Mabo v Queensland (No 2)

Mabo v Queensland (No 2) (commonly known as the Mabo case or simply Mabo; Template:IPAc-en Template:Respell) is a landmark decision of the High Court of Australia that recognised the existence of Native Title in Australia.<ref name="Mabo #2 HCA">Template:Cite AustLII.</ref> 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.<ref>Template:Cite web</ref>

Mabo is of great legal, historical, and political importance to Aboriginal and Torres Strait Islander Australians. The decision rejected the notion that Australia was Template:Lang (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.<ref name=":3">Template:Cite web</ref>

The Prime Minister Paul Keating during his Redfern speech praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice".<ref name=":1">Template:Cite web</ref> Conversely, the decision was criticised by the government of Western Australia and various mining and pastoralist groups.<ref name=":0">Template:Cite web</ref>

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

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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.<ref>Template:Cite journal</ref>

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".<ref>Template:Cite book</ref> Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership.Template:Sfn Land is owned by the eldest son on behalf of a particular lineage or family so that land is jointly owned individually and communally.Template:Sfn 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.Template:Sfn 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.Template:Sfn

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.<ref>Template:Cite book</ref> 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."Template:Sfn

In 1879, the islands were formally annexed by the State of Queensland.<ref>Template:Cite web</ref>

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.Template:Sfn

Legal Background

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.Template:Sfn 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.Template:Sfn 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).Template:Sfn

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).Template:Sfn

Judgment

The court held that rights arising under native title were recognised within Australia's common law.Template:Sfn These rights were sourced from Indigenous laws and customs and not from a grant from the Crown.Template:Sfn However, these rights may be extinguished by State or Commonwealth legislation or by grants of land rights inconsistent with native title rights.Template:Sfn Additionally, the acquisition of radical title to land by the Crown at British settlement did not by itself extinguish native title interests.<ref>Template:Cite AustLII</ref>

A majority of the High Court found that:<ref name=":3" />

The doctrine of Template:Lang was not applicable to Australia at the time of British settlement of New South Wales
The Crown acquires radical title to land when it acquires sovereignty over it
Native title exists as part of the common law of Australia
The source of native title was the traditional customs and laws of Indigenous groups
The nature and content of native title rights depended upon ongoing traditional laws and customs
Native title could be extinguished by a valid exercise of government power that was inconsistent with an ongoing native title interest.

Terra nullius

Various members of the court discussed the international law doctrine of Template:Lang (Template:Gloss),<ref name=":4" /> meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation.<ref>Template:Cite book</ref><ref>Template:Cite book</ref> 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.<ref name=":4">Template:Cite journal</ref> A majority of the court rejected the notion that the doctrine of Template:Lang precluded the common law recognition of traditional Indigenous rights and interests in land at the time of British settlement of New South Wales.<ref>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.</ref>

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 Template:Lang.<ref>Template:Cite book</ref> 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?"<ref name=":5">Template:Cite news</ref>

Significance

The case attracted widespread controversy and public debate.<ref name=":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".<ref name=":1" /> Richard Court, the premier of Western Australia, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.<ref name=":0" />

Development of native title

Template:Main The decision established the legal doctrine of native title, enabling further litigation for Indigenous land rights.<ref name=":2">Note: an example of litigation following Mabo is the Wik decision</ref> 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),<ref>Template:Cite Legislation AU.</ref> 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.

Legal definition of an "Indigenous person"

Within his judgment, Justice Brennan endorsed a three-part legal test to legally recognise a person as Indigenous in relation to native title. He wrote:<ref>Mabo v Queensland No 2, pg 70.</ref> Template:Blockquote

This definition was originally proposed and used by the Commonwealth Department of Aboriginal Affairs in the 1980s.<ref>Template:Cite web</ref> 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.<ref name="yearson">Template:Cite web</ref>

On 1 February 2014, the traditional owners of land on Badu Island received freehold title to Template:Convert in an act of the Queensland Government.<ref>Torres News, 10–16 February 2014</ref><ref>Template:Cite web</ref> An Indigenous land use agreement was signed on 7 July 2014.<ref name="ATNS 2014">Template:Cite web</ref>

Legacy

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Mabo Day is an official holiday in the Torres Shire, celebrated on 3 June,<ref>Template:Cite web</ref> and occurs during National Reconciliation Week in Australia.<ref>Template:Cite web</ref><ref >Template:Cite web File:CC-BY icon.svg Attribution 3.0 Australia (CC BY 3.0 AU) Template:Webarchive licence.</ref>

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."<ref name="Neal">Template:Cite book</ref>

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".<ref>Template:Cite web</ref>

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.<ref>Template:Cite news</ref><ref name=abc_mabo>Dalton, Kim Speech: Mabo Premiere, Sydney Film Festival 2012, 7 June 2012, at ABC TV Blog</ref><ref name=sff01>Dale, D., Perkins, R. Mabo at Sydney Film Festival 2012</ref>

References

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Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6 Australian Property Law Journal 1
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External links

Album of Photographs Relating to the Mabo Case on Mer Island 1989, State Library of Queensland
Photographs of the Mabo decision's 30th anniversary celebrations in Townsville, State Library of Queensland

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