Land Justice for Indigenous Australians: How can two systems of land ownership, use and tenure coexist with mutual respect based on parity and justice?
Date
2018
Authors
Wensing, Edward George
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Abstract
Prior to Mabo (No. 2) the legal imaginary of terra nullius
enabled the creation of a property system as if the pre-existing
land rights and interests of the Aboriginal peoples simply did
not exist. Ever since the High Court of Australia’s landmark
decision in Mabo v State of Queensland (No. 2) (1992) and the
Australian Parliament’s enactment of the Native Title Act 1993
(Cth) there are two legally recognised and distinct systems of
land ownership, use and tenure operating in Australia: one older
(over 60,000 years), the other much younger (only 230 years).
While Mabo (No. 2) dismissed the convenient legal fiction of
terra nullius as the basis for establishing Australia’s
sovereignty, the decision set the ground rules for the legal
recognition of the pre-existing land rights of the Aboriginal
peoples of Australia, which the High Court termed native title
rights and interests. Every positive determination of native
title is therefore, an affirmation of Aboriginal law and custom
and their sovereignty that was present prior to 1788. But Mabo
(No. 2) gives rise to several ‘troubling disjuncts’,
including the High Court’s ambivalence about fracturing the
‘skeletal principles’ of Australia’s sovereignty and the
outright denial of Indigenous peoples’ sovereignty, the
Crown’s monopoly power to extinguish native title rights and
interests, and their inalienability.
The Aboriginal peoples of Australia continue to assert they never
ceded their sovereignty, their land was stolen from them without
their consent, extinguishment is alien to their law and custom.
As such, the Settler state’s assertion of ownership and
sovereignty over land has no legitimacy under their law and
custom. Aboriginal peoples’ persistent desire is that the two
systems of law and custom relating to land be accorded an equal
and non-discriminatory status. This is not mere historical or
symbolic posturing. They want to use their property rights to
engage in the economy on their terms and at their choosing.
Their position is supported by various international human rights
instruments.
This PhD thesis explores the possibilities of supplanting the
prevailing orthodoxy with a coherent policy and praxis framework
for a mutually respectful coexistence between two culturally
distinct forms of land ownership, use and tenure based on parity,
mutual respect, reciprocity and justice.
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Keywords
Indigenous, land rights, parity and justice, coexistence, co-existence, land ownership use and tenure
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Thesis (PhD)
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Open Access