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Mabo Case and the Doctrine of terra nullius
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Doctrine of terra nullius Terra nullius literally means ‘land belonging to no one’, and referred not only to territory that was inhabited, but also yo territory inhabited by people who had no system of law or social or political organization that was recognised by the English. Instead of recognising the laws and customs that existed at time of colonisation, the British government declared the land of the colony of New South Wales to be terra nullius. Subsequent legal developments: The federal Parliament, in response to the Mabo case enacted the Native Title Act 1993(Cth). Section 3 outlines the purposes of this Act: • To provide for the recognition and protection of native title • To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings • To establish a mechanism for determining claims to native title • To provide for, or permit, the validation of past acts invalidated because of the existence of native title. Once native title has been recognised it may only be extinguished with the approval of the holders of the native title, or by compulsory acquisition by the government. The Mabo and the Wik Case: The Mabo case led to the native title legislation but also gave indigenous Australians recognition. Indigenous Australian traditional land ownership was not recognised under the doctrine or terra nullius. In 1971, Milirrpum v Nabalco Pty Ltd (Gove Rights Case) affirmed the applicability of the terra nullius doctrine to Australia. However in 1992, the High Court of Australia overturned the doctrine of terra nullius, in the leading case of Mabo v the State of Queensland (No.2). Following the case the government passed the Native Title Act. The Act allows indigenous Australians to claim land where they can prove that they have maintained traditional links with it. In 1996, the High Court held in Wik peoples v Queensland that pastoral leases did not extinguish native title. Both pastoral leases and native title could co-exist (A pastoral lease is a grant of rights by the government, pursuant to legislation, to the lease holder to use the land for the purpose of raising livestock or related purposes.
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