INDIGENOUS AUSTRALIANS: THE BRITISH INVASION, TERRA NULLIUS, AND THE CONTINUING FIGHT FOR LAND RIGHTS RECOGNITION

The British played a key role in colonialism during the 18th century.  Examples of their imperialism can be seen as far as Canada and New Zealand.  Typically, when the British conquered land, they would enter into treaties that allowed much of the laws of the local people to continue to operate. What makes the Australian invasion unique, however is that the British never considered it as a conquered or surrendered country. The mindset was that the land was basically unoccupied.  This doctrine was what allowed the British to ‘settle’ the land as there were no ‘civilised’ occupants, according to them, in essence the continent of Australia was claimed as terra nullius. The British regarded the Aboriginal Peoples as ‘savages’ and with that came the long-term assumption that Aboriginal People were low in the scale of social order. The supposed absence of ‘law and government among the Aboriginal Peoples at the time of settlement ensured that they had no sovereign rights to land which the colonists failed to respect’. The idea that the land was for all legal and political purposes terra nullius can be traced back to the assumptions of racial and cultural superiority, which stigmatises Indigenous Australians even today.  However, in recent times, it has now been established that the defining of Australia as uninhabited and therefore peacefully settled, was a legal fiction ‘absurd in the light of legal reality’. This is evident in a number of high profile cases that have led to the desirable recognition of Indigenous land rights.

 

III  THE COMMON LAW AND ITS IMPACT ON INDIGENOUS PEOPLES LAND RIGHTS IN AUSTRALIA

The recognition of Indigenous land rights remains one of the major social justice issues that Aboriginal People continue to face. This has been evident in a number of cases throughout Australian history, and it is still an issue that affects Indigenous Australians today. However it has not been until recent years that major developments have emerged as a result of case law within Australia. The first significant case is known as the Gove Land Rights case. Blackburn J, a single judge of the Supreme Court of the Northern Territory, had the unenviable task of ‘deciding a question of law that had never been broached in an Australian court, that of Aboriginal land rights’. The central focus surrounding this case was the question of whether at common law a doctrine of native title needed to exist. The plaintiffs believed that their land was not a commodity; freely to be bought and sold, but that it had been passed down by their predecessors who had laid claim to it well before the British invasion. Blackburn J in his judgement emphasised the restrictions placed on him in determining the case due to not being able to find binding precedent from which to construct a ratio decidendi. However in contrast, the 1992 decision of the High Court in the Mabo case provided evidence that the courts were aware of their ability to ‘rewrite history’. It was this case that saw the majority overturn the doctrine of terra nullius, a doctrine that had been central to the Australian legal system and the basis of the British Crown’s acquisition of sovereignty in Australia since the British invasion. The Mabo case was considered to be a landmark decision and a retreat from injustice, and it paved a way for Indigenous Australians to have native title recognised under Australian law. This recognition was introduced as legislation in 1993 as the Native Title Act. 

The 1996 decision of Wik Peoples v Queensland 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. 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 Act 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 Mabo 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. 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.

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. Under the Covenant, persons who feel that their human rights are being infringed in Australia may now, after exhausting domestic remedies, take their case to the Human Rights Committee of the United Nations. This step brings Australia firmly into the area of international human rights jurisprudence. While the common law does not necessarily conform with international law, the powerful influence of the Covenant and the international standards it imports is evident in the opening up of international remedies to individuals. There is no denying that the development of the common law has been influenced by legitimate international laws especially when the existence of universal human rights has been declared. However there is still much room for improvement. A common law doctrine founded on ‘unjust discrimination in the enjoyment of civil and political rights demands reconsideration’. It is contrary to both international standards and the values of the common law to entrench a discriminatory rule which denies Indigenous Australians the right to occupy their traditional lands.

V  IS THERE CAUSE FOR OPTIMISM TO DELIVER JUSTICE THROUGH COMMON LAW

The influence of international human rights on the development of the Australian common law is welcome, particularly in the area of strengthening the rights of Aboriginal People.  To date, there is almost a complete rejection by Australian governments and the courts of any claims by Indigenous Australians for the recognition and compensation for the near destruction of their families, culture, and links to the land. This suggests that the limited land rights recognised by common law are, to a large extent, illusory. 

However, it is still important to note that Australia is rapidly ‘coming of age’. White Australia is finally admitting its culpability and actively seeking a reconciliation with Indigenous Australians. This is evidence in the High Court statement which describes the early treatment of Aboriginal Peoples as ‘the darkest aspect of the history of this nation’. There is no doubt that there is unfinished business in relation to the rights of Indigenous Australians in their fight for land claims. Australia must address the need for constitutional reform to ensure the protection and justiciability of Indigenous rights. Without such a reform, the Australian Constitution will continue to allow racially discriminatory laws to be passed with the imbalance of ‘race-power’. Australia’s lack of a Bill of Rights will see the continued oppression and lack of optimism amongst Australian Indigenous people. 

VI  CONCLUSION

In conclusion it can be pointed out that within this continent that we live, surely we can find solutions to the problems which continue to plague Indigenous Australians, the people whom the most injustice has been done especially when viewing the state of the multicultural society that Australia has become.  If we are able to build a prosperous and for the most part harmonious society, issues such as land rights, must be addressed in order for Indigenous Australians to achieve self-determination, a right that is stated by the International Covenant on Civil and Political Rights. The increasing influence of international human rights jurisprudence on the development of the Australian common law has been most welcome. However for there to truly be equality in Australia, the need to address issues of human rights is certainly one that is highly significant. Recent High Court decisions have highlighted gaps in our existing system of rights protection. To bridge this gap a call for a national Bill of Rights is what is surely needed. It can no longer simply be ignored. Australia already boasts an exemplary human rights record, surely it is time to wake up and realise that these injustices will continue until there are acceptable standards of human rights protection outlined in policies. Without these fundamental rights, Indigenous Australians will continue to be exploited, diminishing their identities and their connection to their land.

IBLOGRAPHY

1. Articles/Books/Reports

Bachelard M, ‘The Great Land Grab: What Every Australian Should Know About WIK, MABO and the Ten-Point Plan’ (1997) Hyland House, South Melbourne.

Bird, G, ‘The Process of Law in Australia: Intercultural Perspectives’ (1993) Butterworths, Australia.

Itzkoff, D, ‘You Saw What in ‘Avatar’? Pass Those Glasses!’ (20 January 2010) New York Times <> at 17 March 2011.

Patton, P, ‘Reconciliation, Aboriginal Rights and Constitutional Paradox in Australia’ (2001) 15 Australian Feminist Law Journal.

Peng, C, ‘Avatar: Unveiling It’s Stunning Hidden Messages’ (27 December 2009) Science Fiction <http://cinemaroll.com/science-fiction/avatar-unveiling-its-stunning-hidden-messages/> at 15 March 2011.

Sampson, C, ‘Avatar as Metaphor’ (26 January 2010) Whirlpool of Life <> at 15 March 2011.

Watson, I, ‘There is no possibility of rights without law: so until then, don't thumb print or sign anything!’ (2000) 5(1) Indigenous Law Bulletin.

2. Case Law

Mabo v Queensland (1988) 166 CLR 186.

Milirrpum v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141.

Wik Peoples v Queensland (1996) 187 CLR 1.

3. Legislation

The Native Title Act Amendment Act 1998 (Cth).

The Native Title Act 1993 (Cth).

4. Treaties

First Optional Protocol of the International Covenant on Civil and Political Rights (25 December 1991).

5. Other Sources

Australian Legal Guide to Citation (2nd ed, 2002) Melbourne University Law Review Association Inc, Melbourne.

Bird, G, LAW00111 Legal Process Study Guide (4th ed, 2011) Southern Cross University, Australia.

Martin, E, and Law, J, (eds) Oxford Dictionary of Law, (6th ed, 2006).

Mindunclouded, ‘The Inverted Spirituality of Avatar: Elevating Collective Consciousness to the Level of Divinity’ (1 June 2010) Against the Modern World: Film Review <> 15 March 2011.

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