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Mabo v Queensland [No 2] (1992) 175 CLR 1

Category: Case Law
Binomial Name: High Court of Australia
Date: 3 June 1992
Sub Category:Case Law
Place:
State/Country:Australia
Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
URL: http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1992/23.html?query=title%28mabo+%20near+%20queensland%29
Summary Information:

In Mabo v the State of Queensland [No. 2] (Mabo No. 2), the High Court of Australia decided that the common law of Australia was capable of recognising Indigenous relationships to land and waters as defined by traditional laws and customs whilst maintaining the settler's legal system of land tenure. In doing so, the court introduced the concept of native title into the common law. This decision was a highly significant moment in the Aboriginal land rights movement.

The claim was brought by Eddie Koiko Mabo and others on behalf of the Meriam People from the Murray Islands in the Torres Strait. In this case, the High Court recognised the Meriam People as the traditional owners of the land and reefs of the Mer, Dauer and Waier islands.

In 1770, when the British first began settling Australia, they deemed Australia to be terra nullius, meaning land belonging to no one. At that time, international law among the European colonising nations asserted that new territories could be claimed by conquest, ceded to them by treaty, or settled on the basis of the land being uncultivated and belonging to 'no civilised person' (Reilly et al, 2012).

Mabo No. 2 overturned the principle of terra nullius in relation to Australia. This acknowledged the dispossession of Aboriginal and Torres Strait Islanders and recognised their prior claim to land taken by the British Crown since settlement.

Although Mabo No. 2 introduced the native title principle into the Australian legal system, determinations of native title claims are made by the Federal Court under the Native Title Act 1993 (Cth). 

Detailed Information:

Background

Australia was settled on the basis that the continent was terra nullius. European British settlers did not recognise any systems of law or pre-existing sovereignty. Australia's  land tenure system developed according to the concept of terra nullius, denying the First Nations' prior occupation and connection with the land.

In May 1982, a group of Meriam People from the Eastern Torres Strait, led by Eddie Koiko Mabo, and including David Passi, Same Passi, Celuia Mapo Salee and James Rice, lodged a claim for legal ownership of the Murray Islands with the High Court of Australia. By the time of the decision, three of the five plaintiffs had passed away.

In an attempt to extinguish the Meriam People's property rights, the Queensland Government passed the Queensland Coast Islands Declaratory Act 1985. The Meriam People challenged this act and in 1988 the High Court ruled it invalid because it breached the Racial Discrimination Act 1975 (Cth) (Mabo v the State of Queensland [No. 1] (1988) 83 ALR 14).

The decision in Mabo No. 1 meant that the High Court could resume deliberations on Mabo No. 2, about the Meriam People's claim for legal ownership of the Murray Islands.

Facts

The legal claim brought by Eddie Mabo and others in Mabo No 2. challenged aspects of the Australian legal system. It challenged the correctness of terra nullius and the legal position that Aboriginal and Torres Strait Islander people had no concept of land ownership. It also challenged the idea that the assertion of British sovereignty delivered absolute title to the Crown.

The plaintiffs argued that although they acknowledged that the Colony of
Queensland became sovereign of the islands when they were annexed in
1879, this did not extinguish their enjoyment of their land rights
[119].

The plaintiffs argued that the Meriam people had lived in permanent communities with their own social and political organisation on the land and reefs of the Murray Islands. They submitted substantial evidence relating to the eight clans from this area's continuous and exclusive occupation for hundreds of years (National Museum of Australia, 2020).

Decision

The Meriam People's claim took ten years to progress through the legal system. The High Court ruled by a majority of six to one that the Meriam People were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands' [97].

The judges wrote five judgments, with all but Dawson J agreeing that the source of native title was the traditional connection to or occupation of the land.

Impact

In response to the Mabo No. 2 decision, the Keating Federal Government passed the Native Title Act 1993 (the NTA) with the purpose of providing an accessible and orderly process for the determination of claims to native title. Keating described the NTA as a 'major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians' (1993). Keating also emphasised that the NTA gave First Nations 'standing... as people who have survived the loss of their land and the shattering of their culture' (1993).

The impact of Mabo No. 2 on the legal, social and political relations between Aboriginal and non-Aboriginal Australians is 'profound' (Strelein, 2009). However, there has been significant debate about the nature and extent of the protection Mabo No. 2 has provided for the rights and interests of Aboriginal and Torres Strait Islanders under Australian law (Parliament of Australia, 2002).

Shortly after Mabo No. 2 was decided, the mining and pastoral industries argued that an influx of land claims under the native title system would be contrary to Australia's national interest (Galloway, 2017).

Various Indigenous voices have also criticised the impacts of Mabo No 2. Dr Irene Watson, highlighting the limits of the current native title and land rights systems in Australia, observes:

...before Mabo, most people knew justice had been denied to our peoples, now post-Mabo most people believe we have gained justice. We are still working for the same goal, land rights and self-determination, but we are also working harder than ever before (2005).


Related Entries

Agreement
  • IBIS/Mer Gedkem le Corporation/Aboriginal and Islander Affairs Corporation Indigenous Land Use Agreement (ILUA)
  • Mer Reserve Transfer Indigenous Land Use Agreement (ILUA)
  • Mer (Murray Island) Torres Strait Social Housing Indigenous Land Use Agreement (ILUA) #2
  • Mer Island Department of Home Affairs Lease Indigenous Land Use Agreement (ILUA)
  • Organisation
  • State of Queensland - Respondent
  • Indigenous Land Fund
  • National Aboriginal and Torres Strait Islander Land Fund
  • Mer Gedkem Le (Torres Strait Islanders) Corporation RNTBC
  • High Court of Australia
  • Aboriginal Fisheries Consultative Committees
  • Event
  • Eva Valley Statement
  • The Aboriginal Tent Embassy
  • National Reconciliation Week
  • Legislation
  • Native Title Act 1993 (Cth)
  • Racial Discrimination Act 1975 (Cth)
  • Queensland Coast Islands Declaratory Act 1985 (Qld)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Meriam People - Native Title Claimant
  • Eddie Koiki Mabo - Native Title Claimant
  • Case Law
  • Western Australia v Ward (2002) 191 ALR 1 (8 August 2002)
  • Mabo v Queensland 166 CLR 186 (8 December 1988)
  • Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
  • Alexkor Limited v The Richtersveld Community and Others Case CCT19/03
  • Bodney v Bennell [2008] FCAFC 63
  • Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) HCA 33
  • Love v Commmonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
  • The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] High Court of Australia (23 December 1996)
  • Commonwealth of Australia v Tasmania ('Tasmanian Dam Case') (1983) HCA 21
  • Commonwealth v Yarmirr (2000) 168 ALR 426 (11 October 2001)
  • Ngurampaa Ltd v Balonne Shire Council & Anor [2014] QSC 146
  • Macdonald v Levy [1833] NSWLeggeSC 1
  • Coe v Commonwealth [1979] HCA 68
  • Coe v Commonwealth [1993] HCA 4
  • Attorney-General v Brown [1847] NSWLeggeSC 2
  • Cooper v Stuart (1889) 14 App Cas 286
  • Walker v The State of New South Wales [1994] HCA 64

  • References

    Book
    Lisa Strelein (2009) Compromised Jurisprudence: Native Title Cases Since Mabo
    Reilly et al (2012) Australian Public Law
    Fact Sheet
    National Museum of Australia (2020) Mabo Decision
    Case Law
    High Court of Australia (1989) MABO and ANOTHER v. THE STATE OF QUEENSLAND and ANOTHER (1989) 166 CLR 186
    High Court of Australia (1992) MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1
    News Item
    Kate Galloway (2017) Australian politics explainer: the Mabo decision and native title
    Parliamentary Paper
    Parliament of Australia (2002) Mabo: ten years on
    Publication
    Irene Watson (2005) Some Reflections Teaching Law: Whose Law, Yours or Mine?
    The Australian Institute of Aboriginal and Torres Strait Islander Studies (2017) Eddie Koiki Mabo
    Hansard
    Paul John Keating (1993) Second Reading of the Native Title Bill 1993

    Documents

    Map
    Mabo v Queensland [No 2] (1992) 175 CLR 1 Map - ( Image | PDF | Thumbnail)

    Glossary

    Native Title (Australia) | Aboriginal and Torres Strait Islander (Australia) | Act (Australia) | Federal Government | Legislation | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | State Government

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