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The Australian Legal System and the Common Law ‘ Downunder ’ SEMINAR 4

The Australian Legal System and the Common Law ‘ Downunder ’ SEMINAR 4. AUSTRALIA AND INDIGENOUS AUSTRALIANS. SOME STATISTICS (2011 Census): 669,990 (3% of total population) 1921 census: 58,867 “full-blood” Aborgines (just over 1% of population)

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The Australian Legal System and the Common Law ‘ Downunder ’ SEMINAR 4

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  1. The Australian Legal System and the Common Law ‘Downunder’ SEMINAR 4

  2. AUSTRALIA AND INDIGENOUS AUSTRALIANS

  3. SOME STATISTICS (2011 Census): • 669,990 (3% of total population) • 1921 census: 58,867 “full-blood” Aborgines (just over 1% of population) • The highest number of Indigenous Australians lives in New South Wales (208,500) • The Northern Territory had the highest proportion of Indigenous Australians in its total population (30 per cent). • Indigenous Australians have a much younger age profile than non-Indigenous Australians, with a median age of 21.8 years compared to 37.6 years • 35% live in major urban centres • 44% live in inner and outer regional areas • 21% live in remote/very remote areas • Indigenous Australians comprised about half of the total Australian population in very remote areas.

  4. Cultural protocols: Aboriginal and Torres Strait Islander readers should be aware that this document may contain images or names of people who have since passed away.

  5. The third world: 21st century Australia? http://theconversation.com/review-pilgers-utopia-shows-us-aboriginal-australia-in-2014-21965 http://youtu.be/ht8_5UlcgSQ

  6. Controversies in determining who is an Indigenous Australian: • Often the following are used: • Proof of descent; • Self-Identification; • Community Recognition • An example of the difficulties: A Senator from Tasmania, Jackie Lambie’s claims to aboriginal heritage is disputed: 9 September 2014: • http://www.theguardian.com/world/2014/sep/09/jacqui-lambie-warns-tasmanian-indigenous-elder-to-watch-his-step

  7. The question of British Sovereignty over Australia and Australia’s Indigenous peoples • English sovereignty was (and is) contested in fact and in law • Attempts to repel invasion • Attempts to challenge sovereignty in the courts: • R v Ballard or Barrett, [1829] NSW Sup C 26 (13 June 1829) • R v Murrell and Bummaree [1836] NSW Sup C 35 (5 Feb 1836) • R v Bonjon [1841] NSW Sup C 92 (16 September 1841) • www.law.mq.edu.au/research/colonial_case_law/nsw/site/ • scnsw_home • but • Attorney General (NSW) v Brown (1847)1 Legge 312 • Cooper v Stuart (1889) 14 App Cas 286 (Privy Council) • and then • Coe v Commonwealth (1979) 24 ALR 118

  8. Responsibility for Indigenous Policy 1800s: A Dying Race • Disease • Alcoholism • Dispossession • Conversion to Christianity • Resettlement on missions

  9. Responsibility for Indigenous Policy 1900s: Assimilation and Discrimination

  10. Responsibility for Indigenous Policy 1960s: The rise of indigenous consciousness

  11. The rise of indigenous consciousness • eg the Gurindji people striking at the Wave Hill cattle station • 1967 Referendum • Development of a role for the Commonwealth Government in Aboriginal Affairs (as opposed to the states) • Statutory land rights schemes (South Australia, Northern Territory)

  12. 1967 Referendum Section 51: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …. • (xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws …..

  13. Land Rights and common law Native title rights

  14. People talk about country in the same way that they would talk about a person: they speak to country, sing to country, visit country, worry about country, feel sorry for country, and long for country. People say that country knows, hears, smells, takes notice, takes care, is sorry or happy. … country is a living entity … with a consciousness, and a will toward life. Because of this richness, country is home, and peace; nourishment for body, mind, and spirit; heart’s ease. Deborah Bird Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness (Australian Heritage Commission, 1996) 7.

  15. The Wave Hill Strike 1966-1975 The Australian Broadcasting Commission Story 1968 http://www.youtube.com/watch?v=4whwtefT9q0 “From Little Things” Part 1 http://www.youtube.com/watch?v=27TUaScXco8 “From Little Things” Part 2 http://www.youtube.com/watch?v=B4pU4-WXfk8

  16. Milurrpum v Nobalco(1971) 17 FLR 141

  17. Milurrpum v Nobalco(1971) 17 FLR 141 “The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free of the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not men’, it is that shown in the evidence before me.”

  18. 1975: Resolution at Wave Hill: Gurindji people are given a portion of the Wave Hill station 1976: Aboriginal Land Rights Act (Cth) enacted for the Northern Territory 1982: Eddie Mabo and others lodge a statement of claim in the High Court of Australia claiming native title to the islands and sea in the Murray Islands (between Australia and Papua New Guinea) link to map

  19. Mabo v Queensland (No2) 1985:The Queensland Coast Islands Declaratory Act 1985 (Qld). The Act purports to extinguish any native title that might exist in the Torres Strait, without compensation. 1988:In Mabo v Queensland (No 1), the High Court finds that the Queensland Coast Islands Declaratory Act is inconsistent with the Racial Discrimination Act and therefore invalid. 21 January1992: Mabo died in Brisbane whilst being treated for cancer. On 3 June 1992: The High Court recognises native title as a common law property right, rejecting the doctrine of terra nullius. The High Court declares that, subject to any acts of extinguishment, the Meriam people are ‘entitled as against the whole world, to possession, occupation, use and enjoyment of the island of Mer’, an exclusive possession form of native title.

  20. Mabo v Queensland (No2) A documentary reflecting on the 20th anniversary of the Mabo (No 2) decision: http://www.youtube.com/watch?v=XKTSHW1UzEM

  21. Mabo v Queensland (No2) The High Court recognised a new form of Indigenous land right: common law native title: The common law which had for so long been the source of legal dispossession of Indigenous Australian now proved that it could also protect their rights in land. Confirmed British sovereignty over Australia upon settlement and declared that as a result, the Crown acquired a title to all land. The Court refused to abandon the idea that when the Crown acquired sovereignty that the doctrine of tenure applied.

  22. “every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord not the relationship between tenant and land. The characteristic of feudalism "is not tenere terram, but tenere terram de X" … It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: "The King had 'dominium directum', the subject 'dominium utile'" … Absent a "dominium directum" in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. When the Crown acquired territory outside England which was to be subject to the common law, there was a natural assumption that the doctrine of tenure should be the basis of the land law.’

  23. In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the AustraliaAct 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs Australia is Australian law. ….

  24. Increasingly since [the abolition of appeals to the Privy Council ] the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation. Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country … it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own. …. The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed.

  25. Rejection of Terra Nullius The facts as we know them today do not fit the "absence of law" or "barbarian" theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights …

  26. International law and the development of the Australian common law If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be ‘so low in the scale of social organization’ that it is ‘idle to impute to such people some shadow of the rights known to our law’ can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.

  27. Controversies: • Updating the common law or creating new common law? • Response of the Commonwealth Government to the decision: • Native Title Act 1993 (Cth)

  28. The Future • Health, Housing, Education, Welfare • Constitutional recognition (tomorrow’s class) • Amendments to the Native Title Act?

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