Mabo Case Research Articles

Labor, the External Affairs Power and the Rights of Aborigines

The Australian Constitution gave the Commonwealth not a “treaty power” but a vague power over “external affairs,” the precise meaning of which was elusive for most of the twentieth century. From the 1930s, Labor judges and politicians such as H. V. Evatt saw its potential to extend Commonwealth power by legislating international agreements throughout Australia. The non-Labor parties rejected the idea of using the “external affairs” power to legislate in areas formerly the responsibility of the states but the federal Labor Party continued in the Evatt tradition. After significant uncertainties, the Whitlam government used the external affairs power to pass the Racial Discrimination Act 1975, the first significant human rights legislation in the country, which in turn had a profound effect on the law of the land in the country by making the second Mabo Case possible.

POETRY AND “POST-MABO LYSIS”

John Kinsella is an important literary witness to the acknowledgement of native title in Australia, and Indigenous rights more generally. His writings also bear witness to continuing forces of resistance to those rights in Australian society. This paper traces Kinsella’s engagement with the Mabo case, the 1992 legal decision that recognised native title as part of Australian law, and rejected the fiction that Australia was terra nullius at the time of British colonisation. Focusing on “Graphology: Canto 5” and other texts, it argues that Kinsella presents a sustained reflection on the implications and the limits of this decision, in law and in wider cultural understandings and practices, through poetic allusions, paratexts and personal commentary. His writing since the mid-1990s reveals an acute awareness of how imported concepts of property and law are concealed within Western poetic traditions such as pastoral. To counter the effects of this ideology, Kinsella interpolates and appropriates terms from the discourse of property law, juxtaposing them against other ways of understanding and living in the land. In several collections, but especially in Jam Tree Gully, he seeks to develop an ethically reflective account of ownership of land taken from others, critiquing the dominant idea of property and articulating an alternative way of living in the land based on co-existence. The rights of the dispossessed traditional owners are central to a new mode of “writing the land.”

Native Title vs land rights: is change more effective when it is achieved through social and political activism or the courts?

This paper explores the effectiveness of social and political activism in achieving change compared with pursuing legal action through the courts, analysing campaigns to achieve Aboriginal land rights and the Mabo case.

A cautionary tale regarding Aboriginal and Torres Strait Islander rights: lessons from US Supreme Court limits on American Indian tribal power

ABSTRACTSince the Australian High Court's decision in Mabo v Queensland (No 2), and the Native Title Act that followed, national discussion of the rights of Aboriginal and Torres Strait Islander peoples has primarily focused on land rights. The recent recognition-versus-treaty debate, however, has opened the door for awareness, advocacy and dialogue beyond land rights and including, among others, rights to Indigenous governance and jurisdiction. In the United States, by contrast, American Indians have long held greater rights to governance and jurisdiction than Aboriginal and Torres Strait Islander peoples. Nonetheless, the US Supreme Court has over the past 40 years dramatically restricted this category of rights for Indian peoples. The present article shows how this trend sheds light on potential pitfalls regarding the expansion of Indigenous rights in Australia. An investigation of key US Supreme Court judgments, together with an examination of the historical and contemporary forces that have driven those judgments: (a) reveals possible shortcomings of the Mabo case and the Native Title Act in regard to land rights; and (b) provides insight into the risks of future paths, whether by recognition or especially treaty, to be taken by Aboriginal and Torres Strait Islander peoples in seeking further right.

Post-Mabo White Settler Fables and the Negotiation of Native Title Legislation in Andrew McGahan’s The White Earth (2004)

Abstract In his novel The White Earth, Andrew McGahan engages with an important chapter in the history of his country, namely the period of the famous Mabo case of 1992, which overturned the doctrine of terra nullius, and the subsequent Native Title Act of 1993. This novel of initiation with gothic features draws attention to both the woeful history of the dispossession, maltreatment and partial elimination of Australian Aborigines and to the issue of how white Australians cope with this past as well as the guilt, anxieties, and loss of orientation this may create. The novel thus turns into a critical engagement with the legal history of race relations in Australia and probes possible paths for future change.

Mabo Case in Australia: Conflicting Approaches to Common Law?

After the expansion of the English empire in the 18th century and the establishment of new colonies overseas, the indigenous individuals and their rights constituted a hot topic for the judges and the common law legal system specialists. The core of this topic was the dilemma of what status native laws and their pre-existing rights should have. Indeed, the aboriginal rights became very critical when the indigenous people went to the courts of the common law itself to seek the potential help they wanted. In 1992, Mabo case in the Australian High Court was a tremendous event regarding the indigenous rights issue, and there were two main judicial approaches to rule in that case. Brennan J was the father of the first approach, and Dawson J was the father of the other. I argue that according to results of analytical comparative research, Brennan J’s approach is flexible, consistent with the global context, and pays the required attention to the humanitarian aspect of the law. Additionally, Dawson J’s approach is rigid, dehumanising, and restrictively vests the legitimacy only in the common law principles themselves.

Australian Sovereignty, Indigenous Standpoint Theory and Feminist Standpoint Theory

Much has been written by non-Indigenous Australians in the wake of the 1992 Mabo case following its rejection of terra nullius in Australia. What is surprising about this literature is the lack of discussion about sovereignty, which is a logical consequence of the Mabo decision’s conclusion that the basis for Crown sovereignty was incorrect. What little has been said about sovereignty since Mabo can be placed into two broad groups. The first calls for various forms of First Peoples’ sovereignties, and is made up almost exclusively of First Peoples scholars. The other group is dominated by non-Indigenous people who speak instead of citizenship, shared responsibility, native title, reconciliation, rights, self-management, multiculturalism, colonisation and postcolonial theory. This article is directed to non-Indigenous scholars who write on these topics. It is a critique of their scholarship, notwithstanding its merit to the extent that literature questions injustice, dispossession, genocide, discrimination and colonial policy. The basis for this critique is that this scholarship fails to bring First Peoples’ sovereignties to the fore, and for this reason persists as colonial knowledge. To make this argument, the article identifies with feminist standpoint theory and Indigenous standpoint theory to contend that First Peoples’ sovereignties must be embraced by non-Indigenous scholars.

Protecting Aboriginal Cultural Heritage in Australia: Looking for Solutions in the Canadian Experience (LLM Thesis, University of British Columbia)

The Australian aboriginal art market has boomed in recent decades. Many of these paintings incorporate the communal designs of the artist's clan group, which are subject to aboriginal laws administered by traditional custodians. In recent years a series of cases known as the aboriginal copyright cases have sought to prevent unauthorized reproduction of these paintings by tourist trade operators. However, copyright has proven to be an inadequate mechanism to protect the underlying clan designs. Australian academics have proposed various law reforms to address this issue but none have yet been implemented. The thesis is a comparative analysis of Australian and Canadian law seeking potential answers in developments in the protection of aboriginal rights under Canadian constitutional law and in First Nations self government, and in Australia in the Mabo case and various government initiatives. Discussion of the Indigenous use of settler courts is contextualized within wider debates on land rights, cultural appropriation debates and post colonial theories of Indigenous-state relations. Theoretical issues for reform proposals are canvassed, including the issue of freezing cultures, urban aboriginal artists, ownership disputes, recognition of aboriginal laws within settler systems and the western discourse of artistic freedom of expression. This is an unpublished thesis.

Laying Claim to "Country": Native Title and Ownership in the Mainstream Australian Media

Laying Claim to "Country": Native Title and Ownership in the Mainstream Australian Media

Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism

Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, Peter H. Russell, Toronto, Buffalo and London: University of Toronto Press, 2005, pp. xii, 470.Peter Russell's insightful book on Aboriginal land rights in Australia weaves together two tales, that of Indigenous crusader Eddie Koiki Mabo and the slow and arduous struggle of Torres Strait Islanders and mainland Aborigines to have their native land rights recognized by Australian governments in the hope of forging a new, post-colonial relationship. Along the way, Russell places these stories in the context of the push and pull of international events and movements that affected Australia's domestic politics and assesses the political progress of Indigenous peoples in Canada, the United States and New Zealand.

Book Reviews

Book reviewed in this article:Arjun Appadurai. Fear of Small Numbers: An Essay on the Geography of Fear.Adrian Franklin. Animal Nation: The True Story of Animals and Australia.Holger Jebens (ed.). Cargo, Cult, and Culture Critique.Vivienne Kondos. On the Ethos of Hindu Women: Issues, Taboos and Forms of Expression.Aihwa Ong. Neoliberalism as Exception: Mutations in Citizenship and Sovereignty.Peter H. Russell. Recognising Aboriginal Title: The Mabo Case and Indigenous Resistance to English‐Settler Colonialism.Monique Skidmore. Karaoke Fascism: Burma and the Politics of Fear.Pamela J. Stewart and Andrew Strathern (eds). Anthropology and Consultancy: Issues and Debates.Linda Whiteford and Scott Whiteford (eds). Globalization, Water, and Health: Resource Management in Times of Scarcity.

Book Review: Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, by Peter H. Russell

Book Review: Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, by Peter H. Russell

Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (review)

Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (review)

Review of Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism

<scp>Review of Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism</scp>

Native Title and Aboriginal Heritage Issues Affecting Oil and Gas Exploration and Production in Australia

Common law ownership rights in land by indigenous peoples were not recognised in Australia until the landmark decision of the High Court of Australia in Mabo.1 In that case, the High Court declared that Australian common law recognises what it called ‘native title’, the entitlement of the indigenous inhabitants of Australia to their traditional lands in accordance with their laws and customs. This writer has previously published in this Journal a detailed explanation of native title and the Mabo case and their effect on mineral development.2The current article is concerned with Australian native title issues as they affect oil and gas exploration and production.

Le Mabo Case. L'Australie face à son passé colonial

En 1982, Eddie Mabo, originaire des îles Murray, intente avec quatre autres membres de sa communauté, une action en justice contre l'État du Queensland devant la Haute Cour australienne pour obtenir la reconnaissance absolue de leurs droits fonciers. Au nom de leur peuple, les Meriam, ils invoquent l'occupation ancienne de ces îles situées au nord de l'Australie dans le détroit de Torres par des groupes probablement venus de Papouasie Nouvelle-Guinée dont ils sont les descendants directs. Ils invoquent aussi la continuité de leur présence, le développement d'une agriculture soignée, la complexité de leur système social et surtout l'élaboration d'une tenure foncière qui définit clairement la propriété de chacun. Eddie Mabo et les siens ne remettent pas en cause la souveraineté de la couronne britannique imposée en 1879 sur les îles Murray au profit de la colonie du Queensland mais défendent, sous le couvert de cette souveraineté, le maintien de leurs droits fonciers.

Gordon Bennett's Home Decor : the joker in the pack

The repeal of terra nullius in the Mabo case may have exposed the mythology which secured the British occupation and exploitation of Australia, but it did not foreclose the myth itself. The colonial ideologies that created a Manichean society based on racist lines are as strong as ever. This, anyway, is the disconcerting message of Gordon Bennett's art, and probably why viewers find his art 'in your face', as I recently overheard one teacher saying to students in the Museum of Contemporary Art in Sydney.

Thinking about Law: Perspectives on the History, Philosophy and Sociology of Law

A comprehensive introduction to the study of law. It uses historical, sociological, economic and philosophical perspectives to explore the major legal debates in Australia today. The contributors examine: the position of Aborigines in the Australian legal system and the impact of the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship and social change; judicial decision-making; and other issues.

The Australian High Court's Use of theWestern SaharaCase inMabo

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1Crucial to the reasoning in the leading judgment of the landmark 1992Mabocase,2by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not beenterra nulliusat the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council inCooperv.Stuart.3In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4This had given rise to the assumption, confirmed byMilurrpumv.Nabalco Ltd(the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5The leading judgment inMabowent on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7

Sovereignty, Law, and Difference in Australia: After the Mabo Case

Sovereignty, Law, and Difference in Australia: After the <i>Mabo</i> Case