Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992. The effective result of the judgement was to make irrelevant the declaration of terra nullius, or "land belonging to no-one" which had been taken to occur from the commencement British colonisation in 1788, and to recognise a form of native title. It is argued by some historians that the Royal Proclamation of 1763 was seen to apply to Australia at the time of settlement, and therefore governed unceded territories. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined.

The case

The action which brought about the decision had been led by Eddie Mabo, David Passi and James Rice, all from the Meriam people (from the Murray Islands in the Torres Strait). They commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Murray Islanders refused to accept. The Plaintiffs were represented by Ron Castan, Bryan Keon-Cohen and Greg McIntyre.

The action was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer (Murray Island), Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. Prior to European contact the Meriam people had lived on the islands in a subsistence economy based on cultivation and fishing. Land on the islands was not subject of public or general community ownership, but was regarded as belonging to individuals or groups.

In 1985 the Queensland Government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act 1985, which declared that on annexation of the islands in 1879, title to the islands was vested in the state of Queensland "freed from all other rights, interests and claims whatsoever". In Mabo v Queensland (No 1) (1988) the High Court held that this legislation was contrary to the Racial Discrimination Act 1975.

The plaintiffs sought declarations, inter alia, that the Meriam people were entitled to the Murray 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, 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 Murray 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.

• 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 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

The Mabo decision presented many legal and political problems for the Federal Government and the states, including:

• the necessity to validate titles issued after the commencement of the Racial Discrimination Act 1975 which might have been rendered invalid by that Act;
• a requirement to make provision for permitted future development of land affected by native title;
• provide a regime for the speedy and efficient determination of issues of native title.

In response to the Mabo judgment and to the subsequent and potential reactions, the Australian Federal Parliament (then controlled by the Labor Party led by Paul Keating) enacted the Native Title Act 1993. This was amended in 1998 following the 1996 Wik Decision.

The Act enacted a statutory definition of native title based on that made by Justice Brennan in the case (s233 NTA), and provided a means for validating acts, providing compensation and determining native title. The Act also provides for a Native Title Tribunal.

See also

• Common law
• Torres Strait Islanders
• History of Australia
• Terra Nullius
• Native title
• Milirrpum

References

• Richard Bartlett, "The Proprietary Nature of Native Title" (1993) 6 Australian Property Law Journal 1.

External links

• and Another v The State of Queensland and Another'' [1989] HCA 69; (1989) 166 CLR 186
• and Others v Queensland (No. 2)'' [1992] HCA 23; (1992) 175 CLR 1
• Native Title Act'' 1993 (Cth)
• The Hon. Sir Gerard Brennan, convention paper regarding ''Mabo'' to an International Conference
• Papers of Edward Koiki Mabo, held by the National Library of Australia

de:Mabo v. Queensland (No. 2) es:Mabo contra Queensland (No 2)