Extended response

“Assess the effectiveness of the law reform process in achieving just outcomes in
regard to native title.”

The legal system is constantly undertaking law reforms. Old laws must be altered to
mirror societal changes and values. A significant area of law reform is native title and
the indigenous Australians right to reclaim their long-lost land due to ‘terra nullius’.
The law reform process in achieving just outcomes regarding native title have been
relatively effective for the indigenous Australians.

The Mabo Case was a significant legal case in Australia that recognised the land
rights of the Meriam people, traditional owners of the Murray Islands. This case
challenged the existing Australian legal system. The Mabo case took roughly ten
years and two decisions. The challenge to this legislation was taken to the High Court
and the decision in this case, known as Mabo No. 1, was that the Act was in conflict
with the Commonwealth Racial Discrimination Act of 1975 and was thus invalid.
Following the High Court decision in Mabo No. 2, the Commonwealth Parliament
passed the Native Title Act in 1993, enabling Indigenous people throughout Australia
to claim traditional rights to unalienated land. The Mabo decision was a turning point
for the recognition of Aboriginal and Torres Strait Islander peoples' rights, because it
acknowledged their unique connection with the land. It altered the foundation of
land law in Australia by overturning the doctrine of terra nullius (land belonging to
no-one) on which British claims to possession of Australia were based. It also led to
the Australian Parliament passing the Native Title Act in 1993. Hence, it is evident
that the process was long yet effective.

Another legislation which was effective in providing just outcomes to the indigenous
Australians was the Aboriginal Land Rights Act 1983 (NSW). This legislation
recognised Aboriginal land rights and recognised that past government decisions had
reduced the amount of Aboriginal land without compensation. it also, established
Aboriginal Land Councils (ALC) in New South Wales which consists of elected
representatives for Aboriginal people in NSW which represent of the interests of
Land Council members, to all Aboriginal people living in NSW. This legislation allowed
the rights and interests of Aboriginal and Torres strait islander people to voice their
concerns towards political
decisions to instigate further action. Hence proving to be effective in the
communication of indigenous Australians in regard to their native title and rights.

However, along with these just outcomes provided by the law reform processes, the
Aboriginal and Torres strait islanders people have also faced many injustices and
difficulties in trying to reclaim their land and native title. An example of this is the
Members of the Yorta Yorta Aboriginal Community v. Victoria [2002] HCA 58 (12
December 2002). The Yorta Yorta Aboriginal community applied to the Federal Court,
claiming native title to an area of land and waters in northern Victoria and southern
New South Wales. The Federal Court dismissed the claim on the grounds that ‘the
facts showed that the Yorta Yorta people had ceased to occupy their traditional land
in accordance with their traditional laws and customs’. The Yorta Yorta people had
also appealed to the high court of Australia however were still troubled as the High
Court held that, in order to prove native title, the claimants must prove that there
has been ‘an acknowledgement and observance of laws and customs on a
substantially uninterrupted basis since sovereignty’. As a result of the inability to
prove the indigenous group were displaced from their land and were unable to claim
native title which also costed a great deal of money. This proved that the judicial
system of Australia was inefficient through the long process and obstacles put in
place in front of Indigenous Australians, making it harder to prove claim to their land.

Overall Law reform process in achieving just outcomes in regard to native title has
been effective in certain cases as it has met society’s needs, although the changing
social values need greater attention. Also, some processes and cases such as the
Yorta community who were unable to reclaim land as law reform processes haven’t
been very effective due to their slow implementation and greater obstacle put in
place.

However, there has been new legislations such as Native Title Amendment Act 2007
and the Native Title Amendment (Technical Amendments) Act 2007 designed to
improve the effectiveness of the groups representing Indigenous communities who
made a claim; to make the process of consultation, dialogue and negotiation with
state and territory governments more clear to assist those involved as they navigate
the complex legal obstacles of the Acts.