Section 5, The Legal System

1. LAW REFORM AND
NATIVE TITLE
Law Reform in Action - Section 5The Legal System

2. MAIN SYLLABUS POINTS
NativeTitle is a compulsory topic inYear 11Legal Studies

3. HISTORY OF GOVERNMENT
POLICY
• Land inhabited by Indigenous
people for 50000 years
• 1788, British government
declared the land ‘terra nullius’
• 1788-1800s Dispossession policy
• 1869-1909 Protection Policy
• 1900-1967 Assimilation and
Integration Policy

4. END OF TERRA NULLIUS

5. • ‘NativeTitle’ refers to the right
to land by the original
inhabitants
• Recognised by the Court in
Mabo and Others v State of
Queensland. The first legal
recognition that land was owned
before European settlement
• Overthrew the idea of ‘terra
nullius’

6. THE LEGAL SYSTEM AND NATIVE
TITLE
• The perception that the country had very few inhabitants, and that they
had no political or legal organisation, led to the legal fiction of British
possession
• The concept of terra nullius has also had an enormous impact on native
title claims. Very difficult to prove traditional land ownership when many
Indigenous people had been forced off certain land claims
The Doctrine of
Terra Nullius

8. • NativeTitle claim in NT
• In 1963, Yolngu people
protested the removal of
some 300 hectares of
land for bauxite mining
without their permission
• ‘Gove land rights case’
commenced in 1971
where the Doctrine of
terra nullius prevailed

9. • A royal commission into
Aboriginal land rights was
established in 1972 by the new
Whitlam government
• In 1974, members of the Gurindji
people walked off cattle stations
protesting against the
dispossession of land by
pastoralists
• 1975, Government negotiates
with pastoralists to give partial
land back to the Gurindji people
• Aboriginal Land Rights
(NorthernTerritory) Act 1976
(Cth) developed.

10. VINCENT LINGIARI

11. PAUL KELLY
‘from little things, big things grow’

12. MAP OFTORRES STRAIT
ISLANDS

13. • The Mabo Cases
• Between 1985 and 1992, Eddie
Mabo and other men challenged
the QLD government in two
cases in the High Court
Australia: Mabo v Queensland
1988 & 1992
• The First case questioned the
validity of state law abolishing
native title (the island known as
Mer). The high courts decided
where federal and state laws
conflict, federal law prevails.

14. • The second case (known as the Mabo case) - the High Court
ruled (by six judges to one) that Australia was not terra nullius
and that the Meriam people clearly held native title to their
land.
• Eddie Mabo unfortunately died before the High Court ruling
• NativeTitle Act 1993 (Cth)was passed by the federal
government

15. Click Here for 2016

16. • The Wik and theThayorre people launched a case against the
Queensland government in 1996
• The Federal Court ruled that the existence of pastoral leases
extinguished the right to native title.
• The court found that pastoral leases and native title could
coexist, but that when conflict arose the pastoral leases would
prevail.
The Wik Case

17. MAIN LEGISLATION OF
NATIVETITLE
• Native Title Act 1993 (Cth) - Where proof of
traditional links to land has been maintained
• The Native Title Amendment Act 1998 (Cth) -
‘ten point plan” to minimise native title claims, giving certain
rights back to miners/farmers
• Native Title Amendment Act 2007 (Cth) - make
case claims more efficient and accessible to groups
Hint: It is important to remember the influence of case law and
the government in power of legislation change

18. EFFECTIVENESS OF LAW
REFORM ON NATIVETITLE
• Both the judiciary and the legislature have played crucial roles in
law reform and native title
• The biggest legal step forward was the overturning of the concept
of ‘terra nullius’ and recognition of continuing native title rights
• Difficulty in reconciling the rights of landowners whose interests
conflict with native title claims
Don’t forget your effectiveness criteria

19. ✤ `
Resource
Efficiency Protection/
Recognition
of Rights
Enforceability
Equality
Justice
International
Law
Application
of the Rule
of Law
Accessibility
Meeting
Society’s Needs
Effectiveness Criteria
Responsiveness
of the Law

20. Evaluate the role of the legal system’s
response in achieving just outcomes
regarding native title