Mabo Decision
The Mabo Decision, delivered by the High Court of Australia on June 3, 1992, was a landmark ruling that recognized the land rights of Indigenous Australians, specifically the Meriam people of the Torres Strait Islands. This decision effectively overturned the longstanding legal doctrine of terra nullius, which claimed that Australian land was unowned prior to European colonization. The court ruled that the Meriam people had a legitimate claim to their traditional lands based on their continuous occupation and cultural practices, thus establishing the basis for native title under Australian common law. This ruling paved the way for the Native Title Act 1993, which created a framework for recognizing and settling Indigenous land claims. The Mabo Decision was significant in the context of historical injustices faced by Indigenous populations, who had inhabited Australia for tens of thousands of years before European settlement. Following Mabo, the 1996 Wik Peoples v. Queensland case further clarified the rights of Indigenous peoples in relation to land use and pastoral leases. The Mabo Decision and its subsequent legal implications have been vital steps toward reconciliation and the acknowledgment of Indigenous rights in Australia.
Mabo Decision
On 3 June 1992, the High Court of Australia handed down a ruling in favour of Eddie Mabo and the Meriam people, effectively determining that the doctrine of terra nullius—the notion that land in Australia did not belong to anyone and therefore could be claimed by European colonisers—did not apply in circumstances where inhabitants were already present. The decision directly overturned the 1971 ruling Milirrpum v. Nabalco Pty Ltd, or Gove land rights case, which had rejected the doctrine of native title on the grounds that it was unrecognised under common law and non-existent in traditional Aboriginal law. The Mabo decision led to the Native Title Act 1993, establishing the National Native Title Tribunal to help determine proper land title where Indigenous claims existed. The decision was soon followed by Wik Peoples v. Queensland (1996), which further redefined native title.
Background
The Indigenous population has inhabited the Australian continent for tens of thousands of years. European settlement of Australia began in 1788, and within decades much of the Indigenous population died of rolling plagues of European diseases. Those who survived soon found themselves in conflict with white settlers who, under an expanded doctrine of terra nullius, claimed that as Indigenous peoples had not cultivated the land, it in fact belonged to no-one and therefore could be claimed freely. The rush for gold and natural resources in the nineteenth century brought even more European settlers who pushed Indigenous groups out of their country.
In the late twentieth century, Australian policy makers began trying to make amends. In 1973 the government of Gough Whitlam organised the Aboriginal Land Rights Commission to begin the process of settling the issue of Indigenous land ownership. The commission's first report recommended that the Australian government help Indigenous peoples establish land councils, a recommendation that was immediately enacted. A second report recommended that land in public holding (that owned by the government) be returned to Indigenous peoples, that sacred land be protected and ongoing Aboriginal access guaranteed, that mining and other actions on Indigenous lands be placed under Indigenous control and that Indigenous groups set up councils and file claims for the return of land they could prove was unlawfully taken.
Because of the second report, in 1976 the Parliament of Australia passed the Aboriginal Land Rights (Northern Territory) Act, which enacted some of the commission's recommendations. This was the first in a series of Aboriginal land rights acts, which allowed Indigenous groups to reclaim about half of the Northern Territory by 2015. However, as Indigenous groups appealed for the return of their land, one major hurdle remained: land title protected under the doctrine of terra nullius.
Landmark Cases
In May 1982 Eddie Koiki Mabo, David and Same Passi, Celuia Mapo Salee and James Rice of the Meriam people, from Mer (Murray Island) in the Torres Strait, began proceedings in the High Court of Australia to challenge Queensland's Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982, which established a system of land grants in trust to Aboriginal Australians and Torres Strait Islanders. The plaintiffs argued that the islands of Mer, Dauar and Waier were theirs by right already, as the territory was annexed under the doctrine of terra nullius. The Meriam people, upon the arrival of Europeans, owned land as family groups and passed it down patrilineally.
To forestall the suit, the state of Queensland, which has dominion over the Torres Strait islands, enacted the Queensland Coast Islands Declaratory Act 1985, which stated that, upon annexation to Queensland in 1879, ownership of the land passed to Queensland free of all previous "rights, interests and claims" and that no compensation was due to anyone for that annexation or prior claims. However, in 1988 in Mabo and Others v. The State of Queensland (Mabo No. 1), the High Court struck down the law as it violated the Racial Discrimination Act 1975 and infringed on the civil rights of Indigenous peoples.
That decision cleared the path for Mabo v. Queensland (Mabo No. 2), on which the High Court ruled on 3 June 1992. The majority ruled 6–1 that that the Meriam people's longstanding and ongoing occupation and small-scale cultivation demonstrated a strong claim to the islands in question. The justices concluded that the islands were not Crown lands but rather belonged to the Meriam, who remained subject to the sovereignty of Queensland and the Commonwealth. It did maintain that the Crown, or Queensland, could legally extinguish the Meriam title, as the Crown holds "radical title" to all the land. Most significantly, the ruling recognised native title under Australian common law, declaring that pre-existing Indigenous land rights precluded the application of terra nullius. Further, the ruling established the criteria for native title as the character of the relationship between Indigenous groups and the land in question.
Native Title Act
The Mabo ruling was a boon to Indigenous peoples, but also complicated a murky issue. In response the Parliament of Australia enacted the Native Title Act 1993, which in turn established the National Native Title Tribunal to help arbitrate Indigenous claims applications, mediate disputes and negotiate Indigenous land use agreements. This law was further modified in 1996 following the monumental Wik Peoples v. Queensland decision, which found that the native title of Indigenous groups could co-exist with pastoral leases. However, where conflicts between leaseholders and native titleholders arise, the law favours the leaseholders.
According to Reconciliation Australia, within twenty years of the Native Title Act, over a million square kilometres of land had been recognised as subject to native title.
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K. P.Dawes, MA