Mabo v Queensland (No 2)

Mabo v Queensland (No 2)
Court	High Court of Australia
Full case name	Mabo and Others v Queensland (No. 2)
Argued	28-31 May 1992
Decided	3 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
native title exists and is recognised at common law in Australia
Court membership
Judge(s) sitting	Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ
Case opinions
Majority	Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ
Dissent	Dawson J

The Murray Islands

Mabo v Queensland (No 2) (commonly known as Mabo) is a decision of the High Court of Australia.^[1] It is a landmark case, brought by Eddie Mabo against the State of Queensland. The case is notable for recognising the pre-colonial land interests of Indigenous Australians within Australia's common law. Prior to Mabo, the pre-colonial property rights of Indigenous Australians were not recognised at common law.^{[Note 1]}

'Mabo' is of great legal, historical, and political importance to Indigenous Australians. It overturned the doctrine of 'terra nullius', which had previously been applied by colonial courts to dismiss Indigenous claims.

The Prime Minister Paul Keating praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice".^[2] Conversely, the decision was criticised by conservative commentators.^[3]

Native title doctrine was eventually codified in statute by the Keating Government in the Native Title Act 1993. This recognition enabled further litigation for indigenous land rights.^[4]

Background[]

Prior to Mabo, it was commonly assumed that the pre-colonial property interests of Indigenous Australians were not recognised by the Australian legal system. This assumption derived from the legal doctrine of terra nullius which was relied upon as a racist legal fiction to import the laws of England across the continent of Australia; in spite of its existing inhabitants.

The plaintiffs, headed by Eddie Mabo, requested a declaration from the High Court that the Meriam people were entitled to property rights in the Mer Islands 'as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands'. The State of Queensland was respondent to the proceeding; Dean Wells the Attorney-General of the Goss Government, instructed counsel to argue that Queensland was not bound to recognise the property rights of the plaintiffs. It argued that when the law of England became the law of the colony, the Crown of Queensland had acquired absolute beneficial ownership of all land.

Judgement[]

The Court held that property ownership in accordance with Indigenous customary law was to be recognised by Australian courts at common law. Such recognition however, was conditioned upon those laws not being extinguished by subsequent colonial laws being inconsistent with customary law.^{[Note 2]} The possession of radical title by the crown over all Australian lands would not by itself extinguish native title interests.^[5]

It was held that:

• Native title is recognised at common law
• Terra nullius was to be rejected^{[Note 3]}
• The nature and content of native title depended upon ongoing traditional laws and customs
• Native title could be extinguished by an exercise of government power that was inconsistent with an ongoing native title interest.^{[Note 4]}

• Upon acquisition of sovereignty, the Crown acquired radical title across Australian lands.^{[Note 5]} However, it did not acquire absolute beneficial ownership^{[Note 6]}
• The common law did not require compensation to be awarded for an extinguishing of native title interests.^{[6][Note 7]}

Relying upon findings of fact made by Justice Moynihan in a lower court proceeding,^{[Note 8]} the High Court declared that the native title interests of the Mer Islanders were to be recognized. The court noted while that these property interests could be interfered with by Queensland state legislation, such interference would have to be consistent with Commonwealth law; including (impliedly) the Racial Discrimination Act.

Significance[]

Paul Keating, Prime Minister of Australia at the time, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice".^[2] Still, the case was controversial and sparked public debate; and was criticized by conservatives. Richard Court, the Premier of Western Australia, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.^[3]

Development of Native Title[]

The decision led to the legal doctrine of native title, enabling further litigation for indigenous land rights.^[4] Native title doctrine was eventually codified in statute by the Keating Government in the Native Title Act 1993.

The recognition of native title by the decision gave rise to many significant legal questions. These included questions as to the validity of titles issued which were subject to the Racial Discrimination Act 1975, the permissibility of future development of land affected by native title, and procedures for determining whether native title existed in land.

In response to the judgement the Keating Government enacted the Native Title Act 1993,^[7] which established the National Native Title Tribunal to make native title determinations in the first instance. The act was subsequently amended by the Howard Government in response to the Wik decision.

Legal test for Indigenous Australian identity[]

Within his judgement, Justice Brennan stated a three part legal test for recognition of a person's identity as an Indigenous Australian. He wrote:

'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'

This test has had lasting significance in future cases which have relied upon a person's indigenous identity.^{[Note 9]}

Aftermath[]

Ten years following the Mabo decision, Mrs Mabo claimed that issues remained within the community about land on Mer.^[8]

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.^[9][10] An Indigenous land use agreement was signed on 7 July 2014.^[11]

In popular culture[]

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.^[12][13][14]

The case was referenced 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".^[15]

See also[]

• Lord Paramount
• Love v Commonwealth
• Milirrpum v Nabalco Pty Ltd
• Seisin

Notes[]

References[]

• 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[]

• "Mabo and Native Title". Australians Together.
• The Hon. Sir Gerard Brennan (September 1995). "Aboriginal land claims - an Australian perspective". 1995 Seventh International Appellate Judges Conference.
• Papers of Edward Koiki Mabo, held by the National Library of Australia
• A film about the case.

• Van Krieken, Robert (1 July 2000). "From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship". UNSW Law Journal 3 (63?). 23 (1) – via Australasian Legal Information Institute (AustLII).