''Mabo v Queensland (No 2)'' (commonly known as the ''Mabo case'' or simply ''Mabo''; ) is a landmark decision of the

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

that recognised the existence of

Native Title in Australia Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title righ ...

.. It was brought by

Eddie Mabo Edward Koiki Mabo ( ; Sambo) (29 June 1936 – 21 January 1992) was an Indigenous Australian man from the Torres Strait Islands known for his role in campaigning for Indigenous land rights in Australia, in particular the landmark decision of t ...

and others against the

State of Queensland Queensland ( , commonly abbreviated as Qld) is a state in northeastern Australia, and is the second-largest and third-most populous state in Australia. It is bordered by the Northern Territory, South Australia and New South Wales to the west, ...

, and decided on 3 June 1992. The case is notable for being the first in Australia to recognise pre-colonial land interests of

Indigenous Australians Indigenous Australians are people with familial heritage from, or recognised membership of, the various ethnic groups living within the territory of contemporary Australia prior to History of Australia (1788–1850), British colonisation. The ...

within the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

of Australia. ''Mabo'' is of great legal, historical, and political importance to Aboriginal and

Torres Strait Islander Torres Strait Islanders ( ) are the Indigenous Melanesians, Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal Australians, Aboriginal peoples of the res ...

Australians. The decision rejected the notion that Australia was (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. The Prime Minister

Paul Keating Paul John Keating (born 18 January 1944) is an Australian former politician and trade unionist who served as the 24th prime minister of Australia from 1991 to 1996. He held office as the leader of the Labor Party (ALP), having previously ser ...

during his Redfern speech praised the decision, saying it "establishes a fundamental truth, and lays the basis for justice". Conversely, the decision was criticised by the government of

Western Australia Western Australia (WA) is the westernmost state of Australia. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Aust ...

and various mining and pastoralist groups. Soon after the decision, the

Keating government The Keating government was the federal executive government of Australia led by Prime Minister Paul Keating of the Australian Labor Party from 1991 to 1996. The government followed on from the Hawke government after Paul Keating replaced Bob ...

passed the ''Native Title Act 1993'' (Cth), which supplemented the rights recognised in ''Mabo'' and set out a new process for applicants to have their rights recognised through the newly established Native Title Tribunal and the

Federal Court of Australia The Federal Court of Australia is an Australian superior court which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indictable (mo ...

Background

History of Mer

The case centred on the Murray Islands Group, consisting of Murray Island (known traditionally as Mer Island), Waua Islet and

Daua Island Dowar Islet is an island locality in the Torres Strait Island Region, Queensland, Australia. It consists of a single island, Daua Island (also known as Dowar Island) which is one of the Murray Islands group in the Torres Strait. In the , Dowar Is ...

. The islands have been inhabited by the

Meriam people Melanesian Meriam people are an Indigenous Australian group of Torres Strait Islander people who are united by a common language, strong ties of kinship and live as skilled hunter–fisher–gatherers in family groups or clans on a number of in ...

(a group of

Torres Strait Islanders Torres Strait Islanders ( ) are the Indigenous Melanesians, Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal Australians, Aboriginal peoples of the res ...

) for between 300 and 2,000 years. 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". Under this law, the entirety of Mer is owned by different Meriam land owners and there is no concept of public ownership. Land is owned by the eldest son on behalf of a particular lineage or family so that land is jointly owned individually and communally. 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. 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. In 1871, missionaries from the

London Missionary Society The London Missionary Society was an interdenominational evangelical missionary society formed in England in 1795 at the instigation of Welsh Congregationalist minister Edward Williams. It was largely Reformed tradition, Reformed in outlook, with ...

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 Christianity is an Abrahamic monotheistic religion, which states that Jesus in Christianity, Jesus is the Son of God (Christianity), Son of God and Resurrection of Jesus, rose from the dead after his Crucifixion of Jesus, crucifixion, whose ...

of much of the Torres Strait, including Mer Island. 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." In 1879, the islands were formally annexed by the State of Queensland. 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 The Great Depression was a severe global economic downturn from 1929 to 1939. The period was characterized by high rates of unemployment and poverty, drastic reductions in industrial production and international trade, and widespread bank and ...

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.

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 ''Milirrpum v Nabalco Pty Ltd'', also known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on native title in Australia, and the first significant legal ...

''. In that case, native title was held to not exist and to never have existed in Australia. Later, in 1982, the

plaintiffs A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

, headed by

, 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. 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). Prior to judgment, the

Queensland government The Queensland Government is the state government of Queensland, Australia, a Parliament, parliamentary constitutional monarchy. Government is formed by the party or coalition that has gained a majority in the Queensland Legislative Assembly, ...

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).

Judgment

The court held that rights arising under native title were recognised within Australia's common law. These rights were sourced from Indigenous laws and customs and not from a grant from the Crown. However, these rights may be extinguished by State or Commonwealth legislation or by grants of land rights inconsistent with native title rights. Additionally, the acquisition of

radical title Radical title is a concept in English common law that refers to the Crown's underlying title to all land held in overseas plantations and colonies. It grants the Crown the power to alienate others from land and to transfer beneficial ownership ...

to land by the Crown at British settlement did not by itself extinguish native title interests. A majority of the High Court found that: * The doctrine of was not applicable to Australia at the time of British settlement of

New South Wales New South Wales (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...

* The Crown acquires

to land when it acquires

sovereignty Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...

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.

Terra nullius

Various members of the court discussed the

international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...

doctrine of (), meaning uninhabited or inhabited territory which is not under the jurisdiction of a state, and which can be acquired by a state through occupation. 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. A majority of the court rejected the notion that the doctrine of ' precluded the common law recognition of traditional Indigenous rights and interests in land at the time of British settlement of New South Wales. In 2005, historian Michael Connor argued in ''The Invention of Terra Nullius'' that ''Mabo'' was wrongly decided as the British actually

annexed Annexation, in international law, is the forcible acquisition and assertion of legal title over one state's territory by another state, usually following military occupation of the territory. In current international law, it is generally held to ...

Australia, rather than treating it as ''.'' 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?"

Significance

The case attracted widespread controversy and public debate. Then prime minister

, praised the decision in his Redfern Speech, saying that it "establishes a fundamental truth, and lays the basis for justice".

Richard Court Richard Fairfax Court (born 27 September 1947) is a former Australian politician and diplomat. He served as Premier of Western Australia from 1993 to 2001 and as Australian Ambassador to Japan from 2017 to 2020. A member of the Liberal Party ...

, the

premier of Western Australia The premier of Western Australia is the head of government of the state of Western Australia. The role of premier at a state level is similar to the role of the prime minister of Australia at a federal level. The premier leads the executive br ...

, voiced opposition to the decision in comments echoed by various mining and pastoralist interest groups.

Development of native title

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 ''Wik Peoples v The State of Queensland''. (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996, on whether statutory leases extinguish native title rights. The court found that the st ...

Native title doctrine was eventually supplemented in statute by the

in the ''

Native Title Act 1993 The ''Native Title Act 1993'' (Cth) is an act of the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management sys ...

'' (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 The ''Racial Discrimination Act 1975'' (Cth). is an Act of the Australian Parliament, which was enacted on 11 June 1975 and passed by the Whitlam government. The Act makes racial discrimination in certain contexts unlawful in Australia, and al ...

'' (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

enacted the ''Native Title Act 1993'' (Cth), which established the

National Native Title Tribunal The National Native Title Tribunal (NNTT) is an independent body established under the ''Native Title Act 1993'' in Australia as a special measure for the advancement and protection of Aboriginal and Torres Strait Islander peoples (Indigenous Aus ...

to hear native title claims at first instance. The act was subsequently amended by the

Howard government The Howard government refers to the Government of Australia, federal executive government of Australia led by Prime Minister John Howard between 11 March 1996 and 3 December 2007. It was made up of members of the Liberal Party of Australia, Li ...

in response to the

Legal definition of an "Indigenous person"

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: This definition was originally proposed and used by the Commonwealth Department of Aboriginal Affairs in the 1980s. This test has been used in later cases and in other legal contexts (including ''

Love v Commonwealth ''Love v Commonwealth; Thoms v Commonwealth'' is a decision of the High Court of Australia. It is an important case in Australian constitutional law, deciding that Aboriginal Australians are not " aliens" for the purposes of section 51(xix) of ...

'') to establish whether or not a person is Indigenous.

Aftermath

Ten years following the ''Mabo'' decision, his wife

Bonita Mabo Ernestine Bonita Mabo (née Neehow; – 26 November 2018), was an Australian educator and activist for Aboriginal Australians, Torres Strait Islanders, and Australian South Sea Islanders. She was the wife of Eddie Mabo until his death in 1992. ...

claimed that issues remained within the community about land on Mer. On 1 February 2014, the

traditional owners Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rig ...

of land on

Badu Island Badu or Badu Island (; , ; also Mulgrave Island), is an island in the Torres Strait north of Thursday Island, Queensland, Australia. Badu Island is also a suburbs and localities (Australia), locality in the Torres Strait Island Region, and Waka ...

received freehold title to in an act of the

Queensland Government The Queensland Government is the state government of Queensland, Australia, a Parliament, parliamentary constitutional monarchy. Government is formed by the party or coalition that has gained a majority in the Queensland Legislative Assembly, ...

. An

Indigenous land use agreement Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title right ...

was signed on 7 July 2014.

Legacy

Mabo Day Mabo Day is a commemorative day that occurs annually on 3 June. It is an official holiday in the Torres Shire, and occurs during National Reconciliation Week in Australia.Attribution 3.0 Australia (CC BY 3.0 AU)licence. The date is the anniver ...

is an official holiday in the

Torres Shire The Shire of Torres is a local government area located in Far North Queensland, Australia, covering large sections of the Torres Strait Islands and the northern tip of Cape York Peninsula north of 11°S latitude. It holds two distinctions—it ...

, celebrated on 3 June, and occurs during

National Reconciliation Week National Reconciliation Week (NRW) is intended to celebrate Indigenous history and culture in Australia and foster reconciliation discussion and activities. It started as the Week of Prayer for Reconciliation in 1993, developing into National R ...

in Australia.
Attribution 3.0 Australia (CC BY 3.0 AU)
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." In 2009, as part of the

Q150 Q150 was the sesquicentenary (150th anniversary) of the Separation of Queensland from New South Wales in 1859. Separation established the Colony of Queensland which became the State of Queensland in 1901 as part of the Federation of Australia ...

celebrations, the ''Mabo'' High Court of Australia decision was announced as one of the

Q150 Icons The Queensland's Q150 Icons list of cultural icons was compiled as part of Q150 celebrations in 2009 by the Government of Queensland, Australia. It represented the people, places and events that were significant to Queensland Queensland ...

of Queensland for its role as a "Defining Moment". A straight-to-TV film titled '' Mabo'' was produced in 2012 by

Blackfella Films Blackfella Films is an Australian documentary and narrative film production company headquartered in Sydney, founded in 1992 by Rachel Perkins. The company produces Australian short and feature-length content for film and television with a part ...

in association with the

ABC ABC are the first three letters of the Latin script. ABC or abc may also refer to: Arts, entertainment and media Broadcasting * Aliw Broadcasting Corporation, Philippine broadcast company * American Broadcasting Company, a commercial American ...

and SBS. It provided a dramatised account of the case, focusing on the effect it had on Mabo and his family.Dalton, Ki
Speech: Mabo Premiere, Sydney Film Festival 2012
7 June 2012, at

TV BlogDale, D., Perkins, R
Mabo
at Sydney Film Festival 2012

References

*Richard Bartlett, "The Proprietary Nature of Native Title" (1998) 6 ''Australian Property Law Journal'' 1 * *

External links

Album of Photographs Relating to the Mabo Case on Mer Island 1989
State Library of Queensland
Photographs of the Mabo decision's 30th anniversary celebrations in Townsville
State Library of Queensland {{DEFAULTSORT:Mabo V Queensland (No 2) Native title case law in Australia High Court of Australia cases 1992 in Australian law Culture of the Torres Strait Islands 1992 in case law Keating government Aboriginal land rights in Australia