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

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). 

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).

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