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

native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.
The Native Title Act 1993 (Cth) outlines the application of Native Title.
Introduction
There has been significant debate since 1770, from the time when James Cook stood on, what is now known as, Australian Soil and titled it Terra Nullius. Terra Nullius, Latin for ‘land belonging to no-one’. Australia was deemed this, as Cook deemed that the land in which he had found was not settled and the way in which the Aboriginal people lived was not the sufficient to the English. It is said that the land was taken with force when the Aboriginal people attempted to protect the land they had. When the English took over Terra Australis, as it was later titled, they brought their laws with them and made Australia a colony. The question is whether Australia was settled or taken by conquest. Conquest is defined as being ‘The subjugation and assumption of control of a place or people by military force’. Cook brought no army with him and did not intend on taking land with force. However, it is later known that when Cook landed on Australian soil the indigenous people who were already here fought back against Cook and this caused Cook to use force.
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Mabo v The Queen 1992
The Mabo case

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Conclusion

In 1770, Lieutenant James Cook claimed ownership of the east coast of Australia on behalf of Great Britain.

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

lands.

In February 1986, the Meriam challenged the legislation and in December 1988 the High Court ruled in the Mabo No. 1 case that the Act contravened the Commonwealth Racial Discrimination Act 1975. This enabled the High Court to begin hearing Mabo No. 2, the Meriam’s land rights case.
On 3 June 1992, six of the seven judges agreed that the Meriam held traditional ownership of the lands of Mer. The decision led to the passing of the Native Title Act 1993, providing the framework for all Australian Indigenous people to make claims of native title.
By that time, three of the five plaintiffs – Eddie Mabo, Sam Passi and Celuia Mapo Salee – had died.

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60. An Issue of Continuing Relevance. One way, it has been argued, in which a degree of recognition of Aboriginal customary laws may be achieved is through the application — or reapplication — of common law rules for the recognition of custom. The argument usually centres on the question whether it is correct to classify Australia as a settled colony, but it can also be put in terms of claims to customary or usufructuary rights or to the recognition of =local custom‘. On whatever basis, it can be argued that Aboriginal custom has, either generally or in specific contexts such as customary land claims, a legitimate claim to recognition in Australian law.295 (See eg B Hocking, ‗Does Aboriginal Law Now Run in Australia? ‘ (1979) 10 Fed L Rev 161; B Hocking, ‗Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian courts‘, in E Olbrei, Black Australians: The Prospects for Change, Students Union, James Cook University, Townsville, 1982, 207; G McIntyre, ‗Aboriginal Land Rights — a Definition at Common Law‘, id, 222. See further para 67, 900-4.)
The common law‘s approach to the process of settlement, and to the Aboriginal inhabitants of Australia, remains the subject of considerable debate.

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

MHR:
“We must not dwell on the past, but at the same time we have to be prepared to face up to the past and what has happened in order to apply effective solutions to the future. We have to face the fact that Australia as a country was conquered, not settled. If you take the view that Australia was settled, then you see it as a colony which was uninhabited and had no system of law. But in the Gove case, although the plaintiffs were unsuccessful, Mr Justice Blackburn did hold that Aboriginal customary law was recognizably a system of law.”297 (Australian Law Reform Commission — Australian Institute of Aboriginal Studies Report of a Working Seminar on the Aboriginal Customary Law Reference Sydney, 1983, 2.)
On the other hand, the view that Australia was conquered, has been challenged as equally inconsistent with the facts.298 This Chapter examines the two distinct ways in which the common law might recognise Aboriginal customary laws. These are, first, through the recognition of customary rights or titles, and, secondly, through reclassification of Australia as a conquered colony. These will be dealt with in turn.