Mabo v Queensland (No 2)

Mabo v Queensland (No 2) (commonly known as Mabo)[1] was a landmark High Court of Australia decision in 1992 recognising native title in Australia for the first time. It acknowledged that Aboriginal and Torres Strait Islander peoples had occupied the land before the arrival of British settlers, and had rights over the land.

Mabo v Queensland (No 2)
CourtHigh Court of Australia
Full case nameMabo and Others v Queensland (No. 2)
Argued28-31 May 1992
Decided3 June 1992
Citation(s)[1992] HCA 23, (1992) 175 CLR 1
Case history
Prior action(s)Mabo v Queensland (No 1) [1988] HCA 69, (1988) 166 CLR 186
Case opinions
(6:1) native title exists and is recognised by the common law of Australia (per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ)

(7:0) the Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court

(7:0) grants of land which are inconsistent with native title extinguish the native title

(4:3) no consent or compensation is required at common law in the event that native title is extinguished (per Mason CJ, Brennan, Dawson & McHugh JJ)
Court membership
Judge(s) sittingMason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ

The High Court held that the doctrine of terra nullius, which imported all laws of England to a new land, did not apply in circumstances where there were already inhabitants present – even if those inhabitants had been regarded at the time as "uncivilised". Consequently, the Court held that the rules of reception of international English law that applied were not those applicable where the land was barren and unprotected, but rather the rules that applied where an existing people were settled. The result was that existing customary laws which were present at the time of settlement survived the reception of English law to the extent not modified or excluded by subsequent inconsistent laws and acts of the British. Relevantly, that existing law included indigenous land title. As such, any Indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia.

In so ruling, the High Court overturned Milirrpum v Nabalco Pty Ltd,[2] a contrary decision of the Supreme Court of the Northern Territory.

The case

The plaintiffs, headed by land rights campaigner Eddie Mabo, sought declarations, inter alia, that the Meriam people were entitled to the Mer Islands "as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands".

  • Plaintiff's arguments: The plaintiff argued for a possessory title by reason of long possession.
  • Defendant's arguments: The Queensland government argued that when the territory of a settled colony became part of the Crown's dominions, the law of England became the law of the colony and, by that law, the Crown acquired the "absolute beneficial ownership" of all land in the territory.

The decision

Five judgments were delivered in the High Court, by (1) Justice Brennan, (2) Justice Deane and Justice Gaudron, (3) Justice Toohey, (4) Justice Dawson, the only dissenter, and (5) Chief Justice Mason and Justice McHugh.

The decision was based on the findings of fact made by Justice Moynihan of the Supreme Court of Queensland: that the Mer Islanders had a strong sense of relationship to the islands and regarded the land as theirs. All of the judges, except Justice Dawson, agreed that:

  • there was a concept of native title at common law;
  • the source of native title was the traditional connection to or occupation of the land;
  • the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs; and
  • native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest and consecutive.
  • Rejection of terra nullius: The decision recognised that the indigenous population had a pre-existing system of law, which, along with all rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action. The Court purported to achieve all this without altering the traditional assumption that the Australian land mass was "settled". Instead, the rules for a "settled" colony were said to be assimilated to the rules for a "conquered" colony.
  • Repudiation of absolute beneficial title of all lands: The majority in Mabo also rejected the proposition that immediately upon the acquisition of sovereignty, absolute beneficial ownership of all the lands of the Colony vested in the Crown. The majority rejected the traditional feudal development of the doctrine of tenure as inappropriate for Australia, and rather saw that upon acquisition of sovereignty the Crown acquired not an absolute but for a radical title, and that title would be subject to native title rights where those rights had not been validly extinguished. Thus the court accepted that a modified doctrine of tenure operated in Australia, and that the law of tenure (as a product of the common law) could co-exist with the law of native title (as a product of customary laws and traditions), though where there had been a valid grant of fee simple by the Crown the latter title would be extinguished.
  • Fragmentation of proprietary interests: Justice Toohey made the argument that common law possessory title could form the basis for native title claims by indigenous Australians. This has not subsequently been pursued.

Consequences

On native title
Main articles: Native title in Australia and Aboriginal land rights in Australia

The Mabo decision presented many legal and political questions, including:

  • the validity of titles issued after the commencement of the Racial Discrimination Act 1975;
  • the permissibility of future development of land affected by native title;
  • the procedures for the large-scale determination of issues of native title.

In response to the judgment, the Parliament of Australia, controlled by the Labor Party led by Prime Minister Paul Keating, enacted the Native Title Act 1993,[3] which established the National Native Title Tribunal (NTTA) to make native title determinations in the first instance, appealable to the Federal Court of Australia, and thereafter the High Court.[4] Following Wik Peoples v Queensland (1996),[5] Parliament amended the Native Title Act with the Native Title Amendment Act 1998.[6]

Ten years following the Mabo decision, Mrs Mabo claimed that issues remained within the community about land on Mer.[4]

On 1 February 2014, the traditional owners of land on Badu Island received freehold title to 9,836 hectares (24,310 acres) in an act of the Queensland Government.[7][8] An Indigenous Land Use Agreement (ILUA) was signed on 7 July 2014.[9]

Definition of Aboriginality

In his judgment, Justice Brennan stated that the definition of a person's Aboriginal Australian identity, or Aboriginality, depends on a tripartite test:

Membership of the Indigenous people depends on biological descent from the Indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.[10]

This test was subsequently used in other cases, such as Love v Commonwealth of Australia; Thoms v Commonwealth of Australia ([2020] HCA 3),[11] where two men who has thus been determined as Aboriginal, could not be deported as aliens under the provisions of the Migration Act 1958, after both had earlier been convicted of criminal offences and served time in prison until 2018.[12][13]

A straight-to-TV film titled Mabo was produced in 2012 by Blackfella Films in association with the ABC and SBS. It provided a dramatised account of the case, focusing on the effect it had on Mabo and his family.[14][15][16]

The case was also referenced as background to the plot in the 1997 comedy The Castle.

In 2009 as part of the Q150 celebrations, the Mabo High Court of Australia decision was announced as one of the Q150 Icons of Queensland for its role as a "Defining Moment".[17]

See also

References
  1. Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court.
  2. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (27 April 1971) Supreme Court (NT).
  3. Native Title Act 1993 (Cth).
  4. Stephens, Tony (31 May 2002). "10 years after Mabo, Eddie's spirit dances on". The Sydney Morning Herald. Retrieved 19 May 2018.
  5. Wik Peoples v Queensland [1996] HCA 40, (1996) 187 CLR 1 (23 December 1996), High Court.
  6. Native Title Amendment Act 1998 (Cth).
  7. Torres News, 10–16 February 2014
  8. "Badu Island traditional owners granted freehold title". The Queensland Cabinet and Ministerial Directory. 1 February 2014. Retrieved 26 July 2020.
  9. "Agreements, Treaties and Negotiated Settlements project". ATNS. 7 July 2014. Retrieved 26 July 2020.
  10. "Aboriginality and Identity: Perspectives, Practices and Policies" (PDF). New South Wales AECG Inc. 2011. Archived from the original (PDF) on 5 October 2016. Retrieved 1 August 2016.
  11. High Court of Australia (11 February 2020). "Love v Commonwealth of Australia; Thoms v Commonwealth of Australia: [2020] HCA 3". Cite journal requires |journal= (help)
  12. Karp, Paul (11 February 2020). "High court rules Aboriginal Australians are not 'aliens' under the constitution and cannot be deported". the Guardian. Retrieved 11 February 2020.
  13. Byrne, Elizabeth; Robertson, Josh (11 February 2020). "Man released from detention as High Court rules Aboriginal people cannot be deported". ABC News. Australian Broadcasting Corporation. Retrieved 11 February 2020.
  14. "Mabo's story of sacrifice and love to premiere at festival". The Sydney Morning Herald. 9 May 2012.
  15. Dalton, Kim Speech: Mabo Premiere, Sydney Film Festival 2012, 7 June 2012, at ABC TV Blog
  16. Dale, D., Perkins, R. Mabo at Sydney Film Festival 2012
  17. Bligh, Anna (10 June 2009). "Premier Unveils Queensland'S 150 Icons". Queensland Government. Archived from the original on 24 May 2017. Retrieved 24 May 2017.
  • Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6 Australian Property Law Journal 1
  • Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 136–146. ISBN 978-1-86287-918-8.

Further reading
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