International Law(A) Essay, Research Paper
Australia Territory ContinentIntroduction [1.1] Australia has always been regarded as terra nullius under International Law. Terra nullius is a “territory belonging to no state, that is, territory not inhabited by a community with a social and political organisation. In International Law, effective occupation is the traditional mode of extending sovereignty over terra nulliua”1. In 1788, on the advent of discovery, the British became legal occupiers of Australia. Coincidence with the British Crown’s acquisition of Sovereignty was the importation of all British laws into Australia. Although Australia was inhabited by Aborigines before European settlement, their presence was ignored by the British because they were regarded as barbaric, primitive and individuals rather than communities. Therefore, if ever they had any native title to land, this was not recognised by the British. [1.2] The first attempt made by Aborigines seeking legal recognition of native title to land was a failure in the case of Milirrpum v Nabalco Pty Ltd2. However, in the case of Mabo & Others v The State of Queensland (No.2)3 native title was legally recognised and protected under the Australian common law. Part of the Commonwealth Government response to the Mabo decision came in the Native Title Act 1993. In order to understand the effect of these two on Australian land law it is first necessary to grasp an appreciation for their contents. Then an examination of the effects so far and the future upon Australian land law as a result. Background to Mabo Case [2.1] In 1982, Eddie Mabo and four others issued a writ in the Brisbane Supreme Court to counter-act the Queensland Land Act 1962 wherein Bjelke-Petersen’s government created proposals to vest title to reserves in Councils by means of Deeds of Grant in Trust4 . [2.2] The plaintiffs wanted recognition of Murray Island ownership deriving from Meriam law and not Queensland law. Furthermore, they did not approve of having their interest vested in the Council as trustee due to the fact that Meriam law recognises individual and family land title as opposed to communal ownership. With a narrow majority of 4-3 in the Supreme Court of Brisbane, the case was given leave to be heard in the High Court. The judgement was finally to be handed down ten years later in June, 19925 . [2.3] Their first claim was achieved by the High Court wherein a majority of 6-1 recognised native title to land deriving from Meriam laws and customs. So it was decided that the Meriam people as a people owned Murray Island. The decision in Mabo is a legal revolution6. It overturned 200 years of assumptions about the foundation of British law in Australia7. Previous Common Law & Mabo [3.1] It can be seen that the Crown’s acquisition of sovereignty in Australia led to the adoption of terra nullius. This gave the Crown not only power to rule and the radical title as ultimate land owner, but also the beneficial ownership of the whole land in the territory, which it was then free to do whatever it so wished. Terra nullius did not seek to extinguish native title, but rather state that there was no native title on the land to start with8 . [3.2] In the 1847 case of Attorney General v Brown9 a man who found some coal on land felt that it was his. When an action was brought by the Attorney General against him, he pleaded that land in Australia did not apply to land in England, and hence British law should not apply. However the Full Court of the Supreme Court of New South Wales said, “we are of the opinion since the first settlement in 1788 that all land vested in the Crown” the court went on to find there to be no reason why the law of England should not apply to Australia. [3.3] In the case of Coe v Commonwealth10 it was argued that Australia was not settled but rather conquered and hence, a conqueror can only do so much as is compatible with the interests of the country. As such, the constitutions of those conquered shall still exist. However, the High Court found that Australia was not conquered but rather settled. Aboriginals were considered as part of the flora and fauna and had no real laws or sense of organisation. [3.4] In the case of Milirrpum v Nabalco11 the plaintiffs argued that, because their communal native title was violated, the mineral leases in question were invalid. The plaintiffs failed in their action, even though they had been able to prove that their ancestors had a recognisable system of law. The plaintiffs had been unable to demonstrate that they had a correlation with the land which could be precisely called a “proprietary interest” under the white law. Blackburn J held that the doctrine of communal native title did not form and never formed part of the law of Australia. He went on to make a distinction between settled and a conquered or ceded colony in stating: “There is a distinction between settled colonies, where the land, being desert and uncultivated, is claimed by right of occupancy and conquered or ceded colonies. The words desert and uncultivated are Blackstone’s own… it has been taken to included territory in which lived uncivilised inhabitants in a primitive state of society. The difference between the laws of the two kinds of colony are immediately in force there upon its foundation. In those of the latter kind, the colony already having law of its own, that law remains in force until altered.”12 [3.5] However, in Mabo the doctrine of Terra Nullius was rejected. As a result of this rejection, native title in the form of beneficial ownership had survived the Crown’s annexation of sovereignty and radical title13. It is this beneficial ownership that is being claimed today by indigenous people on unalienated Crown Land. Blackburn J. failed to properly examine the existing culture and systems of law developed by indigenous Australians before the British arrived. How then can the Justice properly say that Australia was settled before properly assessing whether such systems of organisation existed? Just because land is left untilled and unmarked does not mean title does not exist. The idea of the Doctrine of Tenure – that is, land shall always belong to someone – if not in the Crown then seems to exist14. [3.6] With the common law recognition of native title in Australia by the highest court in the land has dispelled the poor judgements made in earlier common law cases and initiated a first step towards reconciliation of land to the Aboriginal people, where it was seen fair and equitable. [3.7] The judgement of Brennan J in Mabo noted nine essential points relating to the common law, which laid the ground work as to how native title should exist in Australia. Brennan J felt that the Crown’s acquisition of land was justiciable (it is an act of the state); he felt that upon acquisition of sovereignty, the Crown also received radical title (which means to say that the Crown did not derive its title from a superior title); that native title survived the acquisition of sovereignty; that inspite of the existence of native title, the Crown may extinguish it by making a grant inconsistent with native title, eluding that freehold was not available to indigenous Australians; that in the case of national parks and such, where a freehold interest does not exist, native title can exist side by side; that native title, its incidence and those who are entitled shall be those people only involved and no others; that native title may be surrended to the Crown, but it can not be transferred to other non-indigenous people; that since native title was dependent on customs and traditions, if a group of people disown their customs or lose attachment to the land, that title is extinguished; and finally that wherever native title is extinguished, then that interest reverts to the Crown15. [3.8] These criteria that Brennan J draws on are reflected in the Commonwealth’s later recognition of the Court’s decision in the Native Title Act 1993 (Cth). The criteria for claims by indigenous Australians seem almost impossible at times, but not without just cause. The criteria act as a prevention from false or misleading claims, but it also seems to make it more of a task to those who are legitimate in their claims, but are almost put off by the requirements to achieve a successful claim16. [3.9] Toohey J in his judgement found the existence of an enforceable fiduciary relationship between governments and indigenous communities. The Justice felt, based on the facts, the Queensland Government in selling land off to developers for a tourist complex violated the wishes/interests of the indigenous titleholders were in breach of their fiduciary duty and were liable in damages. This provided for the protection to vulnerable communities against oppressive governments over and above the Racial Discrimination Act 1975 (Cth)17. [3.10] Toohey J felt that a constant occupation of land was not necessary for native title to be granted, a mere visit from time to time may constitute occupation and legal possession. The implications of Toohey’s J judgement to Australian land law opens a new area for non-traditional Aboriginal and Islander communities across Australia who remain on or in close association with their ancient lands, to consider a claim for native title to those lands18. Impact of Mabo [4.1] As a result of the Mabo, the crown acquired sovereignty and radical title, but burdened with pre-existing native title. This title is determined in accordance with traditional law and customs19, where Blackburn J in Milirrpum refused to acknowledge. [4.2] The decision in Mabo made it clear that when the sovereign grants an interest wholly or partly inconsistent with native title, that title would be extinguished to the extent of the inconsistency. The test is based on a clear intention of the sovereign to do so20. [4.3] The decision in Mabo felt that freehold grant would extinguish native title. At present it is felt that leasehold grants extinguish native title due to the fact of exclusive possession, unless the terms express otherwise21. [4.4] One must note the government nor courts have recognised minerals on land as falling within native title, and state that such minerals still belong to the Crown. This still allows mining to continue where mining companies have permission from the native title owners and may pay occupation rent on their properties22. [4.5] Mabo has affected the disposition of land. A crown grant of title may be transferred to another. Therefore, it is a title that is alienable and can be disposed of by will to another individual. On the other hand, a native title: “is a communal title, based on membership of a tribe or other group, with no concept of individual entitlement. But this is not a necessary feature, and the Murray Islanders are no exception. Aspects such as inheritance of rights under native title, or 1 transfers of rights, or the entitlement to hold title, will depend on the laws and customs of the natives (Brennan at 44).”23 Clearly in here, the Latin maxim, nemo dat quod non habet is applicable. [4.6] However, it must be also mentioned that native titles can be alienated by surrendering to the Crown where, for instance, the Crown intends to turn certain native land in national parks (where Aboriginals can enjoy the land side by side). Another situation arises when rights are granted to non-members in the form of licenses and permits. The licensee does not have exclusive possession. His interest in the land is determinable. For example, a man who marries into another community may acquire a right to use a parcel of land f