Mabo v Queensland was a landmarkHigh Court of Australia decision in 1992 recognising native title in Australiafor the first time. It acknowledged that Aboriginal and Torres Strait Islander peoples had occupied the land before the arrival of British settlers, and had rights over the land. The High Court held that the doctrine of terra nullius, which imported all laws of England to a new land, did not apply in circumstances where there were already inhabitants present – even if those inhabitants had been regarded at the time as "uncivilised". Consequently, the Court held that the rules of reception of international English law that applied were not those applicable where the land was barren and unprotected, but rather the rules that applied where an existing people were settled. The result was that existing customary laws which were present at the time of settlement survived the reception of English law to the extent not modified or excluded by subsequent inconsistent laws and acts of the British. Relevantly, that existing law included indigenous land title. As such, any Indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia. In so ruling, the High Court overturned Milirrpum v Nabalco Pty Ltd, a contrary decision of the Supreme Court of the Northern Territory.
The case
The plaintiffs, headed by land rights campaigner Eddie Mabo, sought declarations, inter alia, that the Meriam people were entitled to the Mer 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.
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 and consecutive.
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 for 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 could co-exist with the law of native title, 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
On native title
The Mabo decision presented many legal and political questions, including:
In his judgment, Justice Brennan stated that the definition of a person's Aboriginal Australian identity, or Aboriginality, depends on a tripartite test: This test was subsequently used in other cases, such as Love v Commonwealth of Australia; Thoms v Commonwealth of Australia, where two men who has thus been determined as Aboriginal, could not be deported as aliens under the provisions of the Migration Act 1958, after both had earlier been convicted of criminal offences and served time in prison until 2018.
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. 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".
