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)|
|Argued||28-31 May 1992|
|Decided||3 June 1992|
|Citation(s)|| HCA 23, (1992) 175 CLR 1|
|Prior action(s)||Mabo v Queensland (No 1)  HCA 69, (1988) 166 CLR 186|
|native title exists and is recognised at common law in Australia|
|Judge(s) sitting||Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ|
|Majority||Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ|
Mabo v Queensland (No 2) (commonly known as Mabo) is a decision of the High Court of Australia, decided on 3 June 1992. It is a landmark case, brought by Eddie Mabo against the State of Queensland. The case is notable for recognising the pre-colonial land interests of First Nations people within Australia's common law. Prior to Mabo, the pre-colonial property rights of First Nations people in Australia were not recognised at common law.[Note 1]
Mabo is of great legal, historical, and political importance to Aboriginal and Torres Strait Islander Australians. It overturned the doctrine of "terra nullius", which had previously been applied by colonial courts to dismiss the claims of First Nations people in Australia.
The Prime Minister Paul Keating praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice". Conversely, the decision was criticised by conservative commentators.
Native title doctrine was eventually codified in statute by the Keating Government in the Native Title Act 1993. This recognition enabled further litigation for Indigenous land rights in Australia.
Prior to Mabo, it was commonly assumed that the pre-colonial property interests of Indigenous Australians were not recognized by the Australian legal system. This assumption derived from the legal doctrine of terra nullius, which was relied upon as a legal fiction to import the laws of England across the continent of Australia in spite of its existing inhabitants.
The plaintiffs, headed by Eddie Mabo, requested a declaration from the High Court that the Meriam people were entitled to property rights in the Mer Islands "as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands". The State of Queensland was respondent to the proceeding; Dean Wells, the Attorney-General of the Goss Government, instructed counsel to argue that Queensland was not bound to recognize the property rights of the plaintiffs. It argued that when the law of England became the law of the colony, the Crown of Queensland had acquired absolute beneficial ownership of all land.
The Court held that property ownership in accordance with First Nations customary law was to be recognised by Australian courts at common law. Such recognition however, was conditioned upon those laws not being extinguished by subsequent colonial laws being inconsistent with customary law.[Note 2] The possession of radical title by the crown over all Australian lands would not by itself extinguish native title interests.
It was held that:
- Native title is recognised at common law
- Terra nullius was to be rejected[Note 3]
- The nature and content of native title depended upon ongoing traditional laws and customs
- Native title could be extinguished by an exercise of government power that was inconsistent with an ongoing native title interest.[Note 4]
- Upon acquisition of sovereignty, the Crown acquired radical title across Australian lands.[Note 5] However, it did not acquire absolute beneficial ownership[Note 6]
- The common law did not require compensation to be awarded for an extinguishing of native title interests.[Note 7]
Relying upon findings of fact made by Justice Moynihan in a lower court proceeding,[Note 8] the High Court declared that the native title interests of the Mer Islanders were to be recognized. The court noted that, while these property interests could be interfered with by Queensland state legislation, such interference would have to be consistent with Commonwealth law; including (impliedly) the Racial Discrimination Act.
Paul Keating, Prime Minister of Australia at the time, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice". Still, the case was controversial and sparked public debate; and was criticized by conservatives. Richard Court, the Premier of Western Australia, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.
Development of native title
The decision led to the legal doctrine of native title, enabling further litigation for First Nations land rights. Native title doctrine was eventually codified in statute by the Keating Government in the Native Title Act 1993.
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, 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, which established the National Native Title Tribunal to make native title determinations in the first instance. The act was subsequently amended by the Howard Government in response to the Wik decision.
Legal test for First Nation identity
Within his judgment, Justice Brennan stated a three part legal test for recognition of a person's identity as a First Nation Australian. He wrote:
'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 test has had lasting significance in future cases which have relied upon a person's indigenous identity.[Note 9]
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. An Indigenous land use agreement was signed on 7 July 2014.
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".
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.
- List of Australian Native Title court cases
- Lord paramount
- Love v Commonwealth
- Milirrpum v Nabalco Pty Ltd
- e.g. in Milirrpum v Nabalco Pty Ltd
- an example of something that would be inconsistent with native title is a crown grant of fee simple in land
- 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.
- This was found unanimously
- This was found unanimously
- The majority commented upon the doctrine of tenure, holding that it would be inappropriate to replicate its UK operation in Australia. It held that upon acquisition of sovereignty, the Crown acquired only radical title. That title would be subject to native title rights where those rights had not been validly extinguished.
- Held by Mason, McHugh, Brennan, and Dawson J. Toohey, Gaudron, and Deane disagreed with those four justices on this point.
- Moynihan found that the Mer Islanders had a strong sense of relationship to the islands and regarded the land as theirs
- e.g. Love v Commonwealth
- Mabo v Queensland (No 2)  HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court.
- Keating, Paul (10 December 1992). "Redfern Speech" (PDF).
- "Mabo/Native Title/The Native Title Act". www.mabonativetitle.com. Retrieved 18 September 2020.
- Note: an example of litigation following Mabo is the Wik decision
- Mabo v Queensland (No 2)  HCA 23 at para. 52, (1992) 175 CLR 1 (3 June 1992), High Court
- 175 CLR 1; at Mason CJ and McHugh J, at para 
- Native Title Act 1993 (Cth).
- Stephens, Tony (31 May 2002). "10 years after Mabo, Eddie's spirit dances on". The Sydney Morning Herald. Retrieved 19 May 2018.
- Torres News, 10–16 February 2014
- "Badu Island traditional owners granted freehold title". The Queensland Cabinet and Ministerial Directory. 1 February 2014. Retrieved 26 July 2020.
- "Agreements, Treaties and Negotiated Settlements project". ATNS. 7 July 2014. Retrieved 26 July 2020.
- "Mabo Day". Torres Strait Regional Authority. Archived from the original on 12 March 2011.
- "Commemorating Mabo Day". Reconciliation Australia. 3 June 2020. Retrieved 9 October 2021.
- "Reconciliation Week". Department of the Premier and Cabinet (South Australia). 16 April 2021. Retrieved 9 October 2021. Attribution 3.0 Australia (CC BY 3.0 AU) licence.
- Neal, Kathleen. Encountering Magna Carta in the Middle Ages. Papers on Parliament no. 65. Parliament of Australia. Retrieved 13 November 2021.
- 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.
- "Mabo's story of sacrifice and love to premiere at festival". The Sydney Morning Herald. 9 May 2012.
- Dalton, Kim Speech: Mabo Premiere, Sydney Film Festival 2012, 7 June 2012, at ABC TV Blog
- Dale, D., Perkins, R. Mabo at Sydney Film Festival 2012
- 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.
- "Mabo and Native Title". Australians Together.
- The Hon. Sir Gerard Brennan (September 1995). "Aboriginal land claims - an Australian perspective". 1995 Seventh International Appellate Judges Conference.
- Papers of Edward Koiki Mabo, held by the National Library of Australia
- A film about the case.
- Van Krieken, Robert (1 July 2000). "From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship". UNSW Law Journal. 23 (1): 63 – via Australasian Legal Information Institute (AustLII).