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".

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:

Consequences

The Mabo decision presented many legal and political questions, including:

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

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

External links

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