LAWS1001A Lecture Notes - Lecture 4: Legal Fiction, Nunga, Pastoral Lease
2 Jul 2018
School
Department
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Professor
Week 4: Indigenous Australians and the
System of Law and Justice.
There was no single indigenous legal system, rather a confederacy of legal systems, and these legal
systems were a subject of deep reverence and respect. These bodies of law were often orally
transmitted, and those of which were written were symbolic and artistic- which was widely
misunderstood by the Europeans. The enforcement of law was sometimes physical and collective
violence was utilised; shaming and retribution against family/kin which aims to ensure personal
acceptance of responsibility. There was also a strong emphasis on communal dispute resolution.
Indigenous peoples often believed that the psychic and spiritual consequences were far more
negative than other consequences for a breach of laws.
To see the division of indigenous nations throughout Australia, visit AIATSIS.
Colonial Violence:
NSW:
Waterloo Creek (1838) (Kamiloroi County) with up to 300 killed, no prosecutions.
Myall Creek (1838) (Kamiloroi County) 28 killed, resulted in prosecution- R v Kilmeister
QLD:
Brisbane waterhole poisoning (1842) 50 dead in Yuggera County, no prosecutions.
Yeeman Killings (1857-1958), 300 killed, no prosecutions.
Diamantina Killings (1888), 200 estimated to be killed.
Drift into Systematic Incarceration, Dispersal and Control through Law.
The Doctrine of reception and Terra Nullius lead to the removal of land title, and the abolition of
customary law. A legal system was applied in pursuit of policies that were overtly racist but also
paternalist. Now, indigenous people are significantly overrepresented in prisons, have lower life
expectancies, lost languages, culture and familial ties.
The Yirrkala Petition:
In March 1963, the Australian government granted a bauxite mining licence to the Nabalco
Corporation in Arnhem Land (NT), along with the sale of land. The licence and sale was granted
without any consultation with the Yolngu people, whose lands the mine was to be located. The
Yolngu people prepared and presented a petition against the lease and the process, in a unique
petition that invoked both Customary and Australian law, formally presented to the House of
Represented by Hon. Jock Nelson. A committee of inquiry was established, that recommended just
terms compensation, the protection of sacred sites, and that strict environmental oversight be
maintained.
The apparent failure of the petition resulted in a challenge in the NT Supreme Court, Millirrpum v
Nabalco (1971) 17 FLR 141. In this case, the legal challenge to the sale of land to Nabalco under the
Lands Acquisition Act 1955 (Cth), was based upon a proviso in the Letters Patent establishing South
Australia as a separate colony in 1836. That proviso was to the effect that nothing in the grant was
to affect the rights and enjoyment of Indigenous peoples on lands they presently occupied.
find more resources at oneclass.com
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Native Title
The Whitlam Government passed the Aboriginal Land Rights (Northern Territory) Act, which was
partly a response to the decision in Millirrpum, and partly a response to public protests. This Act
allowed the grant of land to trusts for Indigenous People if traditional occupation or ownership could
be established. This was the first Act that specifically granted land to Indigenous people based on a
different conception of land tenure. Various states followed suit.
Radical title Native title
Radical title means that all land is vested in the
Crown and that any ownership of land must be
based on a grant from the Monarch. This is
what English property law is based upon.
The most common form of land ownership in
Australia depends on a registered interest
ultimately sourced in a Crown grant, which is
subject to perpetual reservations on minerals
and often the uses of land.
This is based on exclusive use and physical
possession.
Indigenous property law is complex, but
typically involves communal rights of access,
use and occupation, with specified duties
towards the land.
Generally, the idea that a person can ‘own’ the
land is foreign, as is the idea of exclusive
possession and exclusionary rights- for even in
areas where one group may traditionally
occupy land, others may have travel, access and
ceremonial uses. Some groups did, however,
exercise exclusivity.
Mabo and the Native Title Act 1993 (Cth):
Mabo concerned a challenge to the QLD Land Act, based on a claim to native title over the Meriam
Islands in the Torres Strait. The Meriam people rejected the idea that traditional lands can be held
on ‘trust’, since they always held the land. Further, the Meriam peoples practised a system of direct,
individual or clan ownership.
The QLD Government attempted to head off the claim by passing the Queensland Coast Islands
Declaratory Act 1985, which declared that the annexation of islands of QLD’s coast in 1878 vested
radical title in the State of QLD.
The Court held in breach of Racial Discrimination Act 1975 (Cth) in Mabo (No 1) (1988).
In Mabo (No 2), the High Court held that:
1) Terra Nullius was a legal fiction.
2) The Australian Continent was not ‘empty land’.
3) The radical title of the Crown was not incompatible with property rights based on beneficial
uses of land.
4) Native title / uses continued in those places where the crown had not otherwise
extinguished title by exercising its power to divest land title to others.
This resulted in Native Title being recognised at common law, provided indigenous people could
establish traditional contact and use of land.
This led to the Native Title Act 1993 (Cth).
Wik and the Native Title Amendment Act 1998 (Cth):
Wik involved a native title claim to areas of land in the Western Cape of North QLD over areas where
a time limited lease for pastoral purposes had been granted. In Wik, the High Court held that
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
There was no single indigenous legal system, rather a confederacy of legal systems, and these legal systems were a subject of deep reverence and respect. These bodies of law were often orally transmitted, and those of which were written were symbolic and artistic- which was widely misunderstood by the europeans. The enforcement of law was sometimes physical and collective violence was utilised; shaming and retribution against family/kin which aims to ensure personal acceptance of responsibility. There was also a strong emphasis on communal dispute resolution. Indigenous peoples often believed that the psychic and spiritual consequences were far more negative than other consequences for a breach of laws. To see the division of indigenous nations throughout australia, visit aiatsis. Waterloo creek (1838) (kamiloroi county) with up to 300 killed, no prosecutions. Myall creek (1838) (kamiloroi county) 28 killed, resulted in prosecution- r v kilmeister. Brisbane waterhole poisoning (1842) 50 dead in yuggera county, no prosecutions.
