The Mabo Case

The Mabo case decision is the primary source document for this FactCheck.

In 1788, England sought to establish itself as sovereign – or the governing body – over Australian territory.

There are a number of ways to become sovereign under international law. In considering what happened in Australia in 1788, Justice Brennan – who wrote the leading judgment in Mabo – focused on the three most relevant. They were: conquest – the acquisition of a territory by force, cession – an existing state transfers sovereignty over its territory to another state, or occupation – taking possession of a territory not under the control of an existing sovereign.

Mabo Case

Native Title Act

Objects of the Act:

(a) to provide for the recognition and protection of

This claim was based on the concept of terra nullius, or land belonging to no one, whereby Britain assumed that Australia was not settled, and Aboriginal people did not have any form of political organisation and therefore had no authority to sign treaties. According to British law, Australia’s Indigenous population had no legitimate claim to the land on which they had lived for thousands of years and this relates to Native Title.

In May 1982, a group of Meriam from the Eastern Torres Strait including David Passi, Sam Passi, Celuia Mapo Salee and James Rice, led by Eddie Koiki Mabo, lodged a case with the High Court of Australia for legal ownership of the island.

Over a period of 10 years, 33 Meriam people, including the plaintiffs, generated 4000 pages of transcripts of evidence. The evidence presented included proof that the eight clans of Mer (Murray Island) have occupied clearly defined territories on the island for hundreds of years, and proved the continuity of custom on Mer.

The High Court resolved that the Supreme Court of Queensland should determine the parameters of the case. While this decision was underway, the Queensland Parliament passed the Torres Strait Islands Coastal Islands Act 1985, which ‘extinguished without compensation’ any Torres Strait Islander claims to their traditional

This has involved, among other things, a re-examination of the methods by which British sovereignty was acquired over Australia, and of the appropriateness of the classification of Australia as a settled colony which was an integral part of that process. Thus, it is said, it is necessary to recognise that Australia as a country was conquered, not settled. To take the view that Australia was settled is, on this view, to continue the =convenient fiction ‘296 (Coe v Commonwealth of Australia (1979) 24 ALR 118, 137 (Murphy J).) that on settlement it was uninhabited in the sense of having neither civilised inhabitants nor settled laws. In the words of the Minister for Aboriginal Affairs, the Hon Clyde Holding