Policy Assignment Proprietary Rights

Question: Discuss about thePolicy Assignmentfor Proprietary Rights. Answer: In Australia, the doctrine of Aboriginal title based on the Common law is known as the native title, which states that the Australian law has recognised the fact that the indigenous or the aboriginal people have interests and rights to their land that they inherited from their traditional customs and laws (Short 2016). The concept identifies the fact the in certain cases a persisting beneficial statutory interest in respect of the land is held by the local indigenous Australians. The native title can exist at the same time with non-aboriginal proprietary rights and sometimes various indigenous groups are entitled to exercise their native title over the same land. The landmark case for the native title in Australia was Mabo v Queensland [1992]. A year following the recognition of the native title in Mabos case, the recognition of the legislation was formalised with the enforcement of the Native Title Act 1993 by the Australian government. The Act attempted to simplify the legal status of the landholders and the procedures that should be followed in order to claim, recognise and protect the title through the courts. The regulating rule of native title might be regarded as a partial attempt to take the responsibility for the repossession and settlement of Australia. The settlement of Australia has been regarded as a primary concern of the sovereign government and as the transmission of an inheritance an attachment to the order of people, places and of law. On the arrival of the British in Australia from the year 1788, the aboriginals or the indigenous group of people and the British people frequently engaged themselves in conflicts (Gilbert 2016). One of the major sources of such conflicts was the differences between the British Law and the indigenous law. One of the significant conflicts between the Colonial and the Aboriginal groups of Australia may be the criminalisation of the indigenous or the aboriginal group of people in the Northern Territory following the introduction of new statutory regime. From the point of the British, the Aboriginal or the indigenous group of people and the Torres Strait Islander people had no special and binding social organization, no legislations, no government and no rights or interests over the land (Lewis 2014). This caused the British to believe that the since people did not possess the land, the land is considered as terra nullius which implied that the land did not belong to anyone. According to the British, if the land was not in possession of any one, then whoever found it first had the right to exert claim over the land (Laidlaw and Lester 2015). The aboriginals or the indigenous people residing in Australia before the white settlement did not have any law, governments, or courts that would address their disputes and decide punishments (Watson 2014). In fact, the only legal procedure to resolve the disputes was negotiation, which involved majority of the members of the community. In case, certain arguments or disputes are not resolved through negotiation, and then a group of persons settles the same, usually, known as elders. Since the elders were believed to be experienced and possess knowledge of consecrated matters, they were regarded as teachers instead of judges. Some of their offenses include adultery, theft, insult, unauthorised physical assault, non-compliance of the community obligations and negligence towards family etc. The offenders were subject to punishments such as facing the spearmen with only a shield as protection or they were entitled to compensate for their offences. There was not anything as imprisonment or rigorous punishment. After the offender was awarded with the punishments, they resumed their normal life. The issue in question was whether the indigenous group of people were subject to the British laws in the event any dispute arises between themselves. The colonial government and the Western Australian courts were of the opinion that any offenses committed by the aborigines against the Europeans shall be subject to the English law. The issue related to inter se offenses extended to the need to deal with offenses committed by the Aborigines on other aborigines who were dwelling with or employed by settlers of the colony. Initially, the colonial government adopted policies of not interfering or dealing with personal fall outs of the aboriginal group of people simply because it did not involve any Europeans therefore, they were not much concerned about it (Cunneen 2014). There was a growing realisation among both the colonial governments and the courts that the aborigines group of people cannot be treated as British subjects and neither British law can be applied regarding their inter se matters. In R v Ballard in New South Wales (NSW), Ballard murdered another aborigine in central Sydney that was governed by the British law. The question that arose was whether he was amenable to the English law to which the Supreme Court held that it does not have the jurisdiction to deal with the case if the commission of offenses was the direct consequence of any dispute within the tribe that follows the Aboriginal customs. However, if an aborigine has placed himself under the protection of the English law then it would have jurisdiction to adjudicate cases involving the Aboriginals or the indigenous group of people. The other court judges, regarding the applicability of the British laws to inter se offenses committed by the Aborigines, were of opinion that the aboriginal group of natives must give consent, either expressly or impliedly, to the amenability of the English laws to deal with their cases (Lydon and Rizvi 2016). Unless and until, the aborigines give consent to the application of the British laws to acts or offenses committed by the aborigines upon another aborigine, for the purpose of administering justice, under no circumstances the British laws shall interfere with their personal issues irrespective of the fact that such interference is imperative. In the case of R v Murrell [1836], Murrell was charged for murder and his lawyer argued that NSW was neither conquered nor settled or ceded and the aborigines continued to be governed by their own laws from ages. Since the British have come to reside amongst the aboriginals and therefore, it is they who must obey the aboriginals law. Murrell belonged to a tribe that was not subject to the British laws neither he was entitled to receive protection from the British, hence, he was not bound by the British laws. However, the Supreme Court of Australia overruled the decision and held that the Aboriginal group of people were subject to the British laws with respect to inter se offenses. Since the offense had been committed in NSW, which is in possession of England, therefore it shall be dealt with under the British Laws (Russell 2015). The Supreme Court did not make any difference in law between the English people and the aliens as they were entitled to the protection of the British law. Several other judges pointed out the theory of terra nullius and asserted if the Supreme Court did not have jurisdiction then there would be an increase in the crime rate among the aborigines who would persist to commit murders or violence on the streets. The aggrieved persons shall not be entitled to protection under the British laws. The British were of the opinion that the Aborigines were adopted as the subjects of the British people and were entitled to the protection under the British law like any other British subjects. However, at the same time, the aborigines were also subject to the punishments in the event of any infringement of any of the British laws. However, the indigenous group of people must bear in their minds that the British jury or judges were not framing any new legislation but are empowered to administer the legislations that are already existing during that period. While majority of the aboriginal groups attempted to include the newcomers (British people and British laws) into their legal system by extending association, sharing resources, etc. however, the British people failed to accept and act in conformity with the cultural laws of the indigenous group of people. They were not aware of the principle of reciprocity that is, sharing. According to the indigenous people, the English people were greedy and self-centred. They hardly share their resources even after receiving favours from the aborigines (Young, Nielsen and Patrick 2016). Although the Europeans recognised the existence of several aboriginal group, their laws, traditions and customs were not acknowledged by the Europeans. They avoided resistance, genocide and massacres with respect to the application of the terra nullius in order to justify the acquisition of the lands in Australia. The aboriginals failed to make significant resistance against the Europeans (Holland 2017). When the British declared the natives to be subjects of the British law, they were placed in a position where they aware made to be amenable to the British laws of which they were quite ignorant. Moreover, it did not provided the aboriginals with a slightest relief from the injuries they sustained as a result of the Europeans (Medien 2017). They were unable to present any evidence against the atrocities they were subject to, firstly, because they were not acquainted with the legal procedure followed by the British courts and, secondly, the witnesses of such atrocities were the European themselves who would not testify on behalf of the indigenous group. The Europeans denied the alleged complaints made by the indigenous group on the ground that they have conferred upon the aborigines the right to protection under the British laws just like the European people. They denied the fact that the indigenous group was denied fundamental rights and the human rights. Although the aboriginal people were subject to the British laws but they were never allowed to actively participate while framing the laws. The Europeans restricted them to such an extent that they were prevented from exercising their right to vote. The fact that the Aboriginal people were denied justice led to the establishment of Aboriginal Legal Services all over Australia. As the Australian governments follow the English cases as precedents, it is obvious that the aboriginal group of people would not receive adequate recognition. The European settlement has raised a conflict between the two legal systems and two cultures within the same country and they exist even today in certain parts of the country. In order to retain peaceful settlement, it is highly imperative that the legal system of Australia provide adequate recognition to the indigenous group and make necessary attempts to resolve the conflict through the process of reconciliation. Reference List Cunneen, C., 2014. Colonial processes, indigenous peoples, and criminal justice systems. Gilbert, J., 2016.Indigenous Peoples' Land Rights under International Law. Brill. Holland, A., 2017. Paved with good intentions. Terra Nullius, aboriginal land rights and settler-colonial law [Book Review].Law History,4(1), p.172. Laidlaw, Z. and Lester, A. eds., 2015.Indigenous communities and settler colonialism: land holding, loss and survival in an interconnected world. Springer. Lewis, P., 2014. Terra Nullius Amnesiacs: A Theological Analysis of the Persistence of Colonization in the Australian Context and the Blocks to Real Reconciliation. InColonial Contexts and Postcolonial Theologies(pp. 181-199). Palgrave Macmillan US. Lydon, J. and Rizvi, U.Z. eds., 2016.Handbook of postcolonial archaeology. Routledge. Mabo v Queensland [1992] HCA 23 175 CLR 1. F.C Medien, K., 2017. Book Review: Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty. R v Ballard [2004] ALL ER (D) 48 (Dec) R v Murrell [1836] 1 Legge 72 Russell, P.H., 2015.Recognizing Aboriginal title: The Mabo case and Indigenous resistance to English-settler colonialism. University of Toronto Press. Short, D., 2016.Reconciliation and colonial power: Indigenous rights in Australia. Routledge. Watson, I., 2014.Aboriginal peoples, colonialism and international law: Raw law. Routledge. Young, S., Nielsen, J. and Patrick, J., 2016. Constitutional recognition of first peoples in Australia-theories and comparative perspectives.