Mabo case

The plaintiffs in the Mabo case.
Eddie Mabo, from Land Bilong Islanders. Courtesy of Trevor Graham-Yarra Bank Films.

The Mabo Case was a significant legal case in Australia that recognised the land rights of the Meriam people, traditional owners of the Murray Islands (which include the islands of Mer, Dauer and Waier) in the Torres Strait. The Mabo Case challenged the existing Australian legal system from two perspectives:

  • On the assumption that Aboriginal and Torres Strait Islander peoples had no concept of land ownership before the arrival of British colonisers in 1788 (terra nullius).
  • That sovereignty delivered complete ownership of all land in the new Colony to the Crown, abolishing any existing rights that may have existed previously.

Running the case

Legal proceedings for the case began on 20 May 1982, when a group of Meriam men, Eddie Koiki Mabo, Reverend David Passi, Celuia Mapoo Salee, Sam Passi and James Rice, brought an action against the State of Queensland and the Commonwealth of Australia, in the High Court, claiming 'native title' to the Murray Islands.

The Chief Justice, Sir Harry Gibbs sent the case to the Supreme Court of Queensland to hear and determine the facts of the claim on 27 February 1986. The Supreme Court judge hearing the case was Justice Moynihan. The hearing was adjourned when Eddie Mabo and the people of Mer brought a second case to the High Court challenging the constitutional validity of the Queensland Coast Islands Declaratory Act 1985.

The Queensland Parliament passed the Queensland Coast Islands Declaratory Act 1985 in an attempt to pre-empt the Meriam peoples’ case. The aim of the legislation was to retrospectively extinguish the claimed rights of the Meriam people to the Murray Islands.

As a result the High Court had to consider whether the Queensland legislation was valid and effective. The High Court found the Queensland Coast Islands Declaratory Act to be invalid as it was in conflict with the Racial Discrimination Act 1975. This case became known as Mabo v. Queensland (No. 1). The decision meant the original case could continue.

Justice Moynihan resumed the hearing of the facts in the case presented by Eddie Mabo and the people of Mer, and sittings took place on Murray Island as well as on the mainland.

After some argument Moynihan J accepted the plaintiffs’ request that the court should adjourn and reconvene on Murray Island for three days, to take evidence, particularly from 16 witnesses, mainly elderly and frail, and also to take a view of the claimed areas of garden plots and adjacent seas… When opening proceedings on the Island on 23 May 1989, Moynihan J ‘doubted [whether] the Court has ever sat further north or perhaps further east’, and certainly never before on Murray Island. On 26–27 May 1989 the Court also sat in the Magistrates’ Court of Thursday Island and heard five Islander witnesses. The visit, as Moynihan J noted in his opening statement, provided a better understanding of the evidence, and of island life. It also revealed the first opposition from some Islanders to the claims being made: two Islanders were called by Queensland during these sittings to oppose Eddie Mabo’s claims.

From Keon-Cohen, B A, "The Mabo Litigation: A Personal and Procedural Account" [2000] MelbULawRw 35; (2000) 24(3) Melbourne University Law Review 893

Justice Moynihan handed down his determination of facts on 16 November 1990, which meant the High Court could begin it’s hearing of the legal issues in the case.

The case presented by Eddie Mabo and the people of Mer successfully proved that Meriam custom and laws are fundamental to their traditional system of ownership and underpin their traditional rights and obligations in relation to land.

The decision

On 3 June 1992, six of the seven High Court judges upheld the claim and ruled that the lands of this continent were not terra nullius or ‘land belonging to no-one’ when European settlement occurred, and that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands'.

In Mabo v. Queensland (No. 2), judgments of the High Court inserted the legal doctrine of native title into Australian law. The High Court recognised the fact that Indigenous peoples had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. They had been dispossessed of their lands piece by piece as the colony grew and that very dispossession underwrote the development of Australia as a nation.

Quote from B A Keon-Cohen – The Murray Islanders rejoice:

I rang Murray Island — that is to say, I rang the phone box located, as readers will recall, outside the general store. The conversation went something like this:

‘Hello, Bryan Keon-Cohen here, who’s that?’
[Inaudible.]
‘Do you remember Eddie Mabo’s case, that court case about land?’
‘Yes.’
‘Well, I’m ringing you from that Court in Canberra where those top Judges are, you know, that High Court.’
‘Oh yes.’
‘Well, those Judges, they told us their decision just now: Eddie won. You Murray Islanders have won that court case. You own the island under your laws and custom.’
[Screams of what I took to be joy, laughter, yelling, much discussion in the background.]
‘Hello! Hello! Is anyone there?’ says I.
‘Oh thank you, thank you, we are very happy, I have to go and tell my Mum. Goodbye.’
‘Bye. See ya.’

From Keon-Cohen, B A, "The Mabo Litigation: A Personal and Procedural Account" [2000] MelbULawRw 35; (2000) 24(3) Melbourne University Law Review 893

The new doctrine of native title replaced a 17th century doctrine of terra nullius on which British claims to possession of Australia were justified on a wrongful legal presumption that Indigenous peoples had no settled law governing occupation and use of lands. In recognising that Indigenous peoples in Australia had prior rights to land, the Court held that these rights, where they exist today, will have the protection of the Australian law until those rights are legally extinguished.

The High Court decision in the Mabo v. Queensland (No.2) altered the foundation of land law in Australia and the following year the Native Title Act 1993 (Cth), was passed through the Australian Parliament. This opened the way for claims by Aboriginal and Torres Strait Islander peoples to their traditional rights to land and compensation. With Eddie as the first named plaintiff, the case became known as the ‘Mabo Case’.

Effects of the case

There were five key issues of importance to legal precedent in the Mabo decision for the recognition of Indigenous peoples’ rights in Australia:

  • Reviewing the implications of Australia’s settled status.
  • Applying the principle of non-discrimination in the enjoyment of property rights.
  • Explaining the operation of the Crown’s sovereign radical title.
  • Recognising native title and the source of rights in Indigenous law and custom.
  • Asserting the power of the state to extinguish native title rights.

The Native Title Act

The Mabo decision and the legal uncertainty that followed prompted a legislative response. By the end of 1993 the Native Title Act 1993 (Cth) was passed. The NTA sought to achieve four main objectives:

  1. To provide for the recognition and protection of native title.
  2. To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.
  3. To establish a mechanism for determining claims to native title.
  4. To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

During the same year the Western Australian government sought to preempt the Commonwealth by preparing their own legislation to extinguish all native title in the State. Native title was to be replaced by ‘traditional land use’ statutory access rights. Both the WA and Commonwealth Acts were challenged in the High Court. The 1995 Native Title Act case confirmed the Commonwealth legislation was a valid exercise of power and the state legislation was inconsistent and therefore invalid.