Who is the individual or group that had their rights infringed?

-Eddie Mabo was born Eddie Koiki Sambo on Murray Island in the Torres Strait in June 1936. -At 16 years of age, Eddie was accused of being drunk and of having a relationship with a young woman. He was exiled for 12 months by the Island Council, and went to work on a pearling boat.. - While working , Eddie came to realise that Islanders were paid less than white Australians and he began to question why his people were not treated as equals with the rest of Australia. -A turning point in Eddies life occurred in 1967 when he became a gardener at James Cook University in Townsville. -In 1973, Eddie established the first Black Community School in Townsville and also became president of a housing association set up to buy houses with Commonwealth Government money to rent to Aboriginal and Islander families. Which rights were infringed? How were they infringed? -The issues central to the Mabo Case related to ownership and control of land. The courts were required to examine legal principle of terra nullius, and the ways in which traditional land usage by indigenous inhabitants might influence their legal rights in relation to that land. -Australia was claimed as a British territory under the principle of terra nullius (land belonging to noone) because the British did jot recognise Indigenous land ownership. -In August 1770, Captain James Cook claimed all of the east coast of what is now Australia as British territory. Under internationally recognised law at the time, Cook could claim land on any one of the three following legal grounds: -If the land was uninhabited, any country could claim ownership and settle the land under the principle of terra nullius (land belonging to no-one). -If the land was inhabited, another country could request the leaders of the indigenous inhabitants for permission to make use of some of the land. -A country already inhabited could be conquered through invasion and war. -Although the land was inhabited, Cook claimed it under the principle of terra nullius . The British did not recognise the Aboriginal people as having any legal title over the land as they had no written laws of land tenure of the type that existed in European countries. In fact, the different Aboriginal groups that lived in different parts of the country had their own systems of land ownership and usage, but the British made no real attempt to familiarise themselves with the details of these systems. What role did the individual or group play in taking the case to court? What/who encouraged them? White settlement of Australia removed most basic human rights from indigenous Australians and tightly controlled all aspects of their lives. It took many decades of campaigns before indigenous people were granted even the most basic legal rights enjoyed by white Australians. The use of land for economic activity, and who should benefit from that activity, is a source of conflicting attitudes and values that are evident in the Mabo Case. State governments have often acted to favour mining and pastoral businesses ahead of the interests of indigenous people. The Queensland Government set out to obstruct indigenous land rights and the claims of the Murray Islanders in particular, but was ultimately unsuccessful. What were the facts or issues of the case? The issues central to the Mabo Case related to ownership and control of land. The courts were required to examine legal principle of terra nullius, and the ways in which traditional land usage by indigenous inhabitants might influence their legal rights in relation to that land. Australia was claimed as a British territory under the principle of terra nullius (land belonging to noone) because the British did jot recognise Indigenous land ownership.

Australian property law, relating to the different types of ownership and tenure of land Land rights legislation that has been passed by Commonwealth, state and territory parliaments The common law principles of native title. Colonial governments in Australia granted or sold land to white settlers, who then gained a legal freehold title to the land. State governments have legal responsibility for the leasing of Crown land to both mining and pastoral businesses. Which groups/individuals had opposing views? What were they? The Act did not deal with the issue of native title claims on Crown land that had been leased for pastoral or mining purposes so this question remained unresolved. The Commonwealth Native Title Act was aimed at protecting native title rights, while attempting to clarify when these rights could be applied. The use of land for economic activity, and who should benefit from that activity, is a source of conflicting attitudes and values that are evident in the Mabo Case. Mining and pastoral companies have often argued that the granting of Indigenous land rights will prevent the full economic exploitation of the land, and deny the jobs and economic growth that could come from this exploitation. State governments have often acted to favour mining and pastoral businesses ahead of the interests of Indigenous people. What laws existed at the time of this case? How did they impact the individual/group? That is, what specific laws affected the group/individual and compelled them to start legal action? Colonial governments in Australia granted or sold land to white settlers, who then gained a legal freehold title to the land. State governments have legal responsibility for the leasing of Crown land to both mining and pastoral businesses. The Land Rights Act of 1976 introduced a new form of land title that allowed Aboriginal people in the Northern Territory to claim their traditional lands. 451 Aboriginal land title was managed by Land Trusts and Land Councils, and could only apply to the Northern Territory because land titles in the states were controlled by state governments. Native title is a legal recognition, under common law, of traditional indigenous land occupation and usage in countries where British colonisation has occurred. The principle of native title had been applied in former British colonies such as Canada, the United States and New Zealand, but not in Australia because of the application of terra nullius. The case Mabo and Anor v. State of Queensland and Anor [1988] HCA 69 (the Mabo Case No. 1) centred on whether the Queensland Coast Islands Declaratory Act 1985 was valid or discriminatory under the Racial Discrimination Act 1975. The High Court found that the Queensland Act was invalid, because it specifically denied rights to one racial group that were enjoyed by other groups in society. It was effectively in conflict with the federal legislation, and so was invalid under s. 109 of the Constitution. This decision allowed Eddie Mabo and his supporters to proceed with their main argument before the High Court, that of establishing whether or not they held native title rights over Murray Island.

What was the outcome of the case? Who was successful? What did the judges decide? The Mabo Case removed the legal fiction of terra nullius from Australian law, allowing for the concept of native title to be applied in relation to indigenous land rights claims. The High Court could only decide on the actual facts before it, but its decision created a legal precedent that might be applied in similar cases. As the decision left many unanswered questions in relation to land tenure, legislation was necessary to clarify the legal position of both Indigenous and non-Indigenous occupants. The Full Bench of the High Court decided in favour of the Islander plaintiffs and declared that: The Murray Islanders of the Torres Strait are entitled, as against the whole world, to possession, occupation and enjoyment of the lands of the Murray Islands. The basis for this decision rested on the following: The principle of terra nullius had been incorrectly applied, as Australia had never been an empty land, and so the British were wrong to use it as the legal basis for their occupation of the land. In the absence of terra nullius, it was appropriate to apply principles relating to native title to land occupied and used by its traditional Indigenous owners. Native title can be recognised and included in the Australian system of property law and common law. The nature of native title in any specific case could be determined by the nature of the occupation of the land and the traditions and customs of the group claiming that title. On 21 January 1992, Eddie Mabo died of cancer in Brisbane, and his body was taken to Townsville for burial. At this time the High Court had finished hearing the case and the justices were in the process of determining and writing their judgements. These judgements were delivered on 3 June 1992. The Full Bench of the High Court decided in favour of the Islander plaintiffs and declared that: The Murray Islanders of the Torres Strait are entitled, as against the whole world, to possession, occupation and enjoyment of the lands of the Murray Islands. The basis for this decision rested on the following: The principle of terra nullius had been incorrectly applied, as Australia had never been an empty land, and so the British were wrong to use it as the legal basis for their occupation of the land. In the absence of terra nullius, it was appropriate to apply principles relating to native title to land occupied and used by its traditional Indigenous owners. Native title can be recognised and included in the Australian system of property law and common law. The nature of native title in any specific case could be determined by the nature of the occupation of the land and the traditions and customs of the group claiming that title. Native title may be extinguished (taken away) in a number of ways, by legitimate government action and by Indigenous people themselves. The court expressed the view that freehold title to land has extinguished native title, while land granted under leasehold title may or may not extinguish native title, dependent on individual circumstances. (This could only be considered obiter dictum , as the court had not been required to rule on land held by either freehold or leasehold title under Australian property law.)

How did the decision affect the individual/group concerned? The Meriam people were able to claim native title because of their continuous occupation of Murray Island; other Indigenous groups would need to demonstrate a similar connection with their land to claim native title rights. Native title became a political issue so it was clear that legislation was needed to clarify the law. In December 1992, Prime Minister Keating delivered a speech to launch the 1993 International Year for the Worlds Indigenous Peoples. He presented the following view: By doing away with the bizarre conceit that this continent had no owners prior to settlement of Europeans, Mabo establishes a fundamental truth and lays the basis for justice. The message should be that there is nothing to fear or to lose in the recognition of historical truth, or the extension of social justice, or the deepening of Australian social democracy to include indigenous Australians. There is everything to gain. Source: Paul Keatings Redfern speech, 10 December 1992. The Native Title Act 1993 (Cwlth) was passed in late December 1993, and came into force on 1 January 1994. The act included: legislative recognition and protection for the previously common law concept of native title the extinguishment of native title rights over freehold land no extinguishment of native title rights by any processes other than those contained within the Act the rights of Indigenous people to claim native title over Crown land if they could prove a traditional and continuing attachment to that land procedures for claiming native title through the establishment of a Native Title Tribunal. How did the decision affect others? The Act did not deal with the issue of native title claims on Crown land that had been leased for pastoral or mining purposes so this question remained unresolved. The Commonwealth Native Title Act was aimed at protecting native title rights, while attempting to clarify when these rights could be applied. By 1995, the legal principle of native title was clearly established in Australia. Terra nullius no longer had application in Australian law and a process for determining Indigenous land rights claims was in operation . The Native Title Tribunal was established to help determine the validity of native title claims and to provide mediation services to help resolve disputes over native title. Any state wishing to introduce its own legislation to manage native title claims has to ensure that this legislation is consistent with Commonwealth legislation.