September 8th, 2011
Australia is one of the few, if not the only, ex-English colony that refused to recognize some sovereign and property rights of Indigenous peoples. Robert J. Miller, Jacinta Ruru, Larissa Behrendt & Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies 171-86 (Oxford University Press 2010).
Australia has not to this day recognized that Aboriginal groups/tribes possess sovereign rights, and until recently, England, its colony in Australia, and then the Australian government did not recognize Aboriginal rights to their lands. Id. at 179.
In 1992, in the Mabo case, the Australian Supreme Court rejected the application of the terra nullius element of the Doctrine of Discovery, and instead recognized that Australia had NOT been empty of people and Indigenous property rights when English colonists arrived. Id. at 192-94. (I set out the ten elements that I believe comprise the Doctrine of Discovery in Robert J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny 3-5 (Nebraska University Press paperback edition, 2008)).
In response to that case, in 1993, Australia enacted the Native Title Act which created the National Native Title Tribunal and began a process to grant title to land to Aboriginal groups. Id. at 194. The process has proceeded glacially but some titles to land have now been awarded.
In fact, it was reported on July 28, 2011 that after a 15-year legal battle that native title rights were granted to two Aboriginal groups in a federal court session. The Gunditjmara and Eastern Maar peoples were granted native title ownership of Deen Maar Island, also known as Lady Julia Percy Island, and 4000 hectares of Crown land between Dunkeld and Yambuk on Victoria’s south-west coast.
Leaders of the Gunditjmara and Eastern Maar peoples described the historic native title resolution as the end of a long struggle for recognition. For Eastern Maar spokesman Geoff Clark, yesterday ended the hardship his people had endured over the past 150 years at the Framlingham mission. “Today breaks the chains of that oppression, it takes us off the mission and gives us recognition of our proper right in this country,” Mr Clark said.