Ting indigenous cu

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37 R v Cobby (1883) 4 LR (NSW) 355, 356, Martin CJ: We may recognise a marriage in a civilized country but we can hardly do the same in the case of […] these Aborigines, who have no laws of which we can take cognisance.’

38 Mabo v State of Queensland (No 2) (1992) 175 CLR 1, 42 (‘Murray Island Case’).

This case, for example, bears the name of one of the plaintiffs who has passed on. For cultural reasons in parts of Australia, the continued use of the name held by a now-deceased person is avoided, and where possible, a convention is adopted to call it the Murray Island Case
Brennan described the status quo ante as ‘the fiction by which the rights and interests of Indigenous inhabitants in land were treated as non-existent [and consequently that it] has no place in the contemporary law of this country’.39 The legal consequences of erra nullius however still persist in the law and it will take time to expunge these deleterious effects. Thus it is important that students gain some understanding of how Australian property law and its theories of tenure and ownership of estate in property have interacted, affected and contrasted with Indigenous notions of custodianship. Such custodianship and rights that derived from it, such as the rights to enjoyment or to exclude,40 even today are not recognised as ‘rights’ per se at common law but only as rights acquired under another normative system.41 These rights and interests are recognised42 but subject to extinguishment43 for the English laws superior status.

It is not that Indigenous people did not demarcate their territories or boundaries between groups or sometimes even between individuals. They did so, but in a manner that did not appear formally to match English notions of the power to alienate interests in the land while radical title perpetually vests in the Crown.44 How these English notions were transported to Australia is shrouded in the mysteries of the trick the Englishman has of carrying with him some English law wherever he goes45 in this case to the utter detriment of ‘aboriginal natives’.

Justice Finn held that the ‘varieties of sharing [territory]’ in certain instances equated with ‘ownership’ in the English legal tradition.46 The coastal dwellers of Botany Bay in 1788 did not take the colonisers on a boat ride pointing out the traditional areas of use by various families and groups, as the Torres Strait Islanders did with Justice Finn. Such an omission is perhaps a tragedy of history which cannot be reversed, but its effects can be mitigated through education and cultural understanding, which are important aims, and the reason for incorporating ICC in the curriculum. Property law and its effect on Indigenous land use and custom is therefore a reasonable addition to the unit content.

Thirdly, it was decided that it was important for students to understand the history of the impetuses for change in race relations in Australia. From Federation to the early 1960s there was little

39 Murray Island Case, 71.

40 Milirrupum v Nabalco Co Ltd (1971) 17 FLR 141, 272.

41 Members of Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [43].

42 Native Title Act (1993) (Cth) s 223(1)(c); Lisa Streline, Compromised Jurisdiction: Native Title Cases Since Mabo (Aboriginal Studies Press, 2nd ed, 2006) 5, 7.

43 Native Title Act (1993) (Cth) Div 2B.

44 Edward Jenks, Modern Land Law (Scientia, 1979) 7.

45 Catriona Cook et al, Laying Down the Law (LexisNexis, 8th ed, 2012) 39.

46 Akiba v Queensland (No 2) [2010] FCA 663, [262].
domestic pressure or appetite for change in the racial politics of Australia.47 Gardiner-Garden refers to Australias ‘poor international image’ and other pressures on the government in the early 1960s in relation to its treatment of Indigenous people.48 This international image had some effect on the bureaucracy with respect to Indigenous affairs.49

The major impetus for change in the 1960s was a result of international factors.50 While Gardiner-Garden does not elaborate on these international factors, they probably included the formal defeat of Nazism and the rise of the notions of universal human rights, independent of race, creed or colour.51 Chesterman specifically notes Australias official desire to criticise South Africas practice of apartheid.52 Recall that notwithstanding the defeat of fascism in Europe, the White Australia policy was still officially in place. Thus, the domestic apartheid regime would have made Australia look hypocritical, and arguably quite foolish, as Aboriginal peoples in Australia were by this stage never going to constitute other than a very small minority and, unlike black South Africans, to be in the numerical position to end White rule. There was therefore a sense of urgency in the Executive to dismantle the race based laws of Australia.53 Thus an examination of international law and custom and the incorporation of some of these norms into domestic law is a useful third limb for the unit content.

Many other areas of law could have been included in a broader subject in the nature of a survey of a relevant topic. These include the impact of the criminal law on Indigenous people; intellectual property issues for the protection of Indigenous peoples’ biological resources and artistic and cultural works;54 the study of Indigenous companies, businesses, and corporate entities and Native Title Representative Bodies (NTRBs);55 family law issues and considerations of the kinship aspects of Indigenous custom;56 administrative law, which

47 John Summers, ‘The Parliament of the Commonwealth of Australia and indigenous Peoples 1901–1967’, Research paper No. 10 2000-01 (Department of the Parliamentary Library, 2000) 6.

48 John Gardiner-Garden, ‘The 1967 referendum: history and myths’ (Australian

Parliamentary Library Research brief 2006-0, no. 11, 2 May 2007) 7.

49 Ibid.

50 Summers, above n 47, 6.

51 Universal Declaration of Human Rights, G.A. Res. 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810, (10 December 1948).

52 John Chesterman, Civil Rights: How Indigenous Australians Won Formal Equality

(UQP, 2005) 72 3

53 Gardiner-Garden, above n 48, 8.


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