The Mabo case

After the gains of the 1960s and 1970s, the 1980s saw a gradual withdrawal away from Indigenous land rights. State and Commonwealth governments drew back from pursuing more legislation or granting land rights because of the lack of popular support in many areas of the country. The fear of losing at the polls began to take over from the idea of progress in the sphere of Indigenous rights.

This changed again in 1992 with the High Court judgement on the land mark Mabo case. Eddie Mabo was an Indigenous inhabitant of the Murray (Mer) Islands in the Torres Strait. He led a group of the Meriam people in a Supreme Court challenge against the Queensland government on the issue of land ownership. Their case stated;

'Since time immemorial the Torres Strait Islands of the Mer (known as Murray), Danar and Waier and their surrounding seas, seabeds, fringing reefs and adjacent islets have been continuously inhabited by people called the Meriam people'

The Queensland government reacted to the land rights claim by passing the Queensland Coast Islands Declaratory Act 1985 (Qld) which said that the Torres Strait Islander rights and claims had been extinguished in 1879 when the islands came under the rule of the Queensland government. It was a futile move to stop the Mer people's claim and in 1989 it was overruled as it contravened the Racial Discrimination Act 1975 (Cth). The case then came to the High Court of Australia – the highest court in the country.

In the High Court the Meriam people claimed continuous connection with their land. This was despite the fact it had been declared a possession of the New South Wales Colony in 1797 and then annexed by the Queensland government in 1879. The Queensland government said it had saved the Indigenous people of the Murray Islands from 'barbarism' and that the Crown had assumed all rights to the land in 1879. This assertion, however, was undermined by the fact that in 1913 the Queensland government had bought land from the Meriam people on which to build a police station. If the Crown (and therefore the State government) already owned the land then why would it have to buy some from the Indigenous inhabitants? The government had also established a land court in the early part of the 20th Century to preside over land disputes between the Meriam people. Again, why establish a court to make judgements if the land belonged to the Crown?

'The Meriam people are entitled as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands'

Eddie Mabo had died of cancer in February 1992, just 4 months before this historic high court ruling that would change Australian land law. The judgement was so historic because it completely overturned the idea of terra nullius and said that native title survived in many places, even though the land had been taken by the Crown. See image 1

Mabo v Queensland [No 2] (1992) 175 CLR 1 (Mabo) declared that terra nullius had never legally existed and that it had been wrongfully applied to Australia. The high court said that 'ultimate' title existed instead, and through that, native title could be claimed. Australian land law has developed from English land law and it was under those principles that Australia was settled. At common law all land is owned by the Crown which then deals with that land as it sees fit. See image 2

In the 18th century there were three legally recognised principles that governed the taking over of new land; conquest, treaty or occupation (the terra nullius principle). As Australia was an 'empty' country neither of the first two principles applied, and so under 18th century English common law, Australia became an occupied country. This legal fiction of an empty country was directly challenged by the Mabo case.

The Mabo judgement also broached this issue in relation to Indigenous land rights. It was the judgement of the court that in a true case of terra nullius then exclusive ownership of acquired land is matter of fact, however in an area where there are Indigenous owners, their rights to ownership are also recognised by common law. These Indigenous rights are known as 'native title'. This essentially means that when the English took possession of Australian land, they may have had ultimate title and the political power, but they never had absolute ownership of the land. And what is more, native title was never officially overturned when the New South Wales Colony was established.

One of the High Court judges involved in the Mabo case, Justice Brennan, described native title as;

'Indigenous inhabitants' interests and rights in land, whether communal groups or individuals, under their traditional laws and customs'

Terra nullius had been proven to be fiction and both ultimate title and native title were recognised and protected by common law. The claim of the Meriam people to ownership of the Murray Islands, therefore, was proven to be justified on the facts of their case. The Meriam people could prove a long and continuous tradition of living on that land, and native title had never been extinguished (overturned) on their land.

The High Court judges in the Mabo case also investigated the circumstances where native title can be extinguished. They found that the Crown needed to show that it had dealt with a piece of land in a manner that was inconsistent with the continuing existence of native title. This meant that wherever the Crown had granted land to a person, on which that person, for example, had built a house, native title was extinguished.

In the same manner as the Land Rights Act (Northern Territory) 1976 (Cth), land that was already in use or that had been sold off could not be claimed by Indigenous peoples. It follows that wherever the Crown had sold the land (granted a freehold title) or rented out the land (a common law lease), native title was extinguished. The reason that a lease is sufficient to extinguish native title is that a lease gives the right to exclusive possession (no one else can use it) in return for rent money. The right to exclusive possession and the continuing occupation by Indigenous inhabitants are incompatible at law.

This was based on the fact that if someone else had been using the land, then an Indigenous person could not have maintained a continuous, traditional link with that land – which is the basis on which native title is granted. This means that any land, disposed of by the Crown, is never able to be claimed under native title. Legislation by the government can also extinguish native title on a piece of land, but only if it doesn't breach the Commonwealth Constitution or the Racial Discrimination Act 1975 (Cth). See animation

The Mabo decision ended forever the idea of terra nullius in relation to Australia, when it recognised the Meriam people as the owners of the Murray Islands. It also opened the door for other Indigenous groups to be able to claim ownership of land that they could prove a continuous connection with.