Mabo v Queensland (No 2)

Facts

Eddie Mabo and other Meriam people of the Murray Islands brought proceedings claiming native title over their traditional lands against the State of Queensland. Queensland sought to extinguish any such rights by enacting the Queensland Coast Islands Declaratory Act 1985 (Qld), which purported to retrospectively annex the islands to Queensland free of any native title. The High Court struck down that Act under the Racial Discrimination Act 1975 (Cth) in Mabo v Queensland (No 1) (1988) 166 CLR 186, and the merits of the native title claim were then determined in these proceedings.

Issues

1. Whether the common law of Australia recognised native title to land held by indigenous peoples prior to and following the acquisition of sovereignty by the Crown. 2. Whether the doctrine of terra nullius, treating Australia as legally unoccupied at the time of British settlement, was a correct statement of the common law. 3. The content and conditions of extinguishment of any native title so recognised.

Holding

By a majority of 6:1, the High Court held that the common law of Australia recognises a form of native title where indigenous peoples have maintained a connection with land according to their traditional laws and customs, and that the doctrine of terra nullius did not and does not form part of Australian common law. The Court further held that native title to the Murray Islands had not been extinguished and remained vested in the Meriam people.

Ratio decidendi

Native title is a legal right recognised by the common law of Australia, arising from the prior occupation of land by indigenous peoples in accordance with their own laws and customs; the Crown's acquisition of sovereignty did not extinguish pre-existing rights and interests in land that were maintained under those traditional laws and customs, and such title may be extinguished by valid exercise of sovereign power (including Crown grant of inconsistent rights) but not by mere assertion of radical title alone.

Obiter dicta

Several justices, including Brennan J (with whom Mason CJ and McHugh J agreed), observed that the common law should recognise and protect rights which flow from the prior occupancy and use of land by indigenous peoples, and that courts should not give effect to doctrines which rest on a discriminatory denial of the humanity of the peoples concerned. Deane and Gaudron JJ, in a joint judgment, described the dispossession of Aboriginal peoples as a 'national legacy of unutterable shame'. Toohey J indicated that native title could survive annexation in the absence of clear and plain legislative or executive action to extinguish it.

Significance

Mabo (No 2) fundamentally transformed Australian property law and constitutional history by overturning the fiction of terra nullius and establishing that native title is a recognised interest at common law, providing the foundation for the Native Title Act 1993 (Cth) and all subsequent jurisprudence governing the rights of First Nations peoples to land in Australia.

Key authorities

• Mabo v Queensland (No 1) Mabo v Queensland (No 1) (1988) 166 CLR 186cited
• Calder v Attorney-General of British Columbia Calder v Attorney-General of British Columbia [1973] SCR 313considered
• Amodu Tijani v Secretary, Southern Nigeria Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399applied
• Attorney-General v Brown Attorney-General v Brown (1847) 1 Legge 312distinguished
• Cooper v Stuart Cooper v Stuart (1889) 14 App Cas 286overruled
• Randwick Corporation v Rutledge Randwick Corporation v Rutledge (1959) 102 CLR 54cited
• In re Southern Rhodesia In re Southern Rhodesia [1919] AC 211distinguished