FEDERALISM Federalism is a form of government which unites separate political entities, within a national system whilst still retaining their independence (AUSTRALIANPOLITICS. COM, 2011). In this essay it will be discussed that the ‘Mabo Decision’ and the implementation of the Native Title Act, 1993, is an example of this and will be analysed whilst unearthing the challenges and benefits which were exhumed within this historical test case, whilst explaining the impact of the High Court Ddecision.
The Australian system of government is a federal system incorporating characteristics of both the British system and that of the United States. The Australian Constitution provides for a Westminster type parliament, an upper house (Senate) and a Lower House (House of Representatives) with an Executive consisting of elected Members of Parliament. The Senate, however, like its United States counterpart, is representative of the States, with the High Court, similar to the United States Supreme Court, as the judicial annotator of the Australian Constitution and the Federal Government’s legislation.
The courts have also played an important role in developing the common law to provide recognition for various human rights. The most historically challenging example of this was the recognition of Aboriginal native title in the Mabo High Court ruling. MABO CASE BACKGROUND The ‘Mabo decision’ was named after the leading plaintiff Edward ‘Koiki’ Mabo in a native title challenge put to the government of Queensland and the Federal government of Australia. The other Murray Islander (Meriam people) plaintiffs were: Celuia Mapo Salee, James Rice, Sam Passi and his brother Father Dave Passi.
On May 20, 1982, the plaintiffs’ statement of claim was lodged at the Brisbane registry of the High Court of Australia. The claims lodged included the rights to both land and sea surrounding the island. The state of Queensland’s jurisdiction ended at the 3 mile limit and the Commonwealth assumed control of the sea from there. For strategic reasoning the plaintiffs restricted their evidence to ownership of fish traps and reefs along the coast, within the 3 mile limit.
A little under three months after filing the claim, the Queensland government responded with a summons to ‘strike out’ the claim. This legal tactic was adjourned indefinitely by the High Court of Australia’s Justice Dean and Queensland didn’t raise it ever again. Queensland’s hardened approach continued throughout the duration of the case. Including the introduction of the ‘Queensland Coast Islands Declaratory Act, 1985’, under the rule of Premier Bjelke- Petersen. This act was passed to extinguish whatever rights and interests the Meriam people may have had under their traditional law.
It also was designed to extinguish traditional rights with effect from 1879 when Queensland annexed the islands, without any compensation or legal rights of appeal. “The Murray Islanders argued that the Queensland Coast Islands Declaratory Act, 1985, denied them equality before the law and the enjoyment of their right to own property and arbitrarily deprived them of their property. These are human rights protected by article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. Australian Human Rights Commission, 2011)” On June 19, 1985 Mabo challenged this Act in the High Court in what would be known as, Mabo and Others v Queensland (No. 1, 1988). On December 8, 1988 the High Court passed down its decision and by the narrowest margin, four to three, found in favour of Mabo on the basis of racial discrimination and ruled the act invalid. After an adjournment which lasted more than two years, it was back to the Queensland Supreme Court for reconvened hearings on May 2, 1989.
These hearings were held on Murray and Thursday Islands for the convenience of local witnesses which included 24 Islanders called to give evidence in support of the plaintiffs. Queensland called nine islanders to dispute their evidence including the brother of one of the plaintiffs. Sam Passi told the court that ‘the real Murray Islander is one that follows Malo’s Law. The First Australians SBS (1989). ‘ Malo’s Law is a strict law of a spirit which Murray Islanders had practiced for hundreds of years.
The main law below as explained by Father Dave Passi, “Tag Mauki Mauki, Teter Mauki Mauki”, which translates to: “Your hand can’t take something that does not belong to you unless you have permission. Your feet cannot walk in, or through someone else’s land, unless there is permission. Father Dave Passi, First Australians SBS (2008)”. The Queensland Supreme Court Judge, Justice Moynihan, also went for a trek into the Murray Island reserve to see first hand the native border control measures which have been in place for many years by the local people.
These included certain landmarks, trees, rock formations etc. These have been recognised locally for generations. It was also pointed out that these land parcels under tribal law were passed on from Father to Son and never could be traded for currency. Edward Koiki Mabo’s mother had passed away weeks after his birth and was the adopted son of his uncle, as was the Meriam nation’s people’s cultural tradition. This was to be a major deciding factor in the decision of Mabo and Others v Queensland (No. 1, 1988), the core argument from Queensland was that Mabo was not the person he said he was.
In 1990, Justice Moynihan’s report was presented to the High Court in Canberra. It found in favour of the Murray Islanders that they had an enduring relationship to their land which could be categorised as ‘customary land ownership’ however Mabo’s claim to thirty six blocks of land was denied on the basis that Edward Koiki Mabo’s adoption at birth was ‘unlawful’, therefore he was not entitled to the Islands cultural tradition that the land be rightfully passed down to the Son from his adopted Father. Now into its ninth year, Moynihan’s findings were on the brink of sinking the Mabo case.
The lawyers fighting the case put it to Mabo that it would be easier to get a favourable decision for the Meriam people if he was to withdraw himself from the case which would be come to be known as Mabo and Others v Queensland (No. 2, 1992). He agreed to have himself removed from the claim. By the time the High court had resided to make their judgement, with the withdrawal of Mabo and the passing of Celuia Mapo Salee, and Sam Passi they could only test the claims of evidence of the remaining two plaintiffs, James Rice and Dave Passi.
After 10 years the ruling of the High Court was about to be announced at any time. Mabo was back in Townsville where he lived, surrounded by his family and dying of cancer which he finally succumbed to on January 21, 1992. On June 3, 1992 the High Court delivered its judgement. For the first time Australia recognised that the indigenous people of the country were the owners of this land before European occupation. THE HIGH COURT DECISION The High Court concluded that Indigenous peoples should be treated upon even terms before the law with regard to their rights over land.
They also dismissed any position in law that would discriminate against any indigenous peoples by denying the existence of previous rights that had been liberally enjoyed prior to European settlement. The decision in Mabo and Others v Queensland (No. 2, 1992), the High Court rejected the doctrine that Australia was ‘terra nullius’, which asserted that the land belonged to no-one at the time of European Colonisation and held that the common law of Australia recognises a form of native title. The notion that no rights existed in land except those granted by the ‘Crown’, or the sovereign governments, was also reassessed.
To recognise that Native Title predates the assertion of sovereignty by the British was an important part of the decision. Native title is unique in this sense, when compared with other interest in law. It is inherent to Indigenous peoples by virtue of their status as first peoples and the first owners of this land. Native Title doesn’t depend on government for its existence but to be enforceable in the Australian legal system had to have recognition through common law. FEDERALISM AND THE MABO DECISION In the Mabo case there were many examples of federalism at work.
The differences in state and federal constitutional powers in this instance has made the final decision of the High Court more fair, equitable and transparent for all to see. Differences include the following: The Constitution of Queensland Act 2001 currently does not expressly provide that Ministers of the Crown have to be elected parliamentarians. By Westminster conventions, the Australian Constitution however is different where Ministers of the Crown have to be elected parliamentarians, thus allowing for “responsible government”.
Another difference is that the Queensland constitution doesn’t advocate a strict “separation of powers” and the Queensland Parliament could legislate to alter the judicial role of the states courts. However because Queensland is part of a federation, the Australian High Court has overruled the State’s authority in certain areas, through acknowledgement of the Federal Government’s constitutional powers, such as in this case. Queensland Parliament (2011). The Mabo decision is legally admissible in a number of respects. It recognised the entitlement of indigenous people of Australia to a form of native land title.
This recognition required the overruling of the common law doctrine of ‘terra nullius’. Terra nullius is relevant to international law in deciding whether a state has acquired sovereignty by attempted occupation; however this has been disputed in this case. The High Court has been criticised upon the basis that it bypassed a legislative function and so breached the separation of powers doctrine preserved in the Australian Constitution. The High Court also offered advice as to the way in which a settled common law doctrine may be overruled by a court.
Advice was also offered as to the proper influence which international law and international instruments may have upon the evolution of the common law in Australia. Furthermore, the decision inherently brings to the fore an important question of judicial policy. The most common criticism which has been targeted at Mabo, concerns not how the High Court came to its verdict, but whether, as a matter of judicial policy, it may not had to have left such an extreme change of the law to the elected representatives of the Australian people in their democratic parliaments.
FEDERALISM AND NATIVE TITLE Native title has differing definitions in law from the perspective of individual countries. Indigenous peoples’ rights may be recognised through treaty or statute, via the Constitution or by the development of updated judge made law. Australia has a federal system where a written constitution decides upon powers at federal and state level where as New Zealand has a singular state structure and not governed by a written constitutional document as such. A system of legislative supremacy usually would be in place instead of a system with balance of powers.
New Zealand has the Treaty of Waitangi, which forges a special relationship between the Crown and the Maori people. Some countries would also adopt the authority of other global or regional authorities such as United Nations for the influence of developing their laws. These differences as well as various colonial histories would account for the peculiar laws around the globe in regards to native title. In saying that, it is always beneficial to compare foreign laws and compare doctrines which may provide viable alternatives which may not have been previously considered by law makers or courts whilst not adhering to authority.
AFTER THE MABO DECISION In 1993 the Keating government enacted the Native Title Act (Native Title Act, 1993), which came into operation on 1 January 1994, which adopted the common law as defined in Mabo and Others v Queensland (No. 2, 1992), which prescribed a system for dealing with native title. The Act contemplates the enactment of complementary laws for which the States and Territories can determine native title. Once such law allows States and Territories to set their own regimes and deal with native title in a way which is flexible and peculiar for each case, instead of the right to negotiate.
However, before approving the alternate laws of a state or territory the Commonwealth Minister must determine that the regime has complied with the criteria set out in the Native Title Act, 1993. The Native Title Act 1993 Act provides for the determination as to the existence or non-existence of native title to particular parcels of land. Under the Native Title Act 1993, the native title applicants must be given certain rights depending on the type of land which the act is to be done and the type of act involved.
Access to native title land for mining or other non-Aboriginal purposes can be obtained but there are extensive provisions relating to negotiation, arbitration and ministerial intervention in respect of proposals to grant access. A National Native Title Tribunal, presided over by a Judge of the Federal Court, has certain mediation and administrative functions and is presently dealing with the processing of claims; these claims currently can take on average of six years or more for determination.
The Federal Court has jurisdiction over issues calling for judicial determination, including appeals from the Tribunal on questions of law. The State of Western Australia, in which 52% of the land is unalienated and which contains significant deposits of minerals, took serious objection to the Native Title Act, 1993. Its Parliament enacted a law to deal with native title and mounted a challenge to the validity of the Commonwealth law. However, the High Court upheld the validity of the Native Title Act and held the Western Australian law to be invalid.
In other States and Territories of Australia, there has been recognition of some form of native title although the paramount power of the government has been widely accepted. The modern development of law governing Aboriginal title to land is part of a postcolonial decree which is very rarely used used in other countries to protect the relationship between the descendants of the indigenous inhabitants and their traditional lands. This has been justified (by law-makers) on the basis of differing colonial histories and styles and structures of government.
In Australia and many other countries around the world, postcolonial relationship of the indigenous population with their traditional land is a difficult area for the courts to pass judgement on. The courts need to be sensitive to the demands of justice for minorities and the disadvantaged in society. It is also a forum in which indigenous peoples will seek to right what are now perceived to be historic wrongs. WHERE TO NOW AND FOR THE FUTURE As a result of native title, governments and industry will be required to sit down at the table with traditional owners to enter into agreements before anything is done on their country.
From an international perspective, Australia is seen as a sovereign entity in the international community of states. From a national perspective, Australia must negotiate the ways in which sovereignty is to be excercised and how it is to be administered. Formally under the Australian Constitution, sovereignty is shared between the federal and state governments and between the three separate arms of government – the legislature (the Parliament); the judiciary (the courts) and the executive (the government).
There are differing scopes for autonomy and authority through these systems of federalism and separation of powers. The power is divided to ensure that the rights of the people are protected and that the institutions of government reflect regional differences. Word count: 2596 References: Australian Bureau of Statistics Recognition of Native Title, Viewed 29 September 2011 http://www. abs. gov. au/Ausstats/[email protected] nsf/Previousproducts/1301. 0Feature%20Article21995? opendocument Australian Human Rights Commission From the bench: landmark human rights cases, viewed 29 September 2011 http://www. reoc. gov. au/about/publications/hreoc21/page4. html Australian Institute of Aboriginal and Torres Strait Islander Studies A comparison of native title Laws, Viewed 15 September 2011 http://www. aiatsis. gov. au/ntru/docs/resources/issues/Comparison. pdf The First Australians, The untold Story of Australia (Episode Seven, We are no longer shadows) SBS production DVD, 2008. Documenting a Democracy Mabo v Queensland No. 2 1992 http://foundingdocs. gov. au/item-did-33. html Land Bilong Islanders, a background to the Historic Mabo Ruling Trevor Graham, DVD, 1989
Mabo the native Title revolution, viewed 1 October 2011 http://www. mabonativetitle. com/home. shtml National Native Title Tribunal, Viewed 5 October 2011 http://www. nntt. gov. au/Pages/default. aspx Parliament of Australia, Parliaments Library Parliament’s Development of Federalism, viewed 28 September 2011 http://www. aph. gov. au/library/pubs/rp/2000-01/01rp26. htm#federalism Queensland Parliament 2011. Separation of Powers???Definitions and Origins. Viewed 6 October 2011 http://www. parliament. qld. gov. au/en/explore/about-us/parliament-overview/sepa