“After ten years of struggling against innumerable hurdles and concerted efforts to sidetrack his claim, Mabo saw it reach the Australian High Court, where it resulted in the landmark Mabo (1 and 2) rulings. 1 In Mabo, the High Court attempted to “cleanse the common” law of Australia by judicially recognizing for the first time that the continent and its offshore islands were not vacant when Europeans first arrived.
In the eyes of the law, this meant acknowledging that Aborigines of the mainland and Murray Islanders2 held “common law aboriginal titles” (Arthur J Ray. (2007). Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. ) The decision taken in Mabo case brought many legal and political problems for the Federal Government such as there was a necessity to validate titles that were issued after the commencement of the Racial Discrimination Act 1975.
Further Native Title Act 1993 was enacted which detailed compensation and the rules to determine native title. The Mabo decision presented many legal and political problems for the Federal. From the point view of an argument, it is stated whether native title to Murray Island residents was so important and what serious consequences aboriginals would face, if Mabo case was not in favor of native title. Why did Court took almost a decade to take the decision in favor of Meriam people?
One possible answer for this could be, court after filing of Mabo case in the year 1982, constantly pursued the genuine realities of residents of Islands and took a close notice about customs and traditions and realised that these people would not adjust with the outside world and it is good from the legal point of view as well from social point of view, to award the ownership of native land so that the population within the island would grow in its unique identity and it is also good for the outside world to accept the indigenous commnity of Murray Islands.
“The Mabo decisions and others that followed soon afterward ignited a political firestorm; they prompted the federal government to draft legislation in the form of the Native Title Act (and subsequent amendments) that undid the “damage” the court had wrought; and they led the Court to beat a retreat from its bold attempt to reconcile Aborigines and setder interests by adopting a revisionist historical and legal perspective. ” (Arthur J Ray. (2007). Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism) 4. Recognition of Native Title
By recognizing the Native Title, the court also recognised the traditions, customs, economic development and exclusive possession of Meriam people whose land was under the authority and purview of British Crown. Granting of statutory rights to the people of Murray Islands was in the interest of High Court which is of the opinion that communities have been living together by practicing certain unique traditional laws and customs which are limited to the Meriam people. Therefore, the court would like to protect these the interests of such communities who cannot break the respective traditional laws in order to live in modern world.
However, taking the base of Mabo case, the court can neither pass native title to each and every plaintiff and the job of assessment and analysis of such land fights is clearly detailed in the Native Title Act 1993 which carries a complete framework for the protection and recognition of Native Title. The Australian legal system recognizes the native title wherein indigenous Australians practice rights, customs and other traditional laws and customs. By practicing such traditions and customs, the aboriginal Australians have connection with land or waters.
Common Law of Australia recognizes the native title rights and interests. Although a lot of good has been done to aboriginal Australians through the enactment of Native Title Act there is a scope for negotiations to recognize communities in order to receive native title, compensation and to receive any other benefits for the communities which includes employment opportunities and economic development. It can be stated here that in a way, aboriginal people are protecting the land and are also keeping the reputation of the land while being protected by the Australian common law which is absolutely fair and square.
Further this also prevents illegal occupation, unlawful activities which may be carried out by any other people and there is no such scope or opportunity when the land is in possession of a particular community and the laws are safe in the hands of people. There are also other supporting bodies for Native Title Act such as National Native Title Tribunal and the Federal Court who collectively deal with the aboriginal people in the matters of social issues as well in the matters of legal issues.