So I have a SAC tomorrow and I'm really confused about this one part..
My teacher says that we have to use Mabo and Wik as an example for a question on doctrine of precedent (because it's the most recent), but I don't understand how Mabo set a precedent for Wik..
This whole Native title and Pastoral Leases thing confuses me.
Before Mabo the law was that people could own property by purchasing the 'Torrens Title' (a piece of paper registered with the government) to it. This law was made by parliament, thus contained in legislation.
The reason why the current parliament has the authority to decide who owns the land in Australia and who doesn't (and what you have to do to own it) is because when the British settled Australia they treated it as unoccupied land and thus free for the taking. This 'unoccupied land' bit is known as the principle of 'terra nullius'.
In the Mabo case the High Court decided that there was *another* way people could own land, in addition to the Torrens Title legislation: this was through showing they owned it (by living on it) since before the British arrived, and had not stopped living on it since (as a community). They called this 'Native Title' and created it as a *court-made law* that existed as well as the parliament-made law.
In order to do this they overturned the assumption of 'terra nullius' and decided Australia WAS occupied at British settlement. They changed it from 'taking land belonging to no-one' to 'conquering land belonging to someone' - and, therefore, any part of the land that had not properly been "conquered" still belonged to the same people who owned it before.
The precedent was therefore essentially the concept of native title.
The Wik case relied on this precedent, and then asked that the High Court clarify more specifically when native title ownership could be recognised and when it couldn't in situations where it appeared to clash with statutory ownership/use. Without having the precedent of native title to rely on in the first place, there would be no clash with statutory ownership/use and thus no reason for the case
Honestly, though - it's like a 1 mark example you can use in a few instances but don't HAVE to use anywhere. Don't stress about the little details.