Mabo V. Queensland Case Summary

Decisions

Mabo V. Queensland (No.1) [1998]

Mabo and others V Queensland (No.2) [1992]

Legislation: Native Title Act 1993 (NTA)

1998 Eddie Kioki Mabo along with 5 other Meriam people began their legal journey to claim ownership of the island of Mer located in the Torres Strait islands. The Supreme Court of Queensland was required by the High Court of Australia to determine the facts of the case but while the case was held at the Queensland Court the act “Any rights that Torres Strait Islander had to land after the claim of sovereignty in 1879 is herby extinguished without compensation” was passed by the state Parliament. The case was then put on hands of the high court of Australia, it was decided the case Mabo No.1 was invalid due

to the reason it was in conflict with the Commonwealth Racial discrimination act 1975 , that prohibits discrimination based on race in relation to the holding property.

After 10 years of the case 3rd June 1992 Mabo No.2 was decided.

It was agreed by 6 judges of the high court (Dawson J. dissenting) that the Meriam people have traditional ownership of the Mer and British Control would not disregard their title, “the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray islands” and agreed “that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour

considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.” Mason C.j and McHUGH J. 1992.

When the case was decided in favor of Mabo unfortunately by then Eddie Mabo has passed away along with one of the 5 other Meriam people by the name of Celuia Mapo Salee.
After the high court decision in Mabo.2 the Native Title Act 1993 was passed which enabled indigenous across the country to claim traditional ownership right. The Native title bill protects and acknowledges Native Title (Unless with the accordance of the bill Native Title cannot be extinguished). It Validate titles to existing land and recognises a set of rights and interests over land or waters where Aboriginal and Torres Strait Islander groups have practiced and continue to practice, traditional laws and customs prior to sovereignty (British occupation).
They can also be thought of as a bundle of sticks, each stick representing specific native title rights, such as the right to live and camp in the area, conduct ceremonies, hunt and fish, collect food, build shelters and visit places of cultural importance. Selling or leasing of the land, reduces the size of the bundle of sticks until sometimes nothing is left.

Since 1993 there have been many amendments and reforms to the NTA from 1998 with introduction of the Howard Government’s controversial 10 points plan to the most recent in 2014 review of the role and functions of native title representative bodies and native title service provider.

Although the Mabo judgment was a stepping stone to achieving justice in Australia, It did not bestow any privileges on indigenous as some may believe but on the contrary Australian indigenous are still at disadvantage in comparison to other indigenous in countries such as the New Zealand, U.S.A and Canada.

In fact despite that the Meriam people may have won the Mabo decision, the Meriam people and other indigenous communities have had less control of their lands. They were required to seek state departmental head approval before building any homes or any buildings, since the Mer island along with other communities was under the trusteeship of state (60) as “reserve”. It was not until 2012 the Queensland government passed the reserve title (60) back to the Meriam people but the remaining indigenous communities in Australia still cannot buy/own or sell individual land as the rest of

Australians.

The effect of The Native Title Act 1993 on business and mining industries

Some argue it is difficult to purchase or lease a land on indigenous lands since the land does not belong to one person but rather the whole community including those who have deceased. “How can one purchase and lease a land if the land belongs to a wider whole community and if some members have deceased, how could one a make contract with a community including those who have passed away?” or NTA will have a negative effect the Australia community.

The majority of land that was restored under NTA holds no economic value in fact it is unwanted land that is small in size, very remote, has poor communications infrastructure, lacks commercial land value or poor in soil. Indigenous communities lack property rights in the lands are rich of mineral extraction potentials.

There are a number of Acts that deals with Native Title and mining operation

Conclusion

In conclusion the Mabo decision was a results of The Native Act 1993 which has provided recognition of the first people rights and interest in the land under their traditional laws and custom . Even though there are specific processes required for any future act on land and waters that would affect NTA 1993. Some argue that it will have negative effect on Australian economic and as well as doing business on indigenous land. In fact the restoration of Indigenous ownership of land will have the opposite effect on Australian economic, it is a rather transfer of control from one Australian group to another, not a loss of land as those who believe so. Majority of the land that have been restored to the indigenous communities under the Native Title Act claim are lands that holds no economic value other than for mining and tourism purposes. Such success of indigenous enterprises as the Noonkanbah Pastoral enterprise and management of Uluru and first Australia emu farm shows restoration of land does not just provide indigenous cultural security restoration but also provides indigenous with economic security and independence that is beneficial to all.