Indigenous Rights in Australia. Mabo Case

The University of Melbourne

Law School

Law Masters

Student Nº 647313

‘Australian courts had consistently held that any form of native title was extinguished by the sovereignty of the British settlers. What was the basis of that view, and how did the majority in Mabo justify departing from it? Were they correct to do so?’

Although Australia accepted in 1941 the concept of native title for Papua New Guinea (then an external territory of Australia), it was only in 1982 that the High Court admitted the concept of ‘native title’, ‘traditional title’, or ‘indigenous title’ to the whole internal territory. The court further stated that indigenous people held a native title that reflects the entitlements of the indigenous inhabitants in accordance with their laws and customs to their traditional land, which is recognized and protected by the common law. This occurred in the famous case of Mabo & Others v The State of Queensland.

In this essay we will discuss how the High Court of Australia in Mabo & Others v The State of Queensland moved away from the traditional criteria that sovereignty involves a notion of absolute ownership and that any title which could have existed before was extinguished by Crown sovereignty. This decision led to a reinterpretation of the law and an adaptation of the common law according to new trends in political, legal and social philosophy centered around upholding the values of human rights and the lack of race discrimination.

We will start discussing the traditional criteria maintained by Australian Courts related to the rejection of the native titles on land as a consequence of the sovereignty of the British settlers, explaining the legal reasoning behind these positions. Moreover, we will expose some traditional cases involving this subject that reflect the older view, using some extracts of older judgments of Australian Courts as examples.

Then, we will analyze with some detail how the High Court overruled the precedent, rejecting two key propositions which had previously been accepted as correct. The first of these is the view that Australia was terra nullius (uninhabited for legal purposes) when the British settlement arrived in 1788, and the second is the theory that universal and absolute ownership of all lands were vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. In addition, we will express a personal opinion about the criteria sustained by the majority of the High Court.

I. Traditional view about the extinction of native titles by sovereignty of British settlers until 1992

In order to analyse the reasoning used by Australian courts to declare as extinguished all native titles on land until 1992, based on the theory of universal and absolute Crown Ownership, we will start by making reference to the legal theory underpinning the acquisition of sovereignty by the British Crown and its introduction to Australian Common law.

In accordance with the international law of the 18th century that regulated the relations between the nations of Europe, there were three hypothetical forms in which a State could acquire sovereignty on a specific territory. These were conquest, cession and finally, occupation (or settlement) in a territory considered ‘terra nullius’.[1] The importance in distinguishing these different forms of acquired sovereignty lies in the purpose of identifying the law that will be applied after the arrival of the colonisers. In the first two cases the law that governed the land before the new arrival will remain where it was not inconsistent with the new law coming from the treaty ceding the territory, or the laws applied after conquest. In the case of occupation, colonisers bring with them their national law and apply it to the territories newly discovered where there was no pre-existing system of laws in place which they could recognize.[2]

According to the international law that regulated the nations of Europe, a territory was considered ‘terra nullius’ when it was not inhabited. This meant that the occupation took place on wasteland which was previous uninhabited. From this starting point, the doctrine of terra nullius evolved to have a broader meaning, allowing any European Nation to acquired sovereignty under occupation (including annexation of lands) in places where there were native inhabitants, but who were not organized in a complex, hierarchical society and where the land was uncultivated[3]; the supposed logical reasoning here was used to allow European colonizers to take over production from the land if it was being uncultivated by the aborigines. However, it was common knowledge that these criteria were applied very loosely and often did not reflect the reality on the ground. The terra nullius doctrine was routinely applied with disregard to the existence of indigenous societies and the colonizers did not deem it necessary to acknowledge the legitimacy or complexity of these societies in any objective manner. Similarly, European settlers typically considered native populations to lack the capacity to effectively cultivate their lands, in spite of abundant evidence to the contrary, and thus felt justified in claiming their rights to take over those lands under the clauses of the principle of terra nullius.

This was the starting point of the traditional view adopted in the application of the common law by local courts in all British colonies, including Australia. Following the same criteria, Australian Courts established that any right of aborigines that might have existed in the land was not recognized or was extinguished from the colonization by the English Empire. This was the prevailing approach until the case Eddie Mabo v the State of Queensland in 1992, through which a few citizens of the Murray Islands achieved a radical change in the future of Aboriginal land rights throughout the country, thus bringing awareness to the hearts and minds of the judges of the High Court who, under new guidelines of justice and equity widely recognized by the international law of modern times, validated the existence of native titles.

In the long process to native titles recognition, before Eddie Mabo v the State of Queensland[4] case in 1992, Australian courts followed the doctrine