Mabo v Queensland (No 2)

{{See Also|Indigenous land rights in Australia#History}}

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.{{cite journal |last1=Bird |first1=Rebecca Bligege |last2=Bird |first2=Douglas W |title=Children and traditional subsistence on Mer (Murray Island), Torres Strait |journal=Australian Aboriginal Studies |date=1 January 1995 |issue=1 |page=3 |url=https://search.informit.org/doi/10.3316/informit.152606590619534 |access-date=11 December 2022 |url-access=subscription |archive-date=11 December 2022 |archive-url=https://web.archive.org/web/20221211074732/https://search.informit.org/doi/10.3316/informit.152606590619534 |url-status=live }}

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".{{cite book |last1=Sharp |first1=Nonnie |title=No Ordinary Judgment |date=1996 |publisher=Aboriginal Studies Press |isbn=0-85575-287-4 |page=7}} Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership.{{sfn|Sharp|1996|p=6}} Land is owned by the eldest son on behalf of a particular lineage or family so that land is jointly owned individually and communally.{{sfn|Sharp|1996|pp=6-7}} 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.{{sfn|Sharp|1996|pp=6-7, 103-114}} 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 for and share it with their clan or family and maintain it for future generations.{{sfn|Sharp|1996|pp=9, 78-89}}

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.{{cite book |last1=Russell |first1=Peter H |title=Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism |date=2005 |publisher=University of Toronto Press |isbn=9780802094438 |page=23}} 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."{{sfn|Sharp|1996|pp=91-92}}

In 1879, the islands were formally annexed by the State of Queensland.{{cite web |title=Queensland Coast Islands Act 1879 |url=https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1879-001 |website=Qld Legislation |publisher=Queensland Government |access-date=11 December 2022 |archive-url=https://web.archive.org/web/20221211094942/https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1879-001|archive-date=11 December 2022 |url-status=live}}

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.{{sfn|Russell|2005|pp=21-22}}

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.{{sfn|Bartlett|2020|p=11}} 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.{{sfn|Bartlett|2020|p=18}} 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).{{sfn|Bartlett|2020|p=18}}

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).{{sfn|Bartlett|2020|p=19}}

The court held that rights arising under native title were recognised within Australia's common law.{{sfn|Bartlett|2020|p=24}} These rights were sourced from Indigenous laws and customs and not from a grant from the Crown.{{sfn|Bartlett|2020|p=28}} However, these rights may be extinguished by State or Commonwealth legislation or by grants of land rights inconsistent with native title rights.{{sfn|Bartlett|2020|pp=30-32}} Additionally, the acquisition of radical title to land by the Crown at British settlement did not by itself extinguish native title interests.{{cite AustLII|HCA|23|1992|litigants=Mabo v Queensland (No 2)|parallelcite=(1992) 175 CLR 1|date=3 June 1992|courtname=High Court|link=|pinpoint=para. 52}}

A majority of the High Court found that:

• The doctrine of {{Lang|la|terra nullius}} was not applicable to Australia at the time of British settlement of New South Wales
• The Crown acquires radical title to land when it acquires sovereignty over it
• 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.

Various members of the court discussed the international law doctrine of {{Lang|la|terra nullius}} ({{Gloss|no one's land}}), meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation.{{Cite book |last1=Grant |first1=John P. |title=Encyclopaedic Dictionary of International Law |last2=Barker |first2=J. Craig |publisher=Oxford University Press |year=2009 |isbn=9780195389777 |edition=3rd |pages=596}}{{Cite book |title=Oppenheim's International Law, Vol. I, Peace |publisher=Longman |year=1992 |editor-last=Jennings |editor-first=Sir Robert |location=Burnt Mill |pages=687 |editor-last2=Watts |editor-first2=Sir Arthur}} 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.{{Cite journal |last=Ritter |first=David |date=1996 |title=The "Rejection of Terra Nullius" in Mabo, A Critical Analysis |journal=The Sydney Law Review |volume=18 |issue=5 |pages=5–33}} A majority of the court rejected the notion that the doctrine of {{Lang|la|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.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.

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 {{Lang|la|terra nullius}}.{{Cite book |last=Connor |first=Michael |title=The invention of Terra Nullius: historical and legal fictions on the foundation of Australia |date=2005 |publisher=Macleay Press |isbn=978-1-876492-16-8 |location=Paddington, N.S.W}} 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?"{{Cite news |last=Hope |first=Deborah |date=25 February 2006 |title='Minor role' for terra nullius |work=The Australian |publisher=News Corp Australia |url=https://www.proquest.com/docview/356242488 |url-access=subscription |id=ProQuest document ID: 356242488 |via=ProQuest}}

The case attracted widespread controversy and public debate. Then prime minister Paul Keating, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice". Richard Court, the premier of Western Australia, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.

{{main|Native title in Australia|Aboriginal land rights in Australia}}

The decision established the legal doctrine of native title, enabling further litigation for Indigenous land rights.Note: an example of litigation following Mabo is the Wik decision 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.

In response to the judgment the Keating government enacted the Native Title Act 1993 (Cth),{{cite Legislation AU|Cth|act|nta1993147|Native Title Act 1993}}. which established the National Native Title Tribunal to hear native title claims at first instance. The act was subsequently amended by the Howard government in response to the Wik decision.

Within his judgment, Justice Brennan endorsed a three-part legal test to legally recognise a person as Indigenous in relation to native title. He wrote:Mabo v Queensland No 2, pg 70.

{{Blockquote|text=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 definition was originally proposed and used by the Commonwealth Department of Aboriginal Affairs in the 1980s.{{Cite web |date=2022-11-10 |title=Australia's First Peoples |url=https://aiatsis.gov.au/explore/australias-first-peoples |access-date= |website=Australian Institute of Aboriginal and Torres Strait Islander Studies |language=en}} This test has been used in later cases and in other legal contexts (including Love v Commonwealth) to establish whether or not a person is Indigenous.

Ten years following the Mabo decision, his wife Bonita Mabo claimed that issues remained within the community about land on Mer.{{Cite web|last=Stephens|first=Tony|date=31 May 2002|title=10 years after Mabo, Eddie's spirit dances on|url=https://www.smh.com.au/national/10-years-after-mabo-eddies-spirit-dances-on-20020531-gdfbqm.html|access-date=2018-05-19|website=The Sydney Morning Herald|language=en|archive-date=18 August 2018|archive-url=https://web.archive.org/web/20180818084104/https://www.smh.com.au/national/10-years-after-mabo-eddies-spirit-dances-on-20020531-gdfbqm.html|url-status=live}}

On 1 February 2014, the traditional owners of land on Badu Island received freehold title to {{convert|9836|ha}} in an act of the Queensland Government.Torres News, 10–16 February 2014{{cite web|date=1 February 2014|title=Badu Island traditional owners granted freehold title|url=http://statements.qld.gov.au/Statement/2014/2/1/badu-island-traditional-owners-granted-freehold-title|access-date=26 July 2020|website=The Queensland Cabinet and Ministerial Directory|archive-date=26 July 2020|archive-url=https://web.archive.org/web/20200726064958/http://statements.qld.gov.au/Statement/2014/2/1/badu-island-traditional-owners-granted-freehold-title|url-status=live}} An Indigenous land use agreement was signed on 7 July 2014.{{cite web|date=7 July 2014|title=Agreements, Treaties and Negotiated Settlements project|url=https://www.atns.net.au/agreement.asp?EntityID=6573|access-date=26 July 2020|website=ATNS|archive-date=26 July 2020|archive-url=https://web.archive.org/web/20200726064958/https://www.atns.net.au/agreement.asp?EntityID=6573|url-status=dead}}

{{further|Eddie Mabo#Legacy}}

Mabo Day is an official holiday in the Torres Shire, celebrated on 3 June,{{cite web|title=Mabo Day|url=http://www.tsra.gov.au/the-torres-strait/events/mabo-day.aspx|publisher=Torres Strait Regional Authority|url-status=dead|archive-url=https://web.archive.org/web/20110312054826/http://www.tsra.gov.au/the-torres-strait/events/mabo-day.aspx|archive-date=12 March 2011}} and occurs during National Reconciliation Week in Australia.{{cite web | title=Commemorating Mabo Day | website=Reconciliation Australia | date=3 June 2020 | url=https://www.reconciliation.org.au/commemorating-mabo-day/ | access-date=9 October 2021 | archive-date=9 October 2021 | archive-url=https://web.archive.org/web/20211009042925/https://www.reconciliation.org.au/commemorating-mabo-day/ | url-status=live }}{{cite web | title=Reconciliation Week | website=Department of the Premier and Cabinet (South Australia) | date=16 April 2021 | url=https://www.dpc.sa.gov.au/responsibilities/aboriginal-affairs-and-reconciliation/reconciliation/reconciliation-week | access-date=9 October 2021 | archive-date=9 October 2021 | archive-url=https://web.archive.org/web/20211009044427/https://www.dpc.sa.gov.au/responsibilities/aboriginal-affairs-and-reconciliation/reconciliation/reconciliation-week | url-status=dead }} 50px [https://creativecommons.org/licenses/by/3.0/au/ Attribution 3.0 Australia (CC BY 3.0 AU)] {{Webarchive|url=https://web.archive.org/web/20211005225624/https://www.creativecommons.org/licenses/by/3.0/au/ |date=5 October 2021 }} licence.

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."{{cite book |url=https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/Papers_on_Parliament_65/Magna_Carta_Personal_Encounters_Popular_Culture_and_Australian_Links |title=Encountering Magna Carta in the Middle Ages |first=Kathleen |last=Neal |work=Papers on Parliament no. 65 |publisher=Parliament of Australia |access-date=2021-11-13 |archive-date=12 November 2021 |archive-url=https://web.archive.org/web/20211112210347/https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/Papers_on_Parliament_65/Magna_Carta_Personal_Encounters_Popular_Culture_and_Australian_Links |url-status=live }}

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".{{Cite web|url=http://statements.qld.gov.au/statement/id/64301|title=Premier Unveils Queensland'S 150 Icons|last=Bligh|first=Anna|author-link=Anna Bligh|date=10 June 2009|publisher=Queensland Government|archive-url=https://web.archive.org/web/20170524033717/http://statements.qld.gov.au/statement/id/64301|archive-date=24 May 2017|access-date=24 May 2017}}

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.{{cite news|title=Mabo's story of sacrifice and love to premiere at festival|url=http://www.smh.com.au/entertainment/movies/mabos-story-of-sacrifice-and-love-to-premiere-at-festival-20120508-1yb3k.html|newspaper=The Sydney Morning Herald|date=9 May 2012|access-date=12 February 2020|archive-date=4 April 2023|archive-url=https://web.archive.org/web/20230404133718/https://www.smh.com.au/entertainment/movies/mabos-story-of-sacrifice-and-love-to-premiere-at-festival-20120508-1yb3k.html|url-status=live}}Dalton, Kim [https://web.archive.org/web/20140427061553/http://blogs.abc.net.au/abc_tv/2012/06/speech-mabo-premiere-sydney-film-festival.html Speech: Mabo Premiere, Sydney Film Festival 2012], 7 June 2012, at ABC TV BlogDale, D., Perkins, R. [https://archive.today/20121202110834/http://www.sff.org.au/public/films/program/films-a-z/mabo/ Mabo] at Sydney Film Festival 2012

{{Portal|1990s}}

• Native title in Australia
• Aboriginal title
• Indigenous land rights in Australia
• History of Indigenous Australians
• List of Australian Native Title court cases
• Love v Commonwealth
• Milirrpum v Nabalco Pty Ltd
• Mabo v Queensland (No 1)
• Native Title Act 1993
• Wik Peoples v Queensland
• Yorta Yorta v Victoria
• Land tenure
• Allodial title

{{reflist|30em}}

• Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6 Australian Property Law Journal 1
• {{cite book |last1=Williams |first1=George|last2= Brennan|first2=Sean|last3= Lynch |first3=Andrew |title=Blackshield and Williams Australian Constitutional Law and Theory |year=2014 |edition=6 |publisher=Federation Press |location=Leichhardt, NSW |pages=136–146 |isbn=978-1-86287-918-8 }}
• {{cite book |last1=Bartlett |first1=Richard |title=Native Title in Australia |date=2020 |publisher=LexisNexis Butterworths |isbn=978-0409350920 |edition=4}}

• {{cite web | title=Mabo and Native Title | website=Australians Together | url=https://australianstogether.org.au/discover/australian-history/mabo-native-title/}}
• {{cite web |url=http://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_canada.htm |author=The Hon. Sir Gerard Brennan |title=Aboriginal land claims – an Australian perspective |work=1995 Seventh International Appellate Judges Conference |date=September 1995}}
• [https://nla.gov.au/nla.obj-224065802/findingaid Papers of Edward Koiki Mabo, held by the National Library of Australia]
• [http://www.mabonativetitle.com/mabo_21.shtml A film about the case.]
• {{cite journal | last=Van Krieken| first=Robert|title=From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship| journal=UNSW Law Journal |volume=23 |issue=1 |page= 63 | via=Australasian Legal Information Institute (AustLII) | date=1 July 2000 | url=http://classic.austlii.edu.au/au/journals/UNSWLawJl/2000/3.html}}
• [https://www.slq.qld.gov.au/discover/podcasts/hi-im-eddie Hi, I'm Eddie] – Podcast by the State Library of Queensland. Winner 2021 Best Indigenous podcast, Australian Podcast Awards.

• [https://onesearch.slq.qld.gov.au/permalink/61SLQ_INST/tqqf2h/alma99291223402061 Album of Photographs Relating to the Mabo Case on Mer Island 1989], State Library of Queensland
• [https://onesearch.slq.qld.gov.au/permalink/61SLQ_INST/tqqf2h/alma99184069475902061 Photographs of the Mabo decision's 30th anniversary celebrations in Townsville], State Library of Queensland

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