these British colonisers recognized how important Aboriginal laws were, they could have spared Aboriginal sovereignty and instead, discuss and negotiate with indigenous population in order to award compensation or reparation to the lost land. (Fry, 1947, pp. 158-168).
Deceitfully and deliberately, in 1889, the British colonisers ignored Aboriginal laws and customs, which gave Australian inhabitants fundamental rights and as a substitute, they declared British dominion based on terra nullius. Captivatingly, British officials applied terra nullius through lying to Australian inhabitants.
This lie turned into a myth lasting over 200 years. Additionally, the myth shattered the Aboriginal laws and customs and eventually brought devastating moments among Islanders and Aboriginal people in Australia. The Koori people knew this to be a lie just as it came out to be. The British colonisers administered Australia under Terra nullius laws. Even after their withdrawal, Terra nullius dominated indigenous population in Australia until 1992. (Bird, 1988. pp. 4-32).
Nevertheless, there came a period in 1992, when Aboriginal people in Australia demanded justice. The law had proved futile and horrible. Indigenous people tired of terra nullius lies sought legal redress. Finally, one person named Mabo, filed suit to nullify terra nullius. Luckily, the High Court in Australia decided to illegalise terra nullius hence, liberating Aboriginals and Islanders of Strait.
Fascinatingly, in Australian High Court, the Mabo case had taken a different perspective where, the national emphasis of Aboriginal struggle of rights previously deemed political made a quick shift into legal battle to voice out the demands of Aboriginal populations.
The intense and successful political tussle lasting for five decades transformed into above-board configuration where astronomically priced law experts and Barristers fought mercy on the part of Aboriginal people. Together, these people fought to retain their ancestral land, which the British colonisers typified to their own sovereignty. Even today, the struggle continues. All manner disadvantages falls on the Aboriginal people as they struggle to retain the forgone justice.
The struggle for liberation among Aboriginal population started in 1930 and continued to 1980s. They had formed a political movement aimed at reclaiming their land. All this time, Aboriginal Court cases dominated Australian Courts. Consequently, in 1993, there came a parliamentary legislation, Native Title Act, which brought equality in Australian legal system.
In fact, most inhabitants in Australia including indigenous ones illiterate in law, now have an idea on the Mabo decision as a product of the Native Title Act of 1993. The Act brought some light on legal matters and most importantly, the Aboriginal people received justice though the liberation continues. (Berndt, 1992, pp. 12-48).
Native Title
Under Australian law, a Native Title is a legal documentation, which provides Australian indigenous persons certain privileges and interests. In most cases, the
Native Title provides policies that see people own and use land according to their traditional practices, that is, societal customs and laws. Additionally, the Title recognises and awards legal land interests to indigenous Australian citizens having survived and acquired accreditation from Queen Victoria in 1901.
Under normal instances, Native Title resembles non-Indigenous property rights that allow people classified as indigenous, to exercise native rights on their traditional land. Apparently, the system allows land fragmentation at the expense of indigenous groups. Sometimes, the Native Title and non-indigenous laws behaves like two-tier systems, which recognises single national, geographical and jurisdictional environment in the application of Australian law.
Thus, the Native Title is a customary law recognised by all Australians as customary Aboriginal law.
In order to be effective, indigenous people’s rights and interests must depend on traditional customs and laws whose foundation rests on the group’s collective responsibility.
The Native Title submits to individual or collective rights. Since 1992, Australian law identifies all interests and rights held by indigenous population. In particular, the Native Title became a custom will and at the same time, traditional law in order to bring equality and justice before the law. There are numerous rights, privileges and civil liberties gained because of enacting the native title into Australian law.
Previously, these privileges consummating into rights did not exist. However, the native title awakened the dissemination of various time-honoured laws and customs, brought forth an idea of guarding and touring specific sceneries, ensured equality to all on the side of owning land, allowed accessibility to restricted areas so that, people can exploit traditional ritual and ceremonies. The Title gave all Australian citizens the right to own and occupy land albeit controlled places. (Native Title Tribunal, 2010, Para. 12-21).
Mabo versus Queensland (1992)
In 1990s, the Australian parliament made a move to negotiate a treaty with indigenous people who had suffered because of terra nullius. Although indigenous people in Australia did not have a representative in parliament, the feasibility of the matter said a lot.
The realignment of indigenous population in Australia preconditioned equality, which many Australian viewed as a political dispensation between people hence, social cohesion in Australia. Indeed, the influx of the Native Title in 1990 marked a step towards Australian legal equality.
In the High Court of Australia, Mabo case challenged Australian authority whether; all-inclusive negotiations were paramount in overthrowing terra nullius in order to embrace indigenous governance recognised under Australian law. Most importantly, comprehensive negotiations had reached a sorry state both in practice and in principle. Verily, the Mabo case exuded legal injunctions other than property ownership in Australia.
This is because; the Aboriginal population as an indigenous group, exercised an excellent internal jurisdiction, which defined individual rights and freedoms. Furthermore, the Native Title recognised any group that had internal traditional laws and customs jurisdiction. Such a group had the right to enter biding with the government over its indigenous resources and territory. (Jupp & Nieuwenhuysen, 2007 p. 65).
The Genesis of Equality in Australian Law
In 1992, Australia entered a new era where equality dooms. In particular, the High Court of Australia brought some light in Australian law. The Meriam people had gone to court in order to secure rights of owning land in the Islands of Torres Strait. Luckily, the common law in Australia recognised such cases to receive hearing under the Native Title, which composed of traditional laws and customs.
As a result, the Aboriginals lost land, language and left homeless. Interestingly, the federal government of Australia continued these policies, which undermined Aboriginal people.
In the event, the High Court discarded the British impression of terra nullius (a situation where land does not belong to anybody). This notion had created inequality in large scale as the Australian citizenry except indigenous populace owned land. Therefore, the outcome of Mabo case gave individuals, righty to own property.
Basing its argument on Native Title, the High Court declared that, individuals or communities could own land according to traditional laws and customs. This was to happen irrespective of inequitable laws created by Crown. Additionally, the High Court declared that, individuals and communities had the right to not only access and use land, but also possess it legally. (Department of Foreign Affairs, 2010, Para. 4-11).
The law did bring equality replacing past injustices in Australian law. For example, the Mabo case highlighted two themes. The first one is, colonial boundaries preventing people from owning land, were a perjury to Aboriginal people. Secondly, terra nullius being a colonial sentiment is itself inequality and its abolition meant equality and new principals guiding land ownership in Australia.
The law brought justice in land ownership. The federal government’s land tenure system to the aboriginal people seemed part of segregation. However, the advent of native title ensured the aboriginal people own land in Australia. Colonial masters and hence the federal government, caused material injury to Aboriginal people.
In addition, they lost traditional rights, language and forced out of land. The law brought equality in that, like other Australian citizens, the Court ruled on their side to receive traditional rights. Moreover, in terms of economic gains, the Aboriginal people like indigenous Australians, participated in income generating activities like mining and doing business. On the other hand, the federal government sent money to remote areas to undertake communal projects.
In the past, racism, social amenities, education, employment and housing were invisible truths among Aboriginal people. The law brought equality through mainstreaming where; the federal government adhered to Aboriginal policy and completed various programs for the benefit of the Aboriginal people. Socio-economically, the Aboriginals are almost at the same level with other indigenous Australians.
Equality in the Context of Native Title
The Native Title did bring equality in Australian legal equality. The fundamental rights and interests gained from the Native Title root from traditional laws and customs initially, destroyed by British sovereignty. In addition, Native Title rights do not resemble government rights like Aboriginal Land Rights Act of 1976 (Northern Territory), or any other statutory land rights.
Nonetheless, the Native Title rights extend its rights and interests even to water bodies, a scenario not exhibited under government laws. By this, the Native Title establishes just land acquisition in tandem with traditional laws and customs. The parliamentary legislation of 1993, Native Title Act, reaffirmed the recognition of native title, as the foundation of egalitarianism and justice.
Native Title applies heavily in the legal system of Australia to promote equality. For example, customary law recognises traditional laws and customs, which sire rights and interests of certain indigenous Australians. Additionally, the Native Title ensures that, communities and individuals own access land and water notwithstanding, traditional laws and customs.
The fact that, the legal system in Australia recognises native title under customary law is a step towards equality and justice before law. This means, individuals or communities denied land either from dubious operations like terra nullius; can contest in a court of law to secure such rights. As a calculated move towards equality, it is the Native Title Act, which determines the groups or communities to receive rights and interests.
Nevertheless, this must be in a case where, the native title holds. Additionally, the Act provides a policy framework on how Australian law deals with future activities flout with the native title. In a situation where the law finds native title prejudiced, compensation follows immediately. In essence, the native title brings equality in Australian law through fair hearings and compensations if any. (Stephenson Ratnapala, 1993, pp. 13-58).
Unlike Australian law, the native title bestows native title rights and interests to indigenous Australians or any person or group that had made claim in a court of law. Grippingly, rather than authoritarianism, the native title allows consultation between all stakeholders in order to have a common solution to a certain problem.
For example, through the native title and Australian law, indigenous Australians have effectively negotiated communal land benefits according to their traditional customs and laws. Moreover, the once segregated indigenous population can now access opportunities like employment and birthright fortification, courtesy of the native title. Previously, the government did not recognise land bodies and title certificated held by indigenous people.
Consequently, the Native Title Act required professional land bodies whose main role will be, to ensure equality to all claimants. Overall, some clauses in the native title gave power to the Native Title Tribunal, native title representative bodies and the Australian Federal Court to solve all contentious issues arising from the native title. (Bachelard, 1997. pp. 8-34).
Many at times, the government receives blame for its laxity in educating people to understand the Native Title Act. Majority of Australians seem not to understand what Native Title Act means to them. There might be some Australians having land issues but do not know how to solve them yet, the Act allows mutual discussions leading to an amicable solution.
Nevertheless, for those who have gained familiarity of the Native Title Act, land interests and reparations are not serious issues to trouble. Even as Australians become acquainted with the provisions of the Native Title Act, it is now clear that, more volunteer Indigenous Land Use Agreements will take precedent and create a consensual fortitude of dealing with issues arising from native title so that, equality prevails in Australian law. (Yunupingu, 1997, pp. 54- 73).
Conclusion
Traditional laws and customs were the contentious issue leading to the Mabo case (No.2). These laws and customs formed an Aboriginal perspective different from the normal jurisprudential Australian law concepts. According to Aboriginals, Australian law had to incorporate traditional values, practices, beliefs and rules in form of an ‘aboriginal culture’.
The British colonisers brought a lie called terra nullius, which led to erosion of ‘aboriginal culture’. For over two hundred years (1788-1992), the Aboriginal people and Torres Strait Islanders owned nothing and lost rights to possess.
Captivatingly, since then, Australians lost understanding on traditional laws and customs, which were paramount among indigenous Australian population. In the wake of realisation, indigenous Australians decided to fight for their rights and interests. Originally, Australian was a judge-made common law nation; law concept left by British colonisers. Nevertheless, after years of political movement and legal battling, terra nullius laws became invalid.
On the other hand, the Native Title Act of 1993 by Australian parliament brought justice and equality to all Australians. Today, million of Australians own property and access rights to acquire, use and occupy land. This is so because; the native title brought equality into Australian common law.
References
Bachelard, M., 1997.The Great Land Grab: What every Australian should know about Wik, Mabo and the Ten-point Plan. Melbourne: Hyland House Books.
Berndt, M., 1992. The World of the First Australians, Aboriginal Traditional Life: Past and Present. 5th Ed. Canberra: Aboriginal Studies Press.
Bird, G., 1988. The Process of Law in Australia: Intercultural Perspective’s. London: Butterworth Publishers.
Department of Foreign Affairs and Trade, 2010. Indigenous land rights and native title. Web.
Fry, T., 1947. Land Tenures in Australian Law. 3 Res Judicatae, 156-168.
Gary, F., 1997. Native Title is not Land Rights. Web.
Jupp, J. & Nieuwenhuysen, E., 2007. Social Cohesion in Australia. Cambridge: Cambridge University Press.
National Native Title Tribunal., 2010. History of Native Title. Web.
Stephenson, M. & Ratnapala S., 1993. Mabo: A Judicial Revolution. Aboriginal Land Rights Decision and its impact on Australian Law. Brisbane: University of Queensland Press.
Yunupingu, G., 1997. Our Land is Our Life: Land Rights – Past, Present and Future. Brisbane: University of Queensland Press.