Mabo v Queensland (No 2)

Mabo v Queensland (No 2)
Court	High Court of Australia
Full case name	Mabo and Others v Queensland (No. 2)
Decided	3 June 1992
Citation(s)	(1992) 175 CLR 1, [1992] HCA 23
Case history
Prior action(s)	Mabo v The State of Queensland (1988)
Subsequent action(s)	none
Case opinions
(6:1) native title exists and is recognised by the common law of Australia (per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ) (7:0) the Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court (7:0) grants of land which are inconsistent with native title extinguish the native title (4:3) no consent or compensation is required at common law in the event that native title is extinguished (per Mason CJ, Brennan, Dawson & McHugh JJ)
Court membership
Judge(s) sitting	Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ

Mabo v Queensland (No. 2) (commonly known as Mabo) was a landmark High Court of Australia decision recognising native title in Australia for the first time. The High Court rejected the doctrine of terra nullius, in favour of the common law doctrine of Aboriginal title, and overruled Milirrpum v Nabalco Pty Ltd (1971), a contrary decision of the Supreme Court of the Northern Territory.

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. It followed a conference at James Cook University called Land Rights and Future Australian Race Relations, organised by the Townsville chapter of the Aboriginal Treaty Committee and co-chaired by Eddie Mabo and Professor Noel Loos. Melbourne barrister Barbara Hocking delivered a paper at that conference entitled ‘Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian Courts’. Hocking argued that a case should be taken to the High Court of Australian in pursuit of the recognition of native title in Australian common law. Specifically, that the High Court be asked to determine whether indigenous Australians had a ‘just and legal’ claim to their lands, to overturn the specious notion of ‘terra nullius’ (embedded in Australian law since the Privy Council decision in Cooper v Stuart in 1889) and that it was time for the common law to be ‘put to rights’.^[1]

The action was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer, Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. Prior to British 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".^[2] In Mabo v Queensland (No 1) (1988) ^[3] 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 questions, including:

• the validity of titles issued after the commencement of the Racial Discrimination Act 1975;
• the permissibility of future development of land affected by native title;
• the procedures for the large-scale determination of issues of native title.

In response to the judgment, the Parliament of Australia, controlled by the Labor Party led by Prime Minister Paul Keating, enacted the Native Title Act 1993 (NTA). The NTA established the National Native Title Tribunal (NTTA) to make native title determinations in the first instance, appealable to the Federal Court of Australia, and thereafter the High Court. Following Wik Peoples v Queensland (1996),^[4] Parliament amended the NTA with the Native Title Amendment Act 1998.

Popular culture

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.

The case was also referenced as background to the plot in the 1997 comedy The Castle.

See also

• Lord Paramount
• Seisin

References

1. Hocking, B. 'Is might right?: An argument for the recognition of traditional Aboriginal title to land in the Australian courts' in Oberoi, E. (ed) Black Australians: The Prospects for Change. James Cook University. Townsville. 1982. pp. 207-222
2. Queensland Coast Islands Declaratory Act 1985 (Qld)
3. Mabo v Queensland (1989) 166 CLR 186 AustLill
4. [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129

• Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6 Australian Property Law Journal 1
• Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt, NSW: Federation Press. pp. 136–146. ISBN 978-1-86287-918-8.

External links

• Mabo and Another v The State of Queensland and Another [1988] HCA 69; (1988) 166 CLR 186
• Mabo 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
• A film about the case.