''Mabo v Queensland (No 2)'' (commonly known as ''Mabo'') is a decision of the

High Court of Australia The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution. The High Court was established following passage of the '' Judiciary Act 1903''. ...

, decided on 3 June 1992.. It is a landmark case, brought by

Eddie Mabo Edward Koiki Mabo (''né'' Sambo; 29 June 1936 – 21 January 1992) was an Indigenous Australian man from the Torres Strait Islands known for his role in campaigning for Indigenous land rights in Australia, in particular the landmark decision o ...

against the State of Queensland. The case is notable for first recognising the pre-colonial land interests of

Indigenous Australians Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...

within Australia's

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

.e.g. in ''

Milirrpum v Nabalco Pty Ltd ''Milirrpum v Nabalco Pty Ltd'', also known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on native title in Australia, and the first significant lega ...

'' ''Mabo'' is of great legal, historical, and political importance to Aboriginal and

Torres Strait Islander Torres Strait Islanders () are the Indigenous Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal Australians, Aboriginal people of the rest of Australia ...

Australians. The decision rejected the notion that Australia was

terra nullius ''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it. : : ...

at the time of British settlement, and recognised that Indigenous rights to land existed by virtue of traditional customs and laws and these rights had never been wholly been lost upon colonisation. The Prime Minister

Paul Keating Paul John Keating (born 18 January 1944) is an Australian former politician and unionist who served as the 24th prime minister of Australia from 1991 to 1996, holding office as the leader of the Australian Labor Party (ALP). He previously serv ...

praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice". Conversely, the decision was criticised by the government of Western Australia and various mining and pastoralist groups. Native title doctrine was eventually supplemented by statute by the Keating Government in the ''

Native Title Act 1993 The ''Native Title Act 1993'' (Cth) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land managem ...

''. This recognition enabled further litigation for

Indigenous land rights in Australia Indigenous land rights in Australia, also known as Aboriginal land rights in Australia, relate to the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia, and the term may also include the struggle for thos ...

.Note: an example of litigation following Mabo is the

Wik decision ''Wik Peoples v The State of Queensland''. (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996 on whether statutory leases extinguish native title rights. The court found that the stat ...

Background

History of Mer

The case centred on the Murray Islands Group, consisting of Murray Island (known traditionally as Mer Island), Waua Islet and Daua Island. The islands have been inhabited by the

Meriam people Melanesian Meriam people are an Indigenous Australian group of Torres Strait Islander people who are united by a common language, strong ties of kinship and live as skilled hunter–fisher–gatherers in family groups or clans on a number of in ...

(a group of

Torres Strait Islanders Torres Strait Islanders () are the Indigenous Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal people of the rest of Australia, they are often groupe ...

) for between 300 and 2000 years. Prior to and after annexation by the British, rights to land on Mer is governed by Malo's Law, "a set of religiously sanctioned laws which Merriam people feel bound to observe". Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership. Land is owned by the eldest son on behalf of a particular lineage or family so that land is jointly owned individually and communally. Unlike western law, title to land is orally based, although there is also a written tradition introduced to comply with State and Commonwealth inheritance and welfare laws. However, ownership is not 'one way' under this system of law, and an individual both owns the land and is owned by it. As such, they have the responsibility to care and share it with their clan or family and maintain it for future generations. In 1871 missionaries from the London Missionary Society arrived on the Torres Strait island of Darnley Island in an event known as "The coming of the Light" leading to the conversion to Christianity of much of the Torres Strait, including Mer Island. This however did not lead to a 'replacement' of traditional native traditions, but a synthesis with traditional customs including the Malo's Law being recognised within the framework of Christianity. Reverend David Passi, who gave evidence in the trial, explained that he believed that God had sent Malo to Mer island and that "Jesus Christ was where Malo was pointing." In 1879 the islands were formally annexed by the State of Queensland. By the 1900s, the traditional economic life of the Torres Strait gave way to wage labouring on fishing boats mostly owned by others. In the aftermath of the

great depression The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...

and an subsequent cut in wages, Islanders in 1936 joined a strike instigated by Mer Islanders. This strike was the first organised Islander challenge to western authorities since colonisation.

Legal Background

Prior to ''Mabo'', the pre-colonial property interests of Indigenous Australians were not recognised by the Australian legal system. Litigation over this issue directly did not arise until the 1970s with the case of

. In that case, native title was held to not exist and to never have existed in Australia. Later in 1982, the plaintiffs, headed by

, requested a declaration from the High Court that the Meriam people were entitled to property rights on Murray Island according to their local customs, original native ownership and their actual use and possession of the land. The State of Queensland was the respondent to the proceeding and argued that native title rights had never existed in Australia and even if it did they had been removed due to (at the latest) the passage of the Land Act 1910 (Qld). Prior to judgment, the Queensland government passed the Queensland Coast Islands Declaratory Act 1985 (Qld), which purported to extinguish the native title on the Murray Islands that Mabo and the other plaintiffs were seeking to claim. This was successfully challenged in Mabo v Queensland (1988) 166 CLR 186 (Mabo No 1) and declared as ineffective due to the act being inconsistent with the right to equality before the law, as established by the Racial Discrimination Act.

Judgment

The Court held that property rights in the form of native title was a part of Australian common law. These rights were sourced from Indigenous laws and customs and not from a grant from the Crown. However, these rights were not absolute and may be extinguished by validly enacted State or Commonwealth legislation or grants of land rights inconsistent with native title rights. Additionally, the acquisition of

radical title Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense ...

to land by the Crown at British settlement did not by itself extinguish native title interests. A majority of the High Court found that: * The doctrine of terra nullius was not applicable to Australia at the time of British settlement of

New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...

* The Crown acquired sovereignty and

over the land at British settlement * Native title exists as part of the common law of Australia * The source of native title was the traditional customs and laws of Indigenous groups * The nature and content of native title rights depended upon ongoing traditional laws and customs * Native title could be extinguished by a valid exercise of government power that was inconsistent with an ongoing native title interest.

Terra nullius

Various members of the court discussed the international law doctrine of ''terra nullius'' (no one's land), meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation. The court also discussed the analogous common law doctrine that "desert and uncultivated land" which includes land "without settled inhabitants or settled law" can be acquired by Britain by settlement, and that the laws of England are transmitted at settlement. A majority of the court rejected the notion that the doctrine of ''terra nullius'' precluded the common law recognition of traditional Indigenous rights and interests in land at the time of British settlement of New South Wales.

Significance

The case attracted widespread controversy and public debate.

Prime Minister of Australia The prime minister of Australia is the head of government of the Commonwealth of Australia. The prime minister heads the executive branch of the federal government of Australia and is also accountable to federal parliament under the princip ...

at the time, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice".

Richard Court Richard Fairfax Court (born 27 September 1947) is a former Australian politician and diplomat. He served as Premier of Western Australia from 1993 to 2001 and as Australian Ambassador to Japan from 2017 to 2020. A member of the Liberal Party, ...

, the

Premier of Western Australia The premier of Western Australia is the head of government of the state of Western Australia. The role of premier at a state level is similar to the role of the prime minister of Australia at a federal level. The premier leads the executive bra ...

, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.

Development of native title

The decision led to the legal doctrine of

native title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...

, enabling further litigation for First Nations land rights. Native title doctrine was eventually codified in statute by the Keating Government in the ''

''. 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 ''Racial Discrimination Act 1975'' (Cth). is an Act of the Australian Parliament, which was enacted on 11 June 1975 and passed by the Whitlam government. The Act makes racial discrimination in certain contexts unlawful in Australia, and al ...

'', 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 judgment the Keating Government enacted the ''

'', which established the

National Native Title Tribunal The National Native Title Tribunal (NNTT) is an independent body established under the ''Native Title Act 1993'' in Australia as a special measure for the advancement and protection of Aboriginal and Torres Strait Islander peoples (Indigenous Aus ...

to make native title determinations in the first instance. The act was subsequently

amended Amend as a verb means to change or modify something, as in: *Constitutional amendment, a change to the constitution of a nation or a state *Amend (motion), a motion to modify a pending main motion in parliamentary procedure Amend as a surname may ...

by the Howard Government in response to the

Legal test for First Nations identity

Within his judgment, Justice Brennan stated a three part legal test for recognition of a person's identity as a First Nations 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.e.g. ''

Love v Commonwealth ''Love v Commonwealth; Thoms v Commonwealth'' is a High Court of Australia case that held that Aboriginal Australians could not be classified as aliens under section 51(xix) of the Australian Constitution. The case was decided on 11 February 2 ...

Aftermath

Ten years following the ''Mabo'' decision, his wife

Bonita Mabo Ernestine Bonita Mabo (née Neehow) ( – 26 November 2018), was an Australian educator and activist for Aboriginal Australians, Torres Strait Islanders, and Australian South Sea Islanders. She was the wife of Eddie Mabo until his death in 199 ...

claimed that issues remained within the community about land on Mer. On 1 February 2014, the traditional owners of land on

Badu Island Badu or Badu Island (; mwp, Badhu, ; also Mulgrave Island), is an island in the Torres Strait north of Thursday Island, Queensland, Australia. Badu Island is also a locality in the Torres Strait Island Region, and Wakaid is the only town, lo ...

received freehold title to in an act of the

Queensland Government The Queensland Government is the democratic administrative authority of the Australian state of Queensland. The Government of Queensland, a parliamentary constitutional monarchy was formed in 1859 as prescribed in its Constitution, as amended f ...

. An

Indigenous land use agreement Native title is the designation given to the common law doctrine of Aboriginal title in Australia, which is the recognition by Australian law that Indigenous Australians (both Aboriginal Australian and Torres Strait Islander people) have rights ...

was signed on 7 July 2014.

Legacy

Mabo Day is an official holiday in the Torres Shire, celebrated on 3 June, and occurs during

National Reconciliation Week National Reconciliation Week is intended to celebrate Indigenous history and culture in Australia and foster reconciliation discussion and activities. It started as the Week of Prayer for Reconciliation in 1993, developing into National Reconcil ...

in Australia. CC-BY icon

Attribution 3.0 Australia (CC BY 3.0 AU)
licence. The case was referenced in the 1997 comedy '' The Castle'', as an icon of legal rightness, embodied in the quote "In summing up, it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe". In 2009 as part of the

Q150 Q150 was the sesquicentenary (150th anniversary) of the Separation of Queensland from New South Wales in 1859. Separation established the Colony of Queensland which became the State of Queensland in 1901 as part of the Federation of Australia. Q ...

celebrations, the ''Mabo'' High Court of Australia decision was announced as one of the

Q150 Icons The Queensland's Q150 Icons list of cultural icons was compiled as part of Q150 celebrations in 2009 by the Government of Queensland, Australia. It represented the people, places and events that were significant to Queensland's first 150 years ...

of Queensland for its role as a "Defining Moment". 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.Dalton, Ki
Speech: Mabo Premiere, Sydney Film Festival 2012
7 June 2012, at ABC TV BlogDale, D., Perkins, R
Mabo
at Sydney Film Festival 2012

Notes

References

*Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6 ''Australian Property Law Journal'' 1 * *