Mabo Decision Research Articles

Comprehending ‘the genius of the common law’ — Native Title in Australia and Canada compared post-Delgamuukw

The challenge for ordinary Australians today is this: that the foundation for compromise … comes from their own legal and constitutional heritage. The Mabo decision is not a product of indigenous heritage. Rather, more fundamentally, it is the product of the country's English heritage: it is a product of the genius of the common law of England.1

The Australian Dilemma: Landscape and Wilderness, or Resource Base for Population?

The Australian debate surrounding the concept of wilderness goes to the core of Australia’s existence. How this debate is resolved Will determine the extent to which Australia can be a just society and will also affect its economic future, particularly with respect to international trade. Immigration has been central to Australia’s growth and its liberal democratic aspirations; however, this liberal democratic project remains incomplete, because Australia has yet to empower its indigenous citizens. Aboriginal ideals and values regarding resources and their use have not been married fully or effectively with those of Western science and technologies, particularly in the areas of land use and water management. Aboriginal identities themselves are being altered in the wake of the High Court’s Mabo decision. For post-Mabo and Wik aboriginal identities to evolve consistent with their heritage and the liberal democratic project, the wilderness aesthetic must absorb historical understanding into its perspective on society, nature and the human.

Wik Peoples v State of Queensland: Extinguishment of Native Title

The 1996 decision of the High Court of Australia in Wik Peoples v State of Queensland will be remembered by all as the first fruits of the Mabo decision. Wik is the first of many decisions that will challenge Australia as it attempts to come to terms with the past. The Wik case introduces the possibility that native title may indeed survive 'extinguishment' or at the very least may be subject to mere 'impairment' when conflict arises. This is a consequence of the re-conceptualisation of property rights that the practical outcome of the case necessitates. This article explains the move from 'co-existence' of rights to 'impairment' of native title to the possibility of the revival of native title.

Principles or skeletons? Mabo and the discursive constitution of the Australian nation

This essay is centred around what is arguably the most potentially constitutionally radical, and almost certainly the most politically contentious decision of the Australian High Court in its history. This is the 1992 Native Title Decision - Mabo v Queensland (No.2). My assessment of the potentially radical quality of the Mabo decision, constitutionally speaking, rests on what the judgment refuses to do and thus, paradoxically, makes imaginable, as much as on what it achieves. I will rehearse the decision briefly in order to suggest to readers the perspective from which this essay approaches it.

Aboriginal reconciliation: a role for psychiatrists?

Australian Aboriginal people are marginalised, severely disadvantaged and subject to discrimination. The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families has focused international attention on their plight. However, the Council for Aboriginal Reconciliation and the High Court Mabo decision provide avenues for change. This paper asks: is there a role for psychiatrists in the reconciliation process?

The same and the other: Beckett's The unnameable, Derrida and Levinas

In an article concerning the Mabo decision of the Australian High Court Paul Patton discusses Deleuze's notion of the problem-field around which structures are formed (Patton, 1995: 90). Events are themselves differences in that, like the present which repeats itself but is always a different present, the events which occur in our world are always different from one another. They are the things which happen in the world, the things which have happened and which are happening now and it is this series of happenings which define who we are. Deleuze further considers that, like an animal adapting to a given environment, events happen around problems and it is the problems which define the shape of a given society.

Aboriginal Autonomy: Issues and Strategies.

Acknowledgements Foreword Preface Part I. The Aboriginal World View: 1. The making of Aboriginal identity Part II. Aborigines and the Land: 2. The future of the homeland movement 3. Warlpiri land use and management 4. The implications of land rights Part III. Aboriginal Lifestyles: 5. Economic, social and spiritual factors in Aboriginal health 6. Aboriginal education and the issues underlying Aboriginal deaths in custody 7. Aboriginal work and economy Part IV. Aborigines, Resources, and Development: 8. The ideology of development in the East Kimberley 9. Aborigines and resources: from 'humbug' to negotiation 10. The McArthur River development: a case in point Part V. Aborigines, Law and the State: 11. The Yirrkala proposals for the control of law and order 12. Aboriginal political leadership and the role of the National Aboriginal Conference 13. Aborigines and the Treaty of Waitangi Part VI. Asserting Autonomy: Recent Aboriginal Initiatives: 14. Aboriginal initiatives on the land 15. Initiatives in Aboriginal political organisation 16. Education: taking control Part VII. The Recognition of Native Title: 17. The Mabo decision: a basis for Aboriginal autonomy? Conclusion: negotiating future autonomy References Select bibliography of work by H. C. Coombs Appendix Index.

Blackfellas and Whitefellas: Aboriginal Land Rights, the Mabo Decision, and the Meaning of Land

Les droits fonciers des Aborigenes ont toujours ete une question politique en Australie. Le cas Mabo annula la doctrine de la « terra nullius » et accorda le droit foncier aux Aborigenes. L'analyse comparative de la signification de la terre a Cape Leveque et a Halls Crekk montre la relation spirituelle a la terre liee a l'heritage ancestral, conception differente de celle des Blancs qui la considerent comme ressource naturelle. La terre est fortement liee a la culture aborigene et la perte de l'acces aux terres traditionnelles a pu entrainer l'alcoolisme, le chomage et une diminution du sens de soi. Les recentes discussions des implications de la decision Mabo ont exacerbe les tensions entre Aborigenes et Blancs resultant des mauvaises representations des Aborigenes et de leurs besoins. Une loi sur le titre natif a ete proposee en 1993 et un tribunal a ete cree

Terra Australis: Landscape as Medium in *Capricornia* and *Poor Fellow My Country*

Since the finding of the Australian High Court in what has come to be known as the Mabo decision of January 1992, the phrase Terra Australis which is much used by Herbert might be taken to represent a significantly altered conceptual space, a space whose history and geography no longer begin in terra nullius and terra incognita but in Mabo country, a terrain whose distinctiveness has shifted away from the binary patterns of city and bush, constructed by white nationalism, towards a more volatile and complex notion of what and whose the landscape might be. It is no longer possible to think of the bush of Terra Australis as - in Graeme Turner's phrase - the 'authentic location for the distinctive Australian experience' (26) without becoming distrustful of those words 'authentic' and 'distinctive' and without at least recognising that as Mabo country Terra Australis insists on itself as the location of many experiences. Among Australian writers Xavier Herbert is not alone in long having recognised a multiplicity of territories competing for the same space, and though I think it would be presumptuous to see him as a precursor of Mabo country, even in their titles Herbert's two major novels signal the problematic of Australian nationalism, that is its relationship to territory, a relationship whose cultural, historical, political and social aspects have become even more complicated since Herbert wrote his impassioned polemical narratives. And of course it is impossible to disentangle something called 'landscape' from the wider horizons of Herbert's nationalism. It is rather as if the geography, the physical Territory of Herbert's narrative, is both the material and the medium through which a space of meaning is constructed; everything that happens there shows, as Edward Said has commented, that 'Just as none of us is outside or beyond geography, none of us is completely free from the struggle over geography. That struggle is complex and interesting because it is not only about soldiers and cannons but also about ideas, about forms, about images and imaginings' (6).

Working for the White People: An Historiographic Essay on Aboriginal and Torres Strait Islander Labour

The intense public debates of 1992 and 1993 around the 'Mabo' decision of the High Court, the wider question of native title, and continuing debate on the constitution and the notion of reconciliation between indigenous and non indigenous Australians, marked something of a watershed in national historiography. Aboriginal and Torres Strait Islander issues were brought into the centre of national public consciousness, and forced even those who, as non indigenous people, had thought themselves sympathetic with indigenous causes, to reassess their understanding of Australian politics and culture. The Mabo judgement, the High Court's decision that British colonisation in Australia did not negate the rights of Mer (Murray) Islanders to their small Torres Strait island, overturned the concept of terra nullius, and opened the whole issue of native title in Australia.1 To historians, the public debates following the High Court decision revealed the continuing strength of non-indigenous Australia's belief in stories of pioneering, settlement, and rightful occupation of the land, with many still holding the nineteenth century view that invasion and dispossession had been justified on the basis that Aborigines did not use the land productively.2 The land rights and invasion versus settlement debates, along with already growing acknowledgment of the long-term importance of Aboriginal labour in the pastoral industry, and Aboriginal and Torres Strait Islander participation in wartime service, also revealed the growing strength of an alternative historical understanding. The Mabo decision was the climax to what was already a slowly emerging historical change, emphasising the impossibility of justifying invasion in any terms, and valuing rather than condemning Aboriginal and Torres Strait Islander societies.3 It is this political situation in which historians now work, and Australian history can never be thought or written about in the same way again. While many non-indigenous historians will continue to research and write Australian history with little or no attention to its colonial character, we cannot go back. The transitions will be messy and often slow.4 The implications are particularly important for labour historians. Too often the very existence of a history of Aboriginal labour is quite unknown, even to many Aborigines. Ruby Langford Ginibi, for example, expresses surprise in learning for the first time about the extent to which her Bundjalung people worked for white people on cattle stations and were involved in farming.5 Despite the body of work reviewed in this essay, it is abundantly clear that historians have been markedly unsuccessful in informing Australians, indigenous and non indigenous, of the history of Aboriginal and Torres Strait Islands labour.6 In a

Mabo Decision and The Native Title Act 1993

Mabo Decision and The Native Title Act 1993

'not Passing Through': Aboriginal Stakeholders in the Rangelands.

Comparison of Aboriginal interests in rangelands in western New South Wales with those in north- western Northern Temtory and the Kimberley of Western Australia reveals little difference in their history, aspirations for land acquisition, or plans for multiple use management. Throughout Australia, Aboriginal people who are traditional owners of rangelands continue to live on or near the land they regard as traditionally theirs. This is true of the more closely settled rangelands as well as remote regions. In all the rangeland areas Aboriginal people now wish (and following the Mabo decision may more realistically expect to gain) some form of freehold title to at least some of their land. Aboriginal people whose traditional lands are located in western New South Wales have access to very little of their land but have maintained their connection to it. They have aspirations of obtaining access to and control over portions of it, with plans to manage it under a multiple use regime that would include small-scale sustainable pastoralism and agriculture, while living in dispersed family groups on the land. Aboriginal people's desire to retain access to their traditional land for non-economic reasons (spiritual, social, historical) is paramount. Should the Commonwealth Land Fund legislation be enacted, cultural imperatives as well as economic viability will need to be taken into account in the purchase of land. Planning for future management should incorporate traditional ecological knowledge and should involve Aboriginal traditional owners and their organisations, such as land councils and resource agencies, in local and regional planning.

Aboriginal Land Rights in Australia: From the Mabo Decision to the Native Title Act 1993

Aboriginal Land Rights in Australia: From the Mabo Decision to the Native Title Act 1993

The Mabo decision and security of title

Abstract The Mabo decision created a great deal of confusion over land titles in Australia. It has cast doubts, over vast tracts of land, about two of the attributes which lie at the core of the land titles system: the ownership and occupation rights of land parcels, and the boundaries of these rights. The surveyor, who up to the Mabo decision in 1992, has been able to specify to a high degree of certainty both the spatial extent and the tenure of land parcels, is now forced to reassess the assurances and certainty which his work can provide.