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)	[1992] HCA 23, (1992) 175 CLR 1
Case history
Prior action(s)	Mabo v Queensland (No 1) [1988] HCA 69, (1988) 166 CLR 186
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

The Murray Islands, subject of the dispute

Mabo v Queensland (No 2) (commonly known as Mabo)^[1] is an important decision of the High Court of Australia. The decision is notable for having recognised that some Indigenous Australians have proprietary rights to land, in a legal form of ownership referred to as "native title".

Prior to Mabo, it was commonly assumed that the property rights of Indigenous Australians were not recognised by the Australian legal system. This derived from a legal doctrine known as "terra nullius" which purportedly imported all laws of England onto the land of Australia, despite any existing inhabitants.

The High Court held that Indigenous customary laws relating to land would be recognised, excepting for in situations where that law had been extinguished by subsequent British laws inconsistent with customary law (such as subsequent grants of property rights such as fee simple upon the land). The court held that the crown possesses radical title over all land in the realm. However, it held that radical title alone would not extinguish property rights derived from Indigenous customary law.^[2] In so holding, the court overturned previous decisions which declined to recognise native title in land.^[3]

The decision was of immense legal, historical, and political importance to Australia and Indigenous Australians. It was a watershed moment for Indigenous Australians, who finally were able to achieve formal recognition of a property interest in their lands by the post-colonial legal system. The decision led to the legal doctrine of native title, enabling further litigation for indigenous land rights.^[4] Native title doctrine was eventually codified into law by the Keating Government in the Native Title Act 1993.

Paul Keating, Prime Minister of Australia at the time, praised the decision in his famous Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice".^[5]

Nevertheless, the case was controversial and sparked public debate; especially among conservative commentators.^[6] The premier of Western Australia, Richard Court voiced alarmist opposition to the decision.^[6] His negative comments about the decision were echoed by various mining and pastoralist groups.^[6]

Facts

The plaintiffs were headed by land rights campaigner Eddie Mabo. They had 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".

The State of Queensland at the time was led by Labor's Goss Government. The Attorney-General, Dean Wells, instructed counsel to lead an argument that Queensland was not bound to recognise the property rights of the plaintiffs. They argued that the crown had acquired absolute beneficial ownership of all land, when the law of England became the law of the colony.

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, the only dissenter, 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 Mer 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 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 (as a product of the common law) could co-exist with the law of native title (as a product of customary laws and traditions), 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.

Legal significance

Native Title

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 judgement the Keating Government enacted the Native Title Act 1993,^[7] 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 Indigenous Australian identity

Justice Brennan stated a tripartite test for recognition by a court of a person's identity as an Indigenous 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 been subsequently been applied in other decisions pertaining to the interests of Indigenous Australians, such as Love v Commonwealth.

Aftermath

Ten years following the Mabo decision, Mrs Mabo claimed that issues remained within the community about land on Mer.^[8]

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.^[9][10] An Indigenous Land Use Agreement (ILUA) was signed on 7 July 2014.^[11]

In 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.^[12][13][14]

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".^[15]

See also

• Lord Paramount
• Seisin

References

• 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.

Further reading

• "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 3 (63?). 23 (1) – via Australasian Legal Information Institute (AustLII).