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INDIGENOUS AUSTRALIANS: THE BRITISH INVASION, TERRA NULLIUS, AND THE CONTINUING FIGHT FOR LAND RIGHTS RECOGNITION I INTRODUCTION Over the years there have been numerous concerns regarding the effectiveness of the Australian legal system in relation to achieving justice for Indigenous Australians. Justice is seen as 'the fair and equitable treatment of all individuals under the law'.1 While Australia is typically known for its diversity and multicultural society, with a significant emphasis on equality for all, this is certainly not reflected in the treatment of Indigenous Australians. This essay will critically analyse the British invasion of Australia, and the subsequent taking of the Indigenous Peoples land as being unique from a global perspective. The concept of terra nullius, meaning land belonging to no one, was applied to the Australian colonisation even though Indigenous Australians already inhabited the land. The British made claims that Aboriginal Peoples were savages who were too low in the scale of social organisation to be acknowledged as citizens.2 This is a stigma, which Indigenous Australians are still struggling to shake in contemporary society. More recently, an insight into the global perspective of terra nullius can be seen in the Hollywood blockbuster film, Avatar. Several themes and plot arcs mirror the situation that has plagued Indigenous Australians for centuries. Furthermore, terra nullius for Indigenous Australians meant the denial of both humanity and existence as well as the marginalising of Indigenous Australians from white society. From this point on, the Aboriginal population have struggled with equality within Australia. In recent years, common law has seen the introduction of the recognition of Indigenous Australian land rights. ...read more.


This recognition was introduced as legislation in 1993 as the Native Title Act.24 The 1996 decision of Wik Peoples v Queensland25 went on further and recognised native title rights on pastoral leases. This was a highly significant event as it created further opportunities for Indigenous Australians to claim land titles that cover up to 42% of Australia's land mass.26 At this time thousands of Aboriginal People were thought to finally gain some rights to their traditional lands with the co-existence of native title. However this was not the case. Amendments to the Native Title Act27 were passed in 1998, which limited the circumstances in which native title could be claimed. The enactment of the legislation, and the cases that followed slowly diminished the opportunities that had been laid out in the Mabo28 case. The immensity of the challenges that confront Indigenous Australians is clear, however, the increasing globalisation of the world has seen new opportunities arise. Innovation in policy planning in the area of multiculturalism and the law are generating interest.29 Australia as a nation state is growing in maturity in its legal system with the recognition by judges, Parliament and 'ordinary citizens' of the importance of international law in the area of human rights jurisprudence.30 IV INTERNATIONAL LAW AND ITS IMPACT IN AUSTRALIA For Indigenous Australians, a major defining moment in the recognition of their rights and the conflict between Aboriginal and white relations came to a positive turn when Australia became a signatory of the First Optional Protocol of the International Covenant on Civil and Political Rights on 25 December 1991. ...read more.


Southern Cross University, 17. 7 G Bird, 'The Process of Law in Australia: Intercultural Perspectives' (1993) 3. 8 G Bird, above n 6, 17. 9 G Bird, above n 7, 9. 10 Mindunclouded, 'The Inverted Spirituality of Avatar: Elevating Collective Consciousness to the Level of Divinity' (1 June 2010) Against the Modern World: Film Review <http://mindunclouded.wordpress.com/2010/06/01/the-inverted-spirituality-of-avatar-elevating-collective-consciousness-to-the-level-of-divinity/> 15 March 2011. 11 Mindunclouded, above n 10. 12 G Bird, above n 6, 17. 13 G Bird, above n 6, 17. 14 P Patton, above n 2, 30. 15 Ibid, 9. 16 Milirrpum v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141. 17 G bird, above n 7, 266. 18 Ibid, 279. 19 Ratio decidendi is the latin phrase for 'the reason for the decision'. It forms the basis of the reasoning in a particular case which was essential to reaching the decision and forms the binding judicial precedent. 20 Mabo v Queensland (1988) 166 CLR 186. 21 G bird, above n 7, 336. 22 Ibid 23 Mabo v Queensland (1988) 166 CLR 186. 24 The Native Title Act 1993 (Cth). 25 Wik Peoples v Queensland (1996) 187 CLR 1. 26 M Bachelard, 'The Great Land Grab: What Every Australian Should Know About WIK, MABO and the Ten-Point Plan' (1997), 68. 27 The Native Title Act Amendment Act 1998 (Cth). 28 Mabo v Queensland (1988) 166 CLR 186. 29 G bird, above n 7, 454. 30 Ibid, 455. 31 G Bird, above n 7, 455. 32 Ibid, 309. 33 Ibid. 34 Ibid. 35 G Bird, above n 6, 25. 36 Ibid, 24. 37 G Bird, above n 7, 457. 38 P Patton, above n 2, 38-39. 39 G Bird, above n 6, 24-25. 40 G Bird, above n 7, 463. ?? ?? ?? ?? 1 Student I.D.: 21707188 ...read more.

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