International LawA Essay Research Paper Australia Territory

9 September 2017

International Law ( A ) Essay, Research Paper

Australia Territory ContinentIntroduction [ 1.1 ] Australia has ever been regarded as terra nullius under International Law. Terra nullius is a & # 8220 ; district belonging to no province, that is, district non inhabited by a community with a societal and political administration. In International Law, effectual business is the traditional manner of widening sovereignty over terra nulliua & # 8221 ; 1. In 1788, on the coming of find, the British became legal residents of Australia. Coincidence with the British Crown & # 8217 ; s acquisition of Sovereignty was the importing of all British Torahs into Australia. Although Australia was inhabited by Aborigines before European colony, their presence was ignored by the British because they were regarded as barbaric, crude and persons instead than communities. Therefore, if of all time they had any native rubric to set down, this was non recognised by the British. [ 1.2 ] The first effort made by Natives seeking legal acknowledgment of native rubric to land was a failure in the instance of Milirrpum v Nabalco Pty Ltd2. However, in the instance of Mabo & A ; Others v The State of Queensland ( No.2 ) 3 native rubric was lawfully recognised and protected under the Australian common jurisprudence. Part of the Commonwealth Government response to the Mabo determination came in the Native Title Act 1993. In order to understand the consequence of these two on Australian land jurisprudence it is first necessary to hold on an grasp for their contents. Then an scrutiny of the effects so far and the hereafter upon Australian land jurisprudence as a consequence. 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 & # 8217 ; s authorities created proposals to enthrone rubric to militias in Councils by agencies of Deeds of Grant in Trust4. [ 2.2 ] The complainants wanted acknowledgment of Murray Island ownership deducing from Meriam jurisprudence and non Queensland jurisprudence. Furthermore, they did non O.K. of holding their involvement vested in the Council as legal guardian due to the fact that Meriam jurisprudence recognises single and household land rubric as opposed to communal ownership. With a narrow bulk of 4-3 in the Supreme Court of Brisbane, the instance was given leave to be heard in the High Court. The opinion was eventually to be handed down ten old ages subsequently in June, 19925. [ 2.3 ] Their first claim was achieved by the High Court wherein a bulk of 6-1 recognized native rubric to set down deducing from Meriam Torahs and imposts. So it was decided that the Meriam people as a people owned Murray Island. The determination in Mabo is a legal revolution6. It overturned 200 old ages of premises about the foundation of British jurisprudence in Australia7. Previous Common Law & A ; Mabo [ 3.1 ] It can be seen that the Crown & # 8217 ; s acquisition of sovereignty in Australia led to the acceptance of terra nullius. This gave the Crown non merely power to regulation and the extremist rubric as ultimate land proprietor, but besides the good ownership of the whole land in the district, which it was so free to make whatever it so wished. Terra nullius did non seek to snuff out native rubric, but instead province that there was no native rubric on the land to get down with8. [ 3.2 ] In the 1847 instance of Attorney General V Brown9 a adult male 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 non use to set down in England, and therefore British jurisprudence should non use. However the Full Court of the Supreme Court of New South Wales said, & # 8220 ; we are of the sentiment since the first colony in 1788 that all land vested in the Crown & # 8221 ; the tribunal went on to happen there to be no ground why the jurisprudence of England should non use to Australia. [ 3.3 ] In the instance of Coe v Commonwealth10 it was argued that Australia was non settled but instead conquered and therefore, a vanquisher can merely make so much as is compatible with the involvements of the state. As such, the fundamental laws of those conquered shall still be. However, the High Court found that Australia was non conquered but instead settled. Aborigines were considered as portion of the vegetations and zoologies and had no existent Torahs or sense of administration. [ 3.4 ] In the instance of Milirrpum V Nabalco11 the complainants argued that, because their communal native rubric was violated, the mineral rentals in inquiry were invalid. The complainants failed in their action, even though they had been able to turn out that their ascendants had a recognizable system of jurisprudence. The complainants had been unable to show that they had a correlativity with the land which could be exactly called a & # 8220 ; proprietary involvement & # 8221 ; under the white jurisprudence. Blackburn J held that the philosophy of communal native rubric did non organize and ne’er formed portion of the jurisprudence of Australia. He went on to do a differentiation between settled and a conquered or ceded settlement in saying: & # 8220 ; There is a differentiation between settled settlements, where the land, being desert and uncultivated, is claimed by right of tenancy and conquered or ceded settlements. The words desert and uncultivated are Blackstone & # 8217 ; s ain & # 8230 ; it has been taken to included district in which lived barbarian dwellers in a crude province of society. The difference between the Torahs of the two sorts of settlement are instantly in force there upon its foundation. In those of the latter sort, the settlement already holding jurisprudence of its ain, that jurisprudence remains in force until altered. & # 8221 ; 12 [ 3.5 ] However, in Mabo the philosophy of Terra Nullius was rejected. As a consequence of this rejection, native rubric in the signifier of good ownership had survived the Crown & # 8217 ; s appropriation of sovereignty and extremist title13. It is this good ownership that is being claimed today by autochthonal people on unalienated Crown Land. Blackburn J. failed to decently analyze the existing civilization and systems of jurisprudence developed by autochthonal Australians before the British arrived. How so can the Justice decently say that Australia was settled earlier decently measuring whether such systems of administration existed? Just because land is left untilled and unmarked does non intend rubric does non be. The thought of the Doctrine of Tenure & # 8211 ; that is, land shall ever belong to person & # 8211 ; if non in the Crown so seems to exist14. [ 3.6 ] With the common jurisprudence acknowledgment of native rubric in Australia by the highest tribunal in the land has dispelled the hapless opinions made in earlier common jurisprudence instances and initiated a first measure towards rapprochement of land to the Aboriginal people, where it was seen just and just. [ 3.7 ] The opinion of Brennan J in Mabo noted nine indispensable points associating to the common jurisprudence, which laid the land work as to how native rubric should be in Australia. Brennan J felt that the Crown & # 8217 ; s acquisition of land was justiciable ( it is an act of the province ) ; he felt that upon acquisition of sovereignty, the Crown besides received extremist rubric ( which means to state that the Crown did non deduce its rubric from a superior rubric ) ; that native rubric survived the acquisition of sovereignty ; that inspite of the being of native rubric, the Crown may snuff out it by doing a grant inconsistent with native rubric, evading that freehold was non available to autochthonal Australians ; that in the instance of national Parkss and such, where a freehold involvement does non be, native rubric can be side by side ; that native rubric, its incidence and those who are entitled shall be those people merely involved and no others ; that native rubric may be surrended to the Crown, but it can non be transferred to other non-indigenous people ; that since native rubric was dependent on imposts and traditions, if a group of people disown their imposts or lose fond regard to the land, that rubric is extinguished ; and eventually that wheresoever native rubric is extinguished, so that involvement reverts to the Crown15. [ 3.8 ] These standards that Brennan J draws on are reflected in the Commonwealth & # 8217 ; s ulterior acknowledgment of the Court & # 8217 ; s determination in the Native Title Act 1993 ( Cth ) . The standard for claims by autochthonal Australians seem about impossible at times, but non without merely cause. The standards act as a bar from false or deceptive claims, but it besides seems to do it more of a undertaking to those who are legitimate in their claims, but are about put off by the demands to accomplish a successful claim16. [ 3.9 ] Toohey J in his opinion found the being of an enforceable fiducial relationship between authoritiess and autochthonal communities. The Justice felt, based on the facts, the Queensland Government in selling land off to developers for a tourer composite violated the wishes/interests of the autochthonal titleholders were in breach of their fiducial responsibility and were apt in amendss. This provided for the protection to vulnerable communities against oppressive authoritiess over and above the Racial Discrimination Act 1975 ( Cth ) 17. [ 3.10 ] Toohey J felt that a changeless business of land was non necessary for native rubric to be granted, a mere visit from clip to clip may represent business and legal ownership. The deductions of Toohey & # 8217 ; s J opinion to Australian land jurisprudence opens a new country for non-traditional Aboriginal and Islander communities across Australia who remain on or in close association with their ancient lands, to see a claim for native rubric to those lands18. Impact of Mabo [ 4.1 ] As a consequence of the Mabo, the Crown acquired sovereignty and extremist rubric, but burdened with preexistent native rubric. This rubric is determined in conformity with traditional jurisprudence and customs19, where Blackburn J in Milirrpum refused to admit. [ 4.2 ] The determination in Mabo made it clear that when the crowned head grants an involvement entirely or partially inconsistent with native rubric, that rubric would be extinguished to the extent of the incompatibility. The trial is based on a clear purpose of the crowned head to make so20. [ 4.3 ] The determination in Mabo felt that freehold grant would snuff out native rubric. At present it is felt that leasehold grants extinguish native rubric due to the fact of sole ownership, unless the footings express otherwise21. [ 4.4 ] One must observe the authorities nor tribunals have recognised minerals on land as falling within native rubric, and province that such minerals still belong to the Crown. This still allows excavation to go on where excavation companies have permission from the native rubric proprietors and may pay business rent on their properties22. [ 4.5 ] Mabo has affected the temperament of land. A crown grant of rubric may be transferred to another. Therefore, it is a rubric that is alienable and can be disposed of by will to another person. On the other manus, a native rubric: & # 8220 ; is a communal rubric, based on rank of a folk or other group, with no construct of single entitlement. But this is non a necessary characteristic, and the Murray Islanders are no exclusion. Aspects such as heritage of rights under native rubric, or 1 transportations of rights, or the entitlement to keep rubric, will depend on the Torahs and imposts of the indigens ( Brennan at 44 ) . & # 8221 ; 23 Clearly in here, the Latin axiom, nemo digital audiotape quod non habet is applicable. [ 4.6 ] However, it must be besides mentioned that native rubrics can be alienated by give uping to the Crown where, for case, the Crown intends to turn certain native land in national Parkss ( where Aborigines can bask the land side by side ) . Another state of affairs arises when rights are granted to non-members in the signifier of licences and licenses. The licensee does non hold sole ownership. His involvement in the land is determinable. For illustration, a adult male who marries into another community may get a right to utilize a package of land degree Fahrenheit

or 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. Crommelin, M. ‘Mabo Explained’ (1993) 67 (9) Law Institute Journal 809-811. Cullen, R. ‘Mabo v Queensland’ (1990) 20 (1) University of Western Australia Law Review 190-194. Flood, S. Mabo: A Symbol of Sharing. (Sydney; Fink Consultancy, 1993). Gottliebsen, R. ‘Who sets the law of the land?’ (1993) 15 (29) Business Review Weekly 6,8. Gregory, M. ‘Rewriting History 1 Mabo v Queensland: the Decision’ (1992) 17 (4) Alternative Law Journal 160. Heckenberg, W. ‘Mabo musing: a pragmatic approach’ (1993) 42 (25) Bulletin 7. Henderson, G. ‘Mabo and the making of policy’ (1993) 13 (10) Australian Business Monthly 46-47. Horrigan, B. ‘Implication of the Mabo Decision’ (1993) 8 (2) Australian Property Law Bulletin 21-59. Keon-Cohen, B. ‘Eddie Mabo and Ors v The State of Queensland’ (1992) 2 (56) Aboriginal Law Bulletin 22-23. Kirby, M. ‘In Defence of Mabo’ (1994) 1 (2) The Reporter 18-21. Mansell, M. +The Court gives an Inch but takes another Mile+ (1992) 2 (57) Aboriginal Law Bulletin 6. Morgan, H. +Mabo, Australia & the High Court+ (1994) 1 (4) The Reporter 12. Neave, M. & Rossiter, C. Property Law: Cases and Materials (5th Edition) (Sydney, Butterworths, 1994). Nygh, N. ‘Implications of Recent High Court Decisions for State Laws Dealing with Aborigines and Aboriginal Land’ (1990) 1 (4) Public Law Review 329-337. Pearson, N. +204 Years of Invisible Title+ in Stephenson, M. & Ratnapala, S. (eds) Mabo: A Judicial Revolution St Lucia; University of Queensland Press, 1993. Pengelley, N. Mabo: A Sourcebook (Melbourne; Monash Information Service, 1993). Sullivan, A. ‘Mabo misunderstood’ (1993) 22 (23) The Bulletin 22-23. Sykes, T. ‘Mabo and the real world’ (1993) 13 (10) Australian Business Monthly 32-37. Taylor, L. +Mining Chief slams land rights ruling+ The Australian, 13 October 1992, p. 3, column 2. Twomey, A. ‘A Law Librarian’s Guide Through the Mabo Maze’ (1993) 1 (4) Australian Law Librarian 152-156. Wise, V. ‘Mabo Abroad – Native American Land Claims in the United States’ (1993) 1 (4) Australian Law Librarian 157-159. Young, P. ‘Australian native title’ (1992) 66 (9) Australian Law Journal 551-552.

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