The eighth anniversary of the High Court’s judgement in the Mabo case occurs this Saturday and is the culmination of National Reconciliation Week activities throughout Australia.
The Mabo judgement overthrew the legal notion of “terra nullius”, the concept that the Australian continent was an empty land belonging to no-one which was acquired by the British in the eighteenth century.
The court ruled that a form of native title exists in the Australian common law that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands.
The court also ruled that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.
The case led to the passage of the Native Title Act in 1993 and the establishment of the Native Title Tribunal to rule on Aboriginal land claims.
The act was amended in 1998 after a fierce debate following the High Court’s 1996 Wik judgement. This decision followed confusion over the competing claims of Aborigines and pastoral leaseholders. The court held that native title and pastoral leasehold rights could co-exist, but that leasehold rights prevail in the event of conflict.
The debate over native title has occurred in the context of ongoing discussion about the Stolen Generations of Aboriginal children, particularly since the release of the report of the Human Rights and Equal Opportunity Commission, Bringing Them Home.
Recent years have seen a growing social movement devoted to the issuing of a formal national apology to the Stolen Generations. There have also been calls for a formal treaty with the Aboriginal people.
