Native Title Act Essay

998 words - 4 pages

The decision of the High Court in Mabo v Queensland (No.2) was a major development in Australian law, a historic wrong was righted. The judgment received a wide ranging national response, while some have suggested that decision should be legislated away and others suggested it should be ignored, the Commonwealth saw the decision as providing an opportunity to rebuild on fair and just foundations the relationship between our nation and its indigenous people. The Commonwealth's Native Title Act 1993(Cth) is a beginning to that process.

Native Title Act 1993 (Cth) accepts and confirms the Mabo decision, in particular the fundamental propositions on which the decision rested, namely to provides for the recognition and protection of native title rights based on the traditions of the indigenous people of Australia, and the rejection of the myth that Australia was terra nullius (land belonging to no-one).

The emergence of Native Title Act 1993 (Cth) can be best explained utilizing 2 emergence studies models, namely symbolic legislation and legislation as ideology. The 2 models together provide insights into the politics of law making, also serves to indicate the most important ways in which law, class and power are connected.

Symbolic Legislation
This model emphasizes how "the proclamation and maintenance of symbols - values, ideals and ways of thinking about government and society." In Native Title Act, s3(a) of the object and s10 states 'to provide for recognition and protection of native title' and 'Native title is recognized, and protected, in accordance with this Act' This suggests the native title is like a symbol for recognition of indigenous people as part of our society and reconciliation between the indigenous people and white people. This idea is evident in the Second Reading Speech for Native Title, as Mr. Keating said "The Aboriginal People faced deprivation of the religious, cultural and economic sustenance which the land provides and were left as intruders in their own homes...to deny these facts would be to deny part of ourselves as Australians. Thus it can be said that the powerful symbolic value of Native Title Act is used to change the general public's perception and value towards the indigenous people. However, it should be recognized the rejection of terra nullius did not change land laws, what has changed is the legal history of land acquisition with the court at long last facing up to the truth of history and ditching the insulting concept that there was nobody on this continent deserving of rights before the arrival of superior whites . This suggests the act merely recognized the true legal position existing since the act of State establishing the colony on 7 Feburary 1788, conveniently ignored by the early legislator and pastoralist in their grab for land. These facts symbolize our sorrow and apology for the past and provides recognition for the land that had once belonged to the indigenous people.

Legislation...

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