Mabo v Queensland (No 2)
| Mabo v Queensland (No 2) | |
|---|---|
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| Court | High Court of Australia |
| Full case name | Mabo and Others v Queensland (No. 2) |
| Decided | 3 June 1992 |
| Citation(s) | (1992) 175 CLR 1, [1992] HCA 23 |
| Case history | |
| Prior action(s) | Mabo v The State of Queensland (1988) |
| Subsequent action(s) | none |
| Case opinions | |
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(6:1) native title exists and is recognised by the common law of Australia (per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ) (7:0) the Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court (7:0) grants of land which are inconsistent with native title extinguish the native title (4:3) no consent or compensation is required at common law in the event that native title is extinguished (per Mason CJ, Brennan, Dawson & McHugh JJ) |
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| Court membership | |
| Judge(s) sitting | Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ |
(6:1) native title exists and is recognised by the common law of Australia (per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ) (7:0) the Crown acquired sovereignty and radical title upon settlement, and that acquisition cannot be questioned in a municipal court
(7:0) grants of land which are inconsistent with native title extinguish the native title
Mabo v Queensland (No 2) (commonly known as Mabo) was a landmark High Court of Australia decision recognising native title in Australia for the first time.
The High Court held that the doctrine of terra nullius, which imported all laws of England to a new land, did not apply in circumstances where there were already inhabitants present – even if those inhabitants had been regarded at the time as "uncivilized". Consequently, the Court held that the rules of reception of English law that applied were not those applicable where the land was barren and unhabited, but rather the rules that applied where an existing people were settled. The result was that existing customary laws which were present at the time of settlement survived the reception of English law to the extent not modified or excluded by subsequent inconsistent laws and acts of the sovereign. Relevantly, that existing law included indigenous land title. As such, any indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia.
In so ruling, the High Court overturned Milirrpum v Nabalco Pty Ltd (1971), a contrary decision of the Supreme Court of the Northern Territory.
The action which brought about the decision had been led by Eddie Mabo, David Passi and James Rice, all from the Meriam people (from the Mer islands (Murray Island as referred to by the commonwealth) in the Torres Strait). They commenced proceedings in the High Court in 1982, in response to the Queensland Amendment Act 1982 establishing a system of making land grants on trust for Aboriginals and Torres Strait Islanders, which the Mer Islanders refused to accept. The plaintiffs were represented by Ron Castan, Bryan Keon-Cohen and Greg McIntyre. It followed a conference at James Cook University called Land Rights and Future Australian Race Relations, organised by the Townsville chapter of the Aboriginal Treaty Committee and co-chaired by Eddie Mabo and Professor Noel Loos. Melbourne barrister Barbara Hocking delivered a paper at that conference entitled "Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian Courts". Hocking argued that a case should be taken to the High Court of Australia in pursuit of the recognition of native title in Australian common law. Specifically, that the High Court be asked to determine whether indigenous Australians had a "just and legal" claim to their lands, to overturn the specious notion of terra nullius (embedded in Australian law since the Privy Council decision in Cooper v Stuart in 1889) and that it was time for the common law to be "put to rights".
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