IND/From Terra Nullius to Native Title: the Mabo Case

Key Idea

Native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs. Recognition of native title was established by the 1992 High Court decision in the Mabo case which rejected the doctrine that Australia was terra nullius at the time of British colonisation.

In May 1982 Eddie Koiki Mabo and two other Murray Islanders, David Passi and James Rice, instituted action against the Queensland government on their own behalf and that of their respective family groups. They asserted that since time immemorial the Meriam people had continuously occupied and enjoyed the islands and had established settled communities with a social and political organisation of their own.

The Murray Islands, or Islands of Mer, are the most easterly and among the most northern of the islands of the Torres Strait and were annexed to the Colony of Queensland in 1879. In an endeavour to subvert the Meriam peoples claim, the Queensland government introduced the Queensland Coast Islands Declaratory Act (1985) which effectively extinguished native title on the islands. This legislation was found to be contrary to the Racial Discrimination Act (1975) and subsequently overthrown in Mabo v State of Queensland (No 1) in 1988. The case was now set to proceed to the second and final stage.

Following ten years of struggle, the final decision of the High Court of Australia in the case of Mabo v State of Queensland (No 2) was handed down on the 3rd June 1992, shortly after the death of Eddie Koiki Mabo.  The High Court Justices determined that the Meriam people were entitled to the “possession, occupation, use and enjoyment of the island of Mer”. In other words, the High Court recognised the native title of the Meriam people. (Mabo v State of Queensland (No 2), paragraph 97). If you are interested, the full judgement is available here. [not examinable]

In this decision, the High Court rejected the doctrine that Australia was terra nullius at the time of British colonisation. The Justices held that the common law title of Australia recognises a form of native title to land, with sovereignty residing in the Crown as a consequence of the doctrine of 'settlement'. The Court determined that the pre-existing rights of Indigenous Australians to ancestral land survived colonisation and still survive today in certain circumstances. The High Court ruled that Indigenous people may have certain rights to particular areas of land and water which originate in their traditional ownership. Further, native title exists in accordance with the laws and customs of Indigenous people:

• where those people can prove they have maintained their physical connection with the land and/or waters
• where their title has not been extinguished by legislation or any action of the government which shows a clear and plain intention inconsistent with the continued exercise of native title rights

That is, native title rights must be proved both by evidence of continuous physical connection AND by evidence of the continuous practice of the ‘traditional’ laws and customs specific to the native title claimants.

Native Title Legislation is different to Land Rights Legislation!!!! Earlier in the subject we briefly considered the events leading up to the Aboriginal Land Rights (Northern Territory) Act 1976. There are fundamental differences between land rights and native title. Land rights are rights created by the Australian, state or territory governments. Land rights usually comprise of a grant of freehold or perpetual lease title to Indigenous Australians.

By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves (National Native Title Tribunal, 2013).

Native title was not invented in the Mabo case decision. Rather, the decision recognized rights which had existed for tens of thousands of years.

Generally speaking, native title must give way to the rights held by others. Native title rights and interests may include rights to:

• live on the area
• access the area for traditional purposes, like camping or to do ceremonies
• visit and protect important places and sites
• hunt, fish and gather food or traditional resources like water, wood and ochre
• teach law and custom on country.

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.