Australia’s 1992 landmark case of Mabo v. The State of Queensland [No. 2] revoked the concept of terra nullius and for the first time since European colonization of the continent allowed indigenous Australians to obtain legal ownership of their traditional lands. The following year this groundbreaking decision became statutory law with the enactment of the Native Title Act (NTA) of 1993. The case law and the statutory act both failed, however, to adequately address the question of Aboriginal claims to sea properties. For many Australian Aboriginal groups, ownership of traditional lands does not abruptly end at a shoreline but extends to surrounding coast lines, intertidal zones, and offshore seas. This indigenous view is in stark contrast to Western concepts of property that have resulted in distinct bodies of law governing rights to the ownership of land versus rights to the ownership of sea. The NTA recognizes exclusive Aboriginal property rights whether the traditional area is a land or sea property. The first case to test native title rights to sea property, The Commonwealth of Australia v. Yarmirr (“Croker Island") held, however, that native title can be recognized without the right to exclude. This precedential decision continues to bar exclusive Aboriginal ownership of sea properties and denies Aboriginal management of natural resources of the sea regardless of whether the group provides historical evidence of ownership and management. This Comment argues that the Croker Island decision does not comply with the NTA, is based in an erroneous understanding of Aboriginal law and custom, and should be overturned. This Comment further argues that where an Aboriginal group successfully provides evidentiary proof of a traditionally practiced right to exclude, native title must recognize and protect an exclusionary right to traditional sea properties. Granting ownership of traditionally held properties is central to rectifying harms caused by Australia’s historic policy of dispossession of Aboriginal properties and is necessary to promote Aboriginal sovereignty.
Siiri A. Wilson,
Entitled Against None: How the Wrongly Decided Croker Island Case Perpetuates Aboriginal Dispossession,
18 Pac. Rim L & Pol'y J.
Available at: https://digitalcommons.law.uw.edu/wilj/vol18/iss1/9