Issues

The Mabo Decision

On 3 June 1992 the High Court of Australia brought down its decision in Mabo & Others vs the State of Queensland, a decision which rewrote Australia's law on the impact of colonisation.

The High Court upheld the claim of the Meriam plaintiffs (from Murray Island in the Torres Strait) and in doing so held that Australia was not terra nullius when settled by the British in 1788. The court, in effect, recognised that Australia was occupied by Aboriginal and Torres Strait Islander peoples, with their own laws and customs, whose 'native title' to lands survived the Crown's annexation.

The case was brought by Eddie Mabo and four others in may 1982 in the High Court, seeking confirmation of their traditional land rights. They claimed that Murray (mer) island and surrounding islands and reefs had been continuosly inhabited and exclusively possessed by the Meriam people, who lived in permanent communities with their own social and political organisation. They claimed legal recognition of their continuing rights to enjoyment of land rights and that these had not been validly extinguished by the soveriegn.

The essential findings of the Mabo case are:

• The Court rejected the doctrine that Australia was terra nullius at the time of settlement.
  
  
• The Crown gained radical title to the land of Australia on settlement, but this did not wipe out native title.
  
  
• After settlement, governments could extinguish native title by legislation or by granting interests in land (such as freehold title).
  
  
• In the case of the States, the power to extinguish native title is subject to the overriding Racial Discrimination Act 1975.
  
  
• Subject to this Act, no compensatory damages are payable for extinguished native title.