Mabo Judgment number 2 exposed Australias weakness to hold claim over the Original Tribal nations. This is borne out by the Chief Justice alluding to the fact that the High Court of Australia was not the appropriate judicial location for this question to be answered as it belonged to another jurisdiction. In this regard the High Court said: 42. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country. The policy appears explicitly in the judgment of the Privy Council in In re Southern Rhodesia in rejecting an argument (66) ibid., at p 232 that the native people were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial ... and that the unalienated lands belonged to them still. Their Lordships replied (67) ibid, at p 234- the maintenance of their rights was fatally inconsistent with white settlement of the country, and yet white settlement was the object of the whole forward movement, pioneered by the Company and controlled by the Crown, and that object was successfully accomplished, with the result that the aboriginal system gave place to another prescribed by the Order in Council. Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. … This means the only appropriate court is the world court and there is already a precedent in the Western Sahara case. In this judgment the International Court of Justice said that sovereignty always remains with the people. 1975, the international Court of Justice confirmed in the Western Sahara Case that, where an indigenous people exercise a traditional use of passage and/or, a usufructuary right, that land cannot be regarded as Terra Nullius, - land belonging to no-one. (Gilbert. K . 1987 p 28) ... the ancestral tie between the land, or mother nature, and the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty ... (Western Sahara Advisory Opinion. 1975)
Posted on: Sat, 19 Jul 2014 01:30:28 +0000
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