Mabo Vs Queensland: A Landmark Case On Native Title Recognition In Australia

Background on Mabo vs Queensland case

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Discuss about the Business Law for Torres Strait Islander Studies.

In the notable Mabo vs Queensland case the High court of Australia passed the landmark judgment recognizing the native title in Australia. In this case the High Court of Australia held that the doctrine of terra nullius should not be applicable to situations which involve inhabitants even if such inhabitants were uncivilized (Moreton-Robinson 2015). The doctrine of terra nullius is a Latin term which means nobody’s land. This principle of terra Nullius is used in the context of international law to describe any territory that may be acquired by the state. In Australia the English laws are imported in accordance with the aforementioned doctrine. It was further held by the court of Australia in relation to the Mabo vs Queensland case that the English laws will not be applied n circumstances where it is established that and was uninhabited or barren.  The judgment of this landmark case gave effect to the customary laws which had been present at the time of settlement and had survived the reception of the English Law (Grace, 2015). Such customary laws included the indigenous land title and subsequent land rights to lands which had been extinguished by the Crown.

In this case Eddie Mabo, David Passi and James Rice on behalf of all Mariam people  had started proceedings in the Australian High Court in response to the Queensland Amendment Act 1982. The aforementioned act brought in action a system of making land grant on trust for all the indigenous inhabitants of the Torres strait and Aboriginals. However, the Mer Islanders refused accept such land grant.  The plaintiffs Eddie Koiki Mabo, Reverend David Passi, Celuia Mapoo Salee, Sam Passi and James Rice claimed native title to the Murray Islands. The chief justice Sir Harry Gibbs referred to the case for hearing in the Supreme Court on 27^th February 1986 for the purpose of determining the facts of the case. The Supreme court judge who head the case was Justice Moynihan.  This case was withheld when Eddie Mabo and the people of Meriam islands brought to the high court of Australia a second case challenging the constitutional validity of the  Queensland Coast Islands Declaratory Act 1985. This second case which was brought to the High Court by Mabo and the people of Mer islands popularly came to be known as the case  Mabo v. Queensland (No. 2). The judgment in the second case as passed by the High Court inserted in the Australian law the legal doctrine of native title (Davies, 2017). The High Court while giving the verdict recognized the that indigenous people of Australia had inhabited the lands of Australia for thousands of years and had enjoyed the rights of the land by their own customs and laws. However, they had been dispossessed from their land as colonization took place. The Court held that this disposition of the Australian Aboriginals underwrote the development of Australia as a nation.  This case introduced a new doctrine which had replaced the old doctrine of terra nillius. It was also held that British claims of possession of Australian Territory were unjustified as it was based on a wrongful presumption that there was no law which governing the use of lands. The Native Title Act 1993 (Cth) was passed in the following year of the judgment of the aforementioned case (Legislation.gov.au 2018).  This act allowed the aboriginal Australians and the Natives of Torres strait islanders to claim rights to their lands and also claim compensation.

The judgment and its impact

It can be stated that The Mabo cases in Australia are landmark cases. The judgment as passed in the cases was perceived as a victory to the indigenous Australians. However, the verdict was not well received by some indigenous people.  A long battle had been going on between the indigenous Australians and the government of the commonwealth since the first settlers had settled in Australia and claimed the land by terra nullius even though the land was not uninhabited (Davies 2017).  The indigenous Australians had been dispossessed even though they had a devoted relationship with the land and had set up families.  In 1992 the following the decision of the Mabo case the High Court of Australia rejected the doctrine of terra nullius and had argued that the aforementioned doctrine had been wrongfully implemented by the colonizers to deprive the indigenous Australians of their right in their land (Kramer 2016). While rejecting the doctrine, the court recognized the native title had existed even before the colonizers had settled in the country.  The judgment of the case came to be known as the Mabo decision andhas een regarded as a very controversial decision. 

However the decision raised a lot of controversy as no proper definition of the term native title had earlier existed in Australia (Duff 2017). However the mining and industrial sectors were not pleased with decision as it would require them to spend more money and time in acquiring leases. They feared that their application for leases might also get rejected.  However the judgment was well received by the Australian Prime minister and the Aboriginal Australians. The Mabo Decision in the High Court awarded land rights to the Indigenous people. Although initially decision of the case seemed to create benefit for all indigenous Australian, however it did not benefit all indigenous Australians. According to the judgment, the process of claiming the land rights of indigenous Australians involved many requirements which must be fulfilled which seemed to be unfair to some of the indigenous people.             

Native Title issues often require parties claiming native title to prove a connection. It can be said that processing applications for claim of Native title usually takes many years and is a complicated process. The Native Title Act which was passed subsequent to the verdict given in the landmark case Mabo vs Queensland (No.2) to give rights to the indigenous Australians to claim their land. The purpose of the Native title act was to recognize the connection of the Indigenous Australians with their land. However, disputes related to Native Title can take years to be resolved in courts (www.smh.com.au 2018) Thus the critics of this act have asked the government of Australia to amend it.  However, the aforementioned Act has created a division between the members of the aboriginal communities. This act has failed to take into consideration the perspective of the Aboriginal Australians.  This Act gives effect to the rights of the Aboriginal Australians to claim their land and water. However in reality the act does not take into consideration within its realm advance aboriginal rights.  

Disputes and criticism related to Native Title Act

It is even claimed by some indigenous Australians that the act does not approve indigenous rights and the act is deeply embedded in political institutions. One of the toughest requirements for claiming the rights of indigenous Australians is that claimants are required to prove a continuity of traditional customs and law on the land that is claimed since the time of European settlement (Kramer 2016).  ‘Native Title’ has been perceived as a weak title and in many cases the ‘native title’ has been extinguished by surrender, action of the government and by previous free holding. Native Title of a land can only be claimed where no legal title of the land exists.  Further it can be said that Native Title rights are usually non exclusive which gives the parties claiming such title little opportunity to actually access the land. The ongoing connection between the between the indigenous people and their land is often difficult to prove for the parties. Proving an ongoing connection is especially difficult when the native title has been extinguished by the process of urbanization and agricultural development.  Further the law of claiming Native title requires a high level of evidence to be exhibited by every group of indigenous Australians regarding their traditional connection with the land which dates back to when sovereignty was asserted to the nation by the crown (Legislation.gov.au 2018).

The government of Australia has already declared that it will bring reforms to the Native Title Act 1993(Cth) in order to ensure that a sustainable and fair system creates social and economic opportunities for indigenous Australians (Legislation.gov.au 2018). In the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Native Title Conference which took place in Townsville, the future of Native title was discussed which was attended by Attorney-General Nicola Roxon and Minister for Families, Communities and Indigenous Affairs Jenny Macklin. It had been announced by minister Macklin, that a review of the native title organization was to be conducted for ensuring whether the system was benefiting the indigenous communities and people (Indigenous.gov.au 2018). The review would assess the roles and impacts of Native Title Representative Bodies and Native title service providers. The government of Australia had had announced the allocation of fund of 7.8 million dollars for the purpose of supporting the Native title groups. The Australian Law reform commission had conducted a review of the Native Title Act for the purpose of developing recommendations for a aw reform after consultation with the Australian Community. 

Reference List:

Davies, C., 2017. Native title in Queensland twenty-five years post-Mabo. James Cook University Law Review, 23, p.103.

Duff, N., 2017. Fluid mechanics: the practical use of native title for freshwater outcomes. Fluid Mechanics: The Practical Use of Native Title for Freshwater Outcomes, p.85.

Grace, J., 2015. Native title in Australia [Book Review]. Ethos: Official Publication of the Law Society of the Australian Capital Territory, (237), p.44.

Indigenous.gov.au. (2018). The Future of Native Title. [online] Available at: https://www.indigenous.gov.au/the-future-of-native-title [Accessed 17 Mar. 2018].

Kramer, J., 2016. (Re) mapping Terra Nullius: Hindmarsh, Wik and Native Title Legislation in Australia. International Journal for the Semiotics of Law-Revue internationale de Sémiotique juridique, 29(1), pp.191-212.

Legislation.gov.au. (2018). Native Title Act 1993. [online] Available at: https://www.legislation.gov.au/Details/C2017C00178 [Accessed 17 Mar. 2018].

Mabo v Queensland (No 2) HCA 23, (1992) 175 CLR 1

Moreton-Robinson, A., 2015. The white possessive: Property, power, and indigenous sovereignty. University of Minnesota Press.

Wetherall, C. (2018). The future of Native Title. [online] The Sydney Morning Herald. Available at: https://www.smh.com.au/education/the-future-of-native-title-20130902-2t0ns.html [Accessed 17 Mar. 2018].