Mabo v queensland no 1 1982-1988 PDF

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lecture notes about terra nullius and mabo v queensland *imp case*...

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Topic Mabo v Queensland (1)

Notes Mabo v Queensland: Mabo No. 1 1982—1988 - On 20 May 1982: Eddie Koiki Mabo, Sam Passi, David Passi, Celuia Mapo Salee and James Rice took to the High Court of Australia their legal claim for ownership of their lands on Mer Island. - The High Court required the Supreme Court of Queensland to determine the facts on which the case was to be based. - But, while the case was with the Queensland Court, the State Parliament passed the Queensland Coast Islands Declaratory Act (1985) which stated 'Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879 is hereby extinguished without compensation'. - Mabo No. 1, (1988) the High Court found that the Queensland Coast Islands Declaratory Act (1985) conflicted with the Commonwealth Racial Discrimination Act (1975) and was thus invalid. s10(l) of the Racial Discrimination Act, 1975 (Cth): 10(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. Terra nullius argument AGAINST: - The original idea of terra nullius is inconsistent, - should not be continued in the common law because it is discriminatory - its premise of terra nullius is false, - out of step with international law.

The British only got the right to confer ownership rights on itself/ other people but do not own the traditional land Brennan J:

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Construct of rights and interest that are recognised, whether they are communal, group or individual, possessed under the traditional laws acknowledge You can prove they have rights and interest, have a connection, the common law will recognise the native title Recognise it wasn’t beneficial ownership of the land but it is a right to make grants but in respective there is a pre-existing title that cannot be ignored Maintain the precedent cases, sovereignty and ownership will destroy aus citizens before the law: recognition to prevent racial discrimination = continue those old precedents will perpetuate injustice Only the post war attitudes and protection of individual rights and the idea of discrimination which sustained the laws of the past to be unjust!!!

Deane and Gaudron JJ - Terra nullius: precedent is imp, if ordinary case we wouldn’t open these proposition - This is new case, treat like cases like and diff cases different - HC consideration recognition based on traditional title recognised under common law...