Question 1
On 3rd June 1993 the High Court of Australia handed down its decision in Mabo and Others v the State of Queensland (Mabo No 2), which had had a profound impact on Indigenous-non- Indigenous relationships in Australia. One of its invaluable impacts lies in the deep consideration of source, nature and extinguishment of Native Title. Despite the uniqueness of Australian context, the Court had to consider models of nation titles, which existed in the USA (Johnson v Mcintosh case), New Zealand (R v Symonds) and Canada (settlements of Ontario and Western Canada). Native title was defined as ‘a title derived from and conforming to traditional custom, but recognized and protected by the common law’. (Mabo v Queensland, 1992) Observing the nature of the concept of native title, justices Deane and Glaudrone emphasized that ‘Native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty…’ (Mabo v Queensland, 1992)
This statement leads us to the second important effect of Mabo decision, which lies in acknowledging the failure of the common law to recognize indigenous people as people, saying 'Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence'. (Mabo v Queensland, 1992) In other words, the Court recognized indigenous people’s identity and, therefore, their sovereignty, based on unique political, economic, social and legal system.
Having acknowledged the uniqueness of rules and customs, which distinguish and unite indigenous people, the Court mentioned that ‘the law of a newly settled British colony would require an adjustment either of the interests into a kind known to the common law or a modification of the common law to accommodate the new kind of interests. (Mabo v Queensland, 1992) The development of native title in terms of common law resulted in recognizing the power of the state to extinguish native title and continuing exercising of this power.
Another important effect of the decision lie in rejection of terra nullius principle, whose implementation lied in considering Australia the land, which has never been subject to the sovereignty of any state or over which any prior sovereign has expressly or implicitly relinquished sovereignty. (New Jersey v New York, 1998)
In response to the judgment, the Parliament of Australia enacted the Native Title Act, which sets up criteria and processes determine the existence of native title, how activities, influencing the native title, should be undertaken, and to provide compensation in case native title is impaired or extinguished. The …