Mabo v Queensland (No 2)
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Mabo v Queensland (No 2) (commonly known as Mabo) is a landmark Australian court case which was decided by the High Court of Australia on June 3, 1992.
The effective result of this judgement was to make irrelevant the declaration of terra nullius, or "empty land" which had been pronounced at the time of British colonisation in 1788, and to recognise a form of native title. Although Mabo was litigated within the legal context of property law, the decisions clearly had much wider implications which have still to be determined. There is no doubt that it was a decision that shifted the political, legal and social landscape of Australia.
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The case
The action which brought about the decision had been led by Eddie Mabo, David Passi and James Rice, all of 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 action was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer (Murray Island), Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. Prior to European contact the Meriam people had lived on the islands in a subsistence economy based on gardening 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, which declared that on annexation of the islands in 1879, they vested in the state of Queensland "freed from all other rights, interests and claims whatsoever". In Mabo v Queensland (No 1) (1988) 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 judgements 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 crown ownership
The majority in Mabo also rejected the proposition that immediately upon the acquisition of sovereignty, full legal and beneficial ownership of all the lands of the Colony vested in the Crown. In other cases, including Australia, the new property law which the British Crown brought with it for British settlers presupposed that property interests were to be held on tenure from the Crown.
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.
Consequences
The Mabo decision presented many legal and political problems for the Federal Government and the states, including:
- the necessity to validate titles issued after the commencement of the Racial Discrimination Act 1975 which might have been rendered invalid by that Act;
- a requirement to make provision for permitted future development of land affected by native title;
- provide a regime for the speedy and efficient determination of issues of native title.
In response to the Mabo judgment and to the subsequent and potential reactions, the Australian Federal Parliament (then controlled by the Labor Party led by Paul Keating) enacted the Native Title Act 1993. This was amended in 1998 following the 1996 Wik Decision.
See also
References
- Richard Bartlett, "The Proprietary Nature of Native Title" (1993) 6 Australian Property Law Journal 1.
External links
- [1] (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/unrep44.html?query=title+%28+%22mabo%22+%29) High Court of Australia 1986 - EDDIE MABO AND OTHERS V. THE STATE OF QUEENSLAND AND THE COMMONWEALTH OF AUSTRALIA S. 86/001
- [2] (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/166clr186.html?query=title+%28+%22mabo%22+%29) High Court of Australia 1988 - MABO and ANOTHER v. THE STATE OF QUEENSLAND and ANOTHER (1989) 166 CLR 186 F.C. 88/062
- [3] (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/175clr1.html?query=title+%28+%22mabo%22+%29) High Court of Australia 1992 - MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1; F.C. 92/014
- [4] (http://scaletext.law.gov.au/html/pasteact/2/1142/top.htm) Native Title Act 1993
- [5] (http://www.hcourt.gov.au/speeches/brennanj/brennanj_canada.htm) The Chief Justice of Australia summarises the Mabo decision to the 1995 SEVENTH INTERNATIONAL APPELLATE JUDGES CONFERENCE
- [6] (http://www.nla.gov.au/ms/findaids/8822.html) Papers of Edward Koiki Mabo, held by the National Library of Australia.de:Eddie Mabo