25 Years Since the “Mabo” High Court Decision
It’s been exactly 25 years since the High Court of Australia handed down the most significant decision in the law relating to Native Title. The decision in Mabo v Queensland (No 2) 175 CLR 1 established Native Title rights at a Common Law level and caused widespread controversy at the time.
Eddie Koiki Mabo was born on the Mer (Murray) Island on 29 June 1936. He worked many jobs but significantly, as a gardener at James Cook University on the Townsville campus. It was in this position as a gardener that he met historians Professor Noel Loos and Henry Reynolds who later informed him that the Mer Island did not belong to him.
The Mabo case was heard twice in the High Court as Mabo v Queensland (No 1) heard how the Queensland Government had introduced the Queensland Coast Island Declaratory Act 1985 (Qld) to defeat the Native Title claim. In this case Mabo won and had the legislation declared invalid.
The High Court of Australia subsequently held on a majority of 6:1 (Dawson J dissenting) in Mabo v Queensland (No 2) that there is a Common Law Native Title Right.
The Change of the Law
For the first time in Australia’s history the concept of Terra Nullius, the notion that the land belonged to nobody, was overturned. In a quote from the case, Justice Dawson found at paragraph 30 that the Crown had ‘acquired a radical or ultimate title to the Murray Islands’ but disputed that they had received any ‘beneficial ownership of the land in the Murray Islands when the Crown acquired sovereignty over them.’
This fracturing of the status quo ultimately led to the balancing coexistence of the English Common Law that Australia acquired when the English first landed, with the rights of Indigenous Australians that this decision now brings.
A repercussion of the decision was that in 1993 the Native Title Act 1993 (Cth) passed through the Federal Parliament. This was later challenged in 1995 as the Western Australian Government sought to challenge the validity of the Act by introducing their own Act which did not provide as many protections as the Commonwealth Legislation. Western Australia’s challenge was ultimately dismissed.
Current Day Impacts
Importantly and rightfully so, traditional land owners now become part of the conversation when new developments are being made and new projects are being suggested. The Adani Coal mine proposal is a very recent example of this conversation being had. Out of the four groups of Indigenous Australians being affected by the coal mine, three have agreed to the terms while the fourth group has not. This is an example that while Native Title Rights are not perfect in Australia, without Mabo we would be a long way away from where we should be.
25th Anniversary Celebrations
The Mabo Family has extended an invitation to all of Townsville to an event at Jezzine Barracks and will feature Shane Howard (Goanna), The John Butler Trio, Rochelle Pitt + Big T, Neil Murray and many others. It looks to be a great event and we will see you all down there.
- Written by: Jaydon Barr, Strategic Lawyers