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Terra Nullius

During the 1770 visit of the British to Australia they declared the land was terra nullius. This meant that the land of Australia belonged to nobody, and therefore they could lawfully claim it for themselves. The law in that era declared that any discoveries of new land would have to be bought from the landowners or else war would need to be declared and land fought for. In the instance of Australia, the British did not recognise the Indigenous peoples as the owners of the land, as they led nomadic lifestyles and did not set up permanent towns and homes like the British did.

Australia maintained its terra nullius status for many years after the British arrived, resulting in many Indigenous groups losing their ancestral land; land that they had been born on and grown up on. The Indigenous traditions were not respected and all land was used for production and profit by the newcomers.

Australia's Indigenous people began to try and fight for their land rights in the mid to late 1900s. One example was the fight of the Yolngu people in the early 1970s. They took their concerns about the mining of their land to a judge in the hope of gaining some land rights. The judge told them that they did not have any rights because, legally, Australia was still terra nullius.

The Mabo case

The Mabo case was a milestone court case which paved the way for fair land rights for Australia's Indigenous people. During 1982 the Indigenous people of Mer island (Murray Island), led by Eddie Mabo, began their fight for land rights. Their island, in the Torres Strait, was at possible risk of development and the Meriam people wanted to ensure its protection. Their argument was that many generations of Meriam people had lived on the island, even prior to the arrival of Europeans. They believed that they were the traditional owners of the land and the nearby seas. Their argument also defied the claim that Australia was terra nullius, which the Europeans had declared when they claimed Australia in 1770.

The court case took 10 years of fighting by the Meriam people, and most especially Eddie Mabo. On 3 June, 1992 the high court granted the Meriam people their land rights. This decision overturned the long standing idea of the British that Australia was an unoccupied land (terra nullius). The judge further stated that Australia's Indigenous peoples had not been traditional nomads, but groups that had strong relationships with the land as it connected them to their traditions and ancestors. The Meriam people of Mer Island received a native title declaring that they were the rightful and traditional owners of the land. The case became know as the Mabo case in honour of all the hard work Eddie Mabo had contributed to the fight for Indigenous rights.

Eddie Mabo

Koiko 'Eddie' Mabo was the man who initiated the land rights argument when he found out that his birth place, Mer Island, was not legally his or his families. This news angered and upset Mabo and he began speaking out and telling people his story. He received a great amount of support, especially from fellow Indigenous people, and in the early 1980s a lawyer suggested he take the terra nullius claim into the courts of law. Mabo followed this advice.

The significant win by the Meriam people was marred by the death of Mabo just five months prior to the decisions. Mabo has honoured with a royal traditional burial and the case was named after him.

The monumental decision led the way for land right legislation (laws) and gave Indigenous people more rights in Australia. Many other Indigenous groups began fighting for their own land rights, which worried the government as much of the disputed land was being used for profitable purposes. In 1993 the government passed the Native Title Act which stated laws and regulations for the courts to follow in future claims.

Government responses - the Native Title Act

The Mabo decision made the issue of land rights well known across Australia and many other Indigenous people were encouraged by the decision and began their own land right cases. The government developed the Native Title Act to try and clarify the processes that need to be followed in Native Title claims.

The Wik decision

The Wik case involved the ownership of land which had been leased out by the government for pastoral purposes. Pastoral leases were created by British officers when squatters were land grabbing in the 1830s and 1840s. The authorities defined pastoral leases as leases that did not grant squatters exclusive ownership of the land. Instead the land was owned by the government on behalf of the Australian public. Therefore it was public property.

The Wik Indigenous people of Cape York, Queensland, had developed a court case which argued that land rights and pastoral leases could coexist, giving both Indigenous people and leaseholders rights to the land. In 1996 the High Court agreed with the Wik people. This decision meant that Indigenous people were gaining more land rights in Australia.

The Mabo and Wik decisions made land rights claims easier for many Indigenous people in Australia. They were finally regaining their ancestral land and reconnecting with their traditions and heritage. However many land rights laws continued to change and are still an issue of discussion today.

Chapters: Land rights before Mabo Mabo


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