Mabo is of great legal, historical, and political importance to Aboriginal and Torres Strait Islander Australians. The decision rejected the notion that Australia was terra nullius (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.[3]
The Prime Minister Paul Keating during his Redfern speech praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice".[4] Conversely, the decision was criticised by the government of Western Australia and various mining and pastoralist groups.[5]
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.[6]
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".[7] Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership.[8] Land is owned by the eldest son on behalf of a particular lineage or family so that land is jointly owned individually and communally.[9] 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.[10] 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 and share it with their clan or family and maintain it for future generations.[11]
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.[12] 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."[13]
In 1879, the islands were formally annexed by the State of Queensland.[14]
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.[15]
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.[16] 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.[17] 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).[17]
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).[18]
Judgment
The court held that rights arising under native title were recognised within Australia's common law.[19] These rights were sourced from Indigenous laws and customs and not from a grant from the Crown.[20] However, these rights were not absolute and may be extinguished by validly enacted State or Commonwealth legislation or grants of land rights inconsistent with native title rights.[21] Additionally, the acquisition of radical title to land by the Crown at British settlement did not by itself extinguish native title interests.[22]
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 terra nullius (no one's land),[23] meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation.[24][25] 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.[23] A majority of the court rejected the notion that the doctrine of terra nullius precluded the common law recognition of traditional Indigenous rights and interests in land at the time of British settlement of New South Wales.[26]
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 terra nullius.[27] 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?"[28]
The decision established the legal doctrine of native title, enabling further litigation for First Nations' land rights.[29] 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.
Within his judgment, Justice Brennan stated a three-part legal test for recognition of a person's identity as a First Nations 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 used in later cases[Note 1] 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.[31]
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."[38]
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".[39]
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.[40][41][42]
^Russell, Peter H (2005). Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. University of Toronto Press. p. 23. ISBN9780802094438.
^ abRitter, David (1996). "The "Rejection of Terra Nullius" in Mabo, A Critical Analysis". The Sydney Law Review. 18 (5): 5–33.
^Grant, John P.; Barker, J. Craig (2009). Encyclopaedic Dictionary of International Law (3rd ed.). Oxford University Press. p. 596. ISBN9780195389777.
^Jennings, Sir Robert; Watts, Sir Arthur, eds. (1992). Oppenheim's International Law, Vol. I, Peace. Burnt Mill: Longman. p. 687.
^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.
^Connor, Michael (2005). The invention of Terra Nullius: historical and legal fictions on the foundation of Australia. Paddington, N.S.W: Macleay Press. ISBN978-1-876492-16-8.
^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. ISBN978-1-86287-918-8.
Bartlett, Richard (2020). Native Title in Australia (4 ed.). LexisNexis Butterworths. ISBN978-0409350920.
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