Tuesday, 5 June 2012

Twenty Years after Mabo

There is a great deal in the news about the twenty year anniversary of the Mabo decision from the Australian High Court. The Mabo case was a landmark decision that challenged the legal fiction that Australia was uninhabited at the time of “discovery. Thus as a place that was terra nullius claim was made to the land on that basis. This of course utterly denies the existence of the Aboriginal peoples that were there. Scholar William Wallace comments on key elements of the Mabo holding:

The two most important and dispositive findings made by the court were, first, that the title was never effectively extinguished by the Crow, and second, that the land was been continuously held from some date prior to the discovery by Captains Cook and Phillips...The holding of Mabo II represents the culmination of small steps of policy change, which led to the judicial recognition of a legal concept, native title, that had been denied by the declaration of “terra nullius” some 157 years prior.”

The idea of native title is seen as an improvement over a legal doctrine that denied the very existence of Aboriginal people. But in the celebrations over the very important Mabo decision, sight should not be lost of the fact that there are problems in the exercise of claims of native title.

An interview with Les Malezer of the Australian Congress of Australia's First Peoples can be read at this link. He makes the claim that in fact native title is a “sell out”. The process of making native title claims is seen to be cumbersome and unworkable, and the reach of the law not sufficient to provide sufficient resolution to land claims. Moreover, he raises a caution about the way in which payments are being made through agreements with “extractive industries”:

“..extractive industries are trying to be positive about this to ensure that benefits are deriving from it. But one thing we know for sure that's happening under these agreements is that the benefits are not economic development, they are one-off payments and they're unlikely to survive a generation.”

Recommendations that were issued after the Special Session of the UN Permanent Forum on Indigenous Issues denounce the use of the terra nullius doctrine and comments on proposals for an international rather than domestic venue to deal with indigenous land claims:

The Permanent Forum welcomes the recommendation to establish a voluntary international mechanism to receive and consider communications from indigenous peoples specifically concerning their claims to, or violations of, their rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. This recommendation deserves further elaboration by indigenous peoples and others concerned.”

Thus, while the Mabo decision certainly should be celebrated, the need for continued efforts to satisfactorily address the legacy of terra nullius and the doctrine of discovery is great. Is this something that should be left to state/domestic jurisdictions or is it more appropriately dealt with as an international matter? Many issues remain to be resolved twenty years after Mabo.

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