Mabo v Queensland (No 2)

Last updated

Mabo v Queensland (No 2)
Coat of Arms of Australia.svg
Court High Court of Australia
Full case name Mabo and Others and The State of Queensland [No. 2]
Argued28–31 May 1992
Decided3 June 1992
Citations [1992] HCA 23, (1992) 175  CLR  1
Transcripts
Case history
Prior actions Mabo v Queensland (No 1) [1988] HCA 69, (1988) 166 CLR 186
Court membership
Judges sitting
Case opinions
Native title exists and is recognised at common law in Australia (by Mason, Brennan, Deane, Toohey, Gaudron and McHugh; Dawson dissenting)
The Murray Islands Murray Islands (Landsat).png
The Murray Islands

Mabo v Queensland (No 2) (commonly known as the Mabo case or simply Mabo) is a landmark decision of the High Court of Australia that recognised the existence of Native Title in Australia. [1] It was brought by Eddie Mabo and others against the State of Queensland, and decided on 3 June 1992. The case is notable for being the first in Australia to recognise pre-colonial land interests of Indigenous Australians within the common law of Australia. [2]

Contents

Mabo is of great legal, historical, and political importance to Aboriginal and Torres Strait Islander Australians. The decision rejected the notion that Australia was terra nullius (i.e. owned by no one) 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 not been wholly lost upon colonisation. [3]

The Prime Minister Paul Keating during his Redfern speech praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice". [4] Conversely, the decision was criticised by the government of Western Australia and various mining and pastoralist groups. [5]

Soon after the decision, the Keating government passed the Native Title Act 1993 (Cth), which supplemented the rights recognised in Mabo and set out a new process for applicants to have their rights recognised through the newly established Native Title Tribunal and the Federal Court of Australia.

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 (a group of Torres Strait Islanders) for between 300 and 2,000 years. [6]

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". [7] Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership. [8] Land is owned by the eldest son on behalf of a particular lineage or family so that land is jointly owned individually and communally. [9] 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. [10] 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 for and share it with their clan or family and maintain it for future generations. [11]

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. [12] This however did not lead to a replacement of traditional native traditions, but a synthesis with traditional customs, including 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." [13]

In 1879, the islands were formally annexed by the State of Queensland. [14]

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 and a 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. [15]

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 Milirrpum v Nabalco Pty Ltd . [16] In that case, native title was held to not exist and to never have existed in Australia.

Later, in 1982, the plaintiffs, headed by Eddie Mabo, 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. [17] 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). [17]

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 1975 (Cth). [18]

Judgment

The court held that rights arising under native title were recognised within Australia's common law. [19] These rights were sourced from Indigenous laws and customs and not from a grant from the Crown. [20] 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. [21] Additionally, the acquisition of radical title to land by the Crown at British settlement did not by itself extinguish native title interests. [22]

A majority of the High Court found that: [3]

Terra nullius

Various members of the court discussed the international law doctrine of terra nullius ('no one's land'), [23] meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation. [24] [25] 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. [23] 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. [26]

In 2005, historian Michael Connor argued in The Invention of Terra Nullius that Mabo was wrongly decided as the British actually annexed Australia, rather than treating it as terra nullius. [27] Responding to these criticisms, Mason stated, "what the British thought about its international law grounds for establishing sovereignty over Australia, for annexing Australia, is beside the point" with the decision actually concerned with answering the question, "does the common law (as applied in the Australian colonies) exclude altogether the rights of the indigenous people so that forever the rights they formerly had are excluded?" [28]

Significance

The case attracted widespread controversy and public debate. [3] Then prime minister Paul Keating, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice". [4] Richard Court, the premier of Western Australia, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups. [5]

Development of native title

The decision established the legal doctrine of native title, enabling further litigation for Indigenous land rights. [29] Native title doctrine was eventually supplemented in statute by the Keating government in the Native Title Act 1993 (Cth).

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 (Cth), 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 Native Title Act 1993 (Cth), [30] which established the National Native Title Tribunal to hear native title claims at first instance. The act was subsequently amended by the Howard government in response to the Wik decision.

Within his judgment, Justice Brennan endorsed a three-part legal test for to legally recognise a person as Indigenous in relation to native title. He wrote: [31]

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 definition was originally proposed and used by the Commonwealth Department of Aboriginal Affairs in the 1980s. [32] This test has been used in later cases and in other legal contexts (including Love v Commonwealth) to establish whether or not a person is Indigenous.

Aftermath

Ten years following the Mabo decision, his wife Bonita Mabo claimed that issues remained within the community about land on Mer. [33]

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. [34] [35] An Indigenous land use agreement was signed on 7 July 2014. [36]

Legacy

Mabo Day is an official holiday in the Torres Shire, celebrated on 3 June, [37] and occurs during National Reconciliation Week in Australia. [38] [39]

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." [40]

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". [41]

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. [42] [43] [44]

See also

Related Research Articles

<i>Wik Peoples v Queensland</i> 1996 High Court of Australia decision

Wik Peoples v The State of Queensland 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 statutory pastoral leases under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could coexist depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights.

<i>Terra nullius</i> International law term for unclaimed land

Terra nullius is a Latin expression meaning "nobody's land". Since the nineteenth century it has occasionally been used in international law as a principle to justify claims that territory may be acquired by a state's occupation of it. There are currently three territories sometimes claimed to be terra nullius: Bir Tawil, four pockets of land near the Danube due to the Croatia–Serbia border dispute, and parts of Antarctica, principally Marie Byrd Land.

<span class="mw-page-title-main">Eddie Mabo</span> Land rights activist for Indigenous Australians (1936–1992)

Edward Koiki Mabo 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 of the High Court of Australia that recognised that indigenous rights to land had continued after the British Crown acquired sovereignty and that the international law doctrine of terra nullius was not applicable to Australian domestic law. High court judges considering the case Mabo v Queensland found in favour of Mabo, which led to the Native Title Act 1993 and established native title in Australia, officially recognising the rights of Aboriginal and Torres Strait Islander people in Australia.

<span class="mw-page-title-main">Torres Strait Islands</span> Group of islands in the Torres Strait between Australia and New Guinea

The Torres Strait Islands are an archipelago of at least 274 small islands in the Torres Strait, a waterway separating far northern continental Australia's Cape York Peninsula and the island of New Guinea. They span an area of 48,000 km2 (19,000 sq mi), but their total land area is 566 km2 (219 sq mi).

<span class="mw-page-title-main">Australian Indigenous sovereignty</span> Concept and political movement regarding land ownership by Indigenous peoples in Australia

Australian Indigenous sovereignty, also recently termed Blak sovereignty, encompasses the various rights claimed by Aboriginal and Torres Strait Islander peoples within Australia. Such rights are said to derive from Indigenous peoples' occupation and ownership of Australia prior to colonisation and through their continuing spiritual connection to land. Indigenous sovereignty is not recognised in the Australian Constitution or under Australian law.

<span class="mw-page-title-main">Murray Island, Queensland</span> Town in Queensland, Australia

Murray Island in the Torres Strait Island Region, Queensland, Australia. The island is part of the Murray Island Group in the Torres Strait. The town is on the island's northwest coast and within the locality of Mer Island. The island is of volcanic origin, the most easterly inhabited island of the Torres Strait Islands archipelago, just north of the Great Barrier Reef. The name Meer/Mer/Maer comes from the native Meriam language. In the 2021 census, Mer Island had a population of 406 people.

Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rights were first recognised as a part of Australian common law with the decision of Mabo v Queensland in 1992. The doctrine was subsequently implemented and modified via statute with the Native Title Act 1993.

Mabo may refer to:

<span class="mw-page-title-main">1967 Australian referendum (Aboriginals)</span> 1967 constitutional referendum on the legal status of Indigenous Australians

The second question of the 1967 Australian referendum of 27 May 1967, called by the Holt government, related to Indigenous Australians. Voters were asked whether to give the Commonwealth Parliament the power to make special laws for Indigenous Australians, and whether Indigenous Australians should be included in official population counts for constitutional purposes. The term "the Aboriginal Race" was used in the question.

<span class="mw-page-title-main">Meriam people</span> Indigenous Australian group of Torres Strait Islander 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 inner eastern Torres Strait Islands including Mer or Murray Island, Ugar or Stephen Island and Erub or Darnley Island. The Meriam people are perhaps best known for their involvement in the High Court of Australia's Mabo decision which fundamentally changed land law in Australia - recognising native title.

<i>Mabo v Queensland (No 1)</i> Judgement of the High Court of Australia

Mabo v Queensland , was a significant court case decided in the High Court of Australia on 8 December 1988. It found that the Queensland Coast Islands Declaratory Act 1985, which attempted to retrospectively abolish native title rights, was not valid according to the Racial Discrimination Act 1975.

Indigenous land rights are the rights of Indigenous peoples to land and natural resources therein, either individually or collectively, mostly in colonised countries. Land and resource-related rights are of fundamental importance to Indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity, and economic factors. Land is a major economic asset, and in some Indigenous societies, using natural resources of earth and sea form the basis of their household economy, so the demand for ownership derives from the need to ensure their access to these resources. Land can also be an important instrument of inheritance or a symbol of social status. In many Indigenous societies, such as among the many Aboriginal Australian peoples, the land is an essential part of their spirituality and belief systems.

<i>Milirrpum v Nabalco Pty Ltd</i> First Australian Aboriginal land rights case, heard in the NT Supreme Court in 1971

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 legal case for Aboriginal land rights in Australia, decided on 27 April 1971.

<span class="mw-page-title-main">Native Title Act 1993</span> Act of the Parliament of Australia

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 management system". The Act was passed by the Keating government following the High Court's decision in Mabo v Queensland (No 2) (1992). The Act commenced operation on 1 January 1994.

<span class="mw-page-title-main">Aboriginal title</span> Concept in common law of indigenous land rights persisting after colonization

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

Indigenous Australian customary law or Indigenous Australian customary lore refers to the legal systems and practices uniquely belonging to Indigenous Australians of Australia, that is, Aboriginal and Torres Strait Islander people.

Mabo Day is a commemorative day that occurs annually on 3 June. It is an official holiday in the Torres Shire, and occurs during National Reconciliation Week in Australia.

In Australia, Indigenous land rights or Aboriginal land rights are the rights and interests in land of Aboriginal Australians and Torres Strait Islander people; the term may also include the struggle for those rights. Connection to the land and waters is vital in Australian Aboriginal culture and to that of Torres Strait Islander people, and there has been a long battle to gain legal and moral recognition of ownership of the lands and waters occupied by the many peoples prior to colonisation of Australia starting in 1788, and the annexation of the Torres Strait Islands by the colony of Queensland in the 1870s.

<i>Mabo: Life of an Island Man</i> 1997 Australian documentary film by Trevor Graham

Mabo: Life of an Island Man is a 1997 Australian documentary film on the life of Indigenous Australian land rights campaigner Eddie Koiki Mabo, directed by Trevor Graham.

<span class="mw-page-title-main">Queensland Coast Islands Declaratory Act 1985</span>

The Queensland Coast Islands Declaratory Act 1985 was an Act of the Parliament of Queensland, the intent of which was to retroactively abolish native title claims by Torres Strait Islanders to islands off the coast of Queensland, specifically Murray Island. It was passed in response to court proceedings started by the Torres Strait Meriam people led by Eddie Mabo, who were attempting to have their land claims recognised by the common law. The Act was condemned by supporters of the Indigenous Australian civil rights movement. The act was overturned in the 1988 Mabo v Queensland High Court case, which found it inconsistent with the Racial Discrimination Act 1975.

References

  1. ↑ Mabo v Queensland (No 2) [1992] HCA 23 , (1992) 175 CLR 1(3 June 1992), High Court.
  2. ↑ Haughton, James (24 January 2023). "An Unsettling Decision: A Legal and Social History of Native Title and the Mabo Decision". The Commons Social Change Library. Archived from the original on 9 July 2023. Retrieved 9 July 2023.
  3. 1 2 3 Brennan J. (1995). "Aboriginal land claims, an Australian perspective". High Court of Australia. Archived from the original on 24 December 2022. Retrieved 3 December 2022.
  4. 1 2 Keating, Paul (10 December 1992). "Redfern Speech" (PDF). Archived (PDF) from the original on 12 May 2013. Retrieved 18 September 2020.
  5. 1 2 "Mabo/Native Title/The Native Title Act". www.mabonativetitle.com. Archived from the original on 2 December 2009. Retrieved 18 September 2020.
  6. ↑ Bird, Rebecca Bligege; Bird, Douglas W (1 January 1995). "Children and traditional subsistence on Mer (Murray Island), Torres Strait" . Australian Aboriginal Studies (1): 3. Archived from the original on 11 December 2022. Retrieved 11 December 2022.
  7. ↑ Sharp, Nonnie (1996). No Ordinary Judgment. Aboriginal Studies Press. p. 7. ISBN   0-85575-287-4.
  8. ↑ Sharp 1996, p. 6.
  9. ↑ Sharp 1996, pp. 6–7.
  10. ↑ Sharp 1996, pp. 6–7, 103–114.
  11. ↑ Sharp 1996, pp. 9, 78–89.
  12. ↑ Russell, Peter H (2005). Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. University of Toronto Press. p. 23. ISBN   9780802094438.
  13. ↑ Sharp 1996, pp. 91–92.
  14. ↑ "Queensland Coast Islands Act 1879". Qld Legislation. Queensland Government. Archived from the original on 11 December 2022. Retrieved 11 December 2022.
  15. ↑ Russell 2005, pp. 21–22.
  16. ↑ Bartlett 2020, p. 11.
  17. 1 2 Bartlett 2020, p. 18.
  18. ↑ Bartlett 2020, p. 19.
  19. ↑ Bartlett 2020, p. 24.
  20. ↑ Bartlett 2020, p. 28.
  21. ↑ Bartlett 2020, pp. 30–32.
  22. ↑ Mabo v Queensland (No 2) [1992] HCA 23 at para. 52, (1992) 175 CLR 1(3 June 1992), High Court
  23. 1 2 Ritter, David (1996). "The "Rejection of Terra Nullius" in Mabo, A Critical Analysis". The Sydney Law Review. 18 (5): 5–33.
  24. ↑ Grant, John P.; Barker, J. Craig (2009). Encyclopaedic Dictionary of International Law (3rd ed.). Oxford University Press. p. 596. ISBN   9780195389777.
  25. ↑ Jennings, Sir Robert; Watts, Sir Arthur, eds. (1992). Oppenheim's International Law, Vol. I, Peace. Burnt Mill: Longman. p. 687.
  26. ↑ Mabo Case (1992). per Brennan J (Mason and McHugh agreeing), at paras. 41, 42, 46, 63. Per Deane J. and Gaudron J. at 55, 56.
  27. ↑ Connor, Michael (2005). The invention of Terra Nullius: historical and legal fictions on the foundation of Australia. Paddington, N.S.W: Macleay Press. ISBN   978-1-876492-16-8.
  28. ↑ Hope, Deborah (25 February 2006). "'Minor role' for terra nullius" . The Australian . News Corp Australia. ProQuest document ID: 356242488 – via ProQuest.
  29. ↑ Note: an example of litigation following Mabo is the Wik decision
  30. ↑ Native Title Act 1993 (Cth).
  31. ↑ Mabo v Queensland No 2, pg 70.
  32. ↑ "Australia's First Peoples". Australian Institute of Aboriginal and Torres Strait Islander Studies . 10 November 2022.
  33. ↑ Stephens, Tony (31 May 2002). "10 years after Mabo, Eddie's spirit dances on". The Sydney Morning Herald. Archived from the original on 18 August 2018. Retrieved 19 May 2018.
  34. ↑ Torres News, 10–16 February 2014
  35. ↑ "Badu Island traditional owners granted freehold title". The Queensland Cabinet and Ministerial Directory. 1 February 2014. Archived from the original on 26 July 2020. Retrieved 26 July 2020.
  36. ↑ "Agreements, Treaties and Negotiated Settlements project". ATNS. 7 July 2014. Archived from the original on 26 July 2020. Retrieved 26 July 2020.
  37. ↑ "Mabo Day". Torres Strait Regional Authority. Archived from the original on 12 March 2011.
  38. ↑ "Commemorating Mabo Day". Reconciliation Australia. 3 June 2020. Archived from the original on 9 October 2021. Retrieved 9 October 2021.
  39. ↑ "Reconciliation Week". Department of the Premier and Cabinet (South Australia) . 16 April 2021. Archived from the original on 9 October 2021. Retrieved 9 October 2021. CC-BY icon.svg Attribution 3.0 Australia (CC BY 3.0 AU) Archived 5 October 2021 at the Wayback Machine licence.
  40. ↑ Neal, Kathleen. Encountering Magna Carta in the Middle Ages. Parliament of Australia. Archived from the original on 12 November 2021. Retrieved 13 November 2021.{{cite book}}: |work= ignored (help)
  41. ↑ Bligh, Anna (10 June 2009). "Premier Unveils Queensland'S 150 Icons". Queensland Government. Archived from the original on 24 May 2017. Retrieved 24 May 2017.
  42. ↑ "Mabo's story of sacrifice and love to premiere at festival". The Sydney Morning Herald . 9 May 2012. Archived from the original on 4 April 2023. Retrieved 12 February 2020.
  43. ↑ Dalton, Kim Speech: Mabo Premiere, Sydney Film Festival 2012, 7 June 2012, at ABC TV Blog
  44. ↑ Dale, D., Perkins, R. Mabo at Sydney Film Festival 2012

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.